Juridics: Children's Rights: Martin Guggenheim asks, What's wrong with 'children's rights'?

UPDATE

Family: Parent/s, Child/ren, Siblings:

Martin Guggenheim, a professor of clinical law and author of previous books like The Rights of Families, and The Rights of Young People in this new book (May 2005) published by Harvard University Press, asks the question, What’s Wrong With Children’s Rights?, in order to launch a depth-investigation of the rhetoric of the presentday movement of "Child's Rights Advocates." Guggenheim seeks to fathom the ultimate wellsprings of the movement's ideology, agenda, leading figures, and the institutions they build in which to ensconce themselves and pursue both their own internicene battles, and their general unified goal of wedging control of children away from the influence of their parents and the context of family. It tries to clarify the parental responsibility, not granting any blanket "parental right" to do as the closest adults may wish with their offspring and adopted children thru the "under-age" stages of life.

The following abstract is unsigned (and is apparently derived from the following selection of pages in Prof Guggenheim's new book: xii-xiii, 8-17, 38-41, 245-247). I found the matter in an email newsletter Family Update Online!, published by an outfit called World Congress of Families which is very much a mixed-bag for me. It has constructed an ideology of "The Natural Family," and I have not yet been able to discover whether it includes adoptive families within its purview of concern and embrace of support. It seems to be based on the twin notions of consanguinity and congeneticality, a marvellous form of famliy when it works well (but is just as much prone to distortion as any other forms, in my observation).
The problem with any ideology of "the natural family" is that it can be used to demote adoptive families, blended families, homo-parented families, friends-parented families, and even blood-or-inlaw parented families - there's also a race-selective principle in some versions of the natural-family ideology, altho for sure I don't see traces of that in World Congress of Families literature. Having said all this, I do see the possiblity of the state having an interest of its own in providing special support to consanguinous / congenetic forms of famliy where the children are all reproductive-offspring of the parents (whether traditionally married, or traditionally common-law, depending on the jurisdiction's legal definitions). But this practical lattitude of the state where getting the best results for its expenditures may involve encouragement of one form of family over others, does not pertain to the the philosophical and philosohically-informed sociological definition in answer to the question What is a family? The state should be cognizant of that question, but in policy-making it may find jurisdication by jurisdiction that it has an interest in promoting a form of family where it is most possible to hold parents responsible for the behaviours of their children and teenagers, because the tie in the cases of consanguinity/congeneticality are conceived as generally more emotinally binding and multi-dimensional. Yet, for the state to fall back on such a tite outlook and narrow defintion, it must take responsibility for its policy and resultant legislation, as there are consequences to non-recognition. One of them is fewer adoptions of children in desperate need of their own parents.

Also, I add, the consanguinous defintion of family when it depends totally and absolutely on 1woman1man marriages based on a definitional conflation of the two separate institutions, strictly speaking, can not take into account what happens to the consanguinous after a parent dies prematurely, leaving a vulnerable single-parent and the consanguinous offspring. When remarriage occurs, difficulties may be assumed, but the blended family is not consanguinous and for the strict defiintionists here not natural. I have discussed this before; and also my antipathy to any definition of family based on reproductivist doctrine of marriage. Marriage is one institution; family is another. When one kind of marriage (that with consanguinous children) generates a "natural family" by means of reproduction, a particular kind of family emerges - but this is not an ideal, or a norm, or a "superiour family." The moral value of such a family is. along with all other kinds, to be found in the stewardship of the parent/s of their authority of their child/ren in the task of raising responsbile adults, and the response of the child/re - himself, herself, themselves - in relation to their parents, their siblings, the broader family when possible, and the larger society with its myriad of relationships, roles, and institutions for participation in which the child/ren are being readied - no matter what their bio-parentage was and no matter who their quotidian parentage may be.

Here however we are able to get a look at Prof Guggenheim's newest book thru the filter of an abstract, which tho it may be selective with a World Congress of Families bias built-in, still is stimulatingly instructive. With this uncopyrighted "abstract" and with the copyrighted material you'll find on Amazon.com, by clicking the headline to this blog entry, you'll be in a good position to mull the issues at a basic level, and to purchase the Guggenheim volume if you want to read more deeply. - Owlb

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For a quarter of a century, progressive legal theorists have been advocating theories of social justice premised on children’s rights. However, a long-time specialist in children’s rights sees the creation of such rights as a source of great danger and little good. Martin Guggenheim, professor of clinical law at New York University, seriously questions “whether children’s rights serve children’s interests.”

In the first place, Guggenheim challenges the arguments of those pushing to give children the same legal rights enjoyed by adults. These advocates of children’s rights decry society’s denial of full legal rights to children as “oppression” and “subordination,” and in inflammatory rhetoric they compare “the way Americans [once] treated slaves with the way the law limits the freedom of children.” Such rhetoric, Guggenheim asserts, “makes almost no sense” because “children are different from adults in significant ways.” Because of their “immaturity and ... lack of intellectual and experiential capacity,” children invariably “need caring adults to ensure they will live and grow into independent adults. Children, at least for an important period of their lives, are dependent on adults for their very existence.” Consequently, it would be destructive and not emancipatory to enact laws “abandoning children to their rights.”

The arguments of many children’s rights advocates, Guggenheim avers, rest on “a fatally flawed premise,” namely that of “the child’s individual personhood.” This premise, he points out, “falsely suggests the possibility and, even worse, the desirability of isolating children from the larger fabric of the society into which they have been born and are being raised.” It particularly troubles Guggenheim that “a leading characteristic of the children’s rights movement is its propensity to separate children’s interests from their parents’.” Labeling the separation the “most egregious error” of the children’s rights movement, he warns that “in the effort to make children more free vis-à-vis their parents, the government makes children less free in their relations with the state.”

Guggenheim strongly endorses the American legal traditions that “cede to birth parents the right to have the care and custody of their biological children and the primary authority to control the details of a child’s upbringing.” In his view, these traditions serve the “sensible goal of providing children with their best chance to grow and be supported within a family, with an edifice of significant barriers to state control and intervention.” After all, “children benefit when the important decisions concerning them are made by people they know best. Current law allows a freedom within the family for self-regulation. The degree to which children benefit from this freedom is unquantifiable.”

This familial freedom, unfortunately, is now threatened by children’s rights activists seeking “to wrest from parents some of the control they have under current law” and then, typically, give that control to “judges, caseworkers, and children’s lawyers.” When these professionals supplant parents, they typically defend their decisions as necessary to protect “children’s rights” and to secure “the best interests of the child.” Guggenheim is skeptical of such rhetoric. “‘Children’s rights,’ he remarks, “has become a mantra invoked by adults to help them in their fights with other adults in all sorts of contexts.” “Children’s rights” have thus become “a useful subterfuge” for adults seeking to hide their own motives. And though the appeal to “the best interests of the child” seems “alluring and child-friendly,” Guggenheim warns that “it is a formula for unleashing state power, without any meaningful reassurance of advancing children’s interests. It means substituting the state’s preference about some aspect of child-rearing for the parents’. But this hardly ensures the second opinion is better than the first.” Substituting a court’s view of “the best interests of the child” for the parents’ view “only ensures greater intervention through protracted litigation and an almost boundless authority by the judge to regulate the family.”

In such intervention—intervention of the sort that now has “more children ... enmeshed in legal proceedings than would have been imaginable a generation ago”—Guggenheim discerns a grave threat to “the principles upon which a free society rests.” He also perceives a lamentable surrender of more and more of children’s lives to the highly impersonal care of “courts [that] lack the expertise, time, and knowledge of human development ... that decisions involving children unavoidably involve.”