Below is the abstract for “Are Children’s Rights Enough?,” available for download on SSRN.
Are parental rights or children’s rights better for protecting children and vindicating their interests? In this on-going debate, American family law scholars and advocates are deeply divided. Scholars and advocates often criticize the United States for its failure to ratify to Convention on the Rights of Child and for denying children constitutional family rights. This critique of U.S. family law assumes that incorporating children’s rights would result in better outcomes for children. This Article challenges the assumption that children’s rights are enough to vindicate children’s interests. Instead, I identify how the current conceptions of children’s rights present structural barriers to full vindication of the child’s interests.
To illustrate how these structural barriers operate, this Article analyzes case law on custody and family separation from a jurisdiction that uses a strong children’s rights approach, the European Court of Human Rights. These cases provide a valuable comparator by which to test whether children’s rights framing changes the way that courts reason about children.
This Article contends that three major obstacles have thwarted the efficacy of a children’s rights framework. First, when children’s interest conflict with their parents, someone must decide whose interest will prevail. This empowers states to intervene into families’ lives in ways that can undermine children’s wellbeing. Second, a children’s rights model must give children a voice in legal proceedings. However, rights litigation is traditionally the purview of adults, and children often lack standing to assert their own rights claims. Even when they do, young children lack the capacity to assert their interests in a way that is cognizable by a court. Finally, a children’s rights model must address the ways in which the state uses children as leverage to deter or compel their parents. To be effective rights-holders, children must be agents and not merely objects in the eyes of the law.