UN “Alternative Care” Guidelines Scrutinized for Pitting Children Against Parents
Co-authored by Marie Connelly
(NEW YORK – C-FAM) The United Nations (UN) General Assembly (GA) will consider a document on alternative, non-parental care of children this fall in conjunction with the twentieth anniversary of the Convention on the Rights of the Child (CRC). Certain delegates are expressing concern, however, at one provision in particular that appears to pit the rights of children against their parents.
The Guidelines for the Alternative Care of Children call upon States to implement policies aimed at “empowering youth to face positively the challenges of everyday life, including when they decide to leave the parental home.” They further call for governmental programs aimed at youth as “future parents” to make “informed decisions regarding their sexual and reproductive health.”
While the Guidelines also reference promoting “family-oriented policies” and “family strengthening services” to avoid alternative care, critics see the youth emancipation provision as calling for state intrusion into the parent-child bond. They also express concern at the linkage to programs concerning “sexual and reproductive health,” querying whether such youth empowerment programs would exclude parental oversight.
Such concerns are getting more attention with approach of the CRC anniversary, with a number of voices questioning the “child’s rights” approach evident in both the treaty and the Guidelines. They see an emphasis on the rights of the child, as opposed to one emphasizing “best interests,” as pitting children against parents who should be their natural guardians, with the State as guarantor of rights intervening at the expense of the familial bond.
This tension between a rights-of-the-child and a family-centered approach is the subject of a recent article in the New York International Law Review by Professor Lynne Marie Kohm. She criticizes the CRC as ineffective in addressing global exploitation of children, such as curbing sex trafficking. Kohm explains that this is because “the CRC has essentially worked to set the child as his or her own rights advocate, or at best a direct adversary to those whom he or she would normally rely on, parents and state actors, for protection and provision because of the rights framework it has adopted.”
Instead of advocating a “child’s rights” paradigm, Kohm advocates a return to a “best interests of the child” approach, adding that “[c]hildren are protected only when adults have a duty to provide that protection, rather than cloaking children with the right to do so themselves.”
This has led to certain delegations calling for greater recognition of the role of parents. A recent intervention by the Holy See at the UN, for example, clarified that when promoting the protection of the rights of the child “all legislation regarding children must take into account the indispensable role of parents, for children are born of a mother and father, and into the fundamental community which is the family.”
The Guidelines were forwarded to New York for consideration by the full GA following adoption of a Brazilian-sponsored resolution annexing the Guidelines this summer at the Geneva-based UN Human Rights Council. Brazil is seen as the chief promoter of the Guidelines.
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