Module 1 Discussion Problem
Traynae
Child_Protection_--_final_Module_1.pptTHE STATUS OF CHILDHOOD: AN INTRODUCTION
To understand the rights and obligations of children, it must be understood what it means to be a “child” in law.
General Age of Majority is 18 years old
However, the status of “child” may terminate before 18, or may extend beyond that age, depending on the context and circumstances.
THE PARENS PATRIAE DOCTRINE, PARENTAL PREROGATIVESM AND THE CHILD’S OBLIGATION TO OBEY
Common Law Background
This Doctrine is the basis for much public regulation of the government-parent-child relationship in the United States today.
The common law doctrine of the “royal prerogative,” the Crown had the right and responsibility to care for persons deemed legally incapable of caring for themselves, particularly infants and the mentally infirm.
THE STATUS OF CHILDHOOD: AN INTRODUCTION, cont.
This protection was normally confined to upper class or “landed gentry” in efforts to secure financial reward for the Crown itself.
The Parens Patriae Doctrine was recognized early in American law, but it was not confined to the upper class.
Throughout the nineteenth century, child advocates invoked the doctrine to protect children from abuse, neglect and the adult criminal system.
Today, Parens Patriae underlies much of the legislation and the court decisions in areas such as abuse and neglect, foster care, adoption, medical decision making, support, protective legislation and delinquency.
THE AMERICAN CONCEPTION
- THE TRADITIONAL ROLES OF PARENTS AND THE GOVERNMENT
- Throughout most of the nation’s early history, the law viewed children as incompetents in family matters until they reached the general age of majority.
- The creation of the first juvenile court in1899 was the turning point in parental rights in the United States. Reformers argued that children have “distinct physical and emotional needs worthy of the law’s recognition.” text pg. 21
- Two Landmark Cases – Meyer v. Nebraska, Pierce v. Society of Sisters
THE AMERICAN CONCEPTION, cont.
Meyer v. Nebraska – A school teacher was prosecuted for teaching the subject of reading in the German language to a child who has not yet passed the eighth grade. Nebraska had a statute that made this illegal. The court held that Parents have the right to control their child’s upbringing without unreasonable state interference.
Pierce v. Society of Sisters – A state statute required parents, guardians or custodians to send their children between eight and sixteen to public school. The court applied the rule in Meyer v. Nebraska and held that the Act unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control. The court further stated, “ The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for further obligations.”
The Movement Toward “Children’s Rights”
After the landmark cases, Myers and Pierce, American law began to recognize that children hold constitutional rights. Meyers and Pierce conferred constitutional status on the parents’ right to control their child’s upbringing without unreasonable state interference. Neither case spoke about the children’s interests. The following case turns towards the modern children’s rights movement
Prince v. Massachusetts, P. 27 – The court upheld Sarah Prince’s conviction for violating the Massachusetts child labor law by permitting her nine-year-old niece to accompany her and seek to sell Jehovah’s Witnesses periodicals on a public street.
The court states, “Acting to guard the general interest’s in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor, and in many other ways.” text p. 30
An International Law Basis for Children’s Rights
The United Nations Convention on the Rights of the Child was adopted by the U.N. General Assembly in 1989 and is now ratified by virtually every nation (text p.103)
Most widely ratified human rights treaty in history
The first legally binding provisions that protect children’s rights appeared in two covenants: The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (p.103)
The United States has not ratified the Convention, therefore is not bound by its articles.
An International Law Basis for Children’s Rights, cont.
Litigants in children’s rights cases sometimes invoke international law, usually without much success.
In Domingues v. State, 961 P.2d 1279, 1280 (Nev. 1998) the defendant was sentenced to death for murders he committed when he was sixteen. The state supreme court rejected his contentions that imposition of the death sentence violated United States obligations under both conventional and customary international law.
Article 6 of the ICCPR, ratified by the United States in 1992, provides that, “sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” The Court in the above mentioned case, noted that the Senate ratified the ICCPR with the reservation that the United States reserves the right to impose capital punishment on any person (other than pregnant women), including persons below eighteen years of age.
Perspectives on Child’s Rights
To date, there is no coherent philosophy or approach when addressing children’s rights.
One view on Children’s Rights is that children lack the capacity to make decisions on their own and that the parental control of children is needed to support a stable family which is crucial to the well-being of society
On the other hand, Society is unwilling to treat children as property of adults
“Therefore it is necessary to examine closely the claims of children’s rights advocates in order to see whether the existing legal structure should be altered.” (text p.114)
