The U.S. and the international children’s rights crusade: leader or laggard?
Mary Ann Mason
Children’s rights have recently taken a major role in the unfolding drama of international human rights. The horrors of World War II impelled the drafting of The Universal Declaration of Human Rights, adopted by the United Nations in 1948. While not a binding treaty, this important document offered the moral framework for a wave of international covenants and treaties that provide legal protection for a wide variety of political, economic and social rights for adults, mostly under the sheltering umbrella of the United Nations. But its application to children was ambiguous.
More than 40 years later, in 1989, the U.N. General Assembly adopted the U.N. Convention on the Rights of the Child. (1) The most striking consequence of this groundbreaking treaty has been the intense international discourse on children’s rights it has provoked,. As of this writing, all the U.N. member countries have ratified this treaty, with the notable exceptions of Somalia and the United States.
Defining human rights for children was not an easy task for the framers of the Convention, who labored at their task for ten years. Historically, children’s rights, when they were considered at all, focused on protection from abuse and neglect and provision for basic maintenance. In most countries, parents and ultimately the state bore some legally defined obligations to provide protection and provision. Participation rights, where children assert claims to adult liberties, surfaced only recently in conjunction with the human rights movement of the second half of the twentieth century. The Convention on the Rights of the Child was unique in bringing together all three of these rights–protection, provision and participation–into one document.
The overriding principles of the Convention recognize the child as a person, with evolving capacities. The laws of each country must encompass the care, protection and freedoms of the child at each age. A child is recognized as having, at times, interests separate from his or her parents, and in all cases, the “best interests of the child” are the primary consideration. Specific articles articulate protections from employment, sexual and other forms of exploitation including abduction, sale and trafficking (Articles 32, 34, 35 and 36), and, notably, torture, capital punishment and life imprisonment.
The most modern, and the most controversial, tenets of the Convention are the participatory rights granted to children. While not as extensive as those held by adults, the Convention champions a voice for children in a bold new way. Article 12 states:
“Parties shall assure to the child who is capable of forming his or
her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child … the child shall
in particular be provided the opportunity to be heard in any judicial
and administrative proceedings affecting the child …” (2)
The Convention was enthusiastically received; it obtained the required number of ratifications and went into effect faster than any previous human rights treaty. It achieved near universal ratification by 1997, making it the most ratified of all human rights treaties. Immediately, new legislation and treaties focusing on children’s rights sprang up. Every country that signed the treaty was induced to re-evaluate its treatment of children, and the treaty became a powerful tool for child advocates, with UNICEF in the lead. New frontiers include children of migrant workers, children with AIDS, Gypsy children, and indigenous children. The treaty itself has been expanded with Optional Protocols on Children in Armed Conflicts and the sale of children, child prostitution and pornography. (3) From being a shadowy auxiliary in the human rights movement, children’s rights have taken a front seat.
What is the role of the United States in this new and burgeoning children’s rights movement? While it fully participated in the drafting process, it is one of only two nations in the world that has failed to ratify the Convention. The most often heard explanation of why the U.S. has not ratified the treaty is that we already have in place everything the treaty espouses; it would make no practical difference. (4)
In fact, the concept of children’s rights has received little attention in the United States. There is no comprehensive legal scheme to define and legislate children’s rights as there is with race and gender. And there has been an extreme reluctance to engage in any discourse about children’s rights as human rights such as have occurred with other vulnerable populations.
The evolution of children’s rights in American history, such as they are, provides insight into the complex, ambivalent attitudes that Americans hold toward children. The evolution from protection to provision to participation has been fitful, uneven and incomplete. Because of the experience of slavery, the American experience is unique compared with its Western European counterparts. For more than half of America’s history, children’s labor determined their rights, and many of those children were chattels.
For the whole of the colonial period and Early Republic, Americans viewed the child as an economic category whose labor was a valuable asset to his parents or other adults. Children with parents were put to work at an early age often apprenticed to others by age ten. (5) A very large proportion of children, slave children, and young indentured servants were viewed strictly as laborers. Children who came to America as indentured servants without parents were an important part of the colonies’ settlement. More than half of all persons who came to the colonies south of New England were indentured servants, and according to historian Richard B. Morris, most servants were younger than nineteen years old. (6) The average age was between fourteen and sixteen, and the youngest was six. While some came without parents, many others lost their parents through death or abandonment; these were placed into indentured servitude, and children born out of wedlock were routinely separated from their mothers upon weaning and “bound out” to a master.
Slaves were also a major part of the colonial settlement, again, mostly in the southern colonies. By the end of the eighteenth century, about one-fifth of all children born in the colonies were slaves. In some southern states, the majority of children were slaves. (7)
The concept of “children’s rights” was certainly unknown; the only rights mentioned in the law were those of fathers and masters who had complete custody and control over the children in their households. Still, children were granted limited protection by the law, and some obligations for provision were imposed on fathers and masters. These protection and provision “rights” were not universally applied. Children were divided into four classes: natural children, apprentices, illegitimate children, and slaves; each with a different status recognized by descending levels of protection and provision rights which were enforced by colonial courts.
Fathers, while given broad powers over their natural children, were watched by the community, particularly in New England, to assure that they did not overstep the community’s standards for abuse or neglect. If they dealt with their child too harshly they risked punishment or loss of custody of their child. For instance, in Salem, Massachussets, Henry Phelps “… was complained of at the county court at Boston, July 31, 1660 for beating his son John Phelps, and forcing him to work carrying dung and mending a hogshead on the Lord’s day, also for intimacy with his brother’s wife and for entertaining Quakers.” (8) As punishment, his son John Phelps was to be taken away from him and given to his uncle to place him with a religious family as an apprentice. No mention is made of the mother. Fewer examples of court intervention to protect children from fathers are available in the Southern colonies. With its huge population of children, slaves and apprentices, fathers, who often served as masters, appear to have been given more latitude in their treatment of their children.
Fathers also had legal obligations to provide for their natural children. Education, vocational training, and moral development were the fathers’ legal responsibility, according to the statutes. (9) The community sometimes intervened to assure that these obligations were met, particularly in the New England colonies, but largely fathers were left to their own practices.
Apprentices under legal indenture contracts commanded certain protections from their masters, but fewer than natural children, and indeed were entitled to few provisions. Mostly the courts focused on returning run-away apprentices, which they did routinely, punishing the apprentice for the offense, usually by whipping. A master could receive capital punishment for killing his apprentice, but short of that, the consequences of severe discipline were minor, often simply a reprimand. In Salem, for instance, Philip Fowler was accused of abuse of his servant, Richard Park, by hanging him by his heels. The court determined that while any person was justified “in given meet correction to his servant, which the boy deserved … they do not approve of the manner of punishment given in hanging him up by his heels as the butchers do beasts for the laughter, and cautioned said Fowler against such kind of punishment.” (10) Masters with apprentices under their control were obliged to provide maintenance in return for labor; education and moral training were largely at the discretion of the master.
Children born out of wedlock were deemed “filius nullius” or child and heir of no family, bearing no legally recognized relationship with either parent. American law, like English common law, refused to follow the Continental civil code practice of allowing the parents to legitimize their offspring with a subsequent marriage. Blacksone justified this policy by explaining that allowing subsequent legitimization “is plainly a great discouragement to the matrimonial state: to which one main inducement is usually not only the desire of having children, but also of procreating lawful heirs.” (11) Most often these children were indentured to a master for maintenance in return for their labor. In that context they were afford the protections, such as they were, of other indentured servants. Still, even in this category, there were distinctions, and the stigmatization of illegitimacy was recognized. One complaint brought before the orphans court in Maryland alluded to the status hierarchy among child apprentices. In this instance the neighbors complained that William Watt’s orphans were “putt to unreasonable Labour, supposing them to have been bastard Children much orphans that had an Estate left them.” (12)
Finally, slave children experienced a form of property ownership most closely akin to chattel. This meant that short of murder, the master could use, abuse, and sell the child as he could a horse. Slavery was unknown to English common law and therefore much of the law relating to slaves was newly created in America. While it was legally clear that slave children could be sold away from their mothers, there were some moral and economic restraints. For example, when a Kentucky heir objected to the sheriff’s sale of the mother and three-year-old child together, the court responded:
“The mother and child were indeed physically divisible, but morally
they were not so: and the sheriff in selling them together certainly
acted in conformity to the dictates of humanity, and probably in
pursuance of the interest of the owner. If your child had been sold
separately from its mother, it is pretty certain its value would have
been greatly diminished.” (13)
The Civil War proved a watershed for children’s rights, as it did for almost every aspect of American society. The classifications of slavery and, ultimately, indentured servitude were wiped away. Another great advance for children occurred with the transformation of bastardy laws. The common law definition of an illegitimate child as filius nullius, child of no family, gave way to firm legal recognition of the bond between mother and child. By the end of the nineteenth century almost every state had passed legislation declaring that the child was a member of its mother’s family, with a right to inherit from the mother, the same as a natural child. (14) (Recognition that the child was also part of the father’s family did not occur until the next century.)
During the course of the nineteenth century, the colonial view of children as helping hands in a labor-scarce economy slowly gave way to a romantic, emotional view of children with interests of their own. An 1865 indenture contract enforcement suit, in which the mother pleaded with the court to break the indenture and return the child to her, illustrates this dynamic shift. Defying centuries of established indenture law, the court returned the child to the mother, reasoning “The laws of nature have given her an attachment for her infant offspring which no relative will be likely to possess in equal degree”. (15) In the same spirit orphanages were introduced as a more child-centered alternative to “placing out” in caring for children whose parents were dead or unable to care for them.
The “best interests” of the child concept, as it emerged in custody suits between fathers and mothers over the course of the nineteenth century, is the first limited acknowledgement of the child as “a person,” the modern standard asserted by the U.N. Convention on the Rights of the Child. An adjunct of this principle, the “tender years” doctrine, singling out very small children for special consideration, is an early recognition of developmental needs later asserted by the Convention. This modest advance sometimes allowed mothers to obtain custody of their children following divorce, but it also emphasized the individual condition of the child. As one New Jersey court asserted, the general common law rule is that “the father, as head of the family is entitled to custody and control of his legitimate children, but may be denied if he is cruel, corrupt, immoral, etc., or if the child is of tender years, of if the child is female or of sickly constitution.” (16)
At the beginning of the twentieth century a coalition of civic-minded adults popularly known as “child-savers,” fought for a variety of legal reforms designed to protect children and also to provide new services for children, including universal public education. These ground-breaking reforms included child labor laws, which regulated the hours and workplaces where children could labor, compulsory school attendance, and juvenile courts that handled children who were either neglected by their parents or delinquent in their own behavior. Juvenile courts operated on different principles from adult courts; reform rather than punishment was the goal. Supervised probation and indeterminate sentences guided by the progress of the child were the usual means. (17)
With these new initiatives in place, the state took a decisively more active role, in effect serving as the “superparent,” irrevocably reducing parental authority and laying the groundwork for our modern child welfare and educational infrastructure. Still, parents, no longer masters and no longer exclusively fathers, continued to assert their authority over their children, and, as we shall see, have continued to resist recognizing children as persons in their own rights with interests separate from their parents.
It is fair to say that by the early part of the twentieth century children’s rights to basic protection and provision were largely recognized with the state as the enforcer and the provider of important new services, most notably public education. Children were treated equally among themselves, without the legal classifications that had cruelly determined the lives of children in the Colonial and New Republic eras. The concept of the child’s “best interests” had been introduced and a nod given to developmental needs. While much remained, and still remains, to be done to fulfill the promises of protection and provision, the framework was in place.
It is the modern, controversial concept of children’s participatory rights, the right to express their views freely in accordance with their age and maturity, the right to be represented in all judicial and administrative proceedings, and the right to be considered as persons with interests apart from their parents, that has not been fully realized or even fully recognized in the United States.
It was not until the Civil Rights Movement of the 1960s that children gained any participatory rights of their own. In 1965, three Quaker school children were suspended for protesting the Vietnam War in their classroom. In a famous freedom of speech decision, the Supreme Court boldly proclaimed that children “did not leave their constitutional rights at the school house door” (Tinker v. Des Moines, 1969). Yet that same court in the more conservative 1970s allowed censorship of school newspapers, (Hazelwood v. Kuhlmeier 1988). The direction of the court has continued toward limiting student rights. In the new millennium, a new Supreme Court decision gave public school officials much wider authority to test students for drugs, setting the stage for districts to move toward screening everyone who attends school. In Board of Education v. Lindsay Earls (2002), the Supreme Court permitted districts to require random tests of any student who takes part in extracurricular activities such as band, chorus, or academic competition. Previously, the court had upheld mandatory testing of student athletes.
It is in the arena of juvenile justice that courts have most seriously considered participatory rights for children. In 1965, the same year that the Quaker children were protesting the Vietnam War, 15-year-old Gerald Gault allegedly made an anonymous obscene phone call to an elderly neighbor in Des Moines, Iowa. Without the benefit of a lawyer or a trial, Gerald was sentenced to incarceration in a Boys’ Correctional Institution until age 21. The ensuing landmark Supreme Court decision, In Re Gault (1967), later expanded by several subsequent decisions, gave children who were defendants in juvenile court criminal actions nearly all the due process protections that adult defendants receive in the regular criminal courts, including lawyers and the right against self-incrimination. Still lacking are the rights to a speedy trial, bail, or a jury.
On the other hand, a major setback to basic protective rights occurred in the 1990s, as state legislatures, responding to increased juvenile crime, grew eager to throw juveniles into adult courts at ever younger ages, and to apply adult punishments to children. Today, in most states a 14 year old can be tried for murder as an adult, and a 16 year old can be sentenced to execution (Thompson v. Oklahoma, 1988). These actions are clearly contrary to the protection aspects of the United Nations Convention on the Rights of the Child which forbid capital punishment and lifetime imprisonment as a sentence for children. (“Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age.” Article 37).
While the Supreme Court has been willing to recognize some limited participatory rights for children with regard to schools, courts, and other governmental institutions, it has been reluctant to grant children rights that might interfere with those of their parents. Much of this concern has focused on abortion. Soon after Roe v. Wade (1973), the Court conceded that an adult woman’s right to abortion extended to adolescent girls as well, but it also carved out a good deal of room for parents’ rights. The Court decided that individual states could pass parental consent laws. However, with the ambivalence typical of its earlier decisions on children’s rights issues, the Court also held that a girl could bypass her parents by going to a judge. If the judge declared that she was a mature minor, the decision would be hers alone (Bellotti v. Baird II, 1979).
A minor’s consent to abortion is an agonizing issue for parents, and it crosses dangerous battle lines into the still raging abortion wars. States are seriously divided on the issue, and the conflicts continue. There has, however, been some progress on the somewhat less controversial issue of adolescent consent to other sensitive medical procedures, such as the treatment of sexually transmitted diseases and drug and alcohol abuse. In many states now, a doctor who cannot give an adolescent an aspirin without parental consent, can treat the minor for a venereal disease. (18) On the other hand, in sharp contrast to the adult protections provided children who face possible criminal incarceration, the Supreme Court has ruled in J.R. v. Parham (1972) that parents retain the right to commit their minor child to a mental health facility upon the recommendation of a physician, with no judicial review. A child “volunteered” by his parents need not be a “danger to self or others”–the adult standard for commitment–but only deemed in need of medical treatment.
In the practice of family law in the U.S., the standard advocated by the U.N. Convention–the “child’s best interest”–is the courts’ official standard in determining child custody between biological parents, but in practice the child is rarely granted a representative in judicial proceedings where custody is determined (contrary to the representation provision of Article 12) and the preference of an adolescent child is only one consideration in a long list of factors to be considered in most states. The voice of the child is often absent from proceedings that determine his or her home.
Why has the United States not signed the new global treaty, and would it make any difference if it did?
In addition to the usual reasons offered for not signing–we already have these rights in place, such treaties cannot be enforced domestically, etc.–the history of our treatment of children as briefly described here reveals a relatively young country in which, for half of its history, a large percentage of children were slaves and indentured servants, controlled by their masters, and all children were firmly under the control of their fathers. All but the most privileged served as workers. This history is in direct contrast to the modern continental European countries, our usual comparison group, where there were no slaves. While today children provide little labor, the laws and the attitudes of the country still reflect strong parental authority, severe punishment for children out of control, and a firm reluctance to consider children’s rights aside from their parents. In addition to the abortion battles waged before the Supreme Court, state governments routinely defeat the initiatives of child advocates who attempt to legislatively limit a parents’ right to corporal punishment.
The recent history of Europe suggests that the ratification of the U.N. Convention on the Rights of the Child does have an effect on internal laws and customs, and it can provide a platform for a transformative discourse on children’s rights. In conjunction with the U.N. Convention on the Rights of the Child, the United Kingdom introduced The Children Act of 1989 which gave British children a legal voice in all judicial and administrative actions. It also gave them the right to bring an action on their own, rather than through a parent or guardian. (19) The United Kingdom and other European countries, all signatories to the treaty, have participated in “anti-spanking” campaigns to eliminate corporal punishment as discipline both in homes and in schools. A nascent “child participation” movement has also begun which encourages children’s participation in their own social environment, including the curriculum of schools and the design of the playground. (20)
Ratification of the Convention in the U.S. would indeed provide an opportunity to focus on children’s rights as we have on the civil rights of other groups, investigating the delicate balance between protection and participation, particularly during the adolescent years, and considering children as a persons with clear interests and individual voices. It would be a significant extension of a major element in the relationship between globalization and childhood.
1. Cynthia Cohen, “United Nations Convention on the Rights of the Child: Developing International Norms to Create a New World for Children,” in Children as Equals, Kathleen Alaimo and Brian Klug, eds. (New York, 2002), p. 49-69.
2. United Nations Convention on the Rights of the Child (1989), Article 12.
3. Cohen, pp. 49-49
4. Roger J. R. Levesque, “Child Advocacy in the United States and the Power of International Human Rights Law,” in Children as Equals, p.183.
5. Mary Ann Mason, From Father’s Property to Children’s Rights: The History of Child Custody in the United States, pp. 1-47.
6. Richard B. Morris, Government and Labor in Early America (New York, 1946), p. 391.
7. Mason, p.39.
8. Records and Files of the Quarterly Courts of Essex County, Massachusetts, 2:262.
9. See, for example, Mass. Records (1853), 2:8-9.
10. Records of Essex County (1921), 8:302-303.
11. Blackstone, Commentaries on the Law of England, 1:454-60.
12. As quoted in Lois G. Carr, “The Development of the Maryland Orphans’ Court, 1654-1715,” in R. Land, L. Carr and J. Papenfuse, eds. Law, Society, and Politics in Early Maryland (Baltimore, 1977), p. 49.
13. Lawrence v. Speed, 2 Bibb 401 (1811), in Robert Bremner, Children and Youth in America, 4 vols. (Cambridge, 1970), 1:332.
14. Mason, From Father’s Property to Children’s Rights, p. 68.
15. People v. Gates, 57 Barb. 296, quoting People v. Mercein, 3 Hill 399 (N.Y.1842).
16. Stigall v. Stigall, N.J. Law 286, 288(1847).
17. Kathleen Alaimo, “Historical Roots of Children’s Rights in Europe and the United States,” in Children as Equals, p. 16.
18. See, for example, California Sensitive Services Act, Ca. Civil Code.
19. See Christina Lyon and Nigel Parker, “Children’s rights and the Children Act of 1989,” in Franklin, ed. Handbook of Children’s Rights.
20. Cohen, p. 65.
By Mary Ann Mason
University of California, Berkeley
School of Social Welfare and Graduate Division, Dean’s Office
Berkeley, CA 94720-9500
COPYRIGHT 2005 Journal of Social History
COPYRIGHT 2005 Gale Group