Abstract
Are parental rights or children’s rights better for protecting children and vindicating their interests? In this ongoing debate, American family law scholars and advocates are deeply divided. Children’s rights proponents often criticize the United States for failing to ratify the Convention on the Rights of the Child and for denying children constitutional family rights. This critique of U.S. family law assumes that incorporating children’s rights would result in better outcomes for children. This Article challenges the assumption that children’s rights are enough to vindicate children’s interests. Instead, this Article identifies how current conceptions of children’s rights present structural barriers to full vindication of the child’s interests.
To illustrate how these structural barriers operate, this Article analyzes case law on custody and family separation from a jurisdiction that uses a strong children’s rights approach, the European Court of Human Rights. These cases provide a valuable comparator to test whether children’s rights framing changes how courts reason about children.
This Article contends that three major obstacles thwart the efficacy of a children’s rights framework. First, when children’s interests conflict with their parents, someone must decide whose interest will prevail. This conflict empowers states to intervene in families’ lives in ways that can undermine children’s wellbeing. Second, a children’s rights model must give children a voice in legal proceedings. However, rights litigation is traditionally the purview of adults, and children often lack standing to assert their own rights claims. Even when they do, young children lack the capacity to assert their interests in a way that is cognizable by a court. Finally, a children’s rights model must address the ways in which the state uses children as leverage to deter or compel their parents. To be effective rights-holders, children must be agents and not merely objects in the eyes of the law.
