Dictionary / Encyclopedia Article
Reference
Children's Rights
HANSON, Karl
Abstract
After explaining the emergence of the children's rights concept, this entry presents the field of children's rights studies, an interdisciplinary study field located at the intersection of childhood studies and human rights studies. It then discusses four key themes on which opinions related to childhood, children and their rights diverge and that are central for understanding the extant diversity of approaches towards children's rights. These divergent opinions are presented next in the form of four schools of thought in children's rights. The conclusion hints at the field's possible future developments.
HANSON, Karl. Children's Rights. In: Daniel Thomas Cook. The SAGE Encyclopedia of Children and Childhood Studies. London : SAGE, 2020. p. 488-494
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Children’s Rights Karl Hanson
Manuscript, published in: Cook, Daniel Thomas (Ed.) (2020) The SAGE Encyclopedia of Children and Childhood Studies
https://sk.sagepub.com/reference/the-sage-encyclopedia-of-children-and-childhood- studies/i5964.xml
After explaining the emergence of the children’s rights concept, this entry presents the field of children’s rights studies, an interdisciplinary study field located at the intersection of childhood studies and human rights studies. It then discusses four key themes on which opinions related to childhood, children and their rights diverge and that are central for understanding the extant
diversity of approaches towards children’s rights. These divergent opinions are presented next in the form of four schools of thought in children’s rights. The conclusion hints at the field’s possible future developments.
The emergence of children’s rights
Children’s rights came into being as the result of a series of social and political processes that had started at the beginning of the 20th century. At the end of the nineteenth century, in the context of uncontrolled industrialization and its dire consequences for the living conditions of poor working- class children, the then emerging idea of children’s rights was limited to child protection. The child saving movements of that time considered it their moral duty to alleviate the plight of vulnerable children who they saw as passive victims and mere objects of intervention. With the advent and development of the welfare state, especially after the Second World War, children’s rights became increasingly framed within social welfare discourse. In addition to protection against all forms of violence and exploitation, children’s rights now also included the right to special provisions, such as education, health care, family support or social welfare services. During the 1970s, in step with other civil rights and antiauthoritarian emancipation movements, the exclusive attention to children’s protection and welfare rights was challenged and complemented by claims for children’s autonomy, including their right to freedom of speech, freedom of assembly and due process guarantees in judicial proceedings. The protectionist, welfarist, and autonomy approaches to children’s rights converged in the 1989 United Nations Convention on the Rights of the Child (CRC), a legally binding international instrument that has been ratified by all UN member states, except for the United States.
Even if the idea that children have rights has met with some resistance, since the elaboration, adoption and implementation of the CRC, in many parts of the world children’s rights have become part of mainstream policies and legal frameworks in relation to childhood and youth. Across all regions and in a considerable number of States, the CRC has set in motion a process which promoted national legal and institutional reforms aiming to advance the cause of children’s rights. With this, an increasing number of professionals must deal with the CRC and with other international and national legislative documents on children’s rights. The expansion of the children’s rights field over the last 40 years has given rise to a proliferation of views on the meaning and content of children’s rights. Even if more and more people agree about the importance of recognizing children’s rights, there is not
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necessarily a consensus on the precise meaning and content of the concept. The well-known aphorism by Hillary Rodham, which was published in 1973, that ‘The phrase “children's rights” is a slogan in search of definition’, seems to have lost nothing of its relevance.
Children’s rights studies
Early writings in the field of children’s rights focused particularly on philosophical and moral arguments in favor of or against children’s rights. Those arguing for the recognition of children’s rights also asked what kind of rights children ought to have and looked at the relative importance of these rights. This work aimed at fleshing out moral and political arguments why children should or should not have certain rights, rather than investigating the social consequences of children’s rights.
Another strand of research came from the legal field and explored the context in which the CRC came into being, the vast thematic and geographical areas in which it is to be applied, the newly established national and international monitoring mechanisms and the available implementation strategies. In parallel with the growing attention for children's rights, within sociology a distinctive field of studies has developed that was initially termed the ‘new social studies of childhood’ but is now more commonly called the ‘sociology of childhood’ or ‘childhood studies’. This field applies general social science frameworks to children and childhood and investigates the social reality in which children’s rights operate and are enforced (or not). Childhood studies critically engage with major sociological themes, such as the tension between agency and structure, the question of the multiplicity and diversity of childhoods or propose to include ‘generation’ as a separate distinctive category, besides class, gender and ethnicity. During the same period the broader field of human rights, of which children’s rights form part, has been investigated by social science approaches which has led to more empirically based and self-reflexive research on human rights. This research on human rights looks at the environments in which rights discourses and policies are being produced, how these are translated into social practices, and what the social consequences are of human rights standards and implementation procedures.
At the cross-roads of childhood studies and social science approaches to the study of human rights lies the field of children’s rights studies, which is a straightforward interdisciplinary undertaking. The interdisciplinary perspective not only invigorates creative thinking but also approaches children’s rights from a variety of disciplines such as law, philosophy, sociology, psychology, anthropology or geography, to name just a few, with the aim to integrate knowledge stemming from each disciple as well as to find a synthesis between, across and beyond scientific disciplines and paradigms. It is a comparatively small but recognized field of study, as demonstrated by the rising number of publications, research activities and researchers involved. It continues to include research that is concerned with the instrumental dimension of children’s rights such as advancing the
implementation of the CRC on the local, national, regional and global political levels or that looks at how children’s rights principles are transposed to particular legal fields, such as family law or juvenile justice procedures as well as to social domains that play important roles in children’s lives, such as education, health or media. However, in parallel with these approaches that largely endorse the existing children’s rights framework, also self-reflective approaches to children’s rights have emerged that critically engage with the contexts in which children’s rights are produced and applied and that concentrate on understanding, analyzing and explaining children’s rights practices. The study of children’s rights is hence no longer confined to the mere legal or philosophical study of what
children’s rights are or ought to be but has integrated broader interdisciplinary perspectives that also examine the consequences of children’s rights in practice and the contexts in which they are applied.
Children’s rights studies can hence be defined as an interdisciplinary field of studies that critically
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investigates the theoretical, empirical and normative dimensions of the content, origins and consequences of global, national and local norms, practices and discourses in the field of children’s rights, emphasizing children’s agency, social justice and human dignity.
Divergent notions on children, childhood and children’s rights
Children’s rights are a moral sensitive domain that must deal with strong and competing normative and ideological positions. Therefore, a consensus on the extent, priorities or even precise content of children's rights is often far away. To better understand the diversity of standpoints in children’s rights we can discern four themes or key issues that are at the core of most discussions. These themes are the childhood image, the debate on competence, the rights of children and the difference dilemma.
Childhood image – Amongst the many ways of conceiving children and childhood, an important distinction is whether children principally represent the future (becoming) or the present (being).
Especially since the Enlightenment period and its emphasis on the future enlightened society, children have been considered by and at large as citizens in the making rather than as fully-fledged citizens in the here and now. The view of children as becoming sees them as persons who lack the features that characterize adults, for instance reason or physical independence. Childhood is
conceived as a preparatory stage on the way to a terminus called adulthood. Children’s master status is that of ‘not-yet’: not-yet knowing, not-yet able, not-yet being. Childhood studies have contributed to deconstructing this dominant image of the child as merely ‘becoming’ a future adult, which has been for a long time children's almost exclusive social position. Children’s rights and childhood studies have criticized the overreliance on developmental psychology and socialization theories and the almost exclusive focus on the adults that children will become without paying attention to children’s important actual social contributions. Examining children’s activities and contributions to their own lives and to the social world around them in the here and now, childhood studies privilege the study of the ‘being’ child of the present over the ‘becoming’ child of the future. This distinction between the ‘being’ and the ‘becoming’ child is a key analytical devise for looking at the interplay between children’s present and future well-being that informs much current policy and research related to children and childhood.
The debate on competence – Discussion also exist about what children know and what they are capable of. Are children physically, intellectually, socially and emotionally sufficiently mature, do they have enough experience to make well-founded decisions? Or are children insufficiently developed to make rational judgments on what is and is not in their interest? These questions are part of the debate on children’s competence that consists of at least three dimensions. First, there is a practical or empirical dimension that deals with how children’s competence should be assessed based on empirical findings and arguments. Findings from research on children’s cognitive development are invoked to argue about children’s competence or incompetence on a specific age. The central figure for this research is Jean Piaget, who distinguishes between the succession of stages in children’s intellectual development based on their gradual acquisition of intellectual skills. These stages are ordered temporally and arranged hierarchically on a continuum from infantile figurative thought to adult operative intelligence. These development stages are context-dependent, whereby children may be far more advanced for certain decision-making tasks than for others. Children’s competency indeed not only deals with a person’s cognitive abilities but also largely depends from contextual and interpersonal factors, including the commitment, training and mandate of the person assigned to assess children’s competence or incompetence. Other important contextual factors include children’s
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experience, their degree of power over the circumstances as well as their emotional autonomy in a given situation. Second, debates on competence include elements that refer to the values and interests at stake. Many legal arrangements or individual decisions concerning children prescribe the use of age limitations and/or competence tests to allow or prohibit children accessing certain goods or services, for instance buying alcohol or cigarettes, casting a vote, obtaining a drivers’ license or being recognized as a reliable witness in court. Even if many of these age limitations refer to the practical or empirical dimension of children’s competence, they are not necessarily based on
empirical data but instead are informed by underlying social interests and ideological preferences. A third dimension in debates on competence is a strategic one and is about the burden of proof. Do children have to demonstrate their competency or their incompetency? What is, in other words, the default position? Are children presumed incompetent unless it is shown that they are sufficiently competent? Or does the burden of proof need to be shifted whereby children are presumed competent unless there is proof that they are not? In debates over children’s competence, the empirical, ideological and strategic dimensions intersect, making it often difficult to assess the quality of the arguments. However, by analytically separating these dimensions, discussions over children’s competence or incompetence in particular fields can be more easily understood.
Rights of children – An important point deals with the rights that children have or ought to have.
Children’s rights generally involve a double claim and comprise both children’s ‘equal rights’ as well as their ‘special rights’. Children’s equal rights reaffirm children as full members of the human family and assert that children have the same rights to the protection of their fundamental human rights without discrimination based on age. Children’s special rights acknowledge children’s developing capacity as well as their vulnerability and hence encompass additional, special rights for children. The CRC that contains civil and political rights as well as economic, social and cultural rights recognizes children’s general human rights and their special rights. Its content can be summarized by the so- called ‘three Ps’ that refer to children’s protection rights (e.g., against violence or exploitation), provision rights (e.g., education or health care provisions), and participation rights (e.g., freedom of expression or the right to information).
Dilemma of difference – A final theme that cuts across the previous ones deals with resemblances and differences between children and adults. Children are both different from and equal to adults.
The question is: which differences between adults and children are in what cases relevant?
Analogous to debates about women’s legal rights, children’s rights can be claimed to highlight children’s similarity to adults – emphasizing equal rights – or can be brought up to stress children’s differences – focusing on children’s special rights. Questions on the relative equality and difference between children and adults must be contextualized and consider differences that make a difference.
The difference dilemma then is whether, on the one hand, children or those who defend them, should choose rights similar to the rights of adults (equal rights), with the risk that these equal rights are not adjusted to children, and risks insufficiently taking into account children’s specificity. Or if, on the other hand, they should defend special rights, based on children’s particularity, while running the risk that these special (and different) rights may lead to new forms of discrimination. As for all dilemmas, it is difficult to give a final answer to the question which differences and resemblances between children and adults are relevant and which aren’t. So rather than making general abstractions to resolve the difference dilemma, an assessment of concrete contexts dealing with children's equal rights or special rights is required.
Schools of thought in children’s rights
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The childhood image, the debate on competence, the rights of children and the difference dilemma all leave room for a broad range of approaches to children and their rights. To further map and explore different positions taken in the field of children’s rights we can make a distinction between four ‘schools of thought’ in children’s rights – Paternalism, Welfare, Emancipation and Liberation – according to the positions taken on each of these themes.
Table 1. Schools of thought in children’s rights
Paternalism Welfare Emancipation Liberation
Childhood
image Becoming Becoming and
being
Being and
becoming Being
Competence Incompetent Incompetent,
unless Competent, unless Competent
Rights of
children Protection rights
Protection rights Provision rights Participation rights
Participation rights Provision rights Protection rights
Participation rights
Difference
dilemma Special rights Special rights – equal rights
Equal rights –
special rights Equal rights
Paternalism – A paternalist position considers children as dependent, future citizens (becoming) who are generally incompetent to make rational decisions. Their rights are limited to the right to be protected, be it by their parents, the State, or professional/voluntary benefactors, who can rely on legal arrangements, institutions and welfare organizations to treat children in a paternalist way. In the paternalist view, control over children has been justified by the need to protect children from themselves and others; children are considered lacking by their very nature an adequate conception of their own present and future interests. Because what children are, can and deserve is considered essentially different from adults, Paternalism does not have to deal with the dilemma of difference:
in the paternalist view, children only need special treatment and have special, different rights which are intended to preserve their future well-being. What is in the best interests of children is
completely decided by caring and loving adults who offer their help and exercise their authority over children. Paternalism has longstanding historical roots, both in philosophy and in activism on behalf of children and youth. Illustrative for paternalist approaches towards children are the social and political reform movements from the late nineteenth century and the first decades of the twentieth century, such as the child-saving movement that lay at the basis of the creation in the US and in Europe of separate child protection and juvenile justice systems.
Liberation – At the reverse side from Paternalism is Liberation (or anti-paternalism) that takes the exact opposite stance on all themes discussed. Liberation considers children as independent actual citizens (being) who are competent to make well-founded, rational decisions. They have the right to autonomy and to full participation in society, the same way as adults. Child liberationists consider the liberation of children as part of a broader movement for the emancipation of society. The starting point is the claim for autonomy of children and the importance of their right to self-determination.
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Liberation strives for the recognition of children’s equality rather than their differences with adults.
In this view, children are, can and deserve exactly what adults are, can and deserve. Only children’s equal rights need to be recognized so there is need to consider the dilemma of difference and to balance children’s general and special rights. The liberationist approach to children’s rights was at the core of social movements in the US in the 1970s who argued that the separation of the worlds of children and adults is a form of discrimination that is oppressive and unjustified. Children should be entitled, according to the movement’s proponents, to the same rights and privileges of adults.
Welfare – The childhood image defended by the Welfare school of thought is more nuanced compared to both previous positions as children are considered both becoming and being. In the debate on competence, Welfare considers children mainly as incompetent, but accepts that proof can be given of the contrary; from a welfare perspective, the burden of proof lies on those who argue in favor of recognizing children’s competence. In line with its embracing of the CRC, the welfare approach to children’s rights acknowledges the three series of rights stressing, in order of
importance, children’s protection rights, provision rights and participation rights. To determine their position in the difference dilemma, the welfare approach, albeit to a certain extent acknowledging children’s equal rights, starts from children’s particularities and mainly defends children’s special rights. The welfare approach to children’s rights is dominant in the child protection and child welfare sector, in national politics but also in international development cooperation. The approach to children’s rights adopted by UNICEF, the United Nations’ leading organization for providing humanitarian and developmental assistance to children in developing countries, is emblematic for the Welfare school of thought in children’s rights. Even if UNICEF is guided by the CRC and embraces the full range of protection, provision and participation rights, the organization’s main focus are children’s survival and protection rights.
Emancipation – Also the Emancipation school of thought considers children both being and
becoming, however in the reverse order compared to the Welfare school of thought. Regarding the competence debate, Emancipation shifts the burden of proof to those who would deny children the exercise of their own rights; children are considered competent, unless it can be shown that they are not. In listing the importance of rights, the Emancipation school of thought opens with children’s participation rights and then acknowledges the importance of rights to provision and to protection.
Confronted with the difference dilemma, Emancipation starts its analysis from children’s equal rights, however also acknowledging children’s special rights that in some instances, depending on the outcome of the assessment, might have stronger emancipatory effects. Working children’s
organizations that have emerged in various regions of the world since the beginning of the nineties provide an example of an emancipation approach towards children’s rights. Working children’s organizations want to participate in discussions on child labor and want that their right to work in dignity is recognized. The organizations consider children as competent beings whose general human rights should be acknowledged, including their right to work in dignity, but without jeopardizing their right to education that is important for their future life chances.
The organization of divergent views and opinions on children’s rights in four schools of thought aims to facilitate a better understanding of the diversity of the children’s rights field. However, the boundaries between the different schools are not always clear-cut and in practice people rarely adhere to fixed positions. The four schools of thought should therefore be considered as ideal-typical stances that do not wish to impose particular views but are second-level constructs that serve to map out similarities and differences in children’s rights.
7 Conclusion
Children’s rights have become a mainstream advocacy tool in a vast array of fields that are directly and indirectly related to children’s lives. Various interest groups formulate their claims within the existing framework of human rights, using the CRC as well as other provisions from general human rights treaties to sustain their demands. The growing consensus on the strategic importance of the recognition of children’s rights as human rights does not however solve disparities between different approaches towards children’s rights. What children are, what they can and what they deserve, as well as which differences between adults and children are relevant, continue to fuel debates amongst children’s rights proponents. The four schools of thought in children’s rights provide a heuristic framework that can help situate the opinions defended in these debates.
Given the expansion of children’s rights, further disputes in addition to the ones mapped out here are likely to arise. The vast impact of globalization on children’s lives, the increasing economic inequalities amongst and within countries, the lopsided burden of climate change and the enduring moralization of public discourse on children and childhood all contribute to the rise of new
controversies in the field of children’s rights. These include tensions between bottom-up and top- down approaches to children’s rights; struggles involving future-oriented perspectives on children’s rights from a human capital lens and claims for recognizing past violations of children’s rights from a postcolonial perspective. Children’s rights provide a framework to discuss controversies such as these but will of course not by itself resolve the matters at stake that are of a normative and hence political nature.
See also: Childhood studies; Children as legal subjects; Children’s rights, historical perspective on ideas of; Developmental psychology; UN Convention on the Rights of the Child; UNICEF; Working children
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