What's wrong with the UN Convention on the Rights of the Child?
It’s usually looked upon as a positive means of holding countries accountable to protect children. But the United Nations Convention on the Rights of the Child (UNCRC) is so much more than that.
When the UNCRC was brought up for ratification in 1995, the core group of Senators in opposition concluded that this treaty marked a significant departure from the originally constituted relationship between state and child. They found, in fact, that it was literally incompatible with the right of parents to raise their children as well as a wholesale giveaway of U.S. sovereignty.
Widespread concerns about the UNCRC stem from the treaty’s repeated emphasis on one key principle used to guide all decisions affecting children: consideration of the “best interests of the child.” This principle underlies all of the rights found in the Convention.
Article 3 of the CRC provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
In other words, policies affecting children at all levels of society and government should have the child’s best interest as the primary concern.
The trouble occurs when this principle appears as a guiding principle for parents in article 18(1), which states that “Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”
Who knows best?
The Convention’s emphasis on the “best interests” principle is a sharp break from American law.
In the 1993 case of Reno v. Flores, the U.S. Supreme Court held that “the ‘best interests of the child’ is not the legal standard that governs parents’ or guardians’ exercise of their custody.” In the 2000 case of Troxel v. Granville, the Court struck down a grandparent visitation statute because decisions about the child were made “solely on the judge’s determination of the child’s best interests,” without regard to the wishes of the parent.
The Court’s decisions in Reno and Troxel reflect a fundamental tenet of American family law, which recognizes that parents typically act in the best interests of their children. Indeed, “United States case law is replete with examples of parents fighting for the best interests of their children,” ranging from a child’s right to an education to the right of personal injury compensation. Except in cases where a parent has been proven to be “unfit,” American law presumes that the parent is acting in the best interests of the child, and defers to that parent’s decision.
The UNCRC’s Brave New World
But the UN Convention on the Rights of the Child changes all of that. The treaty supplants this traditional presumption in favor of parents with a new presumption in favor of the state.
According to Geraldine van Bueren, an international scholar who assisted in the drafting of the CRC, the language of “best interests provides decision and policy makers with the authority to substitute their own decisions for either the child’s or the parents’, providing it is based on considerations of the best interests of the child.”
So instead of placing the burden of proof on the government to prove that a parent is unfit, the Convention places the burden of proof on – yes, parents. Any parent who claims that other interests might just be more important than the state’s characterization of the “best interest” of the child could end up battling the state to protect their rights as a parent.