CHILDREN’S RIGHTS: CONSIDERATION OF SOME PROBLEMS
Urie Bronfenbrenner’s criterion for judging the worth of a society is worthy of consideration when reviewing the area of children and children’s rights. He states: “if the children and youth of a nation are afforded opportunity to develop their capacity to the fullest, if they are given the knowledge to understand the world and the wisdom to change it, then the prospect for the future (of that society) are bright. In contract, a society which neglects its children, however well it may function in other respects, risks eventual disorganisation and demise”. The documenting of children’s rights arose by virtue of the realization of the overall decline in society, its mores and principles, and the concomitant disastrous effect hereof upon the weakest and most vulnerable members of society. From a global perspective, the first global attempt at documenting the rights of children took place after the First World War.
In our present times, questions which need to be posed include “does our society have a child-centred focus” and “to what extent is this child-centred focus reflected not only in the mores of society but also in the prevailing legislation, policy and practices of that society”.
While it is clear that children are very much in need of having their rights documented, caution must be exercised and every endeavour made to ensure that the creation of enforceable rights does not lead to the creation of new problems and new infringements of other rights which children may be deemed to hold. At all times, consideration must be given to the balancing of rights to avoid a secondary and/or indirect violation of other rights.
There are essentially two schools of thought when it comes to the recognition of Children’s Rights. The Child Liberation Movement argues that children should not be treated any differently from adults. They are to be accorded the same rights and freedoms as adults as well as given the right of self-determination (i.e. the right to decide for themselves what is good for them). The Child Protection Movement on the other hand adopts a more paternalistic approach to children’s rights asserting that all rights, actions and policy should be weighed against the standard of the “the child’s best interests”
Criticism of the Child Liberation Movement is that the right to self determination is essentially meaningless for very young children. At what age would one confer such rights on the child – from birth, toddlerhood, age five, eight, ten …? The well-know children’s rights advocate, Michael Freeman criticizes this movement stating that liberationists are “politically naïve, philosophically faulty and psychologically wrong”. He holds that self determination is a capacity that must be developed and that same only becomes possible when the child can make rational choices and appreciate the consequences of such choices. Insofar as the “best interests” approach is concerned, the concern is that it is the State which holds the defining power, as such the State and not the child determines what is in his/her “best interests”. Building upon this criticism, it is clear that the best interests approach is one where adults evaluate and define – based upon past experience and assessment of future possible eventualities – whether a particular action, policy or practice is reasonable and likely to promote the best interests of the child. At its core the “best interests test” is by its very nature vague and based upon subjective assumptions and determinations. Major problems could arise when adults from one culture or socio-economic group set broad-based standards which conflict with the prevailing standards and norms of a different culture or socio-economic group.
A further difficulty with Children’s Rights in general pertains to the enforcement of these rights. By virtue of their standing in society as the weakest and most vulnerable members of that society, children are generally not in a position to assert their interests and in the vast majority of countries they do not even have political voice. As a result hereof this, the advancement and enforcement of children’s rights rests squarely upon adults and a concern is adults in attempting to give children a voice inevitably project onto this voice, their own discontent with the prevailing ethos, practices and principles operative within that society.
Most children’s rights activists acknowledge the need for education of people as a primary mechanism for enforcement of rights but in the absence of reducing those rights into Law with some threat of legal sanction for violations thereof, minimal advancement will be made to improve the quality of life for children.