UNCRC
Posted By: shelly on 2009-02-10
In Reply to:
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.
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The only 2 UN nations who have not ratified the UNCRC are
what I have a really hard time with is that ANY parent would feel threatened by the idea that their child might have rights. Aren't children and parents supposed to be on the same side? Pitting parents against children? Oh please.
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