The concept of ”children’s rights” is relatively new. For most of history, children were considered chattel and had no rights separate and apart from their parents. Parents made decisions affecting their children, and the children had no voice because the law presumed that they lacked the capacity to make decisions for themselves. The state would intervene to protect children only when parents divorced or failed to provide minimal care for their children. State involvement was justified by the parens patriae power, an amorphous term that refers to the ability of the state to substitute for a parent in promoting the child’s best interests.
Rights of Children That are Separate and Apart From Parents
Society has begun to recognize that children are human beings with rights separate and apart from their parents. Child protection laws relate to almost every aspect of a child’s relationship to his or her family and to society at large. The determination of whether a child is responsible for his or her criminal acts, has property rights, or has the right to be protected against parental abuse is related to society’s beliefs about the nature of childhood and the sanctity of family life. Since 1967, the United States Supreme Court has extended to children many of the same constitutional protections enjoyed by adults. Recently, the child’s rights to privacy and the right to free speech have conflicted with the adoption of the Children’s Online Privacy Protection Act, which puts in place a right to privacy protection but impacts free speech as parental consent is required for children under the age of 13.
Today the laws governing children’s rights reflect widely conflicting views of youth. Some laws are designed to govern responsible children. Others are intended to protect the child who is completely helpless against the evils of the world. On the one hand, the Supreme Court has found no constitutional impediment to prevent the execution of a 16-year-old child. However, under the authority of other Supreme Court decisions, the state might demand that the same child be subject to parental notification or judicial approval of her decision to get an abortion.
Juveniles Always in Custody
The state, like parents, has the ability to curtail a child’s right to come and go at will because, according to the Supreme Court, juveniles are always in some form of custody. It is therefore permissible to hold a child in preventative detention and to hold the child in a decent and humane custodial institution even where a responsible person may be available to take temporary legal custody of the child. State law protects children from unfit parents but, on the other hand, does not allow them standing to sue their parents for ”divorce.” Courts have held that, while a child has a constitutionally protected interest in family life, that interest is not independent of the parents’ interest, in the absence of a showing that the parents are unfit.
Reasons to Deny Children Same Constitutional Rights as Adults
In an attempt to reconcile the disparate interests of children, their parents, and the state, the Supreme Court has set forth three reasons for denying children the same constitutional rights as adults. These include the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of deferring to the parental role in child rearing.
Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.