Excerpted From: Clare Ryan, Are Children's Rights Enough?, 72 American University Law Review 2075 (August, 2023) (283 Footnotes) (Full Document)


ClareRyan.jpegDivorced parents in Texas fight over custody of a gender nonconforming child. In California, intended parents seek to establish their rights to a child born via assisted reproductive technology. Across the country, states remove children from their parents and place them into foster care every day. Some state removals will be temporary, and some will result in permanent termination of parental rights.

In all of these situations, parents can assert their constitutional right to the care, custody, and control of their child. Parental rights are not absolute, nevertheless, they form a bedrock for determining custody, parentage, and child removal in the United States. By contrast, the child's right to remain with their parents, and to have their needs and interests treated as central considerations, is far less developed in U.S. constitutional law.

Many children fare poorly in the United States. The child removal system, immigration enforcement, and incarceration separate thousands of children from their parents, and those children often suffer serious mental and physical health consequences fromsustained deprivation and trauma. Parental decision-making can also harm children--both in the short-term and in the child's long-term prospects of becoming a flourishing adult. Embracing children's rights is one possible avenue for addressing these harms. Advocates and scholars in the United States invoke children's rights, and children's human rights, as a solution for remedying many of the ills children suffer. This Article asks: If courts used children's rights to guide their decisions, would it change the outcome?

Debates over the role of children's rights and parental rights echo through state legislatures, the American Law Institute, and the pages of scholarly journals--most prominently in the Yale Law Journal. One side argues that children's interests are best protected by vesting children with rights, while the other side contends that parents, and parental rights, are better positioned to protect children's interests. At stake in the parental rights debate are both the attentiongrabbing cases in which families are thrust into the larger “culture wars” and the everyday decisions that separate children from their parents.

The choice to adopt a children's rights frame is not merely theoretical. Many parts of the world have adopted such an approach, deploying both constitutional and human rights analyses to disputes around family separation. Since the promulgation of the Convention on the Rights of the Child (“CRC”) in 1989, courts and lawmakers around the world have grappled with the question of how to interpret and vindicate children's rights. In Europe, for example, the European Court of Human Rights (“ECtHR” or the “Strasbourg Court”) has been instrumental in incorporating the CRC into family law disputes across the continent. The United States, however, has not grounded the constitutional rights of the family in children's rights--adopting instead a parental rights approach. The United States is now the only country in the United Nations that has not ratified the CRC, making it an outlier in a growing global consensus around the centrality of children's rights.

The European experience with children's rights, therefore, can serve as a real-world model that American advocates for children's rights can look to for inspiration. And there are some helpful lessons to offer. But Europe's experience also serves as a cautionary tale. Advocates of children's rights contend that the United States gives too much deference to parents without consideration for the child's distinct needs and interests. As this Article reveals, however, the European model risks over-relying on state intervention in the name of children's rights. As American legal scholars have demonstrated, the “best interests of the child” can serve as a proxy for the state's interests, rather than the child's interest. Decisions that award custody, for instance, can serve to punish parents whose lifestyles the state wishes to deter. A child-focused best interests standard often becomes a deference doctrine for state control over custody. Consequently, deference to experts in determining “best interests” tends to prioritize dominant societal views regarding parenting, which are likely to disproportionately harm and exclude groups that do not conform to these expectations. This Article will show how a children's rights approach can exacerbate the risk of state control over marginalized families.

In many ways, the debate between parental rights and children's rights is one about the role of the state in family lives. The more deference the law gives to parents, the less state intervention is permissible in the name of the child's interests. The more the law elevates children's rights, the greater likelihood that state actors will pierce family privacy and autonomy to address the needs and interests of children. The question of too much or too little deference, however, often fails to capture whether--and how much--parental rights or children's rights framing actually matters to how courts adjudicate cases. I argue that focusing on parental rights versus children's rights is often a distraction from the state's broad power to intervene in family lives regardless of whose rights are evoked.

To better understand how the European approach could inform American debates over children's rights, this Article examines how apex courts interpret the rights to custody and parent-child separation within the context of their constitutional and human rights orders. The purpose of this inquiry is to assess whether a children's rights framework leads to more robust protection of children's needs and interests by courts. To answer this question, the Article compares the reasoning in landmark cases before the U.S. Supreme Court and the ECtHR involving custody and family separation. It examines how the courts identify and balance competing interests in these cases, with a particular eye to how the courts treat the child's interests when they are in apparent conflict with the parents' interests or with the state's objectives.

This Article posits that the debate over parental rights versus children's rights exaggerates the extent to which this framing matters to the outcomes for children and families. As the Article demonstrates, states exert considerable influence over decisions involving children regardless of whether a parental rights or child's rights model is in place. A legal system's use of the language of parental rights or children's rights is a less important limit on state power than one might think. This Article's critique of the European children's right framework does not demand a whole cloth rejection of children's rights, but it does suggest that new approaches are required.

A key reason why children's rights framing makes little difference to the outcome of cases is that the traditional individual rights framework is ill-suited to the unique needs and capacities of children. This Article identifies aspects of the current children's rights approach that serve as barriers to the full vindication of children's interests. First, courts struggle to implement an effective mechanism for balancing parents' rights and children's rights when they conflict. Second, because children often lack the capacity to bring cases on their own behalf--and are frequently not parties to the cases that implicate their rights--children's interests are defined by adults. Third, in cases where the state has a strong interest in deterring a parent's behaviors, the child's rights are often minimized or ignored.

The purpose of this Article is to inform the American parental rights/children's rights debate by demonstrating how a robust rightsprotecting court embraced a children's rights model and the challenges that it faced in doing so. Much as the European system can be lauded as a more rights-focused and humane system with respect to the parent-child relationship, Europe can also serve as a warning that overreliance on children's rights might have unintended consequences. In offering this detailed analysis of the impact of children's rights in high courts, this Article fills a significant gap in the literature. Other scholars have explored whether children have rights and the effectiveness of these rights. But the existing literature, especially in the United States, does not give sufficient attention to how courts operationalize a children's rights approach.

The Article proceeds as follows. Part II situates this Article within the existing literature on children's rights and parental rights. It then analyzes the “Best Interests of the Child” standard and its relationship to children's rights in Europe and the United States. Part III defines the method and scope of inquiry, which focuses on parents' and children's rights framing by the U.S. Supreme Court and the ECtHR. In Part IV, the Article engages with child custody and family separation cases to reveal how the parental rights and children's rights framing do--or do not--make a difference in the court's reasoning and conclusion. This Part identifies the structural barriers to full vindication of a children's rights model that the European case law reveals. It offers reasons, that are not grounded in rights, for why children fare better in Europe. The Article concludes by suggesting that a genuine alternative to a parental rights model requires reenvisioning rights for children.

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Why should American family law scholars and advocates care about the case law of the ECtHR? In addition to being a window into a different legal system, the ECtHR's experience with children's rights cases suggests that the children's rights/parental rights debate might be a distraction from the real problems facing children and families. If tomorrow every court in America were to begin framing custody and removal cases through the lens of children's rights, would children be better off? Probably not.

The biggest risk of implementing a children's rights approach is that it would further empower the state to intervene in the lives of vulnerable families in ways that do far more harm than good to children's well-being. Although previous critiques of children's rights have made a similar point, few have made use of the natural experiment playing out as other parts of the world implement children's rights. Of course, this is not the kind of experiment from which any strong causal connections can be drawn, nor should we imagine that the American experience with children's rights would necessarily follow the same path as its European counterparts. What it does provide, however, is a fresh perspective on the potential obstacles posed by a children's rights model.

What would it take for children's rights to be “enough?” Enough to vindicate and honor children's well-being; enough to prevent unnecessary and harmful state intervention into the family; enough to give children autonomy while also recognizing their vulnerability? These questions remain unanswered, but the hope is that this Article offers some greater insight into the ways in which the current system is not nearly enough.

Assistant Professor of Law, University of Alabama School of Law.