Children's Rights

The assumption that children either could or should have rights of any type is a relatively new idea. For most of history children were largely consigned to the status of parental property or chattel (primarily the father's chattel). Absolute parental control of the child, unfettered by the state, was in part a reflection of the agrarian society and the family itself as a work unit. Even where a child became orphaned or was so severely mistreated by parents or guardians that courts sentenced the abusers to prison, the child would often be indentured into the service of a new parent-master. This concept of children having an economic value was often matched with even sterner religious views, in which children were seen as inherently evil and needing a strict, punitive upbringing.

This view of children began to change in the West due to a variety of reasons. First, a more child-centered concept of human rights and family life began to emerge from the European Renaissance in the late fifteenth and early sixteenth century. John Locke (1632–1704) espoused the contractual nature of marriage and wrote of the value of self-determination. In the Enlightenment period in the eighteenth century a strong emphasis was placed on expression of individual freedom and one's rights. And during the American Revolution sentiments were raised supporting abolition of all types of tyranny, including tyranny of parents over children. All of this set the stage for a new way of thinking about childhood and the rights of children.

With the Industrial Revolution in the nineteenth century, structural changes were made in the nature of work and the family that further affected how children were raised and how their role in the family was construed. For the first time, the spheres of home and work were separated. The family was no longer the main economic unit and the period of childhood socialization was lengthened. During this time there was also a level of children's rights activity unmatched before or since. Child saving became a central theme of social reformers who wanted a public policy shift from punishment to education and rehabilitation. Many private, public, and especially progressive religious organizations became involved in efforts to create institutions—orphanages, houses of refuge, and reform schools—for abandoned, destitute, delinquent, wayward, and vagrant youths. Societies for the prevention of cruelty to children were established. The first child labor and compulsory schooling laws were enacted, and just before the turn of the twentieth century, new concepts of child protection were institutionalized.

In all of this there was a divide between those who focused mainly on nurturance and protection of children and those who focused more on children's rights to participation and self-expression. In the traditional nurturance model, adults were seen as the main determiners of what is in the best interest of the child. In the more rights-oriented model, greater decisional freedom for children was encouraged.

At the heart of this is a debate over the limits of parental authority versus child liberty. Lawrence Wrightsman (1994) suggests that a basic tension still exists between the circumstances in which the state should be permitted to take action for the child against the parents and the idea of the sanctity of family privacy and parental control. Even as late as the early twentieth century most children in the world had no legal status separate from their parents. The view that the best interests of the child were protected by parents was reflected in U.S. law in the early 1900s. For instance, the 1923 U.S. Supreme Court decision in Meyer v. Nebraska enunciated the fundamental legal right of parents to establish a home and bring up children, including dictating their education. In that case, the Court struck down a state law prohibiting foreign-language education in all primary schools. The Court held that the community's interest in children—resulting in the dictating of educational policy—could not prevail over parents' rights to control their child (and thus the child's education).

In 1967, the U.S. Supreme Court issued a decision that marked a new era in the relationship between children and the legal system. In the case of In re Gault, nullifying a juvenile delinquency adjudication and sentence that had been given by a juvenile court in which the affected child was not afforded the right to counsel, the Supreme Court rejected the unrestricted authority of the "benevolent" juvenile court system that permitted children to be incarcerated without the legal protections afforded adults. Gault breathed new life into the phrase children's rights.

Within a few years writings on children's rights in the United States and around the world began to multiply. One of the most important of these articles was "Children under the Law" (Rodham 1973), which thoroughly explored the implications of legal issues that were then quite new to systems of jurisprudence.