A Review of DavidArchard’s
Children: Rights and Childhood
David Archard, Children: Rights and Childhood. New York: Routledge, 1993. Pp. ix,
188 [Cloth $83.95 (Cdn.); paper $24.95 (Cdn.)].
Reviewed by Sarah Lugtig”
Introduction
Whether children should have rights and what these rights should be are ques-
tions that continue to engage scholars, legislators and social-policy makers who are
interested in the plight of young people. Were the legal status of other groups of
human beings questioned in the same way, our responses would likely range from
disbelief to anger. What is different about the case of children? The persistence of
the debate stems from two concerns. The first relates to differences between chil-
dren and adults which significantly affect the former’s capacity to hold and exercise
rights. The opposing argument presented is that denying rights to children leaves
them vulnerable to harm and unjust disadvantage. Although elements of contro-
versy remain, members of contemporary legal communities would likely affirm the
existence of children’s rights. Some would point to the United Nations Convention
on the Rights of the Child.’ Others would refer to those provisions in legislation
governing custody or child welfare that protect a child’s best interests. Still others
might point to children who have mounted successful challenges on equality
grounds under the Canadian Charter of Rights and Freedoms A whole range of
entitlements would be indicated, some of which are exercised by children and oth-
ers by parents or the state.
At the same time, the disturbing reality of many children’s lives confronts us
both internationally and in Canada. The recent U.N.I.C.E.F. report, the State of the
World’s Children 1996′ focused particularly on the toll that war has taken on the
Candidate in the LL.BJMaster’s of Social Work Joint-Degree Program, McGill University.
McGill Law Journal 1996
Revue de droit de McGill
To be cited as: (1996) 41 McGill LJ. 893
Mode de rffrence: (1996) 41 R.D. McGill 893
‘GA Res. 44/25, UN GAOR, Supp. No. 49, UN Doc. A/44/36 (1989) (entered into force 2 Sep-
tember 1990) [hereinafter U.N. Convention].
‘ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Charter].
3 U.N.I.C.E.E, The State of the World’s Children 1996 (New York: Oxford University Press, 1996).
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
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world’s children. Since 1985, 2 million children have died as a result of war, while
4 to 5 million have been left disabled, 10 million psychologically traumatized, and
12 million left homeless.! In times of armed conflict, children are as likely as adults
to be tortured and physically or sexually assaulted and are more likely to suffer
malnutrition.! U.N.I.C.E.F. also reports that millions of children live in “close-to-
battlefield conditions” on the streets of developing countries as well as those of the
industrial world.! Here in Canada, C. Bagley, B. Burrows, and C. Yaworski identify
a serious problem with street youth and juvenile prostitution but find that our gov-
ernments have failed to address it in any significant manner.’ In addition, more than
one in five Canadian children live in poverty; at 21.3 percent, this is the highest
percentage since Statistics Canada began reporting low-income statistics for chil-
dren in 1980.’ P. La Novara also reports that children make up a significant group
of victims of both family and other forms of violence in this country.’
These statistics demonstrate that even with the various “rights” that young per-
sons have, many face extreme violence, exploitation, and economic hardship.
Moreover, a child’s chances of experiencing these conditions seem to be greatly af-
fected by his or her gender, racial or ethnic origin, socio-economic status, and na-
tionality. The creation of special entitlements and protections is obviously not the end
of the inquiry. We still have a lot to learn about how to make rights work for society’s
young members. The process becomes extremely complex as children are vulnerable
to their parents and other exploitive adults in their communities in addition to repre-
sentatives of both their own and other states. Moreover, if we accept the proposition
that a person’s childhood has a significant impact on his or her life choices and oppor-
tunities, it is difficult to imagine promoting equality and human rights for adults with-
out addressing young people’s most fundamental concerns.
This complexity of issues has inspired Children: Rights and Childhood,” a philo-
sophical essay by David Archard, Senior Lecturer in Philosophy at the University of
Ulster in Jordanstown. In the book, the author applies the tools and experience of a
philosopher to the daunting task of developing workable rights for children, in light of
some of the difficulties outlined above. While the questions may be complex, Ar-
chard’s approach is simple and pragmatic, reaching beyond the “philosophical” or
theoretical concerns regarding rights for children to their various legal and social con-
sequences. His exploration starts with “modern” conceptions of childhood, traces
4 See ibid. at 13.
‘See ibid. at 18-20.
6 Ibid. at 28-29.
‘See C. Bagley, B. Burrows & C. Yaworski, “Street Kids and Adolescent Prostitution: A Challenge
for Legal and Social Services” in N. Bala, LE Homick & R. Vogl, eds., Canadian Child Welfare Law
(Toronto: Thompson Educational, 1991) 109 at 129-30.
‘See Statistics Canada, Income Distributions by Size in Canada 1993 (Ottawa: Industry Canada,
1994) at 20-21.
9 See P. La Novara, A Portrait of Families in Canada (Ottawa: Statistics Canada, 1993) at 53.
‘0 (New York: Routledge, 1993) [hereinafter Children]. The book is one of a Routledge series
called IDEAS, which endeavours to make contemporary philosophy accessible to all readers.
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S. LUGTIG – CHILDREN: RIGHTS AND CHILDHOOD
their role in liberal theory and the children’s fights discourse, and assesses the conse-
quent effects on current relationships among children, parents, and the state. The
author’s final destination is a tentative proposal for children’s rights, a “modest col-
lectivism” which seeks to guarantee young people the “best possible upbringing”.”
As will be shown, Archard’s proposal reflects current initiatives in Canadian hu-
man-rights law, social policy, and the U.N. Convention, measures which have proven
less than successful in meeting many of children’s most pressing needs. By exploring
how Archard reaches his conclusions and comparing his theory to other work on chil-
dren’s rights, this review will identify possible modifications to his view, ones which
may enable more powerful advocacy on behalf of children, even within the current
legal structure. It may be noteworthy that the focus on the effectiveness of rights for
children and potential Charter and international human-rights claims comes, in no
small part, from my own background and interests. An appreciation of young peo-
ples’ lack of power and voice when confronted with legal and social-service systems,
derived from my social work experience with street youth, those from child-welfare
placements, and the juvenile justice system, formed the impetus for undertaking legal
studies. My legal education, in turn –
especially with respect to the Charter and in-
temational human rights –
illustrated the promise of law to address social inequities
facing children. Archard’s Children provides an excellent opportunity to explore this
potential.
I. The Child in Early Liberal Theory
The book begins by recounting how children figure in the writings of John Locke,
“arguably the most important and influential figure in the history of English-speaking
philosophy”.’2 Locke believed that children could not participate as full citizens as
they did not have the requisite rationality to exercise their natural freedom and rights.
Children’s incomplete rationality also justifies parental authority, in that adults –
normally parents – must protect the young from the dangerous exercise of freedom
without reason. Yet, parental rights to control children are rooted in, and thus limited
by, the adults’ obligation as caregivers.” Archard refers to Locke’s work to show that
many of the difficulties that face those who promote and develop legal entitlements
for children derive from the traditional liberal theory of rights and its inter-
relationship with understandings of childhood and parenthood. The reader realizes
that many arguments made today against rights for children are remarkably similar to
Locke’s assertions. The author effectively sets the stage for a challenge to those ar-
guments, one based on more current values and realities, but nonetheless consonant
with the general tenets of liberalism.
“Ibid. at 170.
12 Ibid. at 1.
3 See ibid. at 3-7, 10.
‘
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U. Childhood: Concept or Conception?
In Part I of the book, Archard turns his attention to the very notion of
“childhood”. He first carefully differentiates this “concept”, that is, the universal idea
that one might distinguish meaningfully between children and adults, and the modem
“conception”, which involves moral judgments by a Western liberal society as to the
most important differences between children and adults. In qualifying a conception as
modem, Archard refers to ideas about childhood that developed within modernity,
namely, the discourse of rational and empirical inquiry which has dominated Western
thought from Locke’s writing to the present.” Archard maintains that the distinction is
valid because the concept of childhood has existed throughout history and has contin-
ued relevance across cultures. Yet the author offers a model for critiquing various
conceptions of childhood.'” Archard sees value in such an exercise: “[T]he way we
see the difference between children and adults owes everything to what concerns us
about being adults in an adult world.”‘ 6
What does the modem conception of childhood say about Western societies’ pri-
orities? While many inconsistent conceptions may exist, they share the notion of the
separateness of childhood. In the West, children and adults inhabit different worlds,
those of work and school or play, and within these they take on opposing roles. The
segregation results from a view of childhood as being a distinct yet inevitable stage on
the road to adulthood, a perception that relies upon psychological theories of child
development as well as the portrayal of childhood in modem religion and literature.
The stage is marked by innocence and incompetence which must be overcome to be
fully adult. Western cultures believe that these characteristics preclude a child from
enjoying the same rights and responsibilities as an adult.” Archard does not accept
that children are naturally innocent and incompetent. He suggests that the very sepa-
ration of childhood and adulthood may well create these traits in children, which, in
turn, serve to maintain them in dependent and vulnerable relationships with adults.
Child sexual abuse provides a forceful example: our attempt to keep children innocent
about sexuality denies them knowledge of what is acceptable sexual behaviour by
adults toward children. This leaves them much more vulnerable than would relevant
information that is appropriate to their age and level of understanding.”
This section of the book is essential yet incomplete. The distinction between con-
cept and conception is useful as it exposes the historical, social, and political nature of
knowledge claims regarding children, particularly those from the social sciences. This
concern is clearly inspired by the postmodem critique; however, while Archard spe-
cifically refers to and expresses sympathy with the postmodernists, he neglects the
content of their analysis. Postmodernism exposes the power dimensions of knowledge
“See ibid. at 20-21.
” See ibid. at 28.
16 Ibid.
See ibid. at 29-30.
“See ibid. at 40.
1996]
S. LUGTIG – CHILDREN: RIGHTS AND CHILDHOOD
production and the impossibility of creating a discourse that serves more than the in-
terests of its originators.’9 These criticisms thus provide serious challenges to any dis-
cussion of children’s rights given the absence of young people in the production of
the theory. Exploring the role of children in the various decisions and truth claims
made regarding them might provide some useful clues as to why the effectiveness of
existing rights for children seems so limited.
In this aim, Archard would have done well to look at whether and how children
have been discussed by some prominent postmodem thinkers. A more extensive
analysis might have resulted in scepticism regarding any conception of childhood as
potentially empowering for children, at least to the degree that it is developed solely
by adults. On Archard’s own terms, conceptions simply express moral choices made
by a society as to what it wishes to encourage in its adult members. This assertion is
seen as inevitable yet may present serious moral problems in its own right if one con-
siders that children are excluded from society’s processes of knowledge production or
decision-making. Without addressing this criticism, readers may well wonder how
Archard can ensure that his own vision of childhood be any less oppressive for chil-
dren than that built on traditional modem conceptions.
M. Children’s Rights and Childhood
Having established that the modem conceptions of childhood are determined by
inconsistent and questionable beliefs and priorities, Part II describes the role these
conceptions have played in the development of children’s rights. The various entitle-
ments children now enjoy have grown from two opposing movements. The “child
liberationists” argue for children to have the same basic rights as adults. The
“caretaker thesis” promotes the opposing view that children must be denied self-
determination to ensure that they can exercise it upon reaching majority. Caretakers,
therefore, must be supported and guided in making decisions on behalf of children,
which reflect not only their interests at the time but those of the adults they will
eventually become.”0
Archard enumerates prevailing problems in the two views. The liberationist ig-
nores the reality that some children, particularly young ones, are neither equally com-
petent to adults nor interested in exercising rights.’ The caretaker thesis, on the other
hand, denies children self-determination as a group with no assessment of individual
competence. It is also questionable whether caretakers can somehow ensure free self-
determination of their offspring once they have reached adulthood, because parents
‘9 See P. Leonard, “Knowledge/Power and Postmodemism” (1994) 11 C. Soc. Work Rev. 1 at 11-
26. Leonard explores the development of a social work practice that incorporates a self-reflective,
postmodern-inspired critique. Application of these ideas could be similarly sought in legal practice
and theory.
20See Children, supra note 10 at 45-49, 51-56.
2, See ibid. at 49-51.
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will have shaped their children’s “self’ to fit with a personal ideal of who their sons or
daughters should be as adults. In resolving the conflict, the author concludes that
while differences may exist in the competence levels of children, these need not pre-
clude them from exercising all basic rights to self-determination. The task becomes
that of determining accurate levels of competence necessary to exercise various rights
and assessing the age at which a child can be expected to have the particular capacity.
In Archard’s view, an adolescent should be capable of voting, and a young child
should be able to make choices regarding sexual activity.’ This latter capacity, how-
ever, should not be seen as the ability to consent within unequal power relationships
with adults: “[S]ociety should act to provide the conditions under which the proper
exercise of that competence can be secured and protected.”‘2
Archard’s view of effective rights for children emerges at the conclusion of this
section of the book. Resolution of the tensions in the two visions of children’s rights
is sought through a flexible competency standard. Little is said, however, as to how
competency will be assessed and how it will interact with the interests and needs of
parents in caring for children. Child-development theory is no doubt the basis on
which he would make such assessments; yet on his own terms, this theory is open to
question. It creates a notion of children’s rights that leaves no room for a child’s dis-
senting voice. The potential of such a standard for oppressing children should be ex-
amined, particularly when it is seen as determining their access to many basic rights.
At the same time, children depend on adults, usually parents, for their most funda-
mental needs. What role would these relationships play in the determination of a
child’s competency for self-determination?
A different perspective of children’s rights has been developed from within
feminist legal theory, one which rejects competency standards and recognizes the im-
portance of relationships in any legal entitlement. Such an approach would be more
effective in achieving the aims Archard promotes, while avoiding the problems inher-
ent in a competency standard set by adults. Martha Minow, a strong proponent of this
view, suggests that we stop comparing children’s abilities to those of adults’ and begin
addressing “their mutual needs and connections”. Such a perspective involves
changing our understanding of what it means to have rights. According to Minow, the
liberal conception of rights was developed as a means of challenging the legally en-
forced relationships of authority and subordination, which constituted feudalism. In-
dependent, autonomous individuals were created in their stead. As Minow explains,
however, for children, women, and persons with disabilities, “who continued to oc-
cupy special statuses even under the liberal order” the “dependency track of legal
treatment remained in force”.” Vestiges of the older status-based legal protections are
22 See ibid. at 56-57.
23 See ibid. at 69.
24Ibid. at 81.
M. Minow, “Rights for the Next Generation: A Feminist Approach to Children’s Rights” (1986) 9
Harv. Women’s L.J. I at 2.
21Ibid. at 16.
1996]
S. LUGTIG – CHILDREN: RIGHTS AND CHILDHOOD
also found in the various freedoms protected in liberal democracies, such as those of
association and marriage. The law thus encourages both autonomy and relationships
between individuals, a seeming contradiction that is most evident in the case of chil-
dren but nonetheless true for all people.” Both connection and independence are nec-
essary entitlements in a democratic society. In order for children’s rights to be mean-
ingful, we must develop an understanding of the relationships that are required to en-
sure their autonomy and to free them from abuses of power.”
This thesis is intriguing as it presents a notion of rights that applies to all mem-
bers of society. It exposes as fallacy the increased independence of adults by explain-
ing that our patterns of interdependence simply change as we grow older. Adults, too,
need others to achieve self-determination. In this view, children have basic human
rights; we simply have to determine how these can be achieved within the relation-
ships that are essential in their lives. The oppressive potential of competency as the
condition for basic human rights is largely overcome; children, as rights bearers, will
necessarily have some say as to the form these relationships should take. The purpose
of consulting with them changes from one aimed at proving or disproving a theory of
child development or cognitive ability, to one ensuring that their basic rights are pro-
tected.
As a former social worker for adolescents, I am reminded of the plight of a num-
ber of street youth. They would clearly say that they needed love, support, and the
guidance of caring adults. The state gave them the choice, however, of either living
with their natural families or with substitute caregivers, often an institution. Young
people from the street often spoke of abuse suffered in both situations and a resulting
reluctance to live with either. At the same time, they had not reached the age of com-
petence necessary to live independently and to receive social assistance. Moreover,
even upon reaching that age, they would continue to need caring and guidance to live
independently. A state response with a competence standard means choosing between
independence and care, when these youth clearly need and want both. The “rights in
relationships” approach would surely be more effective in ensuring their safety and
welfare. Such rights would assure that these young people could live independently
with support into early adulthood and would go a long way to addressing the serious
problem of street youth in Canada.
IV. Children, Parents, Family, and State
Part III of Children shifts the focus of its analysis to parental rights and the role of
the state in mediating conflicts between these and the rights of children. Archard ar-
gues that the right claimed by natural parents to rear their children rests essentially on
the assumption that they are most likely to be suitable caregivers. Any right to raise
children that is independent of this assumption cannot be justified within liberal the-
27 See ibid.at 16-17.
2 See ibid. at 24.
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ory. The strongest case that can be made in favour of natural parents is a presumption
of their capacity to fulfil the child’s right to the best possible upbringing.2′ While this
claim involves the idea that children should be assured minimum standards of wel-
fare, education, and health care, youngsters would clearly not be subject to removal
from their families simply because a better alternative appeared. In order to guarantee
this, caregivers may need a “right to rear” their children, but such a right becomes
contingent on their discharging parental duties of parenthood. Society then has the
obligation of intervening where the child is not assured a satisfactory upbringing. Ar-
chard admits that such a standard will likely lead to equality-based claims by children
for adequate social and economic resources, a result with both national and global
implications&’
Archard’s view of parental rights leads him to revisit the liberal standard for in-
tervention in families. The current norm sees the family as having the primary care-
taking role for children and, thus, remaining entitled to a certain measure of autonomy
and privacy. The state must only involve itself on the basis of a clearly specified,
neutral threshold of intervention. Archard challenges the notion of an un-involved,
neutral state given that governments develop many social and economic policies that
serve to reinforce social inequities and hierarchies within families. In addition, while
he accepts that families may be desirable and inevitable, albeit in a variety of forms,
their claims to absolute privacy and autonomy can be seriously challenged.” Some
limited family activity will truly require privacy, but these needs can be met as long as
constant scrutiny is not required, and moral claims to privacy continue. The potential
for harm, in the form of private abuse of children, outweighs the family’s interest in
absolute protection from outside observation. As for family autonomy, some measure
is required to ensure both stability of relationships and the tolerance of diverse life
choices so important in liberalism. Yet to the degree that society can agree on certain
features of what is desirable in life, some “collectivist parenting” –
that is social pol-
icy aimed at supporting child-rearing –
is feasible in a liberal paradigm. Archard en-
visages a system in which state workers would have intermittent contact with families
to ensure that children receive the care they need. 2
Having established his conception of parental rights, the social and economic
claims these entail for children, and a threshold for intervention that relies on a more
permeable barrier between families and the state, Archard uses the concept of child
abuse to demonstrate how his ideas would alter current practice. At present, defini-
tions of abuse are used to set thresholds of state intervention in child-rearing. These
are generally limited to physical harm or the risk thereof. Emotional abuse and ne-
glect are considered less harmful and, thus, insufficient to warrant government ac-
tion.” The author argues for a “broader, less legalistic” definition of abuse, one which
29 Children, supra note 10 at 102-106.
30 See ibid. at 106-108.
3′ See ibid. at 110-21.
3.See ibid. at 122-32.
“See ibid. at 149.
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S. LUGTIG – CHILDREN: RIGHTS AND CHILDHOOD
more clearly reflects the impact of other forms of deprivation on children.’ As he
states, any definition will involve a social norm regarding the dimensions of adequate
childcare. He advocates defining harm and, thus, the standard of intervention as fal-
ling below a minimum necessary to encourage proper child development. Parents
must provide a “good enough” upbringing; otherwise, the state will have a responsi-
bility to act. This definition turns the quest for child-abuse prevention into a guarantee
of a child’s most basic welfare rights. 5
Such a definition does not require removing children from their families when
their basic rights are not respected. If the “abuse” is occurring due to a problem with,
for example, social welfare or education policy and services, intervention should take
place at that level, likely involving a re-distribution of resources on equitable terms.
Archard explains that even with his minimum standard, gross inequities persist both
locally and internationally with respect to the provision of children’s basic needs. He
also finds that social science evidence overwhelmingly links physical abuse to pov-
erty and child sexual abuse to gender- and age-based hierarchies.” Archard explains:
“As long as the question of equality, in its various aspects, is not addressed[,] the sad
history of children’s maltreatment at the hands of adults is unlikely to end.””
In this section of the book, Archard strives to establish claims by parents and
children against the state for the provision of children’s basic needs. He achieves his
goal by starting with liberal conceptions of responsibility for children and challenging
the basic assumption about the appropriate relationships between children, parents,
and the state in ensuring that this responsibility is discharged. Archard conceives of a
state policy where many professionals are involved with the family from its creation.
Their job is to ensure that the state meets its obligations to provide the social and eco-
nomic support that parents need to raise their children adequately. In Canada, if a so-
cial services minister read Archard’s work, he or she might well assert that our coun-
try has established such rights. In most provinces, child-protection intervention would
be seen as the last resort on a continuum of support services for families. Social assis-
tance benefits would be perceived as adequate to provide the essentials for children.
The right of older children to be heard during custody and child welfare decisions is
if not all- provinces and territories. However, as already stated,
provided in many –
many children continue to live in poverty and suffer abuse whether within their fami-
lies, from state-provided care, or on the street. Certainly, many of my former col-
leagues and clients would accurately deny that the government was ensuring the best
possible upbringing for children.
Archard has presented a powerful argument within liberal theory itself that chil-
dren have a right to an adequate upbringing. The next step would be to find effective
means for children and parents to exercise this right against the state. While Archard
, Ibid at 150.
See ibid. at 152-53.
36 See ibid. at 154-58.
” Ibid. at 159.
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does not directly address this problem, he does suggest that children have an equality
claim. To a student currently learning about equality jurisprudence under the Charter,
this idea sounds promising (at least in Canada). After all, the Charter binds govern-
ment action through the process of judicial review and includes section 15, which
specifically mentions age as a prohibited ground of discrimination. Also, in Andrews
v. Law Society of British Columbia,” still the leading case for interpreting and apply-
ing section 15, a substantive notion of equality is described, in which members of op-
pressed groups in society may claim differential treatment if necessary to equalize the
burdens and benefits of impugned legislation. This may require positive steps on the
part of legislators who must consider the social and political context in which claim-
ants find themselves. Interpreted in this manner, the equality provision of the Charter
is consonant with the claim Archard suggests and is exercisable against the state.
Such a claim would also be congruent with the conception of children’s rights
discussed at the end of the previous section; children would be understood as having
basic rights to equality, in the same manner as adults. To develop substantive equality
for children, we must identify the patterns of children’s disadvantage in society and
the appropriate means for addressing them. An understanding of the relationships in
which children are involved, from their own point of view, is clearly essential to such
an inquiry. As Professor Colleen Sheppard explains in her work on equality claims for
children, many forms of protection for young people are paternalistic in that they are
based on the assumption that children are not equal to adults. Child welfare and spe-
cial educational and labour policies are examples of this approach. The originators of
such measures, no doubt, envisaged only formal notions of equality where individuals
had to be the same to be treated equally, and children were thus naturally unequal to
adults. 9
As Professor Sheppard also indicates, substantive equality for children would
entail a number of special measures to achieve an equality of outcomes, ones which
address their needs and circumstances. These protections must be based not on pater-
nalistic ideas of inequality, but on an appreciation of how children’s needs will impact
on their access to basic human rights. As in other equality claims, systemic and
structural features that contribute to inequality must be changed. The most obvious
challenge is child poverty, a basic source of inequality for young people which is
linked to many other forms of disadvantage. We must also use a relational perspective
which assesses how inequality plays out in both institutional and familial relationships
and recognizes children’s needs for caring and interdependence.’
An equality claim would transform Archard’s right to an adequate upbringing
into a basic human right exercisable by children and parents against the state.
Moreover, it would resolve the dichotomy between paternalistic protection and
[1989]1 S.C.R. 143 at 164ff, 56 D.L.R. (4th) 1 [hereinafter Andrews].
39See C. Sheppard, “Children’s Rights to Equality: Protection versus Paternalism” (1992) 1 Ann. of
Health L. 197 at 203.
‘0 See ibid. at 208-10.
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S. LUGTIG – CHILDREN: RIGHTS AND CHILDHOOD
autonomy, which seems to fuel the debate over children’s rights and remains present
in Archard’s differentiation between rights to self-determination and rights to the best
possible upbringing. Distinctions between children and adults should have no bearing
on one’s capacity to hold rights. Instead, they should inform the means through which
the state ensures their realization, as have distinctions between men and women or
different racial groups. From such a perspective, Archard’s “best possible upbringing”
notion would represent basic human rights understood in the context of children, as
opposed to specialized rights for children.
Conclusion: The Modest Collectivism of the U.N. Convention
Based on his challenges to traditional liberal assumptions and standards of inter-
vention, Archard concludes Children with “some ideas for thinking about, caring for,
and empowering children”. First, he reminds us that any proposal for developing
children’s rights must be directed by what we desire in society’s adults. In this aim,
equality, democracy, and collectivism are the values the author seeks to encourage.
For children, these would entail equal access to those resources that will ensure the
best possible upbringing, education about democracy and participation in decisions
that concern them, and collective responses to the task of raising them. Archard’s
suggestions for giving life to these values include universal provision of pre-school
programming, shared responsibility for parenting with state and community, expres-
sion of our collective valuation of children through children’s rights charters and ad-
vocates, and an expansion of children’s rights in accordance with their competency.’
Archard believes that his collectivism would bring children out of the “private shades
of the family” and “into the public domain”, thus making it easier to track their prog-
ress and prevent abuse both at the societal level and within families. 3 Moreover, the
liberal commitment to pluralism can be respected because modest collectivism does
not rely on a single ideal of how to provide the best possible upbringing; rather, it re-
quires some common minimal standards to be set, which is a goal best achieved
through collective planning and action. Archard hopes that his model would raise
children who, with their respect for diversity and sense of shared concerns, will be-
come a ” better community of adults”.’
The values and goals evident in Archard’s “modest collectivism” are not only
theoretical ideals; they appear in the U.N. Convention, a treaty which is fast approach-
ing universal ratification. ‘5 Indeed, its preamble expresses the objective of raising
children to be tolerant members of a society committed to human rights, much in
keeping with Archard’s own goal of creating a better community. The general values
of equality, democracy, and collectivism as understood by Archard are evident in the
‘ Czildren, supra note 10 at 161.
41 See ibid. at 162-68.
43 Ibid. at 169.
4Ibid. at 170.
41 See U.N.I.C.E.P, supra note 3 at 66.
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various rights included in the treaty. The U.N. Convention has been called a “signal
achievement” for its success in combining and, thus, giving equal status to two
groupings of rights: the civil and political as well as the social, economic, and cul-
tural.’ The latter cluster definitely reflects a commitment to the “best possible up-
bringing” theme and the equality this will bring to children. Children acquire basic
rights to an adequate standard of living for their physical and social development, 7
social security benefits,”8 maximum standards of health,”9 and protection from violence
and exploitation.” While the implementation of social and economic rights is limited
by the state parties’ economic circumstances, Professor Stephen Toope reminds us
that states are required to do the maximum possible to ensure the survival and devel-
opment of children: “If these commitments are to be taken at face value they will re-
quire states to reassess their spending priorities [with a new emphasis on children].””
Archard’s value of democracy finds expression in the various civil and political
rights included in the U.N. Convention, such as protection from discrimination” and
the right of children to express their views in decisions that concern them.” Children
are also to be guided by parents in exercising their rights with regard to their evolving
capacities. Collectivism is reflected in the various measures that provide for social
services to aid parents in raising and educating their children.’ The U.N. Convention
can thus provide a model of modest collectivism but one which also clearly trans-
forms Archard’s notion of the right to an adequate upbringing into a basic human
right. Will such rights prove effective for children?
Since the U.N. Convention’s coming into force in 1990, Canada’s commitment to
children seems, if anything, to have weakened. As already mentioned, child poverty is
at an all-time high.” The Federal Government’s new cost-sharing plan, the Canada
Health and Social Transfer, will reduce transfer payments to the provinces for health
and social services over the next few years. Many commentators predict that the poor
will be the hardest hit by this change in policy;” this is a concern for children who are
disproportionately economically deprived. From a global perspective, U.N.I.C.E.F.
acknowledges that “the prospects for the fight against poverty generally appear
mixed”, and that “poverty is actually deepening in [some] regions of the world.”‘
16 S. Toope, “The Convention on the Rights of the Child: Implications for Canada” in M. Freeman,
ed., Children’s Rights: A Comparative Perspective (Brookfield, Vt.: Dartmouth, 1996) 33 at 35.
47See U.N. Convention, supra note I at art. 27.
48 See ibid. at art. 26.
49 See ibid. at art. 24.
“0 See ibid. at arts. 19, 32, 34. See also Toope, supra note 46 at 38.
“Toope, ibid. at 36.
“See U.N. Convention, supra note 1 at art. 1.
“See ibid. at art. 12.
“See ibid. at art. 18.
” See Statistics Canada, supra note 8 at 20-21.
16 See e.g. M. Kennedy, “Ottawa’s New Transfer Program Gives the Provinces More Say But Less
Money” The [Montreal] Gazette (1 April 1996) All.
5’7U.N.I.C.E.F., supra note 3 at 67.
1996]
S. LUGTIG – CHILDREN: RIGHTS AND CHILDHOOD
While U.N.I.C.E.F. describes the U.N. Convention and other such documents as
“genuine landmarks”, it recognizes “the extent to which [their] principles have been
flouted” and states: “Clearly, what is lacking … are the mechanisms and the will for
enforcement.”‘”
In its transformation of an adequate upbringing into a basic human right for chil-
dren, the U.N. Convention achieves in the international context what might also be
pursued through a Charter-based equality claim. Nonetheless, few advocates seem
willing or able to use the Charter’s tools to empower young people. More effective
advocacy is also clearly essential if such rights are to make a significant difference to
children’s lives. Much can be learned from the forgoing analysis of children’s rights
about how adults can respond more justly to children’s concerns. The following prin-
ciples, which are inspired by an egalitarian approach to human rights for children,
may assist child advocates.
First, advocates must adopt a systemic approach. Much of children’s disadvan-
tage grows from state mechanisms which were based on the notion of children’s ine-
quality. To achieve the best possible upbringing that is enshrined as a basic right in the
U.N. Convention, these systems must be re-evaluated and changed to reflect an egali-
tarian basis. Advocacy must, therefore, go beyond the courts to those institutions and
systems which are meant to foster relationships for children and families. A second
principle grows from the relational analysis of children’s rights. If we understand
children within existing relations and structures, we soon see that their legal and fac-
tual dependency on adults prevents them from forming a powerful constituency in
their own right. At the same time, conceiving of rights for children as fundamentally
different from those of adults prevents them from joining issue, whether in the legal
or political sense, with other groups who are making human-rights claims. In many
cases, children’s interests will overlap with those with whom they form the most inti-
mate connections. Quests for women’s rights and the self-determination of ethnic and
cultural communities may well promote interests and claims important to children. As
such, child advocates should seek ways to work and join cause with these more pow-
erful movements, thereby supporting the relationships that are crucial to the exercise
of young people’s rights.
Finally, we must remain ever mindful that children’s unique position in relation to
adults also requires special means through which their own concerns can be articu-
lated and protected within their communities and families. Child advocates must,
therefore, appreciate the special circumstances in which children find themselves and
seek ways to overcome children’s lack of access to the production of knowledge
about their circumstances and decisions regarding their care. Our approach to children
must reflect upon the power that we have in relation to them and work to overcome
the difficulties this presents. In advocating for children, the dangers of speaking for
them from our position as adults should be addressed; many of our beliefs about chil-
dren will be based on what adults observe, not on what young people experience.
5 Ibid. at 30-31.
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Helping children organize and express themselves may be a very good start. The Na-
tional Youth in Care Network provides an excellent example of such a process. With
assistance from concerned adults in the community, many of whom are former wards
of child-welfare agencies, children in care are able to express their concerns and ad-
vocate for change in child-welfare policies affecting them.” Efforts to support and in-
clude such groups should be an integral part of all attempts respecting human-rights
advocacy. This three pronged approach of targeting systems, forging connections, and
supporting children’s expression and participation could guide either independent or
state-provided child advocates. It would ensure an advocacy for children truly based
on the principles of human rights and equality.
As David Archard concludes in Children, empowering young people may well
require fundamental changes to our social and political institutions.’ Such changes
will only be possible, however, if children’s rights are understood as part of a
greater effort to eradicate basic inequality. At the same time, children’s rights
should not simply be an expression of what society wants for its adults, but what
children want for themselves – now and in their future. Let us not abandon chil-
dren to their rights but, rather, seek out ways for young people to participate in the
greater quest for human rights and equality for us all.
9 See B. Raychaba, To Be on Our Own with No Direction from Home (Ottawa: National Youth in
Care Network, 1988) at 2-3.
‘ See Children, supra note 10 at 160.
