Howard Davidson, Children's Rights and American Law: a Response to What's Wrong With Children's Rights

• Jurisdiction: United States,Federal
• Publication year: 2006
• Citation: Vol. 20 No. 1

CHILDREN'S RIGHTS AND AMERICAN LAW: A RESPONSE TO WHAT'S WRONG WITH CHILDREN'S RIGHTS

Howard Davidson^*

INTRODUCTION-THE IMPORTANCE OF THE CRC TO THE UNITED STATES

American critics of the Convention on the Rights of the Child (CRC) have galvanized opposition by mislabeling it as a potential threat to the American family and by making unsubstantiated claims that it would, if ratified by the United States, undermine national sovereignty and interfere with American parent-child relationships. Let us put those untruths aside and refocus the argument on why it is important for America to ratify the CRC.¹

One good reason for ratification is that the United States can become an unencumbered world leader in promoting national laws and government policies across the globe that can help protect children from violence and neglect. This is something in which America has a great deal of expertise.

While recently reconsidering the CRC's potential impact in the United States and the status of children's rights within our country, I was asked by an American Bar Association (ABA) international program to review and comment on a draft children's rights code for the nation of Kyrgyzstan. I was impressed with the breadth of that draft law and with its sweeping articulation of the rights of their children in accordance with the principles of the CRC. I could not help but think that in my thirty-plus years in the field of child protection law I had-despite the draft's many flaws-never seen any U.S. federal or state law remotely like it.

Few American laws have "children's rights" in their title. This is in part because many believe that if children are afforded "rights" that they will come at the expense of parental rights. The relationship between the rights of American parents and those independently possessed by American children is the subject of a recent book titled What's Wrong with Children's Rights, written by Martin Guggenheim, a distinguished American law professor at New York University. Notice that there is no question mark at the end of the title.

Despite concerns of many American parents about children possessing independent rights, if the CRC was ratified it would likely result in new legal protections for children that would-as with many U.S. child protection law reforms-have broad bipartisan support. Americans who may be fearful of children's "rights" are unlikely to have reservations about enhancing protections for children.

Over fifty years of judicial decisions address children's constitutional protections applied to a variety of factual situations. The cases range from those considering juvenile incarceration without access to legal counsel to those dealing with the ability of students to express political views in non- disruptive ways. Court decisions also address the protection of children in foster care and, more recently, curtailment of the juvenile death penalty. In the legislative arena, there are model federal and state special education laws and other laws to protect children from being deprived of educational opportunities such as universal free elementary and secondary education.²Increasing numbers of states have created "Child Advocate" offices³or "Children's Ombudsman" programs⁴to provide a mechanism for the enforcement of children's protection under the law.

The United States has a vast body of American children's "rights" law that the CRC encourages. We are doing many things correctly, and we need to build U.S. support on our notable achievements. One of the most important reforms in U.S. law as it relates to children has been a focus on the "protection rights" of children, both at home and in the foster care system.⁵One reason that the Bush administration was comfortable quickly ratifying the Optional Protocol to the CRC on the sexual exploitation of children was past U.S. legal achievements in child protection.⁶We must, as part of an American CRC support strategy, build upon Republican and Democratic Party support for aggressive legal protection of trafficked, exploited, abducted, and seriously abused children.

I. ACCOMPLISHMENTS IN CHILDREN'S RIGHTS

American child advocates have much to be proud of. Attorneys seeking protection for foster children's rights have won victory after victory, exemplified by the 2003 Washington Supreme Court's decision in Braam v. State.⁷Braam cited over twenty years of federal court precedents affirming that foster children possess substantive due process rights under the U.S. Constitution that states are required to respect.⁸Those rights include the right to be free from unreasonable risks of harm and a right to reasonable safety, including adequate services to meet a foster child's basic needs.

Despite these judicial victories for children, the United States only has narrowly tailored "rights based" state laws for children. These children's rights laws are almost entirely found in limited, albeit important areas recognized by the CRC. For example, they include the rights of children in foster care placement (such as in New Jersey and Rhode Island).⁹They also include legislative protection of the rights of child crime victims (as in

Illinois).¹⁰The latter topic has been addressed in international guidelines recently approved by the United Nations.¹¹

By ratifying the CRC's Optional Protocol addressing child prostitution and pornography, the United States has already obligated itself to "adopt appropriate measures to protect the rights and interests of child victims" related to practices that the Protocol prohibits, at all stages of the criminal justice process.¹²The CRC contains similar obligations that should not be difficult for the United States to accept.¹³

An exception to the more subject-limited statutes is a broad law in the Commonwealth of Puerto Rico. Puerto Rico's Bill of Rights of the Child, enacted over seven years ago, covers persons from birth through age twenty- one.¹⁴It explicitly guarantees to children and youth the enforcement of their rights in a vast array of areas protected under Puerto Rico's Constitution, laws, and policies.¹⁵Its twenty-seven provisions, not surprisingly, track many CRC topic areas. No other state law is like it, but maybe if we ratified the CRC we would see more laws throughout the United States resembling it.

How important is it to articulate rights of children in statute? Here is one example: New Jersey's Child Placement Bill...