Do children have rights?

Robert Ludbrook

Martin Guggenheim What’s Wrong with Children’s Rights, Harvard University Press, 2005 (320 pp). ISBN 0-67401-721-8 (hard cover) RRP $54.95.

The odd cover illustration of this new book strikes the reader first. At the top we see a child’s lower legs. Each leg is attached to a long pole that extends to the bottom of the cover. The child’s face and upper body are not visible. Author Martin Guggenheim does not enlighten readers as to the meaning of this illustration, but those familiar with debate over children’s rights will recognise the reference to Jeremy Bentham’s 1843 dictum that natural and imprescribable rights are ‘nonsense on stilts’. The jibe that children’s rights are ‘nonsense on stilts’ is sometimes directed at those who advocate for children. The argument goes that because children do not have the power to enforce their rights, children’s rights are at best mere empty rhetoric and at worst dangerous nonsense.

His book’s arresting title What’s Wrong with Children’s Rights suggests that Guggenheim subscribes to the dangerous nonsense theory. Guggenheim is hailed in the United States as a leading voice of the family preservation movement. It is a brave man who stands against the tide of support for children’s rights that has swelled over the last 25 years. Consider this: the United Nations Convention on the Rights of the Child adopted by the General Assembly in 1989 has been ratified by 192 countries worldwide. The United States is the only industrialised country that has refused to ratify the Convention. Guggenheim is an American lawyer who obviously shares his country’s antipathy for the Convention on the Rights of the Child. He refers only briefly to it with some mildly disparaging comments and appears to support a description of the Convention as ‘the camel’s nose in the tent’. This is presumably intended to convey that international human rights bodies have no place in America’s social and legal systems.

The book’s title leads the reader to expect an attack on children’s rights but What’s Wrong with Children’s Rights? is more a blast directed at a group of lawyers that the author refers to as ‘children’s rights advocates’. Guggenheim doesn’t reveal the reason for his intense dislike of these lawyers until the final chapter. He was himself a children’s rights lawyer working with the American Civil Liberties Union. He fell out with his colleagues in the New York Civil Rights Union (NYCLU) over a case brought to the US Supreme Court in which the Union argued that foster parents should have a superior right to that of the child’s biological parents once a foster child had been in substitute care for one year. The NYCLU children’s rights lawyers aligned themselves with the cause of the foster parents, while Guggenheim outspokenly supported the rights of the biological parents. He was branded with the label of parent’s rights lawyer.

Guggenheim strongly opposes assignment by the courts of lawyers to represent children in court proceedings. He argues that the position taken by the lawyer is not the child’s position but reflects the lawyer’s personal view of what will be best for the child. Many children’s advocates endorse the argument that lawyers have no special claim to advise the Court on what orders will best serve the best interests of the child and so should not take on that role. Lawyers do have a role in advising the court of the child’s views on the matters at issue and pressing for an outcome desired by the child. After all, the child is the person most affected by the court’s decisions and, as Guggenheim concedes, parents have their own interests which do not always coincide with those of their children. It becomes obvious as the book progresses that the author’s antagonism towards lawyers advocating for children is restricted to situations where parents are involved. He is quite comfortable with lawyers advocating for the rights of children affected by the exercise of state power. He describes such lawyers as ‘juvenile rights advocates’ and acknowledges that older children in many situations need lawyers. He gives as examples children in state custody (including foster care) and children caught up in the juvenile justice system.

Parents have their own interests which do not always coincide with those of their children.

What’s Wrong with Children’s Rights is a reminder that the US Constitution and decisions of the US Supreme Court and State Supreme Courts in interpreting the constitution have meant that broad policies affecting children in the United States are often formulated by the judiciary rather than by the legislature. This is not the case in Australia. The role of the Australian courts in litigation concerning children focuses on the situation of the individual child, leaving broad policy objectives to be formulated by the legislature.

Why is Guggenheim so antagonistic to children’s rights and those who advocate for them? He strongly supports what he describes as ‘parental rights doctrine’ which he sees as a fundamental principle enshrined in the US Constitution (although, curiously, there is no mention of children or parents in the Constitution). He deplores the fact that many children’s claims are advanced on the basis of a child’s individual personhood, viewing this as a fatally flawed premise. He is equally critical of a propensity of children’s rights lawyers to separate children’s interests from those of their parents. Because children are dependent on parents for most of their childhood, Guggenheim believes that to discuss children’s rights without simultaneously considering the rights of parents is dangerous. He is also worried by a tendency to separate children’s interests from the interests of the rest of society.

The book mounts a sustained attack on the ‘best interests of the child’ test whether applied in cases in which the state is seeking to intervene to protect a child or in disputes between parents over their children. The author argues (as have others before him) that the test is subjective and allows judges to decide cases according to their own personal beliefs and values. This argument had some force in earlier times. But the current reality is that in Australia and most other English-speaking countries, the courts have the benefit of reports by psychologists and other professionals with expertise in children’s developmental needs. Courts also have statutory guidance as to matters they must take into account in reaching a decision as to a child’s best interests. Court officials do not decide in accordance with their personal whims and prejudices.

In child protection, Guggenheim views the best interests test as a formula for unleashing state power against a family by substituting the state’s views on child rearing for those of the parents. He fails to appreciate that having decisions made by a court rather than by a state child protection agency is a curb on state power over parents and families. Guggenheim proposes that parents should be free to raise their children as they see fit even when their choices would be defended by few reputable experts. He concedes that official intervention may be justified if parental child-rearing is ‘extremely bad for the child’ or causes ‘impermissible harm’. He voices disapproval of children being removed from ‘bad families’ but accepts that they should be removed from ‘extremely bad families’. The expression ‘impermissible harm’ suggests that a certain amount of harm to a child is acceptable and should be ignored. Guggenheim fails to grasp the point that a test which requires a court to determine whether parenting is ‘extremely bad for the child’ or is causing the child ‘impermissible harm’ is no less subjective than the best interests test which he abjures. Many Australian lawyers would view the best interests test in the way that Winston Churchill saw democracy: it is the worst test—except for all the others that have been tried.

Court officials do not decide in accordance with their personal whims and prejudices.

Turning to the question of disputes between parents, Guggenheim again advocates for the abolition of the best interests standard. For him, ‘child custody cases are not really about children; they are about adults’, and ‘the history of child custody disputes is the story of adults using the language of children and their rights to gain something for themselves’ (p. 143). In just one generation, Guggenheim claims, we have gone from a culture that largely avoids custody fights to one that encourages them. He deplores the fact that parental differences over care and contact have become far too contentious, permitting litigants to go to unreasonable lengths to prove that awarding custody to them will further the child’s best interests. The best interests standard, in his view, ensures that parents do not have to apologise for appearing to be selfish when they are fighting over their children as they have the perfect cover that they are only doing it for their children.

Guggenheim is better at articulating the problems created by the adversarial system and court-imposed resolution of parental conflict than he is at suggesting realistic alternatives. He asserts that almost any predetermined rule for resolving disputes over child custody will be vastly superior to the present open-ended best interests standard. He discusses briefly a return to the ‘tender years presumption’ (that mothers are better fitted to caring for younger children) or the primary caretaker presumption (that the child’s primary caregiver or psychological parent should have custody). He also is attracted to the ‘approximation standard’ adopted by the American Law Institute in 2002 (that post-separation arrangements should approximate as closely as possible the pre-separation role each parent has played in the child’s life).

Of course, there is no guarantee that presumptions and fixed rules will preclude litigation. How do you define a child of tender years? Is there a further presumption that older children (or at least older boys) will be better off with their father? Does this mean a custody change at a nominated age? How do you determine which parent is the primary or psychological parent? How can you replicate pre-separation time apportionment when the parties and the child are living in a very different post-separation environment?

Overall, it seems that Guggenheim is shooting at clay pigeons. Children’s rights advocates and the best interests test are not the real problems. The fierce rhetoric of the book overlooks children in real families and fails to look for practical solutions to the problems the book identifies.

Yet innovative practical solutions are emerging in different jurisdictions around the world.

In child protection, the family group conference model introduced in New Zealand in 1989 and adapted by some Australian states is inclusive and draws on the resources of the extended family of the child and the parents. Under this model, child protection is not a question of the state removing children from their parents—it is a question of encouraging and empowering families to make their own arrangements while ensuring that the child is protected.

In Australian family law, the Family Law Amendment (Shared Parental Responsibility) Bill 2005 is aimed at defusing the acrimony generated by family litigation. It promotes a co-operative approach to parenting and establishes procedures that will assist in ensuring that children have a meaningful relationship with both parents. Parents will have to attend family dispute resolution meetings or family counselling before they are permitted to file a court application. Parents will be encouraged to work out a sensible and flexible arrangement by which they can each continue to meet their responsibilities to their children without recourse to an adversarial contest and court imposed orders.

There is no guarantee that presumptions and fixed rules will preclude litigation.

These fresh approaches retain the best interests test but place strong emphasis on parental and family decision-making with the court as a place of last resort.

The other feature of recent family law reforms in Australia, England, and New Zealand is a new stress on ascertaining and having regard to the views of the child. The landmark Gillick decision of the English House of Lords in 1985 and Article 12 of the Convention on the Rights of the Child have both given impetus to a view of children as rights-bearing individuals rather than as possessions of their parents or objects of adult concern. Guggenheim dismisses the view that children should be empowered to make important decisions about their own lives. He refers to (without specifically endorsing) the disrespectful view that to give children autonomous rights is like permitting the inmates to run the asylum. He argues that having parents make important decisions about their children’s lives means that these decisions will be made by persons who know the children best and care for them most.

What’s Wrong with Children’s Rights is both challenging and infuriating. It is challenging because it highlights how delays and overuse of coercive intervention in the lives of families can harm the children that intervention seeks to protect. It is infuriating because it offers no practical alternatives to the current system and espouses the simplistic view that the parental rights doctrine and the denial of children’s rights is the best solution. Guggenheim sums up his view of children’s rights in the final paragraph of the book:

We have reached the point in our history where perhaps the greatest goal for advancing children’s rights should be a return to a time when we treated children like children; when mistakes they made were understood to be part of the natural process of growing up and when adults understood their obligations (p. 266).

He seems to favour a return to attitudes towards children that prevailed in Victorian England: children should be seen and not heard and should remain under the control of their parents until they reach adulthood. That world has long gone. We realise today that children are real people who have much to contribute to decision-making and to society if given the opportunity. What’s Wrong with Children’s Rights makes some good points but, like the cover illustration, presents a partial and distorted picture of children. Children’s rights are not nonsense on stilts: like stilts, children’s rights raise children up so they can meet adults face to face. It allows them to be seen and heard.

Robert Ludbrook was founding director of the Sydney-based National Children’s and Youth Law Centre and has worked as a senior project manager for the New South Wales Commission for Children and Young People. He lives in New Zealand and works as an advocate for children and their rights.