Family Integrity and Children's Rights: A UN Convention Perspective
by Jonathan Todres

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Jonathan Todres is an associate professor at Georgia State University College of Law and coeditor of The U.N. Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification (Brill Academic Publishers 2006).

Normally, a 99 percent approval rating is ideal. Yet even though 99 percent of eligible states have ratified the UN Convention on the Rights of the Child (CRC) since its adoption in 1989, one prominent holdout remains. The United States has not ratified the CRC despite its active role in drafting the treaty. The Obama administration has indicated it will review the U.S. stance. In contemplating ratification of a treaty affecting children, a related question should be asked: What impact will it have on parents and families, given their vital role in children’s development? Thus, this article examines the CRC’s conception of family.

The CRC’s guiding principle on the family, set forth in its preamble, recognizes the family as “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children.” Nineteen CRC provisions explicitly acknowledge the essential role of parents and families in the lives of children. In situating children and their rights within the family, the CRC articulates important protections for parents and families.

The CRC’s umbrella provisions reinforce the position that the family is entitled to special protections as a way of advancing the child’s rights. First, Article 5 mandates that governments defer to parents and legal guardians in the upbringing of children, requiring that states “respect the responsibilities, rights and duties of parents” and other guardians to provide appropriate direction and guidance to their children. Family integrity is preserved by positioning government as a safety net, not as the primary caretaker.

Second, similar to other human rights treaties, the CRC incorporates the principle of nondiscrimination in its text, in Article 2, requiring that states ensure the rights of every child without discrimination of any kind , including on the basis of “race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” Importantly, the CRC’s protections extend not only to discrimination based on the child’s traits or opinions but also to discrimination against the child based on the parents’ background, status, or beliefs. Thus, for example, a government cannot target a child as a means of pressuring parents to retract a social or political position that is contrary to government or majoritarian views.

Third, Article 3, the CRC’s cornerstone provision, establishes that the best interests of the child shall be a primary consideration in all actions concerning children. It reaffirms that as countries strive to provide children the protection and care they need, they must do so “taking into account the rights and duties of [each child’s] parents” or guardians. Thus, in these foundational provisions, the CRC cements the state’s position as insurer of children’s rights and well-being while preserving the sanctity of the family.

A number of more specific provisions also safeguard family integrity by ensuring children’s right to a name, identity, and family relations (Article 7); by requiring that governments refrain from unlawfully interfering with children’s privacy, family, or home (Article 16); and by prohibiting separation of parents and children except in limited circumstances, such as abuse and neglect cases, and even then only if separation is in the child’s best interest and due process rights are afforded to interested parties (Article 9). Other provisions obligate states to facilitate family reunification in abduction and refugee settings (Articles 10 and 22) and to ensure children’s right to family contacts in juvenile justice settings (Article 37).

Although the CRC is oriented toward the child’s perspective, the enshrined protections of the child’s family life and relationship with his or her parents imply considerable protections for parents and other family members. For example, for a child to realize his or her right to a name, identity, and family relations, the state must not interfere with parents’ rights to name their child, to obtain an identity for their child, or to care for their child. Thus, children’s rights to family imply rights for families to live free from government discrimination and persecution.

Given the implied protections for parents and other family members, lawyers will be quick to ask what is meant by “family.” The CRC does not define the term but recognizes that family takes different forms around the world. Article 5 notes that governments must respect the 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.” Beyond that, the CRC defers to individual states to give meaning to the term “family,” provided that any definition does not violate the nondiscrimination principle or other rights of the child. What the CRC makes clear is that in protecting the rights and well-being of children, governments must respect the rights and duties of parents and families who are best positioned to foster the well-being and development of all children.

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Stephen J. Wermiel is co-chair of the Human Rights editorial board.