Saturday, May 30, 2009
IF THIS CAME TO PASS CHRISTIANS CAN KISS HOME SCHOOLING GOODBYE,ARTICLE 29 STATES IF THIS TREATY IS RATIFIED NO TEACHING JESUS IS THE ONLY WAY TO SALVATION IN SUNDAY SCHOOLS OR ANY OTHER PLACE,CHRISTIANS THIS IS DANGEROUS AND IF THIS TREATY EVER COMES UP WE MUST BLOCK IT AT ALL COSTS.THE U.N. WOULD BE TELLING US WITH THEIR CHILDRENS SURVICE WHAT HAPPENS TO YOUR CHILD.
JOHN LOEFFLER INTERVIEWS
CONVENTION ON THE RIGHTS OF CHILDREN U.N OFFICIAL TEXT
UNCRC ARTICLE BY ARTICLE
20 THINGS YOU NEED TO KNOW ABOUT THE UN CONVENTION ON THE RIGHTS OF THE CHILD MAY 31.09
Ten things you need to know about the structure of the CRC:
It is a treaty which creates binding rules of law.It is no mere statement of altruism.1.Its effect would be binding on American families, courts, and policy-makers.2.
Children of other nations would not be impacted or helped in any direct way by our ratification.3.The CRC would automatically override almost all American laws on children and families because of the U.S. Constitution’s Supremacy Clause in Article VI.4.The CRC has some elements that are self-executing, while others would require implementing legislation. Federal courts would have the power to determine which provisions were self-executing.5.The courts would have the power to directly enforce the provisions that are self-executing.6.Congress would have the power to directly legislate on all subjects necessary to comply with the treaty.This would constitute the most massive shift of power from the states to the federal government in American history.7.A committee of 18 experts from other nations, sitting in Geneva, has the authority to issue official interpretations of the treaty which are entitled to binding weight in American courts and legislatures. This effectively transfers ultimate authority for all policies in this area to this foreign committee.8.
Under international law, the treaty overrides even our Constitution.9.Reservations, declarations, or understandings intended to modify our duty to comply with this treaty will be void if they are determined to be inconsistent with the object and purpose of the treaty.10.
Ten things you need to know about the substance of the CRC:
Parents would no longer be able to administer reasonable spankings to their children.11.A murderer aged 17 years and 11 months and 29 days at the time of his crime could no longer be sentenced to life in prison.12.Children would have the ability to choose their own religion while parents would only have the authority to give their children advice about religion.13.The best interest of the child principle would give the government the ability to override every decision made by every parent if a government worker disagreed with the parent’s decision.14.A child’s right to be heard would allow him (or her) to seek governmental review of every parental decision with which the child disagreed.15.According to existing interpretation, it would be illegal for a nation to spend more on national defense than it does on children’s welfare.16.Children would acquire a legally enforceable right to leisure.17.Christian schools that refuse to teach alternative worldviews and teach that Christianity is the only true religion fly in the face of article 29 of the treaty.18.Allowing parents to opt their children out of sex education has been held to be out of compliance with the CRC.19.Children would have the right to reproductive health information and services, including abortions, without parental knowledge or consent.20.
-Vienna Convention on the Law of Treaties, Article 26 Pacta sunt servanda:Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
United States Constitution, Article VI: This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
UNICEF Convention on the Rights of the Child says: the Convention is a universally agreed set of non-negotiable standards and obligations.Available at http://www.unicef.org/crc/ on 12/2/2008.
-Vienna Convention Article 26 (supra);
United States Supreme Court, Whitney v. Robertson, 124 U.S. 190 (1888): By the Constitution of the United States, a treaty and a statute are placed on the same footing, and if the two are inconsistent, the one last in date will control, provided the stipulation of the treaty on the subject is self-executing.
-Vienna Convention (supra) and Article 2 (g):party means a State which has consented to be bound by the treaty and for which the treaty is in force
-United States Constitution, Article VI (supra, Note 1)
-Arlene Bowers Andrews, Implementing the U.N. Convention on the Rights of the Child, 171 (Greenwood Publishing Group 1999): The Convention is generally regarded as having two classes of rights for the purposes of self-execution, one class that is self-executing and one that is not self-executing.
-United States Supreme Court, Medellin v. Texas, 552 U.S. ___ (2008), at 170 L.Ed. 2d 190, 219,And whether the treaties underlying a judgment are self-executing so that the judgment is directly enforceable as domestic law in our courts is, of course, a matter for this Court to decide.
-Inter-Agency Standing Committee Reference Group on Humanitarian Action and Human Rights, Frequently Asked Questions on International Humanitarian, Human Rights, and Refugee Law, (2002), available at http://www.icva.ch/doc00001023.html#24:
Human rights law also contains provisions obliging states to implement its rules, whether immediately or progressively. States must adopt a variety of legislative, administrative, judicial and other measures that may be necessary to give effect to the rights provided for in the various treaties. This includes providing for a remedy before domestic courts for violations of specific rights and ensuring that the remedy is effective. The fact that a state has a federal or devolved system of government does not affect a state's obligation to implement human rights law.
United States Supreme Court, Reid v. Covert, 354 U.S. 1 (1957):To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.
-United Nations Convention on the Rights of the Child, Articles 43 (amended) and 44. Available at http://www.unhchr.ch/html/menu3/b/k2crc.htm.
-Vienna Convention, Article 27:A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
-Vienna Convention, Article 19, available at available at http://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/19.html; also
Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, The American Journal of International Law, Vol 89 No 2, 343-344 (Apr. 1995):
Reservations designed to reject any obligation to rise above existing law and practice are of dubious propriety: if states generally entered such reservations, the convention would be futile. The object and purpose of the human rights conventions, it would seem, are to promote respect for human rights by having countries—mutually—assume legal obligations to respect and ensure recognized rights in accordance with international standards. Even friends of the United States have objected that its reservations are incompatible with that object and purpose and are therefore invalid.
…By adhering to human rights conventions subject to these reservations, the United States, it is charged, is pretending to assume international obligations but in fact is undertaking nothing.
-United Nations Convention on the Rights of the Child, Article 37(a):
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
United Nations Committee on the Rights of the Child, General Comment No. 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia), CRC/C/GC/8, (2006):
The Committee is issuing this general comment to highlight the obligation of all State parties to move quickly to prohibit and eliminate all corporal punishment…. Addressing the widespread acceptance or tolerance of corporal punishment of children and eliminating it, in the family, schools and other settings, is … an obligation of State parties under the Convention.
-United Nations Convention on the Rights of the Child, Article 37(a), (supra)
-The UN Convention on the Rights of the Child: A Guide for Children and Young People (April 2008), available at http://www.scotland.gov.uk/Publications/2008/04/01081649/1:You have the right to choose your own religion and beliefs. Your parents should help you think about this.
Geraldine Van Bueren, International Rights of the Child, Section B, University of London, 29-30 (2006):
Unlike earlier treaties, the Convention on the Rights of the Child does not include a provision providing for parents to have their children educated in conformity with their parents’ beliefs. In addition, the child’s right to freedom of expression and the right of the parents to initially give direction and later only guidance, strengthens the argument that children are entitled to participate in decisions so that their education conforms to their own convictions.... The second question is whether a child has the right to choose a religion.
Under the Convention on the Rights of the Child, parents do have the right to provide direction to the child. Such parental power, however, is subject to two restraints:
• First, such direction should take into account the evolving capacities of the child, as expressly required by the Convention.
• Second, the direction should not be so unyielding that it equals coercion.
It can also be argued that the right to freedom of religion in the Convention on the Rights of the Child ought to be read together with article 12 which gives the child the right to express his own views in the matter of choice of religion.
-United Nations Convention on the Rights of the Child, Article 3(1): In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Geraldine Van Bueren, International Rights of the Child, Section D, University of London, 46 (2006):
Best interests provides decision and policy makers with the authority to substitute their own decisions for either the child's or the parents', providing it is based on considerations of the best interests of the child. Thus, the Convention challenges the concept that family life is always in the best interests of children and that parents are always capable of deciding what is best for children.
-United Nations Convention on the Rights of the Child, Article 12(1): State 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.
Inter-Agency Standing Committee Reference Group: Human rights law also contains provisions obliging states to implement its rules, whether immediately or progressively. States must adopt a variety of legislative, administrative, judicial and other measures that may be necessary to give effect to the rights provided for in the various treaties. This includes providing for a remedy before domestic courts for violations of specific rights and ensuring that the remedy is effective.
Geraldine Van Bueren, International Rights of the Child, Section D, 137: State parties are obliged to assure to children who are capable of forming views the rights to express those views in all matter affecting the child and to give those views due weight in accordance with the age and maturity of the child.By incorporating a reference to all matters affecting the child there is no longer a traditional area of exclusive parental or family decision making.
-ibid., at 36:[T]he United Nations Committee on the Rights of the Child, criticized Egypt and Indonesia on the proportion of their budget spent on defence, as compared to the proportion spent on children’s social expenditure.
The Committee also criticized Austria, Australia, Denmark, the United Kingdom, and others failing to spend enough tax dollars on social welfare for children:
Paragraph 46, Concluding Observations of the Committee on the Rights of the Child: Austria, Committee on the Rights of the Child, 38th sess., U.N. Doc. CRC/C/15/Add.251 (2005).
Paragraph 17 and 18, Concluding Observations of the Committee on the Rights of the Child: Australia, Committee on the Rights of the Child, 40th sess., U.N. Doc. CRC/C/15/Add.268 (2005).
Paragraphs 18 and 19, Concluding Observations of the Committee on the Rights of the Child: Denmark, Committee on the Rights of the Child, 40th sess., U.N. Doc. CRC/C/DNK/CO/3 (2005).
Paragraph 10, Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland, Committee on the Rights of the Child, 31st sess., U.N. Doc. CRC/C/15/Add.188(2002).
-United Nations Convention on the Rights of the Child, Article 31(1): States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
-American Bar Association, Center on Children and the Law: Children's Rights in America: UN Convention on the Rights of the Child Compared with United States Law, p. 182.
-Paragraph 52, Concluding Observations of the Committee on the Rights of the Child: Ireland, Committee on the Rights of the Child, 43rd sess., U.N. Doc. CRC/C/IRL/CO/2 (2006):
While noting that social, personal and health education is incorporated into the curricula of secondary schools, the Committee is concerned that adolescents have insufficient access to necessary information on reproductive health. The education is optional and parents can exempt their children.
Paragraph 14, Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland, Committee on the Rights of the Child, 8th sess., U.N. Doc. CRC/C/15/Add.34 (1995).
-Katie Hatziavramidis, Parental Involvement Laws for Abortion in the United States and the United Nations Conventions on the Rights of the Child: Can International Law Secure the Right to Choose for Minors?, 16 Tex. J. Women & L. 185, 202-203 (Spring 2007):
The unmistakable trend in the United States is to consistently increase anti-choice legislation, particularly with respect to minors. Ratification of the U.N. Convention on the Rights of the Child by the United States holds a strong possibility of assisting minors who seek abortions without parental interference.  The Convention may offer the best hope for securing adolescent reproductive freedoms on a global level. If enough diplomatic pressure were exerted on the United States to compel it to ratify the treaty, the CRC could provide significant improvements in the outlook for reproductive freedom for minors.
Paragraph 3, Concluding Observations of the Committee on the Rights of the Child: Columbia, Committee on the Rights of the Child, 42nd sess., U.N. Doc. CRC/C/COL/CO/3 (2006):The Committee notes with appreciation…decisions of the Constitutional Court on…the partial decriminalization of abortion.
Paragraph 55, Concluding Observations of the Committee on the Rights of the Child: Chile, Committee on the Rights of the Child, 44th sess., U.N. Doc. CRC/C/CHL/CO/3 (2007):The Committee…is concerned over the high rate of teenage pregnancies, the criminalization of the termination of pregnancies in all circumstances….
SOME ARTICLES OF THE TREATY
Article 3: The Best Interest Principle
It’s usually looked upon as a positive means of holding countries accountable to protect children. But the United Nations Convention on the Rights of the Child (UNCRC) is so much more than that.When the UNCRC was brought up for ratification in 1995, the core group of Senators in opposition concluded that this treaty marked a significant departure from the originally constituted relationship between state and child. They found, in fact, that it was literally incompatible with the right of parents to raise their children as well as a wholesale giveaway of U.S. sovereignty.
Widespread concerns about the UNCRC stem from the treaty’s repeated emphasis on one key principle used to guide all decisions affecting children: consideration of the best interests of the child.This principle underlies all of the rights found in the Convention. Article 3 of the CRC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.In other words, policies affecting children at all levels of society and government should have the child’s best interest as the primary concern.The trouble occurs when this principle appears as a guiding principle for parents in article 18(1), which states that Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
Who knows best?
The Convention’s emphasis on the best interests principle is a sharp break from American law.In the 1993 case of Reno v. Flores, the U.S. Supreme Court held that the best interests of the child is not the legal standard that governs parents or guardians exercise of their custody. In the 2000 case of Troxel v. Granville, the Court struck down a grandparent visitation statute because decisions about the child were made solely on the judge’s determination of the child’s best interests, without regard to the wishes of the parent.The Court’s decisions in Reno and Troxel reflect a fundamental tenet of American family law, which recognizes that parents typically act in the best interests of their children. Indeed, United States case law is replete with examples of parents fighting for the best interests of their children, ranging from a child’s right to an education to the right of personal injury compensation. Except in cases where a parent has been proven to be unfit, American law presumes that the parent is acting in the best interests of the child, and defers to that parent’s decision.
The UNCRC’s Brave New World
But the UN Convention on the Rights of the Child changes all of that. The treaty supplants this traditional presumption in favor of parents with a new presumption in favor of the state.According to Geraldine van Bueren, an international scholar who assisted in the drafting of the CRC, the language of best interests provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child.So instead of placing the burden of proof on the government to prove that a parent is unfit, the Convention places the burden of proof on – yes, parents. Any parent who claims that other interests might just be more important than the state’s characterization of the best interest of the child could end up battling the state to protect their rights as a parent.
Where do we go from here?
There is a solution to this dilemma. The strongest, most effective way of protecting children and parents from an alarming state-based agenda is to amend the Constitution to protect parental rights. This can only take place through the concerted efforts of millions of dedicated parents across the United States.
Two immediate action items
Maybe you’ve already signed the petition to protect parental rights. If so, we encourage you to take the next step of telling your friends about this important issue. And if you haven’t yet joined the campaign, consider joining today. Article written for ParentalRights.org by Peter Kamakawiwoole, Feb. 12, 2008.
Article 9: A Child's Right to a Family -- Almost
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.
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.Article written by Peter Kamakawiwoole, Feb.25, 2008.
In Re Sumey, 94 Wash. 2d 757 (Wash. S.C. 1980)
UN Convention on the Rights of the Child
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.
Article 13, part 1: Homeschooling Illegal?
This week, we continue our series on the UN Convention on the Rights of the Child by considering Article 13, which states that the child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.The crux of this article is the child’s right to information.Children access information through what they are taught and what they discover on their own. This week, we will consider the Convention’s implications on what children are taught.
Article 13 is far more sweeping than any right articulated by our Constitution or Supreme Court, guaranteeing all children the right to seek information of all kinds. International author and commentator Marian Koren explains that although the state should generally refrain from interfering in the family,the State also has a positive obligation in supporting the possibilities for children to seek information or to express their views.Ultimately,it is the duty of the State to respect the rights of the child and his freedom to thought, conscience, belief, expression and opinion. (emphasis in original)Although the United States has not yet ratified the CRC, there is a growing sentiment that the state should bear the responsibility for ensuring that children are properly educated, instead of parents. A striking example occurred this past February, when a California court declared in In Re Rachel L. that parents do not have a constitutional right to home school their children,unless they are certified by the state to teach. In so ruling, the court declined to follow the Supreme Court’s 1972 decision in Wisconsin v. Yoder and its 2000 ruling in Troxel v. Granville, which guarantee parents the fundamental right to direct the upbringing and education of their children.
Rachel L., like Article 13, presumes that it is ultimately the state’s duty to ensure that the child’s right to information is respected. The California court quoted repeatedly from an earlier California decision in 1952, which concluded that children must be educated in traditional public or private schools, subject to state standards and regulations: anything less would take from the state all-efficient authority to regulate the education of the prospective voting population.(emphasis added)The language of all-efficient authority is not the language of liberty. According to Dr. Martin Guggenheim, Professor of Law at New York University,our future as a democracy depends on nurturing diversity of minds. The legal system’s insistence on private ordering of familial life ultimately guards against state control of its citizens. There may be questions over the best way to educate children, but according to Guggenheim, the American answer is that unless the answers are so clear that there is no room to disagree, parents are free to decide for themselves what they believe will best serve their children.Thankfully, the public outcry to this decision led California courts to decide to rehear the Rachel L. decision this summer, allowing parents - at least for the moment - to continue teaching their children at home. But only time will tell whether the California courts will have a change of heart, or whether the damaging decision will simply be repeated. The strong words of the first Rachel L. decision suggest that this is a real possibility.America’s legal heritage has consistently held that parents, not the state, have the right to decide whether their children would best benefit from public schooling, a private school, or even learning at home, but this recent decision from California highlights just how tenuous this freedom can be. If we wish to secure these freedoms, we must act now to place parental rights beyond the reach of judges by protecting them within the Constitution.Article written for ParentalRights.org by Peter Kamakawiwoole, April 21, 2008.
Marian Koren, The Right to Information: Too Vague to Be True? in Monitoring Children’s Rights, Eugeen Verhellen, ed. (The Hague: Martinus Nijhoff Publishers, 1996): 675.In Re Rachel L., 73 Cal.Rptr.3d 77 (Ca.App. 2008)(VACATED)Martin Guggenheim, What’s Wrong with Children’s Rights (2005): 24-27, 43.
Article 14: Religion Is Child Abuse?
This week, we continue our series on the UN Convention on the Rights of the Child with Article 14, which says that the government shall respect the right of the child to freedom of thought, conscience and religion,and shall also 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.Proponents of the CRC, such as law professor Jonathan Todres, has commented that Article 14 provides for the role of parents in teaching religion to their children, while ensuring that the government does not impose restrictions on any child’s right to freedom of religion. Nevertheless, a deeper understanding of this provision reveals that the purportedly pro-parent language is really another avenue for government power, not a shield to protect parental rights.
How much direction is too much direction?
On its face, this article may seem to support the role of parents, but such a position is merely wishful thinking. The Convention merely recognizes the parents’ primary role to provide direction to the child, and there is considerable disagreement on what this direction should entail. For example, according to Faulkner University law professor John Garman, Article 14 is one of the few clauses in the CRC that actually brings the parents into play to provide direction to the child.But another CRC proponent, law professor Cynthia Price Cohen, disagrees. According to Cohen, one of the earliest drafts of Article 14 included two paragraphs that protected the right of parents to guide the exercise of this right and to respect the liberty of the child and his parents with regard to the child’s religious education. When the final text was adopted, however, all language protecting the rights of parents to ensure the religious and moral education of the child was omitted. This omission makes no sense if the purpose of Article 14 was to protect the rights of parents to instruct their children.
Religious indoctrination as abuse?
The danger to parents is compounded by a growing movement among American and international academics to prevent parents from indoctrinating their children with religious beliefs. For example, British scientist and bestselling author Richard Dawkins recently described religious indoctrination of young children as a form of child abuse.Odious as the physical abuse of children by priests undoubtedly is, Dawkins writes,I suspect that it may do them less lasting damage than the mental abuse of bringing them up Catholic in the first place.Dawkins is not alone in his analysis. In 1998, bestselling author and professor of psychology Nicholas Humphrey, teaching at New York University at the time, argued for censorship of parents, who have no right to limit the horizons of their children’s knowledge, to bring them up in an atmosphere of dogma and superstition, or to insist they follow the straight and narrow paths of their own faith.Both authors advocate an outside solution to protect children from indoctrination: intervention by the government. In The God Delusion, Dawkins quotes from Humphrey, who writes that children have a right not to have their minds addled by nonsense, and we as a society have a duty to protect them from it. Humphrey bluntly adds that parents rights have no status in ethics and should have none in law – parenting is a privilege that operates within parameters set by society to protect the child’s fundamental rights to self determination.If parents step beyond these boundaries by indoctrinating their children,the contract lapses – and it is then the duty of those who granted the privilege to intervene.(emphasis added)
Some have called for international talks on whether children should be involved in religion. Innaiah Narisetti of the Center for Inquiry (a U.N. NGO) said, The time has come to debate the participation of children in religious institutions,continues Narisetti.While some might see it as a matter better left to parents, the negative influence of religion and its subsequent contribution to child abuse from religious beliefs and practices requires us to ask whether organized religion is an institution that needs limits set on how early it should have access to children.Narisetti also said that The UN must then take a clear stand on the issue of the forced involvement of children in religious practices; it must speak up for the rights of children and not the automatic right of parents and societies to pass on religious beliefs, and it must reexamine whether an organization like the Vatican should belong to the UN.
The fundamental interest of parents
This aggressive censorship of parents captures the true spirit of Article 14. According to law professor Bruce Hafen, the language of Article 14 views parents as trustees of the state who have only such authority and discretion as the state may grant in order to protect the child’s independent rights,and is consistent with what the state deems as the child’s evolving capacities.Such a calloused view of parents stands in stark contrast to our own legal tradition, which has long upheld the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.America’s legal heritage has consistently held that parents have a fundamental right to teach their children about religion, shielded from well-intentioned but intrusive interference from the state. The danger of Article 14 is that it disrupts this crucial balance, tipping the scales in favor of the government and those who claim to know better in our society. If we wish to secure these freedoms, we must act now to place parental rights into the text of our Constitution.Please forward this message onto your friends and urge them to sign the Petition to Protect Parental Rights.Article written by Peter Kamakawiwoole, May 5, 2008.
Jonathan Todres,Analyzing the Opposition to the U.S. Ratification of the U.N. Convention on the Rights of the Child,in The U.N. Convention on the Rights of the Child (2006): 24.Cynthia Price Cohen, Role of the United States in Drafting the Convention on the Rights of the Child,Loyola Poverty Law Journal (1998): 30-31.
Bruce Hafen, Abandoning Children to their Autonomy, Harvard International Law Journal (1996): 470.Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
Article 18, Part 1: Government-Supervised Parenting
During our series on the UN Convention on the Rights of the Child, most of the articles we have considered have focused on the relationship between the state and the child. Article 18 is therefore unique in its emphasis on the responsibilities of parents, and the supervised relationship that these parents have with the state.
Article 18 is also one of the more complex articles in the Convention, divided into three sections that address distinct facets of the relationship between parents and the state. This week, we will focus on the first section, which says that States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child, and that parents are primarily responsible for their children. As parents,the best interests of the child will be their basic concern.The danger of Article 18 is that it places an enforceable responsibility upon parents to make child-rearing decisions based on the best interests of the child, subjecting parental decisions to second-guessing at the discretion of government agents.
Obligations on Parents?
Article 18 stands out because it affects not only the relationship between the UN and the nation that ratifies the Convention, but also the relationship between private individuals and their government: a relationship that is usually changed through legislation at a local level. In fact, the UN’s Implementation Handbook for the CRC explains that when article 18 was being drafted, the delegate from the United States of America commented that it was rather strange to set down responsibilities for private individuals, since the Convention could only be binding on ratifying governments.But instead of paying heed to this objection, the drafters of the CRC rejected it, making the Convention enforceable against private individuals and requiring that parental rights be translated into principles of parental responsibilities. The Handbook itself notes that if the actions of parents could be shown to impair the child’s physical, psychological, or intellectual development, the parents – not the state – can be found to be failing in their responsibilities. (emphasis added).The end result is parental involvement under state supervision. According to Chris Revaz, Article 18 recognizes that parents and legal guardians have the primary responsibility for the upbringing and development of the child, with the best interest of the child as their basic concern, but also invests in the state a secondary responsibility to provide appropriate assistance to parents and legal guardians in meeting their responsibilities.Roger Levesque opines that such supervision attempts to regulate the relationship between child and state, essentially relegating the role of parental and familial involvement to a position of secondary importance.
Enforcing the Best Interest Standard
As a previous article in our series has already discussed, the best interests of the child is a significant theme in the Convention, providing decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’.The inevitable result, according to Levesque, is that by placing the burden on the State to take affirmative steps toward ensuring the fulfillment of children’s rights, the Convention assumes responsibility and invokes the State as the ensurer and protector of rights.This point is echoed by Law Professor Bruce Hafen, who warns that the Convention’s emphasis on the best interests of the child creates an arguably new standard for state intervention in intact families.According to Hafen, legal authors in Australia have already suggested that under the CRC, 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.Hafen warns that this conclusion – though inapposite to America’s cultural and legal heritage – is consistent with the CRC’s apparent intent to place children and parents on the same plane as co-autonomous persons in their relationship with the state.This is a far cry from America’s legal heritage, which has long held that parents have a fundamental right to oversee the upbringing and education of their children, free from government control. Article 18 makes it plain, however, that under the Convention, it is the state that is ultimately responsible for the fate of its children, and has authority to supervise its parents.Article written for ParentalRights.org by Peter Kamakawiwoole, June 24, 2008.
UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm.Cris Revaz,An Introduction to the U.N. Convention on the Rights of the Child,in The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications on U.S. Ratification (2006): 10-11.Roger Levesque, International Children’s Rights Grow Up: Implications for American Jurisprudence and Domestic Policy (1994): 214.Bruce and Jonathan Hafen, Abandoning Children to their Autonomy (1996): 461-462, 464.United Nations Children’s Fund, Implementation Handbook for the Convention on the Rights of the Child (2002): 245-246, 46, 246.
Giving the State a Grasp on Your Kids.Part II of an in-depth look at Article 18 of the UN Convention on the Rights of the Child.
When Kevin and Peggy Lewis volunteered their child for special education services, they never dreamed they would need a lawyer if they wanted to change their minds.
After their son developed several learning issues, including an inability to focus in class and difficulty processing and understanding oral and written communication, the Lewis's turned to the Cohasset Middle School in Massachusetts for help.1 But after a year in the school's special education program, their son was not improving academically, and felt harassed by school officials who were closely monitoring and reporting on his behavior - everything from chewing gum in class to forgetting his pencil.2 Initially, the Lewis's requested that the school pay for private tutoring, but as their relationship with the administration continued to decline, the exasperated parents finally decided to withdraw their son from the school's program and to pay for private tutoring out of their own pockets.3 Apparently, that option wasn't good enough for the school.In December 2007, Cohasset hauled Kevin and Peggy into court, claiming that the parents were interfering with their son's constitutional right to a free and appropriate education.4 After a day-and-a-half of argument, the judge sided with the school in an unwritten opinion.5 This is truly devastating to all parents who have children on an IEP,Peggy said, referring to the individual education plans for special education students.What it means in fact when you sign an IEP for your child, you sign away your parental rights. . . . Now Cohasset has their grasp on my kid.6
Help for Parents
At first glance, it seems odd that a school would take parents to court to compel them to accept state services. After all, as observers of the case commented, schools usually objects when parents demand more aid for their children, not when the parents try to withdraw their child from the program.7 But according to the UN Convention on the Rights of the Child ,once parents have asked the state for assistance in raising their children, the state has both the responsibility and the authority to see the job through - even if the parents no longer support the state's solution.In addition to imposing legally-enforceable responsibilities on parents, Article 18 of the Convention also requires states to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities, and to establish institutions, facilities and services for the care of children.8 At first glance, the offer of assistance to parents may appear harmless, and even generous, but appearances are often deceiving. While the government may claim to offer services to parents on a purely voluntary basis, parents soon discover that government assistance isn't always free.
When voluntary doesn't mean voluntary
For examples of this dangerous trend, one need look no further than the nation of Sweden, the first western nation to ratify the Convention.In addition to mandatory sex-education, free child care for working parents, and a national ban on corporal punishment, Sweden's local municipalities are also required by law to offer parents a broad array of voluntary services that promote the favourable development of children and young persons.9 Unfortunately, according to Swedish attorney and activist Ruby Harrold-Claesson, voluntary care in no way is voluntary since the social workers threaten the parents to either give up their child voluntarily or the child will be taken into compulsory care.10 If the state determines at a later date that the voluntary services are not helping, the municipality has both the responsibility and the authority to physically take a child into care and place him in a foster home, a children's home or another suitable institution.11 According to Harrold-Claesson, since the emergence of such programs,children are being taken from their parents on a more routine basis.12 Unfortunately, these disturbing trends are not confined to Sweden. Even here in the United States, voluntary services for parents are often the first step toward state control of families.
Holding Children Hostage
As a young mother of three,Katianne H.faced tremendous difficulties in making ends meet.13 Although she was never unemployed, Katianne had difficulty putting her job ahead of the needs of her young family. So when her three-month-old son Xavier developed severe allergies to milk and soy protein, her pediatrician recommended that she relieve some of the pressure placed upon her by requesting that her son be placed in temporary out-of-home care.14 Thinking such a placement was truly voluntary, Katianne agreed.Within a few months, Xavier was weaned from the feeding tube to a bottle, but when Katianne sought to bring him home, the state refused.It would take more than two-and-a-half years - and a decision from the Nebraska Supreme Court - before Katianne would win her baby boy back.15 In a unanimous ruling, the court said the child should have been returned to his mother as soon as his medical condition was resolved. Instead, state authorities drew up a detailed plan requiring the mother to maintain steady employment, attend therapy and parenting classes, pay her bills on time, keep her house clean, improve her time management, and be cooperative with social workers. When she failed to fully comply with all these obligations within fifteen months, her parental rights were terminated.16 The Court condemned the state for keeping Xavier out of the home once the reasons for his removal had been resolved,and warned that a child should never be held hostage to compel a parent's compliance with a case plan when the child could safely be returned home.17
A familiar pattern
According to studies, scholars, lawyers, and advocates, voluntary placement in the United States - like voluntary placement in Sweden - is often the first step toward the state getting a grasp on children. Here are just a few examples from within our own borders:
·A 1994 study in New Jersey found that parents often report signing placement agreements under the threat that court action against them will be taken if they do not sign,particularly parents who have language or other barriers making it difficult or impossible for them to read and understand the agreement they were signing.18 There are also no clear legal standards to protect a family once it has entered the system,even if it enters voluntarily: existing legislation grants judges and caseworkers virtually unrestricted dispositional authority.19
·In 1998, Melville D. Miller, President and General Counsel of Legal Services of New Jersey, warned that when parents sign voluntary placement agreements, parents give the state custody of their children without any decision by the court that they have abused or neglected them.20 In addition, voluntary placement often waives a family's opportunity for free legal representation in court, leaving families - particularly poor families - with no assistance in advocating for what they need when disputes with the state arise.21
·In 1999, Dr. Frank J. Dyer, author and member of the American Board of Professional Psychology, warned that parents can be intimidated into voluntarily signing placement agreements out of a fear that they will lose their children,and that in his professional counseling experience, birth parents frequently complain that if they had known from the outset that the document that they were signing for temporary placement of their children into foster care gave the state such enormous power over them, they would have refused to sign and would have sought to resist the placement legally.22
·The Child Welfare League of America, in its 2004 Family's Guide to the Child Welfare System, reassures parents that the state do[es] not have to pursue termination of parental rights,as long as the state feels that there is a compelling reason why terminating parental rights would not be in the best interest of the child.23 If parents and social workers disagree about the fate of a child in voluntary placement, the CWLA simply states that if you decide to bring your child home, and the agency believes that this would interfere with your child's safety, it has the right to ask the court to intervene. You also have the right to explain to the court why your child's safety would not be in jeopardy if he came home.24
·The National Crittenton Foundation, in a web booklet published for young, expectant mothers who are currently in the foster care system, warns in large, bold print that by signing a voluntary placement agreement,you will most likely lose all custody of your baby, even if you want to regain custody of your baby after you turn 18.25
Never Too Late
If one can learn anything from the stories of the Lewises, Katianne, and the plight of Swedish parents, it is that the government wields incredible power over parents who have voluntarily accepted its aid when caring for their children. These parents are often poor, struggling, and searching for the means to keep their families together, but instead of helping them, the open hand of the state can easily become a clenched fist, either bullying parents into submission or forcibly taking their children from them.Thankfully, it is not too late to protect children and their families by protecting the fundamental right of parents to raise their children, and to reject government programs that are unneeded or unwanted. The state should only interfere with the family for the most compelling reasons - not because loving parents were misled about the true nature of voluntary care.Please consider sending this message to your friends and urging them to sign the Petition to Protect Parental Rights.This article was written for ParentalRights.org by Peter Kamakawiwoole, Jan. 29, 2009.
1. James Vazniz,Cohasset schools win case v. parents,The Boston Herald (December 15, 2007)
2. James Vazniz, Parents want son out of special ed, The Boston Herald (December 13, 2007)
3. Vazniz, Cohasset schools win case v. parents.
4. Vazniz, Parents want son out of special ed.
5. Vazniz, Cohasset schools win case v. parents.
6. Vazniz, Cohasset schools win case v. parents.
7. Vazniz, Cohasset schools win case v. parents.
8. UN Convention on the Rights of the Child, Article 18.2.
9. Ruby Harrold-Claesson, Confiscating Children: When Parents Become Victims,The Nordic Committee on Human Rights (2005)
10. Harrold-Claesson, Confiscating Children: When Parents Become Victims.
11. Harrold-Claesson, Confiscating Children: When Parents Become Victims.
12. Harrold-Claesson, Confiscating Children: When Parents Become Victims.
13. Katianne is the name given to the mother by the Nebraska Supreme Court, which decided her case in In Re Xavier H., 740 N.W.2d 13 (Neb. 2007).
14. In re Xavier H., 740 N.W.2d at 21.
15. Nebraska Supreme Court returns boy to mother,Omaha World Herald (October 19, 2007)
16. Nebraska Supreme Court returns boy to mother.
17. In re Xavier H., 740 N.W.2d at 26.
18. Emerich Thoma,If you lived here, you'd be home now: The business of foster care, Issues in Child Abuse Accusations, Vol. 10 (1998)
19. Thoma, If you lived here, you'd be home now.
20. Melville D. Miller, You and the Law in New Jersey (Rutgers University Press, 1998): 200.
21. Miller, You and the Law in New Jersey,200.
22. Frank J. Dyer, Psychological Consultation in Parental Rights Cases(The Guilford Press, 1999): 26.
23. Child Welfare League of America (CWLA),Placements to Obtain Treatment and Services for Children,A Family's Guide to the Child Welfare System (2004): 5
24. CWLA, Placements to Obtain Treatment and Services for Children,p. 5.
25. The National Crittenton Foundation, Crittenton Booklet for Web,pp. 11-12.
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