Book Chapter
Reference
The inclusion of 'third parties': The status of parenthood in the Convention on the Rights of the Child
RUGGIERO, Roberta, VOLONAKIS, Diana, HANSON, Karl
RUGGIERO, Roberta, VOLONAKIS, Diana, HANSON, Karl. The inclusion of 'third parties': The status of parenthood in the Convention on the Rights of the Child. In: Brems, E; Vandenhole, W
& Desmet, E. Children's rights law in the global human rights landscape: isolation, inspiration, integration ?. Londres : Routledge, 2017. p. 71-90
Available at:
http://archive-ouverte.unige.ch/unige:150655
Disclaimer: layout of this document may differ from the published version.
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The inclusion of ‘third parties’: The status of
parenthood in the Convention on the Rights of the Child
Roberta Ruggiero, Diana Volonakis and Karl Hanson
This is a pre-published version. Reference of the final published chapter:
Ruggiero, R., Volonakis, D. & Hanson, K. (2017) The inclusion of ‘third parties’: The status of parenthood in the Convention on the Rights of the Child. In E. Brems, W. Vandenhole & E.
Desmet (eds.) Children’s rights law in the global human rights landscape: isolation, inspiration, integration? (pp. 71-90) London: Routledge.
1. Introduction
This chapter analyses the inclusion of parents as ‘third parties’ in the Convention on the Rights of the Child (hereafter CRC) as a particular feature of the CRC compared to general human rights law instruments. While the child is the central figure of the CRC, the Convention also makes repeated reference to ‘third parties’, viz. parents, whose identities and roles are commented upon throughout scattered provisions. The CRC does not include a comprehensive definition of parents and parenthood. In order to fill this conceptual void, the present contribution borrows from David Archard’s work ‘Children: Rights and Childhood’, where
‘biological parenthood’ is defined as the ‘existence of a blood tie between the begetter and the offspring’, and moral parenthood is defined as ‘the giving to a child of continuous care, concern and affection with the purpose of helping to secure the best possible upbringing’1. Following this distinction, the present contribution holds parents to be individuals biologically and/or emotionally linked to the child through the provision of care, concern and affection guided by the best interest of the child. In the framework of this chapter, the figure of the “legal guardian”
(Article 18 CRC) does not fall within the definition of parent, considering the absence of biological and or affective ties of this figure to the child. In addition, “members of the extended
1 D Archard, Children: Rights and Childhood (1st edn, Routledge, 1993) 108-109
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family” (Article 5 CRC) are equally excluded from the present analyses, given that distant family relatedness also falls outside the scope of parenthood. 2
In order to better understand the roles, duties, and responsibilities of parents as developed in the CRC, the contribution will begin with a general legal analysis of the key provisions in relation to parents: Articles 3(2), 5 and 18 of the CRC. Furthermore, this section is followed by a more detailed analysis of the parental role in relation to the child’s right to freedom of religion contained in Article 14 CRC. This provides an interesting case study of the current relevance, benefits and drawbacks of the inclusion of parents as holders of rights, duties and responsibilities in the CRC.
The legal analysis leads to two contrasting perspectives on the relation between children’s rights and the rights, duties and responsibilities of parents. A first perspective explores the dichotomization of children’s rights and parental rights. We will address this dichotomy by reflecting on the emergence of the parental rights movement in the USA, which has sparked intense discussions, particularly among North American legal circles, on the problems linked to the parental rights/children’s rights binary.3 A second perspective is of a conciliatory nature, and points at the possibility of heightened cooperation between family and public sphere stakeholders towards the realization of children’s rights. This perspective will be addressed by questioning the philosophical, legal and social implications, which arise from the designation of parents as “rights holders”, “duty bearers”, and holders of “parental responsibilities”. In addition, we will identify the tensions which the multiple facets integral to the status of parenthood pose, and its impact on distributions of power between the child, the parent, and the State.
To summarize the debates, we will briefly address arguments against -and in favour of- the potential inclusion of parents as well as possible other third parties in global human rights law for other groups. We believe that other branches of international human rights law can find inspiration from the conciliatory perspective within children’s rights law in order to address the rights, duties and responsibilities of third parties.
2 In this chapter, the authors take “third parties” to refer exclusively to parents, and not to business companies, armed groups, service providers, or civil society.
3 D Volonakis, ‘Advocating for human rights treaties in the USA. A comparison between CRC and CRPD advocacy’ (2016) 11(6) Discourse, Journal of Childhood and Adolescence Research 193
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2. Parents in the CRC: Legal analysis of Articles 3(2), 5 and 18 CRC
Of the 16 articles which mention parents in the CRC, three provisions have been selected on the basis of their centrality to understanding the role of parents as third parties in the CRC:
Articles 3(2 and 3), 5, and 18.4 The following paragraphs will submit each of the said articles to legal analyses.
Article 3(2) CRC states:
“States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures”.
The provision bestows upon parents the primary responsibility to ensure the protection and care of the child, both elements thought to be integral to the notion of ‘well-being’. It further asserts that the realization of the child’s well-being is dependent upon the rights and duties of parents, and State obligations. Article 3(2) CRC acts as a ‘backstop provision’5 bestowing on States Parties an overarching obligation to support parents’ primary responsibilities. The State’s empowering role is further highlighted in other CRC provisions, which require State Party intervention in cases of absent, fragile or abusive parents’ inability to perform. This is for example the case in the Articles 5 and 18 CRC which concern parents-child relations in general, as well as in Article 27 concerning adequate standards of living, in Article 20(2) on alternative care and in Article 21 on intercountry-adoption.
Elements contained in Article 3(2), such as “protection”, “care”, “necessity”, “child well- being”, the “rights and duties of parents”, are not defined in the CRC.6 Therefore, State by State interpretation of such central concepts are carried out on the basis of domestic legal systems, which most frequently refer to “parental responsibility” rather than “parental rights”.7 The term
“responsibility” is thought to be preferred since deemed more conciliatory, allowing to
4 See G Kamchedzera, A Commentary on the United Nations Convention on the Rights of the Child, Article 5:
The Child’s Right to Appropriate Direction and Guidance (Brill Nijhoff 2012) 1-5.
5 M Freeman, A Commentary on the United Nations Convention on the Rights of the Child, Article 3: The Best Interests of the Child (Brill Nijhoff 2007) 66-67
6 See Freeman (n6) 67-69
7 Freeman (n6) 69
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conceptualize the family as a network of reciprocal, non-authoritarian relationships, thus guaranteeing due regard for the child’s equal status as rights holder 8.
Parental responsibilities include providing guidance in a manner consistent with the child’s evolving capacities. This is further addressed in Article 5 of the CRC, which reads as follows:
“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention”.
Article 5 stipulates that the responsibilities, rights and duties of parents may also fall upon members of the extended family or community, as well as to persons without blood-ties but fulfilling the criteria of culturally specific forms of guardianship. The CRC therefore appears to have conceptualized parenthood as to include the largest array of potential and interchangeable actors as possible, as to ensure that minors are placed under the constant and continuous guidance, protection and care of an accountable member of society.
Article 5 CRC serves to emphasize that parental prerogatives and obligations grow increasingly limited by the child’s increase in personal autonomy, understanding and decision-making power. This implicit time-limitation imposed on parental prerogatives and obligations constitutes the uniqueness of the provision in relation to other international and regional legal standards. Article 5 states that parents are endowed with the right to provide “appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention”. Parents’ prerogatives are therefore limited and functional, i.e. parents provide oversight over the child’s rights exercise, and factors such as young age or disability may affect parents’ degree of involvement in the assistance provided to the child. External factors may equally influence the scope of parental involvement in the child’s rights exercise: If the wrong incurred to a child requires a legal remedy, procedural complexity well beyond the child’s comprehension may require a heightened degree of parental commitment. Thus it is the child who is the beneficiary of the rights, stricto sensus, contained in the Convention. The parent’s right to oversee the child’s rights exercise is therefore limited and functional, and can be
8 Freeman (n6) 69-71
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interpreted as a supplementary protective framework to ensure that the child’s best interest is safeguarded.
It becomes apparent that nowhere does the Convention explicitly endorse parents’ abilities to exercise a right in the stead of a child. Nevertheless, concrete cases in which such scenarios may unfold are all too common. One may only consider the vast array of parental decisions taken in regards to the daily life of a child, who -due to his/her young age or disability- is excluded from the decision-making process. Such decisions may concern living arrangements, schooling, health, religion, recreation, etc. However, this does not mean, per se, that they are exercising the right in place of the child. Rather, based on the CRC provisions, parents act as representatives of the child, with the child’s best interests in mind.
The final provision of the CRC, which makes general reference to the status of parents, is Article 18 on parental responsibilities for the upbringing and development of the child, which reads as follows:
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from childcare services and facilities for which they are eligible.
Article 18 supplements Articles 3(2) and 5 CRC, directly bestowing on parents the primary responsibility for the rearing and development of the child, further underlining that parental decisions should always be taken with due consideration of the best interests of the child (Article 18(1)). Furthermore, it is complimentary to Article 27(2), which charges parents with the responsibility to secure “the conditions of living necessary for the child’s development”. It also reiterates States Parties’ obligation to provide appropriate assistance to parents in the performance of their child-rearing responsibility (Article 18(2)). The Articles 18(2) and the
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combined reading of Articles 3(2) and 3(3)9 bestow on States Parties the responsibility to render appropriate assistance to parents in the performance of their child-rearing responsibility, namely through the creation of “institutions, facilities and services for the care of the child” and monitoring on the latter’s compliance with quality standards”.10 Both provisions are therefore closely intertwined, even though Article 3(3) does not exclusively refer to institutions dedicated to child-rearing, but also to those dedicated to child protection more in general11.
Following the analysis of Articles 3(2), 5 and 18 CRC, it has been established that parents are endowed with a spectrum of rights, duties and/or responsibilities aimed at the fulfilment of two aims. First, to secure the child’s well-being through the purveyance of protection and care (Articles 3(2) and 18). Secondly, to provide evolving, age-appropriate guidance to the child in the exercise of the child’s rights (Article 5).
Moreover, the CRC imposes upon States Parties the obligation to respect parents’ roles, by refraining from arbitrary interferences in the exercise of parental responsibility, and the obligation to fulfil, by taking all appropriate legislative and administrative measures to nurture parental resources – both in terms of personal skills and availability of support facilities. As a consequence, the CRC provides a framework for a social contract between parents and the State, where protection from undue State interference coexists with the right to receive State support12. In this framework, parents enjoy a degree of discretion as holders of what has been defined as limited 13 and functional rights14. Each of these definitions will be addressed in turn in the following sections. The limitations are of a twofold nature. Firstly, parental rights are limited by the evolving capacity of the child: as the child becomes more mature, parents’ rights will be automatically restricted or reshaped as to their content and scope. Secondly, parents’
rights should be exercised in full respect of the best interests of the child and his/her enjoyment of the full range of rights included in the CRC.
9 Article 3.3 reads as follows:
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
10 Freeman (n6) 71-72; S Detrick A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers 1999) 295
11 Freeman (n6) 72
12 S Brennan and R Noggle ‘The moral status of children: Children's rights, parents' rights, and family justice’
(1997) 23 Social Theory and Practice,14
13 D Archard, Children: Rights and Childhood (2nd edn, Routledge, 2004) 149. For further discussion, even if leading to different conclusions, H Brighouse and S Swift, ‘Parents’ Rights and the Value of the Family. In Ethics’ (vol. 117, no. 1, 2006) 82
14 D Reynaert, M Bouverne-de-Bie and S Vandevelde ‘The review of children’s rights literature since the adoption of the Unites Nations Convention on the Rights of the Child’ (2009) 16 Childhood 525
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In order to highlight the multiple problems, which the concept of limited rights entails, the following section will provide a case study of the tensions emerging between parental rights and children’s rights related to freedom of religion.
3. Parental rights, duties and responsibilities in relation to the child’s right to freedom of religion
In the CRC, the child’s right to religious freedom is contained in Article 14, which reads as follows:
“1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others”.
Article 14(1) CRC confirms the child as a rights holder whose right to freedom of thought, conscience and religion must be protected. This right is also protected by Article 9(1) of the European Convention of Human Rights (ECHR), which states that ‘everyone’ has the right to freedom of thought, conscience and religion. The European Court for Human Rights (ECtHR) has explicitly recognised the freedom of thought, conscience and religion as an individual right of the child. It has done so by analysing, in its case law on religious freedom in the context of the right to education and the state school system, if the right to freedom of religion of the child was respected in practice.15
The right to freedom of thought, conscience and religion encompasses three closely related dimensions. A fist dimension concerns the internal freedom of religion and has an absolute character, implying that no restrictions can be imposed on this internal dimension of the freedom.16 The existence of a right to freedom of religion comprises also a negative aspect,
15 See for instance Valsamis v Greece App no 21787/93 (ECtHR, 18 December 1996) and Efstratiou v Greece App no 24095/94 (ECtHR, 18 December 1996)
16 Darby v Sweden App no 11581/85 (ECtHR, 23 October 1990)
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namely the right of individuals not to be required to reveal their faith or religious beliefs and not to be compelled to assume a stance from which it may be inferred whether or not they have such beliefs.17 A second dimension is the child’s freedom to change his or her religion or belief.18 The third and most visible dimension is the freedom to manifest one’s religion or belief.
This includes worship, teaching of a religion or belief, the practice and observance of religious prescripts.
The right of the child to freedom of thought, conscience and religion is a classic freedom right, in the sense that the State has the obligation to protect everyone against unlawful interference with the exercise of this freedom. According to the escape clause in Article 14(3) CRC, the limitations on the right to freedom of religion are only applicable on the freedom to manifest one’s religion or belief. The internal freedom of religion, as well as the freedom to change one’s religion or belief that does not involve any public manifestation, cannot be restricted. The aim of this approach is to reconcile the interests of various groups in democratic societies and to ensure that everyone’s beliefs are respected.19 In case the right protected in Article 14(1) CRC is at stake, an assessment needs to be made if the limitation on the exercise of this right complies with the criteria provided in Article 14(3). The question whether there has been an interference in children’s autonomous freedom to manifest their religion or belief has been discussed in several European countries, for example in the context of the debate on the place of the Islamic headscarf in State education.20
As said, the CRC does not contain a corresponding right of parents to ensure the religious education of their children in conformity with their own convictions. It does however require States Parties to respect the rights and duties of the parents to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child (CRC Article 14(2)). The formulation that parents have rights and duties in the exercise of the child’s freedom of religion or belief is in line with the above discussed general conception of parental responsibilities in the CRC as limited and functional rights which need to be exercised
17 Alexandridis v Greece App no 19516/06 (ECtHR, 21 February 2008); Grzelak v Poland App no 7710/02 (ECtHR, 15 June 2010).
18 J Duffar ‘La liberté religieuse dans les textes internationaux’ (1994) Revue de Droit Public 939.
19 Kokkinakis v Greece App no 14307 (ECtHR, 25 May 1993)
20 See Leyla Şahin v Turkey, App no 44774/98 (ECtHR, 10 November 2005); Dogru v France App no. 27058/05 (ECtHR, 4 December 2008); Kervanci v France App no 31645/04 (ECtHR, 4 December 2008). See in literature, a./o.: E Brems, ‘Above children’s heads. The headscarf controversy in European schools from the perspective of children’s rights’ (2006) 14(2) The International Journal of Children’s Rights 119; K Hanson ‘A la découverte des droits de l'enfant dans le débat sur des symboles religieux ostentatoires’ (2000) 6 (1) Bulletin suisse des droits de l'enfant 12
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in a manner consistent with the evolving capacities of the child (Article 5 CRC), with the best interests of the child as their basic concern (Article 18(1) CRC).
An important difference between the provision of Article 14(2) CRC about the right of parents to provide direction to the child in the exercise of his or her right to freedom of thought, conscience and religion, and the rights of parents to ensure the religious education of their children in conformity with their own convictions is that the former concerns the exercise of the child’s freedom, whereas the latter is concerned with the convictions of the parents.
General human rights instruments include, however, further rights of parents in this respect. As such, Article 2 of Protocol No. 1 to the ECHR provides that the State shall respect the right of parents to ensure the education and teaching of their children in conformity with their own religions and philosophical convictions. This provision is binding upon the Contracting States in the exercise of each and every function that they undertake in the sphere of education and teaching. According to the ECtHR, that duty is broad in its extent as it applies not only to the content and implementation of school curricula but also to the performance of all the functions assumed by the State.21 It includes the organisation and financing of public education, the setting and planning of the curriculum, the conveying of information or knowledge included in the curriculum in an objective, critical and pluralistic manner (hence forbidding the State to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions), as well as the organisation of the school environment, including the presence of crucifixes in State-school classrooms.22 A similar provision is contained in Article 18(4) of the International Covenant on Civil and Political Rights (ICCPR), according to which States Parties undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
In the exercise of his or her right to freedom of religion and beliefs, a very young child is entirely restricted by the decisions made by his or her parents, who act according to their responsibilities, rights and duties towards their children. In a case before the European Commission of Human Rights, an applicant complained that he had been baptised a few weeks
21 See the relevant case law of the ECtHR: Kjeldsen, Busk Madsen and Pedersen v Denmark App nos. 5095/71, 5920/72 and 5926/72 (ECtHR, 7 December 1976); Valsalmis v Greece, App no 21787/93 (ECtHR, 18 December 1996); Folgerø and others v Norway App no 15472/02 (ECtHR, 29 June 2007); Hasan and Eylem Zengin v Turkey App no 1448/04 (ECtHR, 9 October 2007); Lautsi and others v Italy App no 30814/06 (ECtHR, 18 March 2011)
22 Lautsi and others v Italy App no. 30814/06 (ECtHR, 18 March 2011)
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after his birth, and requested that this imposed commitment would be annulled. However, the Commission declared that this case did not breach Article 9 of the ECHR23 because, when the child is older, parents need to take into account his or her evolving capacities. In the absence of a fixed legal age from which children and young people can exercise their own right to religious freedom, a case by case approach will be necessary to assess in how far the evolving capacities of the child allow him or her to make (gradually more) autonomous decisions about the exercise of his or her right to freedom of thought, conscience and religion.
When conceptualising the exercise of children’s freedom of religion, traditionally pre-eminence was given to the rights of parents to determine the religious and moral upbringing of their children rather than to the child’s right to religious freedom. In such a view, children were excluded of the autonomous exercise of the right to religious freedom; at most they had a right to practice the religion of their parents.24 The wording of Article 26(3) of the Universal Declaration of Human Rights (UDHR) that “Parents have a prior right to choose the kind of education that shall be given to their children” was a deliberate choice of the drafters. Through this formulation they wanted to restrict the power of the State to determine religious education and instead favoured parents’ freedom of choice.25 In case of a conflict, only two elements needed to be balanced against each other, namely the prerogative of parents to determine the religious upbringing of their children and the monitoring role of the State to tackle potential abuses of this right. Until today, this view is upheld in many States, which is illustrated by the relatively high number of reservations and interpretative declarations made regarding the right of the child to freedom of thought, conscience and religion contained in Article 14 of the CRC.26 Upon ratification of the CRC, Jordan for example explicitly stated that it does not consider itself bound by Article 14 of the CRC because it considers the child’s right to freedom of choice of religion incompatible with the precepts of the tolerant Islamic Shariah.
The explicit recognition of the child’s own right to freedom of thought, conscience and religion, in conjunction with the provision that parents have the rights and duties to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child, have considerably altered the existent relation between the different fundamental
23 X. v. Iceland App no 2525/67 (ECmHR, 6 February 1967) R Goy ‘La garantie européenne de la liberté de religion: l'article 9 de la Convention de Rome’ (1991) Revue de droit public, 31
24 A Scolnicov ‘The child’s right to religious freedom and formation of identity’ (2007) 15 The International Journal of Children’s Rights 251, 257
25 Scolnicov (n25) 262
26 E Brems, A Commentary on the United Nations Convention on the Rights of the Child, Article 14: The right to freedom of thought, conscience and religion (Martinus Nijhoff Publishers 2006) 7
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freedoms. In case of conflict over the religious freedom of children, not only the respective roles of parents and the State need to be balanced against each other, but also the right of the child itself to religious freedom needs to be taken into account. For Eva Brems, Article 14(2) of the CRC signals a paradigm shift, because “the parental right is an accessory to the child’s right, rather than an autonomous right on an equal footing”.27 This provision hence illustrates the findings which were reported above that it is the child who is the main beneficiary of the rights contained in the CRC, and that parents, as ‘third parties’, have only limited, instrumental rights.
The analysis of the provisions in the CRC that deal with the rights, duties and responsibilities of parents in the field of children’s religious freedoms leads to two contrasting perspectives on the relation between children’s rights and the rights, duties and responsibilities of parents with which we will deal in the following sections. The first perspective is characterised by dichotomy, the second by conciliation.
4. The children’s rights/parental rights dichotomy in the US campaign to ratify the CRC In their critical review of the academic literature produced on the topic of the CRC between 1989 and 2009, Reynaert and others identify the children’s rights/parental rights dichotomy as one of the three predominant themes explored in the social sciences and humanities literature.28 The authors stress that the CRC precipitated a considerable shift in the nature of parental rights, from negative rights (non-involvement of the State within the family sphere) to positive rights (enlarged State involvement through the purveyance of institutional support concerning areas of child care and protection). The authors further state that “[t]his shift in parenting has been an important concern for scholars in children’s rights. Frequently, this changing relationship is described as a dichotomy whereby children’s rights are placed in tension with the rights of parents”.29 The rights-based approach is said to create potentially contentious situations within the family, when the child’s and parents’ divergent interests require different and mutually unacceptable outcomes. As discussed above, such a contentious situation for instance arises when children’s own religious convictions clash with the rights of their parents to determine the religious upbringing of their children.
27 Brems (n 27) 25
28 D Reynaert, M Bouverne-de-Bie and S Vandevelde ‘The review of children’s rights literature since the adoption of the Unites Nations Convention on the Rights of the Child’ (2009) 16 Childhood 518
29 Reynaert (n29) 524
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In order to further illustrate the dichotomy between children’s rights and parental rights, we will now turn to the American context, where the trichotomous structure of child/parents/State relations constitutes the core of ongoing debate within and outside the academic sphere. Over the past two decades, a wealth of literature has been produced in the United States by academics and civil society actors engaged in the analysis, promotion or defence of children’s rights.
Unsurprisingly, in discussing broader children’s rights issues, the authors ultimately take a stance in favour of the future ratification of the CRC by the US government. In response, a social movement identified as the American parental rights movement has consistently voiced opposition to the treaty, by mobilizing the children’s rights/parents’ rights dichotomy to further their agenda.30
A review of the literature produced between 1989 and 2016 on the topic of the US ratification of the CRC has allowed to identify publications which critically address the concept of parental rights in the American context.31 The literature indicates that in this national setting, the debate can be said to tackle both micro and macro power struggles. On the one hand, debate is centred on the effects of the shift in power relations within the family, stemming from the recognition of children as rights holders. Parental capacity to shape the moral character of children is inhibited by child empowerment, which further serves to undermine patriarchal authority and create intergenerational conflict. On this point, Rutkow and Lozman stress that CRC provisions conferring participatory rights to children are most highly problematized by those who oppose US-CRC ratification, which charge the Convention with enabling children to resist parental authority.32 On the other hand, a parallel debate concerns the nature and scope of governmental action the State is entitled to wield in the name of the child’s best interests. The tension arising from State intervention in the private family sphere, and its potentially damaging effects on parents’ decision-making authority in the performance of child rearing duties, is a point of contention consistently mobilized by American actors as an argument against CRC ratification.
Parental rights are a concept which origin is difficult to pinpoint: McCarthy situates the recognition of parental rights in the early 20th century, when the United States Supreme Court
30 S Kilbourne, ‘U.S. Failure to Ratify the U.N. Convention on the Rights of the Child: Playing Politics with Children's Rights’ (2006) 6 Transnational & Contemporary Problems 437; D Smolin ‘Overcoming religious objections to the Convention on the Rights of the Child’ (2006) 20 Emory Law Review 81
31 The parental rights movement, a social movement which came into existence in the 1990s, continues to advocate in favour of the legal recognition of parental rights. According to Kilbourne (n31) and Smolin (n31) multiple identities are present among those who support the movement, and are most often either politically conservative and/or religiously conservative (the one not necessarily entailing the other).
32 L Rutkow and JT Lozman, ‘Suffer the children? A call for the United States ratification of the United Nations Convention on the Rights of the Child’(2006) 19 Harvard Human Rights Journal 159
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progressively addressed tensions involving State interference in the parent-child relationship.33 The author further states that the concept is defined by its supporters as the “precept declaring that parental interests in the custody, care, and control of their children are constitutionally protected from unwarranted State interference”.34 In the American context therefore, parental rights are a concept deeply rooted in the negative-positive rights tradition. McCarthy deftly deconstructs the said definition, highlighting what he claims to be an inextricable paradox:
While activities pertaining to the areas of “custody” and “care” of children are said to merit heightened protection from State intervention by virtue of an inalienable quality characteristic of the parent-child bond, the author notes that the same areas are precisely those subject to frequent State intervention, e.g. Federal and State legislation pertaining to vaccination, compulsory schooling, child labour or child abuse.35 The argument that parents and caretakers should enjoy unrestricted liberty in their exercise of care and upbringing of children appears then to lack sound legal grounding.
Furthermore, the argument that it is an individual’s right to “control” one’s offspring is equally disputed by Dwyert, in claiming that “the American legal system does not recognize an individual’s rights to control the lives of other people. There is an in-principle limitation on legal rights that confines them to protection of a rights holder’s personal integrity and self- determining activities”.36 In this perspective, the authority to exercise child-rearing activities is conceptualized as a privilege granted to parents by the State, but which may be revoked if deemed in the best interests of the child.37 McCarthy and Dwyert’s stances converge around the idea that legal disputes involving parents, children and the State are thought to be best resolved through a children’s rights approach. In a conciliatory effort, McCarthy suggests the potency of reconceptualising parental rights as “family integrity or autonomy rights”,38 considered more consensual by the author, although he admits that “the use of a family rights method of analysis gets one no further ahead in attempting to isolate a theory of parental rights, and in the end may generate more problems”.39
33 FB McCarthy, ‘Confused Constitutional Status and Meaning of Parental Rights’ (1988) 22 Georgia Law Review 975
34 McCarthy (n34) 962
35 McCarthy (n34) 977
36 JG Dwyert, ‘Parents’ religion and children’s welfare: debunking the doctrine of parents’ rights’ (1994) 82(6) California Law Review 1371, 1450
37 Dwyert (n37) 1372
38 McCarthy (n34) 979
39 McCarthy (n34) 975
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Considering the lack of a coherent and persuasive legal definition of parental rights in the US, it is unsurprising that American Courts have treated the said rights with marked ambivalence.
According to McCarthy, “the Supreme Court has given conflicting signals about these rights, [and] it should be no surprise that lower courts have had great difficulty with cases that raise questions concerning the protection of parental rights in circumstances beyond those that are clearly covered by direct precedent”.40 While the Supreme Court would appear to accept the principle of parental rights as fundamental rights, the Court does not follow through with this stance once application is warranted, thereby creating great confusion among legal experts and the general public as to the legal value of parental rights in the US. Lane echoes Kilbourne and Dwyert in lamenting the fact that “in all of the rhetoric of parental rights, there is little or no mention of the rights of children. Certainly their rights to a safe, non-abusive, and enjoyable childhood environment should be a factor in the parent/child calculus”.41
Gunn breaks with previous research by advancing that the CRC’s symbolic character is the true motive fuelling the opposition’s attacks.42 The author contends that the symbolic struggle is in fact “divorced from the actual language or effect of the CRC”.43 In this view, anti-CRC rhetoric is based on an idealized account of the family, “that leads them [the opposition] to completely ignore the plight of children who do not fit within the traditional family”.44 The opposition’s concern with safeguarding an idealized view of middle-class, bi-parental family life is said to not take into account the needs of children and families outside this model, e.g. homoparental families, children living in poverty, unparented children, abused and/or neglected children.
In the context of the United States, political organizations have seized upon the children’s rights/parental rights dichotomy towards the construction of anti-CRC rhetoric. Those actors who subscribe to the views expressed by the US parental rights social movement appear to take more serious issue with State intervention within the family sphere than with an eventual power struggle within the family. The American case is of particular relevance, since it allows to understand that parental rights are political and cultural constructions, understood and problematized within specific contexts. Conceptually speaking, on the international stage, parental rights can be said to have received less attention from governments and civil society, as compared to the international support enjoyed by children’s rights both as an idea and as a
40 McCarthy (n34) 975
41 LL Lane, ‘The parental rights movement’ (2008) 69 University of Colorado Law Review 825, 849
42 TJ Gunn, ‘The religious right and the opposition to U.S. ratification of the Convention on the Rights of the Child’ (2006) 20(1) Emory International Law Review 111
43 Gunn (n 43) 122
44 Gunn (n43) 128
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movement. In order to mediate the tension created by the emergence of two seemingly irreconcilable stances, the subsequent section will focus more closely on an alternative, more conciliatory view on the inclusion in the CRC of rights, duties and responsibilities linked to the parental status.
5. Conciliation between children’s rights and parental rights, duties and responsibilities A second perspective on the relationship between children’s rights and parental rights is of conciliatory nature, and points at heightened cooperation between family and public sphere stakeholders in the realization of children’s rights. This perspective will be addressed by questioning the philosophical, legal and social implications which arise from the designation of parents as “rights holders”, “duty bearers”, and holders of “parental responsibilities” in the CRC. In addition, we will identify the tensions, which the multiple facets integral to the status of parenthood pose, and their impact on distributions of power between the child, parents and the State.
Reynaert and others venture to mend the rift posed by the dichotomy between children’s and parents’ rights, by conceptualizing parental rights as functional rights”45. The authors further stress that the scope of parental functional rights is inversely proportional to the child’s age, experience and capacity for autonomous thinking and acting. The successful exercise of the said functional rights is grounded on a set of implicit premises: that fuelled by benevolence and altruism, parents set towards a fair determination and effective fulfilment of the child’s best interests and evolving capacity (limited rights).
As stated by Van Bueren, by introducing a rights-based approach to the family sphere, international law shifted attitudes, from initially safeguarding the privacy of the family, with no intention to monitor the quality of the relationship between family members, to a more intrusive State role.46 This new approach defines the family as an increasingly public institution, allowing State interference within the family sphere in order to protect the rights of those composing the family unit.
Without denying the primordial nature of family, which remains based on personal relationships, the CRC endorses this shift by introducing talk on ‘children’s rights’.
45 Reynaert (n29) 525
46 G Van Bueren The International Law on the Rights of the Child (Brill Nijhoff 1998) 68-72
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Consequently, rights-based rhetoric introduces an understanding of the parent-child relationship as ‘quasi-contractual’ ties, which are “limited, and directed to the promotion of an abstract public good”,47 i.e. the child’s well-being. This allows State intervention in order to protect the human rights of all members of the family. By introducing the talk on ‘children’s rights’, as we have seen in the case of the child’s right to freedom of religion, the CRC therefore moves children into the public realm preventing them from being at the sole mercy of their parents.48 In parallel, the CRC recognises family autonomy, requiring States to respect the autonomy of parents while also monitoring the quality of parental care. The State’s intervention in case of a violation of children’s rights is therefore a consequence of parental shortcomings.
Based on this analysis, ‘effective parenthood’ becomes a matter of public interest. Hence, the use of concepts such as ‘guidance’ and ‘direction’ recasts the role of parents as enablers of the child’s well-being and full enjoyment of the rights enshrined in the CRC. As Kamchedzera has underlined, the parent is a “key participant in – and not the determinant of – the child’s life”.49 As a consequence, fostering a rights-approach recognises the child as a holder and exerciser of rights, acting as a dynamic participant in both relational processes of ‘guidance’ and ‘rearing’.
The CRC defines this key parental role by referring to the combination of parental
‘responsibilities’, ‘rights’ and ‘duties’ (Article 5 and 18 CRC). The three terms appear together in Article 5, whereas Article 18 refers exclusively to parental ‘responsibility’ pertaining to tasks related to child-rearing. Based on Kamchedzera, it would appear that Article 5, by encompassing “all the three words […] indicates its spirit to be as encompassing as possible in ensuring that those who have parental roles provide appropriate guidance to the child.50 Kamchedzera further underlines that previous commentaries of Article 5 CRC have been reluctant to address “the jurisprudential differences between ‘responsibilities’, ‘rights’ and
‘duties’ in relation to the general correlative duty on the part of key caregivers”.51 This specific aspect is briefly discussed in the following paragraphs, in which we argue that in Article 5 CRC be mentioning ‘responsibilities, rights and duties’ starts with the most encompassing term responsibilities, which include the remaining two rights and duties.
47 F Schoeman ‘Rights of children, rights of parents, and the moral basis of the family’ (1980) 91 Ethics 6, 11, cited in S Brennan and R Noggle ‘The moral status of children: Children's rights, parents' rights, and family justice’ (1997) 23 Social Theory and Practice 1, 14
48 Brennan and Noggle (n48)
49 G Kamchedzera, A Commentary on the United Nations Convention on the Rights of the Child, Article 5: The Child’s Right to Appropriate Direction and Guidance (Brill Nijhoff 2012) 14
50 Kamchedzera (n50) 24
51 Kamchedzera (n50) 24
17 5.1. Duties
The duty is a “legal requirement to carry out or refrain from carrying out any act”.52 In other words it is “a legally-defined responsibility to perform certain acts or meet certain standards of performance”.53 Duties can be mandated by law or may be the result of a voluntary decision, such as those assumed under a contract. Parental duties are the result of both these dynamics.
They are the result of the parent’s willingness to take on the duties devolved to them by national and international legal provisions, and of an autonomous decision to assume this role. To cite Archard: “parents who do undertake the task of rearing their own child should also honour the duty” in providing adequate care for their children.54
The CRC does not provide any definition of ‘duties’, but makes reference to the term in Article 5 with the intention of identifying the parental obligations pertaining to the “appropriate direction and guidance in the exercise by the child of the rights recognised” in the CRC. The
‘duties’ mentioned in Article 5 are correlative to the child’s right to receive appropriate direction and guidance, in general and in response to specific, contextualized needs. In performing these duties as ‘duty bearer’, parents become accountable for their actions and decisions performed in the private sphere of the family. By doing so, the CRC attributes to States the obligations to support the parent and to monitor parental performance in order to fulfil the correlative rights of the child. Therefore parental duties, such as the duty to financially support and educate the child, are legally enforceable.
5.2. Rights
Rights are commonly understood as ‘any other interest or privilege recognized and protected by law’55 and may imply the “freedom to exercise any power conferred by law”.56 Based on Archard’s position, parents are entitled to the protection and recognition of their interests in rearing their child, a position reflected in the CRC which recognizes the same entitlement within the limits of parents’ overarching responsibility in guiding and rearing the child. Hence, we agree with Kamchedzera’s statement that the ‘right’ attributed to parents in Article 5 “pertains
52 A Dictionary of Law (7 ed.) Jonathan Law and Elizabeth A. Martin, Oxford University Press, Published online: 2009, Current Online Version: 2014. eISBN: 9780191726729
53 A Dictionary of Law (7 ed.) Jonathan Law and Elizabeth A. Martin, Oxford University Press, Published online: 2009, Current Online Version: 2014. eISBN: 9780191726729.
54 Archard (n 14) pp.149
55 A Dictionary of Law (7 ed.) Jonathan Law and Elizabeth A. Martin, Oxford University Press, Published online: 2009, Current Online Version: 2014. eISBN: 9780191726729
56 A Dictionary of Law (7 ed.) Jonathan Law and Elizabeth A. Martin, Oxford University Press, Published online: 2009, Current Online Version: 2014. eISBN: 9780191726729
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to claims that parents and other key carers should have in providing appropriate direction and guidance. Included are rights that are instrumental for the provision of parental guidance, such as the right to reside with the child”.57
In other words, Article 5 generally recognises legal or moral entitlements in the framework of decisions and actions for people in loco parentis against other actors: the State and children (to name a few). It does not provide a list of these rights nor a definition, but generally refers to them. Therefore, it is arguable that any right to provide guidance recognised to parents as a consequence of their parental responsibility, derives from and is limited by the duty to ensure that the child is adequately guided.
5.3. Responsibilities
Law and Martin define parental responsibility as the cohort comprised of all “the rights, duties, powers, and responsibilities that by law a parent of a child has in relation to the child and his or her property”.58 This ‘responsibility’ is paired, at the same time, with all the duties and rights parents enjoy in order to take autonomous decisions in the performance of the parental role and to achieve the final public interest: the child’s well-being.59
By defining responsibility in this manner, it is arguable that responsibility, at least as far as the parental role is concerned, is the most encompassing term. It includes in itself all the range of statuses pertaining to the parental position. ‘Responsibility’ refers at once to parental duties toward the child and the State, to the parent’s right to perform their role free from arbitrary State interventions, and the right to benefit from different forms of State support (care services, educational and economic supports, etc.).
The CRC does not provide a definition of ‘responsibility’, but it nonetheless makes reference to the term in several provisions referring to parents’ key position. For example, in Article 18(1), the CRC bestows upon parents the primary responsibility for the upbringing and development of the child, and Article 27(2) confers to parents the primary responsibility to secure ‘the condition of living necessary for the child’s development in the limits of their abilities and financial capacities’. Based on the said provisions, it would therefore appear that
57 Kamchedzera (n42) 30
58 A Dictionary of Law (7 ed.) Jonathan Law and Elizabeth A. Martin, Oxford University Press, Published online: 2009, Current Online Version: 2014. eISBN: 9780191726729
59 Archard (n 14) 149
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in the CRC, the use of the term ‘responsibility’ is intended to refer to the large spectrum of parental duties and rights.
In short, from a legal point of view, ‘responsibility’ implies, on one hand, parental rights over under-aged children (including, for example, the rights to provide physical care and oversight, to monitor their education, including religious education, to consent by proxy to medical treatment, to administer their property and to represent them in legal proceedings), and, on the other hand, parental duties, such as, for example, the duty to economically support and educate the child. All duties pertaining to child rearing (Article 18), alike those identified in Article 5, can be legally enforced in cases of omission or inconsistency with CRC principles. Therefore, the concept of “parental responsibility” is indicative of both the duties relative to immediate child-rearing (upbringing), to long-term physical and cognitive progression into adulthood (development), and to the means parents may employ to ensure that the child’s exercise of his/her rights is fully realized, without being unduly limited due to the child’s personal characteristics (age, maturity, disability) and/or procedural inadequacy/complexity.
Furthermore, primary parental responsibility not only encompasses duties, but also the rights related to enabling the child’s exercise of his/her rights, and to “the upbringing and development of the child”. The duties can be legally enforced by State intervention when parental performance is unsuited to the fulfilment of the child’s complementary right to adequate guidance and rearing.
6. Inclusion of third parties in other human rights law instruments
From our analysis of the status of parenthood in the CRC, we can provide some thoughts on potential pitfalls and benefits of including ‘third parties’ also in other human rights law instruments.
Some arguments can be given against the idea of granting rights, duties or responsibilities to third parties in international human rights instruments that deal with specific groups. A major risk is that with third party rights, more controversy slips into human rights instruments, as has been the case with the discussed binary view of children’s rights versus parents’ rights, which appears to confine potential tensions to power struggles occurring within the family sphere. The dichotomous vision consistently downplays the contentious nature of the relationship between the family and the State, asserting that State intervention is limited to the purveyance of support
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in habitual cases, and to the removal of the child from the family in extreme cases of neglect or abuse.
Furthermore, the inclusion of parents as ‘third parties’ in the CRC has repeatedly been used to conceal the legal obligations of State Parties as duty bearers towards children as rights holders, as is the case in the agenda to combat all forms of violence against children. For instance, the campaign to protect children from corporal punishment in their homes, which is led by a large coalition of child rights INGOs with strong support by the Committee on the Rights of the Child and the 2006 UN Secretary-General’s Study on violence against children, has according to this campaign’s critics allowed States to hide their own direct duties to tackle economic inequality and other forms of structural violence 60. According to the anti-violence campaign, children are victims of violence perpetrated by their parents or caretakers, rather than of structural violence.
Other arguments can be formulated that plead in favour of transposing third parties in other human rights instruments directed at particular groups. Inspiration therefore can be found in the conciliatory perspective, which prescribes that a balance needs to be made between the rights of the different actors involved by distributing responsibilities, duties and rights among parents/caretakers and the State towards the promotion and realization of an abstract public good, i.e. the child’s well-being. We think that this perspective can be particularly relevant for international human rights law pertaining to people with disabilities, where some reference to third parties already exists but could be further developed.
The Convention on the Rights of Persons with Disabilities (CRPD), adopted in December 2006, emphasises third party responsibility and rights which are instrumental to the fulfilment of the rights of individuals with disabilities, but to a far lesser extent compared to the CRC. In the CRPD, the State is the exclusive responsibility holder. The involvement of third parties is foreseen in Article 16 CRPD, however without the intention to bestow on them a direct responsibility, duty or right. The provision requires States Parties to take measures to protect persons with disabilities from exploitation, violence and abuse within and outside the home. In particular, Article 16(2) asks States Parties to take preventive measures by ensuring appropriate assistance and support not only for persons with disabilities themselves but also for “their families and caregivers”. The provision hence bestows on States Parties the obligation to support families and caretakers in order to avoid, identify and report cases of exploitation,
60 UN Secretary-General (2006). World report on violence against children, Paulo Sérgio Pinheiro, Independent Expert for the United Nations, Secretary-General’s Study on Violence against Children, United Nations Secretary-General’s Study on Violence against Children
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violence and abuse, however without recognizing any specific form of responsibility, duty or rights to family members or caretakers.
Therefore, the CRPD is perceived as falling short for three reasons: Firstly, the recognition of disabilities implying partial or complete dependencies on caretakers and as consequence on their responsibility, duty and rights in the fulfilment of the rights of the disable person is completely absent. Secondly, conversely to what characterizes the CRC, in the CRPD the ‘well- being’ of persons with disabilities is mentioned exclusively on the Preamble of the CRPD as a programmatic principle. Thirdly, it would appear that the drafting procedure of the CRPD aimed to confirm the State’s primary responsibility towards people with disabilities (in terms of obligation to respect, fulfil and protect), without considering the personal and moral ties characterising the relationship between a person with disabilities and his/her caretaker and/or legal representative. This is mirrored in the wording of the different Articles, which are formulated, with few exceptions61, from a negative prospective. In other words, CPRD Articles are not addressed directly to the concerned subjects by identifying them as holders of rights (positive prospective), but instead identify State obligations meant to overcome physical and social obstacles characterising the daily life of this specific group of people.
Therefore, the CPRD could be further strengthened by adopting a rights based approach, such as the one adopted by the CRC. In this perspective, it is possible to enforce a system based on both individual autonomy and mutual accountability between the person with disabilities, caretakers (in lato sensus) and the State.
The concept of ‘responsibilities’, which includes functional rights aimed at the fulfilment of the rights of the individual with disabilities, might provide a starting point for new thinking on this topic.
7. Conclusion
While parental rights have acceded to the forefront of public debate, as illustrated by contemporary debates in the USA on CRC ratification, the concept remains highly elusive. The prerogatives and duties inherent to the parental status can be said to be context specific, and vary greatly depending on cultural representations of “adequate” parenting and parents’ access to resources and State support. As such, it is impossible to attempt to construct a comprehensive
61 Article 5 - Equality and non-discrimination, Article 10 - Right to life, Article 12 - Equal recognition before the law, Article 17 - Protecting the integrity of the person, Article 22 - Respect for privacy, Article 23 - Respect for home and the family; Article 24 - Education, Article 25 - Health, Article 27 - Work and employment and Article 28 - Adequate standard of living and social protection.
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enumeration of the tasks and obligations that parenthood entails, nor is it possible to impose strict definitions on three resolutely vague categories of parental rights, duties, and responsibilities.
Conservative interest groups have claimed that children’s rights would be fundamentally incompatible to parental rights. In reaction to this stance, we have argued that such a binary model does not give due space to the State and its role in organizing, monitoring, and supporting the family. Moreover, such a dichotomous view on parental rights versus children’s rights is contrary to the nuanced positions contained in the CRC, which conceptualizes parents as aiding the child’s exercise of his/her rights until the latter is able to act autonomously. By advancing a family framework which is based at the same time on the child’s individual autonomy and on mutual accountability, the CRC calls to consider a dynamic relationship between the child, parents and the State towards achieving outcomes which are mutually acceptable to all involved parties. We think that other human rights instruments can take inspiration from the ways in which CRC provisions and scholarly literature have developed ‘parental responsibilities’ as including limited and functional rights aimed at the fulfilment of the rights of the child. In this regard, the current elaboration of an international framework for the promotion and protection of the rights of older people may open new avenues for reconsidering the relevance of including third parties in human rights treaties.
