The United Nations and the rights of the children.
"to protect children from economic exploitation and performance of hazardous work; sexual exploitation including the use of children for pornography or prostitution; and abduction, sale of and traffic. It covers all forms of physical or mental violence injury or abuse, neglect, maltreatment or exploitation, including sexual abuse, torture, capital punishment or life imprisonment without the possibility of release. It also recognises the cultural, economic and social rights of children including health, education, an adequate standard of living and the child's own culture, religion and language."
Over forty national constitutions exist which incorporate Articles from the Convention pertaining to marriage and the family, and by direct or derivative reference, to the rights of children. Some examples of children's rights embodied in the constitutions of various countries are excerpted below.
Belarus, Article 32: "No child shall be subjected to cruel treatment or humiliation or used for work that may be harmful to its physical, mental or moral development. Children shall care for their parents or persons in loco parentis and render them assistance."
Congo, Article 38: "The State shall have the duty to assure the protection of the Rights of the mother and infant as stipulated in the International Declarations and Conventions."
Eritrea, Article 22: "Parents have the right and duty to bring up their children with proper care and affection; and, in turn, children have the right and the duty to respect their parents and to sustain them in their old age."
Switzerland, Article 54: "Children born before marriage shall be legitimised by the subsequent marriage of their parents."
It is of interest to note two examples which mark the extremes in regard to current incorporations of children's rights into constitutions. The United States furnishes one; post-apartheid South Africa, the other.
The Constitution of the United States makes no mention of the rights of children, and among many Americans there is both doctrinal and political resistance to attempts to secure a place for them: doctrinal, because of the common law structure of the Constitution; and political, because the concept of children's rights is perceived by conservatives to threaten family values, and by those on the left to threaten women's autonomy. (2)
At the other end of the spectrum, the Republic of South Africa's 1996 constitution incorporates a Bill of Rights for children which is the most detailed and explicit formulation contained in any constitution so far. The relevant section reads as follows:
"(1) Every child has the right
(a) to a name and nationality from birth;
(b) to family or parental care, or to appropriate alternative care when removed from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services;
(d) to be protected from maltreatment, neglect, abuse or degradation;
(e) to be protected from exploitative labour practice;
(f) not to be required or permitted to perform work or provide services that --
(i) are inappropriate for a person of that child's age; or
(ii) place at risk the child's well-being, education, physical or mental health or spiritual moral or social development;
(g) not to be detained except as a measure of last resort, in which case, in addition to the rights which a child enjoys under sections 12 [Freedom and security of the person] and 35 [Arrested, detained and accused persons], the child may be detained only for the shortest appropriate period of time, and has the right to be--
(i) kept separately from detained persons over the age of 18 years; and
(ii) treated in a manner, and kept in conditions, that take account of the child's age;
(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
(i) not to be used directly in armed conflict, and to be protected in times of armed conflict.
(2) A child's best interests are of paramount importance in every matter concerning the child.
(3) In this section `child' means person under the age of 18 years."
An example of specific, extra-constitutional legislation is the recent Children's Rights Commissioner Act in England. It provides for the establishment of a children's rights commissioner who is charged with the following duties.
"(a) to promote the rights and interests of children;
(b) to seek to ensure that the rights and interests of children are properly taken into account by Ministers of the Crown, government departments, local authorities, other public bodies and voluntary and private organisations when decision on policies affecting children are taken;
(c) to promote compliance with the United Nations Convention on the Rights of the Child as ratified by Her Majesty's Government and subject to such reservations as Her Majesty's Government made on ratification, unless subsequently withdrawn; and
(d) to seek to ensure that children have effective means of redress if their rights are disregarded by any body referred to in paragraph (b)."
Many of the prominent common law jurisdictions have been concerned with cases pertaining to the rights of children. Of some international interest, and important for Australia, was the judgment of the High Court of Australia in the Teoh case. (3) Ah Hin Teoh, a Malaysian, had resided in Australia on a temporary entry permit. His wife was an Australian citizen, and the three children from their marriage had all been born in Australia. Teoh was convicted of importing and possessing heroin before he obtained approval for permanent residence, and the Minister for Immigration ordered that he be deported. Because his wife was a heroin addict, and because there were six young children altogether in the family, Teoh appealed, on the grounds that they depended on his emotional and financial support. His appeal invoked the United Nations Convention on the Rights of the Child.
The results were twofold. First, Teoh was permitted to remain in Australia, despite his criminal record, because it was judged to be in the best interests of the children that he stay. Secondly, certain High Court judges found that a convention may still have significance for Australian law, even without having been formally ratified in this country. (4)
THE REGGIO APPROACH
Of current international interest is the approach to early childhood and education in the municipality of Reggio Emilia in Italy. Its centres were selected as among the ten best schools in the world by "Newsweek" magazine in 1991, and its twenty-one pre-schools and thirteen infant-toddler centres attract educators from all over the world. Indeed, between January 1981 and January 1999 there were approximately six hundred delegations to Reggio Emilia with a total of about ten thousand Visitors. (5) Many Australians have shown great interest in the Reggio approach to early childhood care and education.
Reggio Emilia's culture of childhood revolves around two concepts: children's rights, and children's potential. Reflecting on the history, ideas and basic philosophy of the Reggio approach in an interview with Lella Gandini, Loris Malaguzzi, the founder of the programme in Reggio Emilia, made the comment that the parents of the children of the first school in 1946 wanted a different school, one in which the children would be educated differently. Malaguzzi drew attention in particular to a desire to see the potential of the children taken seriously. He noted: (6)
"The equation was simple: If the children had legitimate rights, then they also should have opportunities to develop their intelligence and to be made ready for the success that would not, and should not, escape them. These were the parents' thoughts, expressing a universal aspiration, a declaration against the betrayal of children's potential, and a warning that children first of all had to be taken seriously and believed in."
Malaguzzi did not amplify in the interview what the "legitimate rights" of children might be, but the implication is that education of a particular kind is one such right. How this emerged in practice is perhaps revealed in a poster, compiled by some of the children, placed in the Diana School in Reggio Emilia in 1990. It declared: (7)
"Children have the right to have friends, otherwise they do not grow up too well. Children have the right to live in peace. To live in peace means to be well, to live together, to live with things that interest us, to have friends, to think about flying, to dream. If a child does not know, she has the right to make mistakes. It works because after she sees the problem and the mistakes she made, then she knows."
Such statements suggest a particular image of childhood which lies at the heart of the Reggio approach. It is summed up in Malaguzzi's own words which visualise the child as "rich in potential, strong, powerful, competent and, most of all, connected to adults and other children". (8) The connection between the rights of children and the image of the competent child has led one American early childhood educator to make the following claim: (9)
"At the core of the Reggio Emilia philosophy is the image of children as competent. Reggio educators believe that the quality of their schools results in large part from this image of a competent child who has rights, especially the right to outstanding care and education, rather than only needs."
The Reggio statements clearly derive from accepted community values and traditions as well as from current vested points of view. They acknowledge no international convention or national constitutional base, nor are they legislated or derived from common law. They do, however, possess a strong focus on community and a participant citizenry.
THE UNITED NATIONS CONVENTION Despite these principles' absence of international law references, some writers allege (10) that the United Nations Convention on the Rights of the Child should be seen as providing a rights perspective to the Reggio approach. The corollary to this kind of claim is that the Convention should be seen as providing a benchmark in Australia for early childhood care and education professionals to reflect on practice. Should the Convention be seen as a source from which to derive rights of children pertaining to early childhood care and education in Australia? Here are three reasons why the Convention is not appropriate.
The Convention is controversial. On the one hand, when Australia ratified it in December 1990 there had been 70 petitions tabled in the Senate and 172 petitions tabled in the House of Representatives, with many thousands of signatures, urging either delay in ratifying, or less than full endorsement of, the Articles it contained. On the other hand, there have subsequently been calls from other quarters objecting to Australia's lack of application of many aspects of the Convention. One important reason for the controversy surrounding the Convention in Australia is the perception by many that it is anti-family. A second is the perception that it undermines parental rights and that it is anti-parent. The Convention's whole concept of autonomous child rights is highly problematic, and its controversial nature is a first reason for rejecting the Convention as a source for framing the rights of children in early childhood care and education in Australia.
The Convention is ambiguous. Its ambiguity is necessary because it is a document which covers a range of developmental situations affecting children aged from birth to the late stages of adolescence. Therefore it has to cover a wide spread of evolving capacities on the part of children and hence is broad and general in its stipulations. It is thus at times open to differing interpretations. But this very ambiguity limits its usefulness in considering children who are at a developmental stage where they have very restricted decision-making capacities. An example relates to Article Three which states (in part): (11)
"In all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration."
This could, in practice, mean anything. Two American authors, Hafen and Hafen, note that the language of best interest in the Convention is legally unclear. They record that in America the claim has been made that state intervention would occur only when custody issues arose or neglect had been established. They contrast this view with legal opinion in Australia, where two Australian lawyers consider that: (12)
under the C.R.C., 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, or where the parents are unreasonably attempting to impose their views upon mature minors who have the capacity to make their own decisions.' This interpretation is consistent with the C.R.C.'s apparent intent to place children and parents on the same plane as co-autonomous persons in their relationship with the state. To the extent that the C.R.C. encourages such interpretations, its ambiguity, or its conscious design, risks creating a new and lower threshold for state intervention in intact families."
In view of the vagueness of the concept of "best interest" and the subsequent ethical and legal ambiguity arising from it, Australia would do better to look for support for policies concerning the child s point of view from sources where the relevant terms are more clearly defined and the implications more clearly spelled out than they are in the Convention.
3. Lack of Balance in the Convention
The Convention is unbalanced. As we have seen, its focus is on the concept of autonomous child rights. But children, even babies in day care settings, as a general rule have a parent or parents who are needed for their upbringing. It is the very nature of childhood to be in need of such support. As one group of commentators on the Convention has noted. (13)
"No matter how well intentioned, governments and their public servants cannot bring up children. Only the parents can do that. There is no evidence to suggest that someone has discovered that children can care for themselves and do not need guidance. Children are inherently dependent."
Yet the Convention omits all focus on this truth. Article Five, admittedly, draws attention to the "responsibilities, rights and duties of parents ... to provide ... appropriate direction and guidance in the exercise by the child [italics added] of the rights recognised in the present Convention". Article Fourteen requires States Parties to "respect the rights and duties of the parents ... to provide direction to the child in the exercise of his or her right [italics added] in a manner consistent with the evolving capacities of the child". However, what seem on a superficial reading to be references to parent rights and responsibilities are, in fact, directing parents to support the autonomous child's exercise of rights conferred by the Convention. The only rights and responsibilities attributed to parents are in respect of upholding the child's rights to independence. Nowhere in the Convention are the rights and responsibilities of parents regarding the educational, physical, social and moral development of their children recognised. (14)
So what approach to the concept of the rights of children should be advocated as beneficial for early childhood care and education in Australia? There are good reasons for favouring the Reggio approach, with its recourse to common sense as a primary source. It is encouraging to note the increasing number of early childhood professionals who are participating in delegations visiting Reggio, where the exchange with Australia has intensified over the last few years. (15) The "Hundred Languages of Children" exhibit of the municipal infant-toddler centres and preschools of Reggio Emilia has also been seen in Melbourne. One cannot, nor would one wish to, re-create Reggio Emilia slavishly in this country. But as American educationist Howard Gardner notes: (16)
"each ... educational environment has to struggle with and find its own comfortable point of repose between the desires of the individual and the needs for the group; the training of skills and cultivation of creativity; the respect for the family and the involvement in a wider community; attention to cognitive growth and concern with matters of temperament, feelings, and spirit."
(1.) Joint Standing Committee on Treaties, Review of the Convention on the Rights of the Child, Background to the Inquiry, 1997, page 3.
(2.) Barbara Bennett Woodhouse, "The Constitutionalisation of Children's Rights: Incorporating Emerging Human Rights into Constitutional Doctrine," no date.
(3.) Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 C.L.R. 273.
(4.) Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child, 17th Report, 1998, page 4.
(5.) L. Morrow (trans.), "The Municipal Infant-Toddler Centers and Pre-Schools of Reggio Emilia. Historical Notes and General Information," 2nd ed., Reggio Children S.R.L., 1999.
(6.) C. Edwards, L. Gandini and G. Forman (eds.), "The Hundred Languages of Children: the Reggio Emilia Approach to Early Childhood Education" (Ablex Publishing Corporation, Norwood, New Jersey, 1993), page 51.
(7.) Ibid., page 135.
(8.) L. Malaguzzi, "For an Education Based on Relationships, Young Children," 1993, page 10.
(9.) S. Bredekamp, "Reflections on Reggio Emilia, Young Children," 1993, page 13.
(10.) B. Nyland, "The United Nations Convention on the Rights of the Child: Using a Concept of Rights as a Basis for Practice," Australian Journal of Early Childhood, 1999.
(11.) Convention on the Rights of the Child, U.N.G.A.O.R., 44th Session, U.N. Doc. A/ 44/736, 1989.
(12.) B. Hafen and J. Hafen, "Abandoning Children to their Autonomy: The United Nations Convention on the Rights of the Child," Harvard International Law Journal, 1996, page 464. Their position is endorsed by B. Maley, "Children's Rights: Where the Law is Heading and What it Means for Families" (Centre for Independent Studies, Saint Let. L, New South Wales, 1999), reviewed by M. Raynor, "Some Recent Reading", Rights Now (July 1999), pages 21-23.
(13.) E. Abetz, P. McGauran and W. O'Chee, "Additional Comments on the United Nations Convention on the Rights of the Child," Joint Standing Committee on Treaties (1998).
(14.) United Nations Convention on the Rights of the Child, 17th Report, 1998, page 472.
(15.) L. Morrow (trans.), op. cit.
(16.) C. Edwards, L. Gandini and G. Forman (eds.), op. cit.
H.E. MELVILLE JONES is a Faculty Member of the School of Education in Edith Cowan University in Western Australia, and is the author of many papers and articles on educational theory and policies.
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|Author:||Jones, H.E. Melville|
|Publication:||National Observer - Australia and World Affairs|
|Date:||Mar 22, 2001|
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