International Legal Protection Of The Child
Males' general education in reproductive healthcare for themselves and future partners is not problematic.
The United Nations Convention on the Rights of the Child (commonly abbreviated as the CRC, CROC, or UNCRC) is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. The Convention defines a child as any human being under the age of eighteen, unless the age of majority is attained earlier under a state's own domestic legislation.
Biologically, a child is generally anyone between birth and puberty or in the developmental stage of childhood, between infancy and adulthood
For many years, society paid scant regard to children as individuals. Children were seen as the property of their father; he had the power of life and death, disposable as he saw fit and the child never had a say. They had fewer rights than adults, were seen as unable to make serious decisions and were required by law to be under the care of a responsible adult. It was believed that children were more likely to lie than adults, hence if a child made a report against an adult, mere denial by that adult ended the matter.
In the middle ages, children were portrayed as miniature adults. During the 16th and 17th centuries, society began to see children differently, not as mini adults but as persons 'at a substantially lower level of maturity, and so had distinct needs from adults - protection, love and nurturing.' In the 16th century, the paintings began to show children differently with childish characteristics and in the 17th century Children were shown playing with toys and children books began to emerge.
Stone et al. have argued that as society became aware that childhood was a distinct state from adulthood, parents became aware of the needs of children, they were more equipped to respond to them, and give their children the care and protection they so desperately needed.
Lawrence stone argues that societal awareness of childhood as a state distinct from adulthood did not affect parent-child relationship positively. He believes that as parents became aware that behaviour depends on discipline, they took their duty as disciplinarians more seriously and as such, whipping and flogging of children became common in an attempt to instil morals in them
Children were seen as evolving beings who were dependent on adults for provision and protection.
INTERNATIONAL LEGAL PROTECTION OF THE CHILD
Children are human beings and should be treated as such and accorded rights. Rights let everyone know how they should treat each other ' they are there to try and make sure all people are safe, have their basic needs met, and are able to take part in their society.
In recent times, children are being regarded and treated as people in their own right. It seems that children have now acquired a voice- a voice that is being listened to with increasing respect.
The first international law dealing specifically on children was the 1924 Geneva Declaration on Child's rights. Eglantyne Jebb, in 1923, drafted a series of child rights related proclamations which were adopted in Geneva on 23 February, 1923 and endorsed by the League of Nations General Assembly on 26 November 1924 as the World Child Welfare Charter . In its preamble, it states 'Mankind owes to the child the best it has to give'. The proclamations were not enforceable by international law, but rather only guidelines for countries to follow,
1948 Universal declaration of Human Rights was adopted by the UN. It states that 'Human beings are born free and equal in dignity and rights', that 'motherhood and childhood are entitled to special care and assistance' and describes the family as 'the natural and fundamental group unit of society.'
The document does not really mention children but applies to all human beings and, therefore, covers children.
In 1959, the UN adopted the Declaration of the Rights of the child which replaced the five principles in the 1924 Geneva Declaration on Child's rights with 10 principles.
The international community also acknowledged the special rights of children in the International Covenant on Economic, Social, and Cultural Rights (CESCR) and the International Covenant on Civil and Political Rights (CCPR), which both entered into force in 1976.
The laws relating to children in these conventions focused basically on the protection of and provision for the child.
In 1989, the General Assembly adopted the United Nations Convention on the Rights of the Child (UNCRC) into international law after ten years of negotiation. Defining the rights of children was not an easy task for the framers of this convention.
The UNCRC consist of 54 articles which have been broken down into three broad categories:
1. Provision articles which recognise the right of children to minimum standards of health, education, social security, physical care, family life, play recreation, culture and leisure;
2. Protection articles which identify the rights of children to be safe from discrimination, physical and sexual abuse, exploitation, substance abuse, injustice and conflict;
3. Participation articles which concern civil and political rights. They acknowledge the rights of children to a name and identity, to be consulted and to be taken account of, to have access to information, freedom of speech and opinion, and to challenge decisions made on their behalf.
The UNCRC defines the child as 'every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.' The Convention applies to all children and provides special protection for Orphans, refugees and Disabled children. It states in article 3 that the best interest of the child should be the primary consideration in all actions concerning children. State parties are under an obligation to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights set out in the convention.
Article 5 provides that state parties shall respect the responsibilities, rights and duties of parents and those legally responsible for the child to provide, 'in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present convention.'
The rights recognized by the convention include the right to Freedom of Expression , Freedom of thought, Conscience and Religion , Freedom of Association , Right to Privacy , Access to information; Mass media, Right to Education.
Article 12 provides that ''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.'
Article 18 of the convention also recognizes that parents are responsible for the upbringing and development of the child and reinstates that the best interest of the child will be their basic concern.
The convention is a revolution in the area of child rights as children are regarded not as object of rights but subject of rights, entitled to claim and exercise these rights
The provisions of the CRC, particularly the introduction of the concept of evolving capacities, has raised concerns regarding the extent of the rights of children, parental rights and state interference.
THE CONCEPT OF EVOLVING CAPACITIES
Capacity is defined as the ability or power to do or understand something; a person's legal competence.
'The capacities of children change over time as they age and mature but they already exist at birth in a rudimentary form because such capacities are innate to our human nature'
The concept of evolving capacities is introduced in article 5 of the convention. It provides that 'States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.'
This principle of evolving capacity has profound implications for the human rights of the child. It establishes that as children acquire enhanced competencies, there is a reduced need for direction and a greater capacity to take responsibility for decisions affecting their lives. The Convention recognizes that children in different environments and cultures who are faced with diverse life experiences will acquire competencies at different ages, and their acquisition of competencies will vary according to circumstances; the social, cultural, economic and emotional environment in which they grow. It also allows for the fact that children's capacities can differ according to the nature of the rights to be exercised. Children, therefore, require varying degrees of protection, participation and opportunity for autonomous decision-making in different contexts and across different areas of decision-making.
The implication of article 5 include:
' It Challenges a construction of the child as property of the parents
' Recognises a role for the state in both respecting parental rights and duties while also protecting those of children
' There is a Need to balance respect for the child's evolving capacities while also promoting their best interests
' Parental responsibilities exist in order to enable the child to exercise those rights
' Parental rights only extend for so long as the child is unable to exercise those rights for her or himself.
The committee in general comment 12 said that: 'the child has a right to direction and guidance, which have to compensate for the lack of knowledge, experience and understanding of the child and are restricted by his or her evolving capacities, as stated in this article. The more the child himself or herself knows, has experienced and understands, the more the parent, legal guardian or other persons legally responsible for the child have to transform direction and guidance into reminders and advice and later to an exchange on an equal footing. This transformation will not take place at a fixed point in a child's development, but will steadily increase as the child is encouraged to contribute her or his views.'
It further stated that 'this requirement is stimulated by article 12 of the Convention, which stipulates that the child's views must be given due weight, whenever the child is capable of forming her or his own views. In other words, as children acquire capacities, so they are entitled to an increasing level of responsibility for the regulation of matters affecting them.'
The concept of evolving capacities is central to the realisation of the goals of the convention. In interpreting and applying the provisions of the convention, regard must be had to the evolving capacities of the child. It is subjective and cannot be applied objectively as individuals do not evolve at the same pace. It is through the proper application of this concept that child's right could be efficiently realised. According to L. Krappmann, 'Article 12 of the Convention on the Rights of the Child contains the central message of the Convention summarized in a nutshell: Although the child and children cannot make decisions for themselves on many issues, they have the right that they are heard and that their views are seriously considered when decisions are taken. Their evolving capacities have to be considered to the extent that in some areas children's own responsibilities are guaranteed'.
The Canadian International Development Agency reports that there are three primary points to consider regarding evolving capacities:
1. Evolving capacities should be understood in the context of where children grow;
2. Evolving capacities should grow out of respect for the competencies young people already have, and;
3. Adults should protect young people from experiences and decisions they have not yet acquired the capacity to take responsibility for.
Article 5, in conjunction with Article 12, stresses that children are entitled to support, encouragement and recognition in taking decisions for themselves in accordance with their wishes and capacity, as well as in the context of their family and community. innocenti
The Committee said that::'Article 12 imposes an obligation on States parties to introduce the legal framework and mechanisms necessary to facilitate active involvement of the child in all actions affecting the child and in decision-making, and to fulfil the obligation to give due weight to those views once expressed.'
The committee on the rights of the child have also stated that 'Article 12'relates to the right of expression of views specifically about matters which affect the child, and the right to be involved in actions and decisions that impact on her or his life.'
Respecting children's views means that such views should not be ignored; it does not mean that children's opinions should be automatically endorsed. Expressing an opinion is not the same as taking a decision, but it implies the ability to influence decisions. A process of dialogue and exchange needs to be encouraged in which children assume increasing responsibilities and become active, tolerant and democratic. In such a process, adults must provide direction and guidance to children while considering their views in a manner consistent with the child's age and maturity. Through this process, the child will gain an understanding of why particular options are followed, or why decisions are taken that might differ from the one he or she favoured.
Four levels of involvement have been identified in the decision making process:
' To be informed
' To express an informed view
' To have the view taken into account
' To be the main or joint decision maker.
Article 12 implies that all children capable of expressing a view are entitled to the first three levels.
APPLICATION OF THE CONCEPT OF EVOLVING CAPACITIES TO CHILD RIGHT
There is the major question whether it is justifiable to give children rights which might be exercised in ways inimical to their welfare. See eeklars books frm my note
Use 4 P's instead. The rights children enjoy include civil and political rights as well as socio-economic rights. The civil and political rights of children protected by the CRC include the right to freedom of expression, the right to freedom of thought, conscience and religion, the right to freedom of association and the right to freedom of peaceful assembly. The rights to freedom of association and the freedom of peaceful assembly increase the power of individuals by conferring on them a right to participate in group activities and as such are significant to the political empowerment of children.
This part will be discussing the application of the concept of evolving capacities to the right to privacy and the right to freedom of thought, conscience and religion of the child.
Historically, when a claim is asserted which involves a child, the conflict will be resolved between the parent of the child and the state. In Meyer v. Nebraska , the court recognized that parents have authority over their minor children in order to protect the family unit and control the upbringing of their children. The rationale behind this parental authority is that society has traditionally believed that minor children cannot be trusted to make important decisions on their own behalf.
Matt Steinberg notes that this approach is flawed in that it fails to take into account conflicts between the parents beliefs in what is right for the minor child and the minor child's belief in what is in his or her best interest.
This is no longer the position of things with the coming of the UNCRC. Under the CRC, Children are not seen as incapable of making important decisions affecting their lives. The convention recognizes that as children acquire enhanced competencies and mature they are capable of taking decisions affecting their lives. This means that parental authority over children decreases as the child grows and matures.
The court in Wisconsin v. Yoder held that parental authority includes the right of parents to instil in minor children moral standards, religious beliefs and elements of good citizenship.
In the light of the provisions of the CRC, a parent cannot always assert that right as the convention recognizes children as individuals with rights not subject of rights. The CRC creates the notion that children have civil and political rights which can be exercised independently of the parent. According to GLENN Mower, J.R, children enjoy these rights as people not because of their relationship to others. This means that children should be able to exercise the rights expressed in the convention fully independently of their parents, that is, the extent to which a child can exercise his/her rights is not dependent on the extent to which the parent permit.
The coming of the convention and its implication on the parent- child relationship has not automatically wiped the traditional notion of parent and child relationship. Some provisions of the CRC has raised concerns from different authors, individuals and states as to the extent of parental control over the activities of children and their involvement in the life of their children, such as does a parent have the right to be informed of the child's sexual involvement or request for contraceptive medication, do parents have a right to check the internet pages their children have visited, read their conversations, do parents have the right to insist that their children practice their religion, etc.
This part discusses the application of the concept of evolving capacity to the child's right to privacy (looking specifically at contraceptive prescription and internet usage by children) and also the right to freedom of Religion.
The right to privacy of a child: There has been many attempts to define privacy. The most common definition is that by Samuel D. Warren and Louis D. Brandeis, the 'right to be let alone' that is, privacy means the right to decide to be break off contacts from others and to be free from outside interference.
The definition has been criticized as ambiguous . Others have defined privacy as a set of ideas and social practices that underpin a modernist public/private dichotomy. Naomi R. Khan says that privacy can mean privatization, the use of internal rather than external norms, and thus, the legal ability to control the rights and responsibilities that attach to the familial relationship.
Children now demand for more privacy and this demand by the child is being strengthened by the rise of information and communication technology especially in the western households. This demand has been referred to as 'privacy within the private sphere'.
Article 16 of the convention confers on a child the right to privacy. It provides: "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence."
This provision takes no consideration of parents 'who are unavoidably involved in a child's private world.' It could be inferred from this provision that parents do not have a right to check or go through their child's correspondence. This raises the question of whether parental prerogatives are limited in this respect.
The Supreme Court has recognized privacy rights for children in two contraceptives and abortion, The Court is interested in protecting adolescent access to contraceptives so as to prevent the risk of pregnancy and venereal disease and not based on the maturity of the child.
The leading case concerning Childs autonomy is Gillick v West Norfolk and Wisbech Area Health Authority . This case bothers not just on the autonomy of a child but also the right to privacy as the issue is not just the exercise of the capacity to take a decision, which in this case is to take contraceptives, but also the desire and need for confidentiality by adolescents, which here is the giving contraceptive advise or treatment by a doctor to a girl under 16 without informing the parents of the child because the girl doesn't what such information given out. The then department of Health and Social Security issued a notice to health authorities which advised that a doctor might lawfully provide advice or treatment on contraceptives to a girl under 16 without consulting her parents or obtaining their consent, provided he acts in good faith to protect her against then immediate risks of pregnancy and sexually transmitted diseases, as well as other long term physical, psychological and emotional consequences which are equally a threat to stable family life.
In 1981, Mrs Gillick wrote to the area health authority objected to the notice and required that no minor daughters of hers would receive such advice or treatment without her permission. She was replied that 'treatment prescribed by a doctor is a matter for that doctor's clinical judgment, taking into account all the factors of the case'. She then sought a declaration that such action was unlawful as it would infringe her parental rights.
At first instance, the plaintiff's action was dismissed by Woolf J. Her appeal was unanimously allowed by the court of appeal and by a majority the House of Lords reversed the court of Appeal's decision.
The Justices of the House of Lords viewed the appeal from different angles. The outcome of this case made it lawful to provide contraceptive advice and treatment to girls under the age of 16 without the knowledge and consent of their parents subject to the guidelines laid by Lord Fraser in the judgment. The guidelines, popularly known as the 'Fraser Guidelines' are:
1. That the girl (although under 16 years of age) will understand his advice
2. That he cannot persuade her to inform her parents or allow him to inform the parents that she is seeking contraceptive advice
3. That she is likely to begin or to continue having sexual intercourse with or without contraceptive treatment
4. That unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer
5. That her best interests require him to give her contraceptive advice, treatment, or both without parental consent.
Also flowing from the outcome of this case is that a child under the age of 16 can give consent if they are of sufficient maturity to understand the nature of the advice and what is involved. This is popularly regarded as the Gillick competent child test. In the words of Lord Scarman:
"...it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved."
He also stated that "Parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision."
What is the yardstick for determining that a girl of 16 years is of 'sufficient maturity to understand what is involved'? A consistent nod by a girl to everything the doctor says, a restatement of what has been told her, a serious look or academic performance? None of these can determine this accurately. The most suitable person to tell if a child is of sufficient maturity to understand a type of information is the parent who is more involved in the daily life and activities of the child.
Lord Templeman viewed the appeal as involving the consideration of the independence of a
teenager, the powers of a parent and the duties of a doctor. The question to him is, 'who has the right to decide whether an unmarried girl under the age of 16 may practise contraception'?
He says that the decision of a girl to practice sex and contraception 'requires not only knowledge of the facts of life and of the dangers of pregnancy and disease but also an understanding of the emotional and other consequences to her family, her male partner and to herself. I doubt whether a girl under the age of 16 is capable of a balanced judgment to embark on frequent, regular or casual sexual intercourse fortified by the illusion that medical science can protect her in mind and body and ignoring the danger of leaping from childhood to adulthood without the difficult formative transitional experiences of adolescence.'
I hold the view of Lord Templeman on this matter as children are not likely to understand the full implications of sex and contraception. There is so much that a doctor may not tell a child nor adult about like the negative effects of using contraceptives for a long period of time or the effect of improper usage like disappearance of period, hormonal imbalance, low libido, infections, headaches, depression, mood swings and other physical and psychological effects. Some of this effects could interfere greatly with the child's academics, social life and general development. A child who is scared of getting pregnant is not likely going to be concerned with all the effects even if told her by the doctor because all she cares at the moment is that she doesn't get pregnant. 'Children are liable to be vulnerable and impressionable, lacking the maturity to weigh the longer term against the shorter'' Taking the pill at the same time every day, which is the advised way, is very difficult to keep with and girls under 16 frequently lack that discipline. A child could easily forget to take the pill at the appropriate time without guidance. There may be some family history, which only the parent knows, necessary for the doctor to be aware of before determining the type of contraceptive to be given.
Despite the advantages of informing a parent of the need for contraceptive by his/her child, there are certain cases where it is not in the best interest of the child that her parent is informed. Such a case would include where there is a high likelihood that the child would face unbearable or degrading treatment from her parent if her parent is informed. Unbearable or degrading treatment could be insults from the parent, severe beating of the child, sending the child out of the home, etc. How does a doctor determine that a child is likely to face unbearable or degrading treatment if the parent has knowledge of her need for contraceptive? The word of the child alone may not be sufficient because a child can say anything to prevent the communication of such information.
Also, if a doctor is insistent that her parents must not be informed, the child could leave the hospital and never make use of the contraceptive and thereby stand the risk of an unwanted pregnancy. An unwanted pregnancy could really be the end of the road for some children with respect to their education and achievement of future dreams. It could be dangerous to both the teen mother and her baby as it involves a child caring for another child. The teen mother is also likely to face the stigma of unwed motherhood, the need to drop out of school, early marriage (which frequently ends in divorce), death due to pregnancy, and even suicide.
Adolescent sexual relations is capable of having intergenerational consequence because childbirth by an adolescent, particularly when unmarried, will affect the children born, the adolescent mothers, and their own parents' abilities to care for their daughters and grandchildren. Parents of teen daughters could be apprehensive of their child's sexual behaviour because their pregnancy may reflect badly on their upbringing, and jeopardize their prospects of continuing their education and achieving the type of married life for which their parents hope. Abortion could be a source of shame to the family, or of spiritual anguish, or be religiously or otherwise unacceptable to the parents. Denial of services or of confidentiality may be a matter of an adolescent girl's death, or severe and enduring injury because unless assured of confidentiality, sexually active adolescents may choose to forgo contraceptive protection thereby standing the risk of an unwanted pregnancy and the dangers of 'unskilled abortion'.
The issues surrounding this aspect of the right to privacy of a child involves both social and legal issues which cannot really be decided upon by doctors or the court alone as every child is different and so is every child-parent relationship.
'It is not rare to find an adolescent who looks as mature as an adult. It is also not uncommon to find an adolescent who speaks as well as an adult. But, it is rare to find an adolescent who can think (in the true sense of reasoning, thinking, and problem solving) in much the same manner as an adult.'
The right to privacy of a child must be balanced with parent's authority in their household to direct the rearing of their children.'
Acting in the best interests of a child requires balancing respect for their autonomy with the need to protect them from harm.
Giving a child contraceptive or carrying out abortion on a child without informing the parent undermines parental authority and permitting parental involvement in a child's personal decision may also interfere with the child's right to privacy. Providing this service without informing the parent does not give the parent an opportunity to provide appropriate direction and guidance to the child in taking the decision and at the same time one must bear in mind the possibility of unwanted pregnancy, STI and death that could result from a poor abortion service if an adolescent girl is not allowed this confidentiality.
Another area of concern with regards to the right to privacy of a child is the use of the internet.
The benefits of using the internet include gathering information (opportunities for learning, education and literacy), entertainment (music and videos), relieving boredom (e.g. playing games) and communication (chat, email, and instant message), identity and participation and shopping. There are also dangers children can face on the internet, they include identity theft, 'exposure to illegal content, contact with paedophiles (e.g. via grooming in chat rooms), exposure to harmful or offensive content, encountering extreme (sexual) violence or racist/ hate material, being open to commercial exploitation and to manipulation or misinformation, invasions of privacy and unwelcome contact (spam, viruses, etc).' .
Parents Concerns regarding the internet relate to commercialism, privacy and, most of all, sexual material
There is a significant gap between the internet dangers to children and the available 'legal, enforcement- based and industry driven action' for protecting children. It becomes necessary for parents and others in care of children to protect them from the harms of the internet. The form of this protection could be by installing internet content filter, monitoring and maintaining access to your child's online account and randomly checking his/her e-mail.
These forms of protection interferes with the protected right to privacy of a child. Parents are torn between their moral and legal obligation to protect their children from harm and guide their growth and respecting their right and respecting the child's right to privacy.
When children's physical o5r emotional safety is at stake, whatever interest in privacy they may have is outweighed by society's interest in their protection.
Kay Mathiesen says that parents have an obligation, which can be outweighed by other weighty moral considerations, to respect the right to privacy of a child who is capable of engaging in informational exchanges and who expresses that she would prefer that such information be private .
In fulfilling their obligations, some parents have resorted to monitoring and surveillance, searching the children belongings, listening to their phone calls, reading their diaries, etc. these parents have been tagged as controlling and invasive. See livingstone
Parental monitoring includes the expectations parents have for their teen's behaviour, the actions parents take to keep track of their teen and the ways parents respond when their teen breaks the rules. Parental monitoring involves asking the child Where he will be, whom he'll you be with, When he'll you be home, etc.
Mathiesen argues that the notion of monitoring a child is paternalistic in nature as the act is justified as being for the good of the child. Parental respect for children's privacy is grounded in two normative consideration: 'First, such privacy is necessary in order to respect children's current capacities for autonomy and to foster their future capacities for autonomy. Second, such privacy is necessary in order to protect children's current capacities for relationships.' Opponents of the paternalistic argument for monitoring have stated that the risk of the internet are overstated, monitoring is ineffective and may lead to harm if information gotten is not properly responded to by the parent.
Schumeli says that children should be trusted so as to enable them have meaningful human relationship and that a parent who intensively tracks his child denies him trust and the ability to be trusted which is a basic building block in all human relationships.
Trust is earned. It is risky to start a relationship from trust before getting to know what a person is capable of doing or not doing especially with regards to adolescents as the teen years are a period of experiments and risk taking. This is not to say that parents should 'intensively' track their children but there should be some level of monitoring if one is to raise children into meaningful adulthood. Where a parent decides to give a child lots of space in the believe that that is trust, the child could wallow in harmful activities which the parent would never be aware of if he doesn't monitor. It is so easy to hide things and pretend. That a child wakes up early, does her chores, excels academically, etc. does not necessarily mean he/she is responsible and will always make right decisions. A child who is being monitored knows that his/her activities could be discovered by the parents and is less likely to indulge in harmful activities than one who is let alone.
Increased parental monitoring and effective discipline techniques have been associated with less delinquent behaviour and a later age of 'rst crime among adolescents (Capaldi and Patterson 1996; Demuth and Brown 2004; Gorman-Smith et al. 2000). Beyers et al. (2003), in a longitudinal study, found that less parental monitoring and lower parental involvement are related to more externalizing behaviour.
Research shows that teens whose parents use effective monitoring practices are less likely to make poor decisions, such as having sex at an early age, smoking cigarettes, drinking alcohol, being physically aggressive, or skipping school.
To foster too much freedom can undermine and finally destroy the most fundamental learning processes and the human relationships that sustain them and their future capacities for relationships. The state of Childhood has been described as 'disappearing' , in 'crisis' , and 'toxic' . Ideas of lost innocence is central to these debates on childhood. This maybe in relation to the perceived loss of a more carefree life for children due to parental fears and avoidance of risk culture or the way in which protective confinement in homes saturated by the electronic media has brought about great exposure to the 'adult' world, its secrets and painful issues. For critics, loss of innocence has inexorably led to increases in both troubling (e.g. crime, drug abuse, sexual activity) and troubled (e.g. self-harm, eating disorders) behaviour among children and young people. There is widespread acceptance that today's children 'grow up more quickly' in many respects than previous generations , although some commentators regard the behaviour of children today as a 'savvy' approach to consumption, the media or social issues.
Though the concept of evolving capacities is to the effect that as children mature, greater recognition should be accorded to their right to privacy, the risks entailed by privacy are much higher for adolescents than younger children. There is clearly a need to balance the right to privacy of the child and the duty of parents to protect their children. Achieving this balance is somewhat difficult. The weight to be given to a child's right to privacy against other interest should be determined in each specific context.
FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
Article 14 of the CRC provides for the right to freedom of thought, conscience and religion.
Article 14 reflects a significantly lesser or weaker form of the right to religious freedom than that recognised in the ICCPR, the ICESCR and the ECHR in that the provision is limited in two ways by the omission of two clauses: first, the Convention does not recognise as a child's right 'the freedom to have or to adopt a religion or belief of his/her choice' and second, it does not protect the 'freedom either individually or in community with others and in public or private to manifest his religion or belief in worship, observance, practice and teaching.'
Article 14(2) provides that 'States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.'
This provision is unique in that it is the only CRC provision that limits the child's exercise of his/her rights by reference to the 'rights and duties of parents'. Van Bueren, interprets this provision as meaning that 'States Parties to the Convention are under a duty to recognise that parental power to provide direction to children decreases as the child matures.'
According to Ursula Kikelly, this provision means that while younger children, those with less capacity, may need guidance in this area, children with greater capacity will with increasing competence be able to exercise this right without parental direction or guidance.
Anal Scolnicov says that Article 14 is different from the other articles of the CRC because it refers specifically to the obligation of states to respect the rights and duties of parents to provide direction to the child in the exercise of this right, therefore meaning that regarding this right to freedom of religion, the parents are seen as having a right to shape their child's identity.
Article 14(3) provides that the freedom to manifest one's religion or beliefs is subject only to 'such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others'
During the drafting of the CRC, a disagreement arose between a number of Islamic and non-Islamic states over the extent of this right to the child and this almost jeopardised the drafting and adoption of the entire convention.
Article 9 of the Charter on the Rights and Welfare of the African Child, which protects the right of the child to freedom of thought, conscience and religion, also refers to the child's 'evolving capacities' in defining the role of parents. Interestingly, the Charter also requires parents to 'facilitate the enjoyment of these rights subject to national law and policies.'
Article 18 of the ICCPR, which generally guarantees freedom of religion, had set a precedent in this regard, with paragraph 4 requiring States to respect the liberty of parents 'to ensure the religious and moral education of their children in conformity with their own convictions.'
The right of a child to have or adopt a religion or belief of their own raises the issue of at what stage of childhood can a child choose a religion for himself/herself.
The court in Zummo v. Zummo held that children of ages 12 and above generally possess the requisite maturity to assert a religious identity. The court will not only rely on the age of the child but will also have to determine whether the child is of sufficient maturity and intelligence to assert his or her o religious rights.
In Wisconsin v. Yoder, the court held that the law which required all children between the ages of seven and sixteen years to attend school regularly during regular school hours unless the child has a legal excuse or has already graduated from high school violated the parents free exercise rights. The Amish parent's right to freedom of religion outweighed the state's interest in educating its children. The court focused its attention on the parents as they were subject to criminal sanction for such violation. Douglas J. believed the focus should not be on the parent rights but on the minor child's right. He stated that if parents were allowed a religious exemption to the Wisconsin statute, the effect would be to impose the parent's religious beliefs and duties upon their innocent children. He stated that 'where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child's right to permit such an imposition without canvassing his views'.
In this case, the children were not opposing their parents religion, therefore, the focus on parents right by the court was proper and the right of the minor that could have been considered, if any focus was to be brought on a minors right, would have been on the right to education of the child and the extent of the right in relation to the parents exercise of the free rights, not right to freedom of religion as suggested by Douglas J. in his partial dissent.
In Re Green , a petition was filled seeking a declaration that a child was neglected as a result of his parent refusal to permit a blood transfusion to be carried out on him. The mother argued that a court order mandating a blood transfusion on her son would violate her right to the free exercise of religion. The court held that there was no immediate danger to the child and state interest was not sufficient to override the parent constitutional rights.
The court also stated that a parent's right of religion and parenthood is not absolute. This therefore implies that if there is an immediate danger to a child, the states interest may be sufficient to override the parent's right.
This stand was also taken in Prince v. Massachusetts where the court held that parents have a right to make religious decisions for minor children but if these religious decisions subject the child to harm, the state can intervene to protect the child.
All the above cases deal with the effect of a parent's religion on an aspect of a child's life such as education and health . None of the cases tells what the position of the law is where a child takes a position in opposition to his or her parent's religious beliefs. Matt Steinberg says the court should, when confronted with such a matter take the following steps: First determine the child's viewpoints. If the court determines that the child wants to take a position in opposition to that of his or her parents asserted religious beliefs, then the court must ascertain the maturity level of the chid. In ascertaining the maturity of the child, the court must determine if the child has the requisite maturity and intelligence to comprehend fully the ramifications of his or her decision. If the child possesses a sufficient maturity level, then the court must weigh the importance of the right asserted by the child against the right asserted by his or her parents. In making the determination, the court should consider factors such as the impact of a decision on the future of a child if it rules in favour of the child and the effect it will have on the family life and the impact on the future of the child if the court rules in favour of the parents. If the court determines the child's asserted right outweighs the parents asserted right, then the court must give full constitutional protection to the child's asserted rights.
Although parents have a right to determine the religious upbringing of their children, the right is not absolute and as such children of sufficient maturity and intelligence must be granted the same constitutional rights and protection that their parents enjoy and their rights should be protected from both state and parent intrusion.
In many countries, there is an ongoing debate about age versus maturity; for example, should all children be able to access contraceptive advice at a certain age, or is 'maturity' a better test for determining their ability to understand the consequences of their actions? Age is usually the overriding factor since, in the vast majority of cases, if a child is below a certain age she or he will not be able to access certain services without a parent ' even if the child is deemed mature enough.
One of the main arguments in favour of the age-based approach is that it serves to protect children from their own lack of experience. The law therefore usually puts parents in charge of safeguarding the well-being of their children. In South Africa, children's right to parental care is enshrined in the Constitution.
The use of age limits in practice helps with giving clear guidance to parents and other carers as to what age a child can exercise a right but they are not necessarily the best approach. The use of age as a determinant of when a minor could access, for instance, health care independent of his/her parent is restrictive and potentially harmful. The law in England permits access to contraceptive for girls from the age of 16. The problem with the age based approach is that it ignores individuality and suggests that those below the set age are immature in that it ignores their evolving capacities. A girl may be 17 years but may not be mature enough to understand the implication of a decision she takes while another girl of 15 years may be mature enough to understand the implication of and to take a decision on the same issue.
In Re Lori M, the court held that when a parent's desire and directives affecting his or her child's substantive right conflicts with the child's wishes and wants, the determination of the matter rests upon the nature of the right asserted by the child and the child's level of maturity.
The test of maturity is a less restrictive way to protect immature minors against adverse decisions. Some countries apply both the age and maturity test. For instance, in Australian common law, children below the age of 16 can make decisions regarding their own healthcare if the child has the requisite level of understanding and maturity to make an informed decision. In this case, if a child below the age of 16years does not have the requisite level of understanding and maturity to make an informed decision, he/she can't make a decision regarding his/her health care health care. The health practitioner has a duty to take into account not only the age but also the maturity of the under 16.
Under South Africa's Children's Act 38 (2005), a child aged 12 or older can consent to medical treatment, surgery or access to contraceptives without parental consent if he is mature enough to make such consent.
The question now is how does one determine maturity? Children mature at vastly differing rates and it is apparent that each child needs to be assessed individually as to their mental and emotional maturity, intelligence and comprehension.
PARENT, CHILDREN AND THE STATE
The preamble of the convention states that it 'Recognizes that the child, for the full and harmonizing development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, '
It also states that it is 'Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.'
The convention does not define the concept of family nor does any other international convention. As noted by Geraldine Van Bueren, it will be too simplistic to conclude that one of the reasons for the lack of definition on what family is, is the absence of the convention on the rights of the family. However it can be seen that international law recognizes the family as the basic unit upon which society is organized. The human rights committee commented that the term 'family' must be given a broad interpretation so as 'to include all those comprising the family as understood in the society of the state concerned' this signifies that the term family is culturally sensitive.
The term family is an inclusive term, often used by adults to refer to those with whom children live in their households: mums and or dads, step dads and mums, alongside brothers and sisters, half-siblings, sometimes Nana and grand dad, or cousins, aunts and uncles. From a child's perspective, the family can also include those who do not live in the same place with them for example, biological parents who live elsewhere with whom they sometime have relatively infrequent contact. Family may embrace a mother or fathers new partner, depending upon the quality of the relationship between a particular child and a particular adult. This shows that general notion is that a family is made of parents and children.
The convention places duties on both parents and the state in Articles 14, and articles 2, 3, 4, 5, 6, 7, 11, 12, 14, 17, 18, 24 amongst others respectively.
There are different views on who a parent is. The convention on the rights of the child does not define who a parent is. While a genetic link may have been, historically, a necessary condition for legal parenthood in English law, it has generally not been a sufficient one. Judge De Meyer said in the case of X, Y and Z v The United Kingdom that 'it is self-evident that a person who is manifestly not the father of a child has no right to be recognized as her father'. This simply means that a father must be one who has a genetic link to the child. The Human fertilisation and embryology Act 1990 treats as the legal father of a child the man who undergoes licensed treatment together with a woman who conceives a child with the use of donated gametes. The English legal system like some other systems refused to accept the mere fact of parenthood should give rise to a legally recognised relationship between parent and legitimate child but only recognized the relationship between parent and legitimate child.
There is also the concept of social parenthood which refers to persons who have no genetic connections with the child but maybe caring for that child.
Andrew Bainham distinguishes between 'genetic' parents and 'social' parenthood by saying that the notion of being a parent should be based on a presumed or actual genetic connection with the child while parental responsibility should be a device for giving to social parents' most, but crucially not all the status which attaches automatically to genetic parents- at least where the child is born to a married couple. He suggests that the concept of social parenthood would embrace the legal powers and duties associated with parental responsibility and its exercise but not the wider legal status of being a parent. The law has in cases of adoption and certain cases of assisted reproduction conferred both the parental responsibility and the legal status of being a parent on the couple who take on the children.
Article 7 gives children a fundamental right to know their genetic origins. In order to give expression to this article one may assume that it requires parenthood to be associated with genetics but I do not believe that to be the case. If the legal status of being a parent is restricted to genetic link, it affords no legal security to persons who have intention to raise a child and raise them as theirs in fear that the child could be taken from them at any time. It has been suggested that there should be consideration of an irrevocable order such as an irrevocable residence order or a form of inter vivos guardianship which would stop short of making the social parent the legal parent but would erase fear that the child could be removed from the social parent during the child's minority.
Barton and Douglas argue that being a parent is more about the intention to perform the role of a parent rather than the fact of procreation. In the world now, children are not begat by just sexual intercourse between man and woman. With some couples facing fertility issues and the different recognized styles of partnership by law, there are circumstances where the conception of a child involves more than two adults like surrogacy, in vitro fertilization and embryo transfer. Modern technology is used to enable a woman conceive with the use of sperm of a man, who is not her husband or partner (in the case of where the man is infertile and lesbian partners), taken from a sperm bank. Also, gay partners and relationships between man and woman where the woman is unable to conceive could contract a woman to conceive and bear a child or children for them. All these types of arrangements involve at least three persons. In such arrangements, who should have the legal status of a parent? Should the father of a child be the man who agreed with his partner to undergo an artificial insemination or should it be the sperm donor? Should the mother of a child be the woman who carries a child on behalf a couple or the woman or man who contracts her?
Though it is important to know ones genetic background as it enables one have information about his or her medical history and also meets the psychological need of individuals to have knowledge of their background in acquiring a sense of identity this should not restrict the legal status of being a parent to those with genetic links to a child. By limiting the legal status of a parent to one who has genetic links to a child, it could be imposing that status and the responsibilities and duties that come with it on an individual who is not prepared for it.
A parent is not just one with genetic links but should include those who 'parent' a child by way of taking on parental responsibilities towards child with intention to have a lasting relationship of parent and child. The legal status of being a parent can be conferred on a social parent by law through second parent adoption, also a man is regarded as the father of a child born by his wife during the subsistence of their marriage whether or not he has genetic links to the child.
The misplaced emphasis on genetics as the link to parenthood is creating tension for individuals trying to match their parental identities to social parent stereotypes and this is fundamentally unbalanced.
From a childs perspective, parenting by mums and dads or whoever is a special and particular relationship of care and set of roles distinctive among those in the larger set of familial, social relations. The quality of the relationship between the children and those who parent them is what matters the most to them and not necessarily whether there exist an additional biological link to them. A 'proper' parent is a person with whom one has a good relationship such that the experience of being parented involves 'a profound sense of being loved and valued' even if that parent is not in contact regularly.
Teenagers have come to see parents as 'the guardians of the social and moral order, who' would ensure the maintenance of such key familial values as equity and the statuses embedded in sibling hierarachies'parents were also seen as those to turn to first when in trouble or in need of support, who would be upset if children turned elsewhere'
Article 3 of the convention on the rights of the child requires that the welfare of the child be the primary consideration. Welfare is understood in a wide sense and includes emotional, physical and moral welfare. It also includes considering the childs welfare into the future including adulthood. The courts have often adopted a rather narrow approach to welfare considering the welfare of a child as an isolated individual rather than as a person living within a community.
There are cases where the welfare principle is used to require parents to act contrary to their wishes in a way that promotes the child's welfare. In dealing with cases where there is a clash between the interests of children and parents, Jonathan Herring suggests three approaches. The first being to abandon the welfare principle and balance the interests of the parties instead, second approach is to understand that there is a limit to the principle and that those orders which infringe 'fundamental rights' of a parent are not permitted and third approach is to re-examine the welfare principle and consider whether a better understanding of the welfare principle can be utilised.
The welfare principle has been criticized as being used as a basis in controlling women , lacks predictability and as such generates disputes.
As stated by Lord Nicholl in Re L (minors) (Police investigation: privilege) , 'the paramountcy principle must not be permitted to become a loose cannon destroying all else around it'. If the welfare principle is to be applied strictly, it could infringe on the rights of lesbian and gay partners where, for example, a case is brought that the teasing of their child has effects on the social and emotional development of the child. Would it be appropriate for the court in such instance to take the child from the partners and place in a home where there is both man and woman? To do that would amount to non-recognition and violation of gay and lesbian rights to be parents. A strict construction of this principle will not only be unfair but will be placing children over and above adults. It could have the effect of making children grow in the belief that all things revolve around them and should always work for them which is not the case and therefore detrimental to their growth and development and proper fitting into world and its realities. It is part of growing up for a child to learn to sacrifice as well as claim benefits. In Re B (A minor) (Wardship: Sterilisation) , it has been made clear that the long term consequences into adulthood can be considered when considering the welfare of a child. The paramountcy principle is therefore better suited in a framework which recognizes that the child is merely one participant in a process in which the interests of all the participants count as a child's welfare will be best promoted by being brought up by parents in a family and community based on appropriate mutual co-operation and respect.
The primary role of the state in relation to promoting the welfare of children is to provide support to families with children in need and to intervene in family life to protect children who are at risk of harm. Article 18 of the CRC acknowledges that parents have the primary responsibility for the upbringing and development of the child and requires the state parties to render appropriate assistance to parents and legal guardians in the performance of their child rearing responsibilities and states are to ensure the development of institutions, facilities and services for the care of children.
Article 19 requires states to take appropriate measures to protect children from all forms of harm while in the care of parents or those in care of them. It also states that such appropriate measures include 'effective procedures for the establishment of social programmes', as well as other forms of prevention and for identification, reporting, referral, investigation, treatment, follow-up of instances of child maltreatment'for judicial involvement'.
The states assertion over the child is based on a view that a child is a citizen either presently or in the future when adults, of the state and hence deserving of the state's care and protection. The state may view the child as 'an asset, a future member of society, a future worker, who will make contribution to the well-being of the whole society'.
Since the state regards parents as best placed to bring up children but anxious to ensure that the full potentials of these children is realised, the state may privilege families financially or otherwise and in return hold itself entitled to impose certain obligations on the parent in the way they bring up their children as they can't afford to let parents have a free hand in the child's upbringing. Some states, like the United Kingdom, provides support to families in areas of health care (through the NHS), education, housing and pay child benefits or provide some income related benefits based on low income or inability to work, to signify the importance the state attaches to the children. Parents may be held responsible for the delinquencies of their children.
The states view of the child as a citizen is a recognition of the child as an individual member of society and as such is entitled to protection from physical or other harm. For much of the 20th century, most western liberal democracies had children legally and politically subsumed within the family as dependents with parents representing their interests and this created a bipartite relationship between parents and the state. This is no longer the case. There is now less trust in the family with more questioning of parent-child relationship. Some view the private/family/home life as being overly romanticised, with home and family a place from which some children need to escape rather than retreat from public realm.
The focus is now on the child rather than the family and this has led to children being separated from parents in legal terms as they are now recognized as a separate entity bearing human rights. This makes the relationship 'tripartite' involving children, parents and the state. A parent who proves unable to care for a child to a standard required by the state may be subject to state control to the extent of depriving him/her of the children.
The desire to protect children is a thin line away from interfering in the private life of a family. In an attempt to protect children, the state could intervene in the family setting and in the course may infringe on parental and familial rights. This state intervention involves states monitoring or altering conduct or decisions that would take place within a family.
There has been argument on the choice or use of the word 'intervention' when referring to state intrusion into the family. Frances E. Olsen groups the arguments in two: the 'protective intervention argument' and the 'incoherence argument' The protective intervention argument proceeds on the premise that the family ought to be safe, supportive and loving but some families are sometimes not and in the event that a family ceases to be a haven but a place of oppression, violence and brutality, the state should intervene. Protective intervention treats non-intervention as the norm and intervention as an exception to be used when necessary to protect the interest of society and family members who may be at risk. It is asserted that 'the normal behaviour of husband and wife or parents and children towards each other is beyond the law as long as the family is 'healthy'. The law comes in when things go wrong.'
Frances Olsen questions the basic coherence of the concepts of intervention and non-intervention in what he calls the 'incoherence argument'. He states that 'the state defines the family and set roles within the family; it is meaningless to talk about intervention or non-intervention, because the state constantly defines and redefines the family and adjust and readjust family roles. Non-intervention is a false ideal and has no meaning.'
While I consider his argument to be one of semantics and offering no help, I compare his analysis to the relationship between the judiciary and the executive and legislative arms of government in a democratic state. The legislature/parliament establishes, defines and redefines, adjusts and readjusts the judiciary. Although the judiciary is a creation of the act of legislature or parliament, the necessity of its independence from the other arms of the government is affirmed by all democratic states. The independence of the judiciary is necessary to ensure that judges are able to dispense justice impartially and without external influences. The difficulties in maintaining this independence does exist especially in most African countries but that does not take away nor undermine from its importance. This is same with the family and state. Assuming, as Frances E asserts, that the state defines the family and sets roles within the family, that does not give the state unrestricted, undefined and limitless intrusion into the family. Non-interference in the family is important to preserve relationship and freedom and interference is necessary to protect members of the family when the myth of family harmony encounters the reality of abuse and neglect.
Whatever the language used, the central tension with regards to state intervention in the family for the protection of children is arguably between philosophies of 'child rescue' and 'family support'. 'Child rescue' emphasises the individuality of the child, their vulnerability to abuse and appropriateness of removal from the family in such circumstances whilst 'family support' emphasises the unity and caring qualities of families.
Donzelot suggests three mechanisms which could be used to diffuse this tension between the desire to take action by the state and the need to limit interference in private sphere. They are: assistance whereby help could be given through charitable rather than state agency, normalisation or the instruction in appropriate forms of behaviour-e.g. compulsory schooling and tutelage, the surveillance of families on the basis that those who have nothing to hide will have no reason to object. The problems with these suggestions is the possible inadequacy and infringement on rights. If financial assistance is to be rendered through a charitable organizations, the funds may not be enough to give to the numerous persons in care of children and if the state is to fund such charitable organization, it makes it no different from if the assistance is rendered through a state agency. On the 2nd mechanism suggested, what amounts to appropriate forms of behaviour? This will vary between families and their religious and belief systems. The third mechanism being surveillance could infringe on the right to privacy.
Before the state can interfere in parent-child relationship, there must be proof of harm in the sense that the parents must have been found in some way to have failed in their obligations to both child and state. What is the extent of harm required to be done to a child before the state can intervene in family life? Should mere proof of harm be sufficient reason for the state to interfere in family? It has been stated by Justice Fox that when a parent seeks to preserve his/her parental and familial rights against intrusion by a state agency, he/she must establish such parental and familial rights and if successful in establishing these rights, it must then be weighed against any rights asserted by their children and against the interests asserted by the State. This test should also be applicable to the states assertion that harm has been or is being done to a child. Therefore, if the state is successful in proving that the parents of a child has failed in some way(s) in their obligations to the child and state , it must then be weighed against any right asserted by the child or children in question and against any rights or interest asserted by the parents. This will be important to avoid a narrow and strict application of the CRC provision and improper application. However, there are some areas where the application of this test may become difficult. For example, some state laws provide that parental consent is not required before a girl under 16 years can receive contraceptive treatment or have an abortion. Some parents have challenged such enactments as being an infringement on their (parents) right to privacy, free exercise of religion, custody, control and education of their children and as constituting an interference by the state in the guise of state laws. In this kind of situation, how does the state show that a parent has failed in his/her obligation to the child and state to warrant its interference?
On the other hand, if the state, in an attempt to protect parent interest in bringing up their child according to their believes, enacts that parental consent is needed before contraceptives can be administered to a girl below the age of 16 years, it will be failing to recognize that not all children are in the care of their parents nor have parents and this may have negative consequences on them.
Some authors state that state should interfere with the family only in extreme cases of serious maltreatment for the protection of children in order to respect the privacy and sanctity of the parent-child relationship. It has been argued against this theory that the 'extreme cases' concept is too narrow, excluding categories such as 'risk of abuse' and emotional harm in which a child could suffer as much damage as in physical abuse. Some others says privacy should not condone abuse, that is, there should be no state intervention in the family even in cases of abuse.
Advocates for strong state intervention in family life seek to ensure that all children are provided with a right to caring adults who meet their needs. In this situation, the state makes the decision on who the adult should be. This approach overlooks or undermines the strength of bonds between parent and child, even when the parent maybe considered unsatisfactory. Lord Templeman in Re KD A Minor) (Ward: termination of access) stated, and rightly so, that the natural parent is the best person to bring up a child and it matters not whether the parent is wise or foolish, rich or poor, educated or illiterate provided the child's moral and physical health are not endangered. Advocates for strong state intervention place too much faith on it. State intervention is not some divine intervention by a supreme, all knowing being. State actions and decisions are facilitated through Judges, social care workers, etc. who are human beings. The possibility of human error especially when human interest comes in conflict with the claims of others is a reality which should not be ignored. State intervention could actually cause harm than help some children as it is usually dependent on an outsider's evaluation of parental performance. The presence of case workers to supervise parental behaviour can interfere with the psychology of the family as the case worker may pressure parents into substituting the case workers views on child rearing for theirs.
'When family integrity is broken or weakened by state intrusion' (The younger child) needs are thwarted and his belief that his parents are omniscient and all powerful is shaken prematurely. The effect is invariably detrimental. The child's needs for safety within the confines of the family must be met by law through its recognition of family privacy as a barrier to state intrusion upon parental autonomy in child rearing.'
When the state does intervene in family life, purportedly for the benefit of a child or children, the child has a right to be heard in the processes that make up this intervention. This is an important aspect that need not be overlooked. His/her views are necessary to help the state arrive at what should be done.
One means to avoid the necessity of state intervention is for states to establish a clear set of social and legal expectations so that adults are educated in their responsibility.
The appropriateness of intervention in any given situation must be decided on a case by case basis, taking into account the programs and resources the court or state official has available to help the family and the dynamics of the specific family. As some commentators have noted, the court lacks the time, objectivity, evidence and foresight with which to make necessary predictions of a child's future and even if the court were capable of making such predictions there is doubt whether it could determine which alternative would promote the child's welfare.
...(download the rest of the essay above)