More than just a common language

 

The UN Convention on the Rights of the Child (CRC) was adopted in 1989. It is a hugely important international Treaty. To quote from UNICEF’s web site

Built on varied legal systems and cultural traditions, the Convention is a universally agreed set of non-negotiable standards and obligations.

Children’s rights and child welfare organizations across the world look to the CRC’s 54 articles as the cornerstone of their work. The Convention was several years in gestation but when the final text went to the UN General Assembly it was adopted unanimously.

According to UNICEF UK

The CRC is the most complete statement of children’s rights ever produced and is the most widely-ratified international human rights treaty in history. 

The USA has not ratified the Convention

If a country ratifies a Treaty of this kind it normally means one of two things: either the Government of the country believes they already meet or exceed the legal or other standards set out in it, or in effect  they give an undertaking to do whatever is necessary to bring themselves into line. The UK ratified the CRC in 1991.

As of today only two countries have not ratified the CRC. One is Somalia. In that case it is not hard to work out why. The other is the USA. The US has signed the Treaty, which normally indicates an intention to ratify, but formal ratification has not yet taken place. That’s less easy to figure.  Or rather it was until I read a marvellous essay by a Harvard Law Professor.

In “Ratification by the United States of the Convention on the Rights of the Child: Pros and Cons from a Child’s Rights Perspective” Elizabeth Bartholet discusses a range of issues surrounding non-ratification. However, for me, the principal value of her piece was in terms of the light it sheds on a number of things which have puzzled me over the years concerning US policy and attitudes towards child protection and child welfare, both online and off.

Consequently the main focus of this blog is not the CRC itself. Rather here I look at the wider context, the bigger picture of current US policy in the field. Bartholet’s article paints that picture very skillfully. That said we should note that Professor Bartholet’s strongly-stated conclusion is that the USA should proceed to ratify the Convention

…..ratification would make a major difference. It would enable the United States to better promote children’s rights abroad, and it would push the United States to develop its domestic law in dramatically new directions that empower children.

We should also record that while the USA has not ratified the substantive CRC it has signed and ratified both of its Optional Protocols: one on the involvement of children in armed conflict and the other on the sale of children, child prostitution and child pornography. This is a little bit back to front but it is definitely not unprecedented.

The two countries

When I have talked to American colleagues about aspects of online child protection policy and child welfare generally I occasionally had a sense that our outlooks were extremely close but somewhere along the line we were failing to connect. There was an un-articulated invisible barrier that kept getting in the way. Bartholet explains all.

George Bernard Shaw once said the UK and the USA were

…two countries divided by a common language…

It seems there is more to it than that. As Bartholet puts it

…..various CRC principles differ powerfully from current (US) law…..

Now we ought not to get too carried away by this bald description of the jurisprudential status quo in the USA.  Bartholet points out it is very obviously not the case that every country which has signed the CRC has achieved nirvana for children and this contrasts sharply with the USA where all sub-18s are locked into a cycle of unending privations.

To put that slightly differently, Bartholet plainly believes many signed-up countries ratified the treaty as a purely cosmetic or political exercise with precious little follow through. Against that, in the unsigned US the great majority of children undeniably enjoy many of the fruits of the intentions behind the CRC. So signing or not signing is not in and of itself what makes the difference. It’s the political will and wherewithal that matter. Some countries have it, some don’t. Signing up to the CRC may be evidence of an intention but it is not conclusive proof.

In the US parents’ rights rule

Bartholet is clear that in relation to bringing up children there is more than one important difference between US laws and those prevailing in lots of other countries. Certainly when comparing the US with the UK and several European nations a singular point of departure is the rights of parents’ vis-a-vis the rights of their children. There seems little doubt this is one of the principal explanations for the delay in the USA joining the club.

To quote Bartholet

Current U.S. law provides children little in the way of rights. Instead, the emphasis is on parents’ rights to make decisions related to their children and on states’ rights to protect children’s best interests, with states limited in their ability to do so by parents’ rights………

US law allows the state to protect children but does not impose…..a constitutional duty to protect children……

Often US law forbids any consideration of children’s interests until adults’ interests have been addressed and given priority…..

Bartholet goes on to explain that this position is most likely rooted in a strongly-held belief that parents are normally going to be the best protectors of their children’s interests. So far so uncontroversial. But perhaps too this sentiment gets mixed up with shadows of a traditional or more ancient American mistrust of Government in general? Some Americans think that any shift towards a stronger notion of children’s rights would inevitably lead to greater official intervention in family life and this would not normally work out best for the child or anyone else.

The implication of this line of reasoning is that ratification of the CRC by the US may be a long time coming. Signing would, in effect, signal an intention by the Federal Government to challenge long-standing cultural attitudes. Not out of the question. It has happened before more than once.

But absent powerful supporting external pressures or bi-partisan support on the Hill, both of which seem unlikely, I guess any occupant of the White House who might be minded to go this way would first have to make a political decision about whether or not to start a fresh or gratuitous battle to win it, on top of all the other stuff they cannot avoid. Hmmmm.

Children’s rights?

Bartholet emphasises that children do have some constitutional rights in the US e.g. in relation to speech, juvenile justice, protection against search and seizure yet seemingly the Supreme Court has been cutting back on these

…..ruling even in these areas children’s rights are weaker than adults’ rights and are subject to control both by parents and the state.

Down to cases

The differences in approach are not just theoretical, with no tangible or practical differences in outcomes for children. They have produced real life results which many Europeans would struggle to comprehend.

In Wisconsin v Yoder (1972) the Supreme Court upheld the right of an Amish family to keep their children out of High School despite the fact that there were state laws which pointed in the opposite direction. Part of the argument before the Supreme Court was about whether or not the child’s views on the matter should be taken into account. A majority of the Court said they did not have to be because

…..any such effort might conflict with parents’ rights to control the religious upbringing of their children. 

In DeShaney v Kramer (1989) a father beat his child so badly the child went into a coma and ended up with permanent disabilities. The mother sued the state on the child’s behalf arguing that the state had failed in its duty to protect the child. The Court held there was no violation of the child’s right to be protected because no such right existed whereas the father did have a right to be free from “undue intervention”.

In Re Guardianship of Philip Becker (1981) involved the parents of a Downs Syndrome child who had been left in institutions all his life. Philip developed a heart condition which medical experts felt needed an operation to give him any sort of comfort and reasonable life expectancy. The parents refused to give their permission. For years the operation did not happen.

There was a family who used to take Philip into their home for regular visits. In the end a judge was persuaded to appoint the weekend carers as the child’s guardians. As guardians they immediately gave permission for the operation to be performed.

The three P’s of the Convention

Bartholtet tells us the CRC embodies three concepts of rights which have the potential to effect radical change in America, and these are key reasons why she supports ratification.

The rights are listed as Participation, Provision and Protection and in each instance Bartholet makes a convincing case to show how things might be improved domestically if they were enacted into US law. She expresses one major disagreement with the CRC and that is in relation to adoptions, more particularly inter-racial adoptions and international adoptions. It is beyond the scope of this blog to explore her arguments in that regard but they have few implications for online policy.

Parents, families and children’s rights

I am pretty sure every children’s organization and Government in Europe would acknowledge the overwhelming importance of parents and families when it comes to questions which touch upon the upbringing of children. However, I am equally sure that they would above all else put the best of interests of the child at the core of their primary concerns.

Normally the best interests of the child would of course be identical to and co-terminus with the interests of the child’s parents and family, but that cannot always be guaranteed, as the Supreme Court cases referred to above aptly illustrate.

In the online space

How do these evident differences in jurisprudence and attitudes get reflected in policy in relation to online child protection? Again it would be wrong to say there is an enormous aqueous chasm which separates the two sides of the pond. Yet there is little doubt in my mind that in the UK, in many other European countries and at EU level, where the best interests of the child stand centre stage, there is a much greater willingness for the state to intervene because it accepts its over-arching responsibility to ensure all is well for children in every part of their lives, including the online one.

The US Federal Government and Congress are global leaders for the work they do or for the support they give to the fight against online crimes against children. This is evidenced both through their funding  of NCMEC and the work of the Department of Justice, especially the Child Exploitation and Obscenity Section, the FBI and the Internet Crimes Against Children Task Force. Other Federal agencies such as Homeland Security and the Postal Inspection Service are also a major force both domestically and globally. You hear about the work of US law enforcement agencies all the time. Officers turn up at INTERPOL meetings and the like and make important contributions based on their unique knowledge and experience.

However, once you step out of the narrow but clearly vital field of law enforcement you would be hard put to think of anything of comparable stature. Individual companies from the US do sterling work. No question. There are also some extremely energetic and highly regarded NGOs. But at equivalent major international conferences or events where online safety is being discussed one rarely encounters officials from other parts of the Federal Government or from any state administrations.

CRC signatories accept the legitimacy of Governmental responsibility to do more than simply enforce the law. They acknowledge that Government must step in if parents and families are failing. Children have a right under the CRC to grow up healthy and educated. Governments have the final responsibility to ensure they do. Many Americans would hesitate before accepting this idea, or they would straight out reject it. Ratifying the CRC will not be easy for any Administration.

Not all parents and families are the same

Looking at this topic more broadly we need to get some sort of handle on the potential size of the problems that lie behind the concerns being expressed. We all know that, in every country and at all levels of society, families can be imperfect institutions. If it were otherwise we would, for example, hardly need children’s departments within social services or anything similar.

Sadly there are some families, some parents, for whom no amount of education or awareness-raising is going to make the slightest bit of difference to their behaviour, either generally or specifically in relation to their kids. That applies equally both in the real world and in the online world.

Thus, to maintain an unvarying mantra about parental or family responsibility is effectively to say to the children within such families

Tough. You’re on your own. Best of luck. 

That is not civilized. It is tantamount to saying

Devil take the hindmost

I regret to say you come across this kind of thinking in many jurisdictions. Normally it is expressed in a (typically silent) belief that kids in these problem families are doomed anyway. They are the ones who are going to end up in prison or involved in gangs, will be blighted by teenage pregnancies, be unemployed and unemployable, the whole nine yards. So what’s the point?

The point is because they are children. They deserve a break and the adult world has an obligation to provide them with one whenever and wherever it can. That includes in relation to the internet. No one in the internet industry, none of us anywhere, can neatly cordon off cyberspace and say it’s down to everyone else to sort out the societal issues which create or sustain problem families or the medical or other issues which lie behind various children’s difficult behaviours. The internet is fully integrated into young people’s lives. It is both a cause and an effect. There is no hiding place or responsibility bypass available for anyone.

How many kids are we talking about?

How large is this group of children? How many families are borderline or actually ineffective?

In the UK we have a substantial amount of data which give us a clue as to the potential size of the group where challenges may arise either because the children themselves are known to the authorities to exhibit a range of difficult behaviours or their families are known to be chaotic for other reasons.

According to the NSPCC there were 50,552 children on child protection registers or were the subject of child protection plans in the UK in 2011. The NSPCC explains

Child protection plans or child protection registrations are not a measure of the incidence of maltreatment but do give some indication of the scale of the problem by providing figures for the number of children who are judged to be at risk of significant harm. However, research indicates that abuse and neglect are both under-reported and under-recorded. (bold letters added by me for emphasis)

The great majority of children referred to on the registers or in the plans are sub-16.

Now obviously there is no necessary link between simply being on the register and being vulnerable to any of the several risks children might encounter on the internet. To establish the degree of correlation and causality would probably require a great deal of further research. My point is that these children are unambiguously in personal or family situations which inspire little confidence in the parents’ ability to sit down and effectively communicate the finer points of netiquette or provide them with regular support and appropriate supervision.

It has been suggested in the past that before an internet-enabled device could be brought into a house with children, or given to a child, the parents had to sit some kind of test to prove they understood (a) what they were doing and (b) accepted their continuing obligations in relation their children’s usage. I can see an awful lot wrong with this idea but there is a tiny bit of it which I quite like.

Might there be more children?

Are there any children who do not appear on the at risk registers but nonetheless might be considered vulnerable? Definitely. The Department for Education produced a series of statistics for the year 2010. It is called “Children in Need in England”. They postulate that out of a total population of 12 million 0-18 year olds there were 375,900 children in need at 31st March, 2010.

At a conference I attended where these figures were being discussed a much larger number of children were identified as living in households with alcoholic parents or where domestic violence was known to be a regular occurrence or where a child was to some degree or other caring for a parent with mental health problems. Again not necessarily indicators of complete ineffectiveness in every area of parenting but hardly encouraging.

Children with “Special Educational Needs” (SEN) is probably far too wide a category to be all that useful in a discussion of this type but according to the Department for Education

In January 2011, some 224,210 (or 2.8 per cent) pupils across all schools in England had statements of SEN. This percentage has remained unchanged in recent years.

Numbers aren’t everything

I’m not sure this is or ever should be about any kind of utilitarian trade off. Just as we have constitutions and laws to entrench and protect minority interests and rights so we have instruments such as the CRC which make it clear we have responsibilities to each and every child, not just those blessed with good parents.

How far is it reasonable to bend policy for the majority in order to do the best we can to safeguard the interests of a vulnerable minority? Whichever way you look at it the percentage of children in need of extra care and attention will be small, but the numbers will be large. Too many human beings to ignore, particularly when it is widely accepted these official data always understate the true size of the problem. We just do not know how wide the penumbra of vulnerability extends beyond what the bare facts state or imply. And things change over time for each child.

We do know, from the UK police, that substantial numbers of the children who have become victims of online crimes, or who have been injured in other ways because of activity on the internet, were never on any at risk register, had no special educational needs and did not come from any of the stereotypical “problem family” backgrounds. Indeed they were “not known” to the authorities for any reason at all. Some were, most were not.

It’s probably the same in many countries

Whatever way the numbers finally shake down in the UK I would be surprised if, in relation to online risks, the proportions of potentially or actually needy children were all that different across much of the developed world. So the question we all have to ask is

Do we go the extra mile for these kids? And if we agree in principle that we should then how exactly do we do that without locking down the internet to a point where it becomes unattractive or unusable for everyone else? 

I have already made the case for the state having a responsibility to act to protect all children, to be the final backstop. But in the spirit of shared responsibility and multi-stakeholderism the rest of us have to pitch in also.

About John Carr

John Carr is a member of the Executive Board of the UK Council on Child Internet Safety, the British Government's principal advisory body for online safety and security for children and young people. In the summer of 2013 he was appointed as an adviser to Bangkok-based ECPAT International. Amongst other things John is or has been a Senior Expert Adviser to the United Nations, ITU, the European Union, a member of the Executive Board of the European NGO Alliance for Child Safety Online, Secretary of the UK's Children's Charities' Coalition on Internet Safety. John has advised many of the world's largest internet companies on online child safety. In June, 2012, John was appointed a Visiting Senior Fellow at the London School of Economics and Political Science. More: http://johncarrcv.blogspot.com
This entry was posted in Child abuse images, Default settings, Internet governance, Pornography, Self-regulation. Bookmark the permalink.

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