The United States and Somalia stand as the only two nations in the world that refuse to sign the United Nations Convention on the Rights of the Child, a document that lays down the basic rights and moral standing of children. Nor has the U.S. attempted to adopt the comprehensive legislation passed in many countries, such as England’s The Children Act, which focuses on all matters pertaining to children, with the child’s welfare squarely defining all legal actions.
James Dwyer, in his complexly argued book, The Relationship Rights of Children, believes that, while the United States goes far in protecting parents” rights, it is often at the expense of the welfare of children. He does not offer why the United States leans so far in favor of parents (there are complicated historical and cultural reasons for our “difference”), but instead makes a strong case, based on two centuries of philosophical reasoning, for why children deserve the same moral and legal consideration as adults, even when this consideration steps on the rights of adults.
The debate about children’s rights, when it takes place at all in this country, is usually carried on by legal scholars, with the occasional contribution of social scientists who either study child development or who offer measures of children’s economic and psychological well-being. With Dwyer, we are offered extensive arguments from the philosopher giants, John Stuart Mill, Immanuel Kant, John Rawls and others on the value of the moral autonomy of the individual. These philosophers, he admits, focus their arguments on adults, not children. In fact, he notes, John Stuart Mill, in his theory of liberty, specifically states: “[this] is meant to apply only to human beings in the maturity of their faculties.” Not so for Dwyer. He makes a compelling case that the same moral rights apply to children.
“Critically then, each of us competent adults has rights of self-determination because it is generally assumed as a moral matter that our interests matter, and matter equally regardless of our status in society. This empirical assumption certainly applies to children as well, and if we are to respect children as equals, we must extend the moral assumption to them also–that is, that their interests matter as much as do adults’ interests in state decision making.”
But how do children know what their interests are, and if they did, how can they assert them? Children are, of course, dependent upon adults to do so for them. But which adults? Here Dwyer argues forcefully that although the law professes to promote “the best interests of children,” in fact it is far more protective of parental rights, and that these rights are often based on a purely biological claim, not any test of parental ability. Dwyer promotes a view of parents as caretakers, not automatic owners of children. He focuses his criticism on laws creating parental rights at birth, and protecting them in events of abuse and neglect after birth. His solution is to drastically re-formulate the law so that, among other requirements, a birth mother must sign a “Parental Vow” promising love and support within two days after birth in order to become a legal parent, but the state may file a petition within seven days to determine in a court proceeding whether the mother is, in fact, unsuitable for one of many reasons, including age, mental incapacity, past conduct of violence against family members, etc. Fathers achieve legal parenthood only if the birth mother consents and they are married. Fathers not married to the mother can only be deemed legal parents if the mother consents and the father petitions the court, passing all the tests of adequate parenting. Non-biological adults may also petition the court within 30 days and their claim will be determined by the court. Following birth, similar strict tests are applied in cases of abuse or neglect of children, allowing the court to more easily terminate parental rights than is now the case.
His view of children’s rights privileges birth mothers but gives little other advantage to biological ties. Unwed fathers still have an obligation to support but not to access unless they have passed all the above tests. Adults who have acted like parents, or have firm attached relationships to children, like stepfathers, have rights over non-involved biological fathers, and a child may have more than two significant adults in his life. From this perspective, attachment trumps biology and a parent must earn the right to become and to continue as a parent.
This concept of parents as caretakers or trustees rather than the owners of children who have independent rights is much more in keeping with the UN Convention on the Rights of the Child and with most European efforts at establishing a code of children’s rights. Some of its obvious consequences would be a move toward no corporal punishment and ultimately the right of children themselves, as they grow older, to petition to “divorce” their parents–the course taken in Europe.
Grounded in a strong tradition of moral philosophy, this child-centered approach adds valuable support to some American legal scholars and others who have been moving more timidly in this direction, most notably with a new revision of the influential American Law Institutes” treatise on Parent and Child where “de facto” parents (such as stepparents) without biological ties would be given greater access rights.
A limitation of this book is that Dwyer limits himself to the “protective” rights of young children and does not wander into the thornier “choice rights” of maturing adolescents. For instance: does the protective state have the right to insist on drug testing for children before they may join any after-school activity, as the Supreme Court recently ruled? or, are the rights of children served when in one courtroom a 13-year-old who steals a candy bar may be given a lawyer and nearly all the due process rights of a criminal defendant while down the hall a 13-year-old whose physical custody is being determined following divorce may have no voice or representation at all? Perhaps this philosopher will tackle maturing children’s rights in his next book.
Mary Ann Mason
University of California, Berkeley
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