25 February 2008 47 views Comments Print  Email This

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