Part I of an In-depth Look at Article 18 of the UN Convention on the Rights of the Child
During our series on the UN Convention on the Rights of the Child, most of the articles we have considered have focused on the relationship between the state and the child. Article 18 is therefore unique in its emphasis on the responsibilities of parents, and the supervised relationship that these parents have with the state.
Article 18 is also one of the more complex articles in the Convention, divided into three sections that address distinct facets of the relationship between parents and the state. This week, we will focus on the first section, which says that “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,” and that parents are primarily responsible for their children. As parents, “the best interests of the child will be their basic concern.”
The danger of Article 18 is that it places an enforceable responsibility upon parents to make child-rearing decisions based on the “best interests of the child,” subjecting parental decisions to second-guessing at the discretion of government agents.
Obligations on Parents?
Article 18 stands out because it affects not only the relationship between the UN and the nation that ratifies the Convention, but also the relationship between private individuals and their government: a relationship that is usually changed through legislation at a local level. In fact, the UN’s Implementation Handbook for the CRC explains that “when article 18 was being drafted, the delegate from the United States of America commented that it was rather strange to set down responsibilities for private individuals, since the Convention could only be binding on ratifying governments.”
But instead of paying heed to this objection, the drafters of the CRC rejected it, making the Convention enforceable against private individuals and requiring that “parental rights be translated into principles of parental responsibilities.” The Handbook itself notes that if the actions of parents could be shown to impair the child’s physical, psychological, or intellectual development, “the parents” – not the state – “can be found to be failing in their responsibilities.” (emphasis added).
The end result is parental involvement under state supervision. According to Chris Revaz, Article 18 “recognizes that parents and legal guardians have the primary responsibility for the upbringing and development of the child, with the best interest of the child as their basic concern,” but also invests in the state “a secondary responsibility to provide appropriate assistance to parents and legal guardians in meeting their responsibilities.” Roger Levesque opines that such supervision attempts to “regulate the relationship between child and state,” essentially relegating the role of parental and familial involvement to a position of “secondary importance.”
Enforcing the “Best Interest” Standard
As a previous e-mail in our series has already discussed, the “best interests of the child” is a significant theme in the Convention, providing “decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’.”
The inevitable result, according to Levesque, is that “by placing the burden on the State to take affirmative steps toward ensuring the fulfillment of children’s rights, the Convention assumes responsibility and invokes the State as the ensurer and protector of rights.” This point is echoed by Law Professor Bruce Hafen, who warns that the Convention’s emphasis on the “best interests of the child” creates “an arguably new standard for state intervention in intact families.” According to Hafen, legal authors in Australia have already suggested that “under the CRC, parental childrearing rights are ’subject to external scrutiny’ and ‘may be overridden’ when ‘the parents are not acting in the best interests of the child.’”
Hafen warns that this conclusion – though inapposite to America’s cultural and legal heritage – is “consistent with the CRC’s apparent intent to place children and parents on the same plane as co-autonomous persons in their relationship with the state.” This is a far cry from America’s legal heritage, which has long held that parents have a fundamental right to oversee the upbringing and education of their children, free from government control. Article 18 makes it plain, however, that under the Convention, it is the state that is ultimately responsible for the fate of its children, and has authority to supervise its parents.
Please forward this message onto your friends and urge them to sign the Petition to Protect Parental Rights.
UN Convention on the Rights of the Child
Cris Revaz, “An Introduction to the U.N. Convention on the Rights of the Child,” in The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications on U.S. Ratification (2006): 10-11.
Roger Levesque, International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy (1994): 214.
Bruce and Jonathan Hafen, Abandoning Children to their Autonomy (1996): 461-462, 464.
United Nations Children’s Fund, Implementation Handbook for the Convention on the Rights of the Child (2002): 245-246, 46, 246.