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Elizabeth Bartholet: Should the U.S. Ratify the CRC? A look at the Pros and Cons

  • Wed, Feb 23 2011

The United States remains one of the last countries to ratify the Convention on the Rights of the Child (CRC). What's been holding the U.S. back? Harvard University's Elizabeth Bartholet, a distinguished child welfare expert, discusses some of the pros and cons to possible U.S. ratification in the following interview with Stephanie Marudas. Bartholet has a related article in the January 2011 Annals volume, "The Child as Citizen." Elizabeth Bartholet is a professor at Harvard Law School where she runs the Child Advocacy Program.

 

 

    • Elizabeth Bartholet
  • Elizabeth Bartholet: Should the U.S. Ratify the CRC? A Look at the Pros and Cons

Stephanie Marudas: Somalia and the United States are the only two countries in the United Nations that have not yet ratified the Convention on the Rights of the Child, or what is better known as the CRC, since it was adopted in 1989. In your article [Ratification by The United States of the Convention on the Rights of the Child: Pros and Cons from a Child's Rights Perspective] in The Annals "Child As Citizen" volume you examine what the pros and cons of U.S. ratification of the CRC would be from a child’s rights perspective. Tell us first what children in the United States would gain if the U.S. signed onto the CRC.

Elizabeth Bartholet: I am not sure that they would gain anything right away. I think that it would not be immediate effective law, in any sense. It is a non-self-enforcing treaty and Congress might well add a reservation of some kind hammering home the point that it is not self-enforcing. On the other hand, I think that in the long term it would be a very powerful influence if we were to sign. I mean, we do, as a country, tend to take treaties that we ratify seriously and I think we would honor this as a significant commitment and it would have an impact as state and federal legislators thought about passing new legislation, and I think it would have an impact as judges, both state and federal, interpreted existing laws and existing constitutions.

SM: As we see it now in child welfare, oftentimes parental rights come first. And so would this sort of balance out children’s rights and parental rights?

EB: I think in the area of child welfare, this CRC ratification, if we were to ratify, would be very, very important. And for just the reason you indicated. I think that the CRC in a dramatic way says that children should be seen, just as adults, as having fundamental human rights and then specific to issues like maltreatment, the CRC says children have rights not to be abused and the state has duties to protect children. All of that is a very different conception than what we currently have in U.S. law. Currently in U.S. law we have parents having constitutional rights and children have very limited constitutional rights and they have almost none in the area of protection against maltreatment by parents. So there are state laws in all fifty states that give children certain rights not to be abused and neglected, but it makes a difference that children do not have constitutional rights and parents do. I think that now when judges and when child welfare systems look at a case of abuse, they are faced with parents who have constitutional rights, kids who do not have any. And so all legislation and all child welfare regulations are read in light of this idea that parents have very powerful constitutional rights to hold onto their children, free from state intervention, and there is nothing to counter that. And if we endorse the CRC, if we ratified it, we then have this different principle, which might gradually find itself into constitutional law. So I would imagine that if we had ratified the CRC, there is this idea that children have rights and then as state and federal courts begin to interpret constitutions in the future they might find in those constitutions rights for children just as they found rights for parents.

SM: And something else you bring up in your article is that things could change for children here who get caught up in the criminal justice system. The United States does have some parameters around life without parole regarding juvenile offenders. Are we the only country or one of few countries that actually does this to children?

EB: We are almost the only country. And if you look at the numbers of children who have life without parole sentences in this country, there is a very significant number and there are almost no children in the rest of the world; that is my understanding of the situation. And yes, the CRC has some very specific provisions like no life without parole, no death penalty for children. Now, of course, we have gotten rid of the death penalty for children but we still have life without parole in the U.S. for murder crimes; it has been found unconstitutional for non-murder crimes for children. So there are a lot of children still with this life without parole sentence and will continue to be. If we ratify the CRC, again, it would not be self-enforcing but when the CRC says something very specific like no life without parole or no corporal punishment, I think that could have power fairly quickly because advocates would then be in a position when they write briefs to the Supreme Court of the United States or to other courts to call upon the CRC. Again, it may not be direct law but advocates are in a position to say the U.S. ratified the CRC, it says children have rights not to have these types of punishments very specifically and I think that might be quite powerful as courts begin to interpret whether the remaining life without parole sentences in the U.S. should be considered constitutional.

SM: So as we just talked now about some effects that the CRC could have domestically, looking internationally you point out in your Annals article that U.S. ratification could actually give the United States more credibility abroad when promoting children’s rights. Could you talk a bit about that?

EB: I think that it is an embarrassing situation now when the U.S. looks abroad to try to protect children’s rights and interests that we have not ratified the CRC. And the truth is, even though we have not ratified the CRC, we are doing better than much of the world in many respects with respect to children, so we do not have child soldiers. We should be in a position to be pushing in the rest of the world elimination of the use of children for the military, elimination of sex slavery and child labor, and things where we are something of a leader and should be. But if we have not signed the CRC and the CRC is the major child rights convention of the world, it just puts us in an embarrassing position. It is easy for other people to undermine our efforts and I think, yes, it would probably make a significant difference if we had ratified the CRC in terms of our ability to be a leader for children’s rights in the rest of the world.

SM: So while there are potential benefits of ratifying the CRC, you also point out in your article that there are certain limitations, specifically around international and transracial adoption that you describe in your article as posing “real risks to unparented children.” Could you tell us about that?

EB: Yes, the CRC does have these provisions that put international adoption at the bottom of a hierarchy and tells countries that they should look to in-country options in preference to any out-of-country option, like international adoption. And it does not tell them to prefer institutions over inner-country adoption, but it gives them a lot of leeway to do that, because the CRC does not require that countries that cannot take care of their own children use international adoption, and beyond that it even says specifically that in-country family care and other appropriate options can be preferred to out-of-country adoption. So this other appropriate language, in many people’s minds, refers to institutions. I do not think it should be read that way but it allows itself to be read that way. In any event, the CRC clearly makes international adoption a lower option than both in-country adoption but also forms of family care and many people use the CRC to promote in-country foster care and guardianship over out-of-country adoption. So I think, for children, out-of-country adoption is an extraordinarily good option and I believe that the CRC has been used in very destructive ways throughout the world to promote virtually any in-country option over out-of-country adoption. So there are other provisions in the CRC that talk about the importance of heritage rights and when you add it all up, countries have a lot in the CRC that pushes them in this direction of thinking that they are being good, that they are living up to the CRC if they just keep all their kids in country, regardless of their ability to take good care of the kids. So I think that is a problem and I believe it is not only the language of the CRC that has been a problem but the Committee on the Rights of the Child, which is all we have in the way of a CRC enforcement agency; it has taken the position that countries should be seen as bad under the CRC if they are sending significant numbers of kids out of country for adoption. So I am very worried that if we were to ratify then the United States which, as I say, does take treaties seriously, would feel it should be even more reluctant to promote international adoption by other countries and I think it could also cut back on our ability as a country to use international adoption as a way of helping some of our kids, because we do have roughly two hundred kids a year that have been going out of country for adoption.

SM: In your experience, what have you found? Because in 1999, you came out with the book Nobody’s Children: Abuse and Neglect, Foster Drift and the Adoption Alternative, looking at some of these issues that if there are children who are either abused or neglected, there is this issue here: are they better staying with their parents or relatives or even within their own racial groups, communities, rather than being adopted. What did you find from that book and how did that affect the discourse around these issues?

EB: I have done a lot of research over the years into the social science and I did it in connection with Nobody’s Children but I also have done it ever since in connection specifically with international adoption. I think what the evidence shows, pretty overwhelmingly, is that for children who were once identified as significantly abused and neglected, not just minor abuse but serious abuse and neglect or abandonment, most of those children are going to do way better if we place them as early as possible in adoptive homes. Of course we should try to keep them in their homes of origin and provide more support than I think we do in this country and certainly than poorer countries have been able to; we should provide more support for birth parents. A better world would be one in which people who give birth can keep their children and support them. But once children are subject to maltreatment or if they are abandoned and put into institutions, which I do think in the rest of the world is often largely because of poverty, nonetheless if those parents are not able to take care of them, the kids are going to be better off in adoptive homes. And I think that what the research shows pretty strongly is that alternatives that are temporary, keeping them in a foster home but then they move from one to another, are not as good. I think it is in general not as good to be finding a paid parent who is entering into parenting for the money, which characterizes lots and lots of foster care, and certainly institutions have been proven for decades to be terrible for kids. So mostly right now in the world the options that unparented children have are the streets, living on the streets, which is a terrible situation, or living in institutions. I think that by far the best alternative for most of those unparented children is to move into adoption and most of the adoptive homes are going to be found in international adoption, mainly because the poor countries that are producing most of the unparented kids do not have lots and lots of eager parents ready to adopt, in part, a significant part, because of poverty.

SM: So while you support the United States ratifying the CRC, you would recommend that the United States add a reservation to their ratification saying that they would not abide by these provisions on international and transracial adoption.

EB: Yes, I think that would be very important and even if it is a non-self-enforcing treaty, I think it would be very important to establish the principle by adding those reservations to Articles 20 and 21 that we would not feel bound in any way, even as a guiding principle, by those two Articles. Now, part of my dilemma is I think that the politics of international adoption are such that the U.S. would be reluctant to add those reservations. So I am very worried that ratification might mean a real backward step in terms of international adoption and so I am really not quite sure what to do about that in that I think ratification would be a real forward step for children in most other respects. But I am very concerned that it would pose a problem in terms of international adoption.

SM: With all this said, at the end of the day what has been holding back the United States from ratification?

EB: I think, as with most things, there is a combination of factors out there. But I would say primarily it is because the overall idea of the CRC is so different from the way we conceive of children’s rights that we do not, for the most part, see children as having fundamental human rights in the way adults have them. And that would be a big shift for us. And I think everyone realizes that it would be a big shift and that the implications would be lots of changes in our legal system and, of course, that scares people because they do not know how many different types of changes and how threatening that might be. And then there are some specific people who are very committed to the idea of parent’s rights, parents having the right to discipline children, parents being free from intervention by the state, and I think they recognize that that specifically would be quite threatened, that this would definitely give states much more power to intervene, to protect children, and add children to the balance in a way that is threatening to people who believe strongly in parent’s rights.

SM: You are a renowned figure, I think we can say, in the child welfare arena. Is this a must for the United States to go ahead with this? Is this something that is missing in order to advance in the eyes of the international community?

EB: I cannot really say that, because I think the U.S. is moving slowly in the direction of giving greater deference to children’s rights and interests. So I think it is moving in that direction. I think, in terms of some basics like child soldiers and of course just poverty, even though we are remiss and we should be doing better by poor children given that we are a fairly wealthy nation, still in all children are doing better off in terms of basic nourishment and a lot of the basics than in most countries of the world. So I do not feel we are in such terrible shape in terms of children’s rights and interests. I know it looks very bad for us to be the only country with a government that has not ratified, but I think we are not as bad as that can make it sound. I think we are moving in the right direction and I actually still feel that it would be something of a mixed blessing if we were to ratify because I would be very worried about whether we would, in fact, add the reservations I think are important. So I think mostly the CRC is a strong document for children’s rights but I think since it was negotiated by nations it also pays a lot of deference to state sovereignty rights and that comes out in these provisions related to international adoption, which I think are profoundly anti-child, actually. So it is a mixed bag from my point of view. I definitely think it would be a plus if we were to ratify with the reservations, but if I had to choose I would probably rather we did not ratify if we were going to ratify without specific reservations related to the international adoption issue.

SM: Tell us about some of your work at the Child Advocacy Program, and what kind of research and clinical work are students and faculty doing there?

EB: It is a small program in terms of faculty, so there are only two of us who are teaching in this program, but we are trying to have a big impact. We are trying to encourage more law students who come to Harvard to think of the importance of children’s issues, the challenge of making things better for children, the need for some of the best lawyers in the country to devote themselves to these issues. So that in an overall way has to do with our goals. More specifically, we are teaching several courses, one is called The Art of Social Change, then we have a clinic where we have students working for different kinds of organizations. In both of those courses we are trying to make students realize that child advocacy should not be thought of as just a lawyer working in a courtroom type of mission, that it is, if we really want to make things better for children we need to change the structure of laws and regulations, we need to think about poverty issues and solving the rich-poor divide in this country. There are a lot of things we need to do, changing the overall system and that, yes, we would love some of our students to go out and work actually for kids in the courtroom but there is a limit to how much any work in a courtroom is ever going to do in terms of changing the overall situation of children. So we want our students to think broadly, we want our students to go out and end up working in state and federal legislatures, in state attorney general’s offices, in international work, in anti-poverty work. So that is the, in a way, overall idea in terms of the kind of training we are giving students. I mean we also give them traditional training in what does the law in the U.S. now look like as it shapes children’s rights and interests and shapes the family, but we are definitely designed in a way that probably few child advocacy programs in the country are, that we put much more of a focus on training our students to think about how to change the overall system for children.

SM: And you come to the field originally from a background in civil rights work. What got you interested in children’s rights? Was it sort of a natural transition? What took you there?

EB: I would say it was a natural transition in the sense that all my work has always been on behalf of various disempowered groups. I worked on behalf of African Americans when I worked for the NAACP’s Legal Defense Fund. I started a public interest law firm focused on ex-addicts and ex-offenders and trying to help them break into the mainstream and get jobs and employment and stay out of prison and out of addiction. In that sense it was a natural transition, but what directly led me into the world of children’s issues was my own experience adopting two children and that exposed me to some of the issues surrounding adoption, both international and transracial, since my children were adopted from Peru, and then I just began to spend more and more of my teaching and research time on issues surrounding children more broadly and looked into the child welfare system and began to realize how regularly children’s rights and interests were trumped by adult rights and interests and parent rights. Those adoptions took place twenty-five and twenty-three years ago, so it is a long time now that I have been focused on these issues.