A Child’s Right to a Family… Almost
Tag(s): Convention on the Rights of the Child • CRC • international law • parental rights
An In-depth Look at Article 9 of the UN Convention on the Rights of the Child
Last week, we began our series on the UN Convention on the Rights of the Child (UNCRC) by looking at the Convention’s central focus on the “best interests of the child,” which allows the government to substitute its will for that of the parents. This principle is significant as we turn our attention to one of the first rights that the CRC grants to children: the right to remain in their family.
THE RIGHT TO A FAMILY… ALMOST
At first glance, Article 9 of the CRC may appear harmless and even idyllic: “a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” But despite references to “competent authorities” and “judicial review,” a closer examination quickly reveals that the emphasis on the child’s “best interests” grants the government broad latitude to intervene in the family.
There are many broad and diverse opinions when it comes to what makes a “good parent.” Parents may read a popular parenting book, attend a parenting class, or turn to their own parents or a trusted mentor for advice. Likewise, there is also a broad range of opinions when it comes to when a child should be removed from the home. Clearly a child who is being sexually or physically abused should be saved from that circumstance, but what about more complex issues? Should children be separated from their parents if they are spanked? What about parents who are disabled or have a physical handicap? What about families who are too poor to provide the best quality of living for their children? There are many answers that could be given about what is in the “best interests of the child,” depending on the person who is being asked.
This is why the Supreme Court ruled in 1993 that the “best interests” test could only be applied when a family is broken, such as in divorce proceedings when the dispute is between two parents. When the family is intact, however, courts are required to prove that a parent is “unfit” to raise the children, which requires a state to satisfy a much higher burden of proof. Article 9 destroys this distinction and uses the same test for families that are broken and families that are intact. By analogy, the “best interests” standard treats the government as if it were the other parent in a divorce-proceeding, placed on the same footing as the child’s natural parents in a battle for custody of the child.
TRAMPLING ON PARENTAL RIGHTS
In 1980, the Supreme Court of Washington heard the case of a fifteen-year-old girl who had enlisted state social workers in her quest to live separately from her parents. The girl had resisted her parents’ efforts to discipline her through grounding, and claimed that there was “conflict within her home,” though when asked by a judge about the nature of this conflict, the girl simply replied: “I just feel that there’s a communication gap there.” In an imposing display of judicial power, the court ruled that the conflict between the parents and the child was so severe that it justified the child being placed under the custody of the state, even though the parents were fit and their behavioral standards were not unreasonable.
Twenty-eight years later, families in the United States are still at risk of losing their children if the government believes it can do a better job. In 2004, a social worker hastily accused the parents of one-year-old Julia of child abuse after learning that she had suffered fifteen bone fractures in a period of five months. The parents had no previous record of abuse, the government never presented evidence that they had ever harmed their daughter, and several medical experts testified that the little girl had a brittle bone disease that was responsible for the fractures. But despite the evidence, the family court took little Julia away from her family and placed her in a foster home, citing her “best interests.” Julia remained in foster care until this past December, when her family finally won her back. She is now four-years-old, and has spent the last three years living with strangers in a foster home, but her family is overjoyed to finally welcome her home.
More recently an autistic boy was forcibly removed from his home despite the evidence being “clear that the parents have always stood by and tried to help their son.” Read about this tragic story on our blog here.
WHO DECIDES?
Julia’s happy ending was three long years in the coming - all because of government officials who claimed to act in the “best interests of the child,” without bothering to prove that Julia’s parents were unfit to raise her. Her story is a warning of the insidious sub-plot that runs through Article 9 of the CRC, which grants the government a dangerous power over the lives of its citizens.
But Julila’s story is more than just a warning. It is also a reminder that the battle for parental rights is more than just a battle to change the Constitution: it is a battle to protect real people, to save young lives that are in no danger, except from the government that claims to protect them. Innocent children and loving parents deserve far better than justice that comes three years too late.
Please forward this message onto your friends and urge them to sign the Petition to Protect parental rights at http://www.parentalrights.org/petition.
Sources
In Re Sumey, 94 Wash. 2d 757 (Wash. S.C. 1980)
UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm
Family wins custody battle in court
http://www.timesunion.com/AspStories/story.asp?storyID=647184&category=REGION&newsdate=12/14/2007
Autistic Boy Removed from his Home Because the Government Disagreed with the Parents
[…] Republitarian wrote an interesting post today onHere’s a quick excerptBut despite references to “competent authorities” and “judicial review,” a closer examination quickly reveals that the emphasis on the child’s “best interests” grants the government broad latitude to intervene in the family. … […]
Feb 25 at 6:24 pm
More government intrusion into the private lives of it’s citizens. And more backing for any Child Protective Services worker to ambush their way into a family’s private life and make demands and intrusions that are neither ethical or sometimes even legal all in the name of “the best interest of the child”. CPS has gestapo like tactics to begin with now they’ll have the power behind their bully tactics.
Feb 27 at 12:18 pm
Do we hear about ALL cases of children who die, whether accidently or intentional, in the hands of the government who represent their “best interest”? Children are dying; the government “best interest” is not working. Children should BE protected! Children are NOT human shields.
Feb 28 at 12:35 am
This article doesn’t give all the facts. It is very general. How are we to make a clear decision when both sides are extreme cases? Our local CPS works very hard to keep the families together. They provide the families with many resources. They’ve even had families call in asking for help with parenting skills. They have one of the toughest jobs out there and I don’t think we should bash all CPS agencies because INDIVIDUAL people had thier own agenda when it came to dealing with these families.
Feb 28 at 10:05 am
[…] Read the rest of this interpretation here. […]
Feb 29 at 3:20 am
You have selected some very strange cases (a 1980 case of a girl who wants out from under her parents and an autistic child) If you want to make your point you’re going to have to do better than this.
If 147 countries have ratified this treaty it cannot be as bad as you are trying to make it out to be
Mar 5 at 4:55 am
[…] Last week, we looked at how Article 9 of the UN Convention on the Rights of the Child gives the government authority to intervene in the decisions of parents simply by appealing to the child’s “best interests.” This week, we continue our in-depth analysis of the CRC by examining Article 12, which says: “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” […]
Mar 5 at 3:32 pm
Richard,
It should be noted that other countries don’t have a “supremacy clause” in their top national law as we do that puts treaties at the same binding authority as the Constitution. The UNCRC is a meaningless document signed for political reasons by countries like Saudi Arabia. The United States doesn’t have that luxury. Our courts will enforce it on us. Do you think Saudi Arabia really cares about the “rights of children”? Of course not.
Rich Shipe
Mar 5 at 3:56 pm
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Mar 6 at 10:37 am
A case in Texas where the children were removed from their mother without just cause. The children were eventually returned to her after 6 months. The way some laws are written depending on how a judge interprets them innocent people can suffer a legal nightmare and the fear of jail time and/or losing their children.
http://www.dallasobserver.com/2003-04-17/news/1-hour-arrest/
An interesting movie Evelyn 2002 based on a true story is about a father in Ireland who lost his children permanently because the courts thought it best. He fought the courts and won his parental rights back. Evelyn is available to rent at Netflix.
We as parents need to take a stand to protect ourselves from having to deal with legal messes because of how a judge interprets something and of having our children taken away temporarily or permantly without just cause.
Mar 7 at 6:05 pm
Obviously the courts should have a strict test to determine when a child is being taken for it’s safety. But the government/courts need to stay out of it if it’s just a matter of difference in child raising. I’d hate to see how many 12-18 year olds got to leave home because they didn’t like the rules or got spanked.
Mar 7 at 11:25 pm
One of the key elements of slavery is the lack of the parent to have full rights to their children. This is an assault to individual freedom.
Mar 9 at 3:05 am
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Mar 12 at 9:53 am
The DHS lies so that they can keep their job that is how they stayed employed these Judges takes oath under the constintional law and they go against the constinional rights of the parents their decision should be void it is treason these Judges who go along with DHS lies should be impeached and be proscuded as well as the state workers our own governor doesn’t give a dam about parental rights.
Mar 15 at 12:10 pm
Good article about rights of the Child. Why should they be separated from parents.A child has complete rights of expressing their love, friendship, or adoration for each parent. They should never feel ashamed or afraid to share these feeling around the other parent. Parents guidance is very important in every aspect of life. Child learning allows you to know responsibilities of parents.
Mar 18 at 8:41 am