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.

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.” 

Children’s rights and child welfare organizations across the world look to the CRC’s 54 articles as the cornerstone of their work.

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.”

The USA has not ratified the Convention

If a country ratifies an international Treaty of this kind it normally means one of two things. Either the Government of the country concerned believes they already meet or exceed the legal or other standards set out in the Treaty or they are signalling an intention to bring themselves into line. The UK ratified the CRC in 1991.

As of today only one large-country jurisidiction has not ratified the CRC. That country 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 puzzled me over the years concerning US policy and American attitudes towards child protection and child welfare, both online and off.

Consequently the main focus of this blog is not the general content or objectives of the CRC. Instead I look at the wider historical context of US policy. From this we can see why the USA has still failed to ratify the CRC and probably won’t do so any time soon.

Bartholet’s article describes the wider historical context very skilfully. We should note Professor Bartholet’s strongly-stated conclusion is, even taking account of that context, the USA ought nevertheless to proceed to ratify the CRC.

She says

“…..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 (sic). 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 which kept getting in the way.

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) Federal law…..”

Now we ought not to get too carried away by this bald description of the jurisprudential status quo.  Bartholet points out it is very obviously not the case 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 CRC as a purely cosmetic or political exercise. There was precious little follow-through or even an intention to follow-through. Against that, in the unsigned US the great majority of children undeniably enjoy most of the fruits of the policies and laws advocated by the CRC. Thus, 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 to make children’s lives better 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.

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 suggest this position is most likely rooted in a strongly-held belief parents are normally going to be the best protectors of their children’s interests. So far so uncontroversial, but this cannot be the entire explanation.

A more deeply embedded mistrust of Government

In the USA attitudes towards children’s rights seem to have got mixed up with shadows of a traditional or more ancient American mistrust of Government in general. Some Americans seem to think any shift towards a stronger notion of children’s rights would inevitably lead to the potential for greater official intervention in family life and this would not normally work to the advantage of the child or anyone else.

Thus, 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 consider ratification of the CRC would first have to make all manner of political decisions. Declaring an intention to ratify would, in effect, signal an intention by the Federal Government to challenge long-standing cultural attitudes among the American public. Not out of the question. It has happened before more than once. But….

Children’s rights?

Bartholet emphasises 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 or would find utterly baffling.

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 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 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 regularly used to take Philip into their home for visits at weekends. 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 Federal 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 their children. However, I am equally sure they would put the best of interests of the child at the core of their primary concerns and above all else.

Normally the best interests of the child would, of course, be identical to and co-terminus with what the child’s parents judged them to be, 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 towards children’s and parents’ rights 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 the UK, in many other European countries and at EU level 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.

Global leaders in fighting sexual crimes against children

The US Federal Government and Congress are global leaders in respect of the work they do and the support they give to the fight against online sexual 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.

This leadership position in respect of sexual crimes against children is not reflected, however, in other areas of a child’s life and these too matter hugely. Individual companies from the US do sterling work to protect child users or have regard to a wider set of children’s rights and concerns.  There are also some extremely energetic and highly regarded NGOs. But at equivalent major international conferences or events where wider aspects of online safety and children’s rights are being discussed one rarely encounters officials from other parts of the Federal Government or from any State administrations.

By contrast CRC signatories accept Governments have a responsibility to do more than simply enforce the criminal law. Alternatively, one might say they adopt a more generous interpretation of their obligations towards children, in respect of which the criminal law is but one dimension, albeit a critically important one.

It is difficult to draw neat dividing lines around criminal and (what we have traditionally thought of as being) civil matters when it comes to children’s upbringing. Talking about the importance of a “holistic approach” sounds too pat, too neat, a bit of a cliché, but undoubtedly there are a complex set of relationships between, say, a child’s rights under data privacy laws,  a child’s right to access information, its right to protection from exposure to certain types of commercial activity or types of content which is legal for adults, and risks which can take a child rapidly into the criminal domain where they end up as victims. And sometimes those victims will also look like perpetrators.

CRC signatories accept Governments must be ready to step in across a broader front. I suppose the fundamental point is children have a legal right under the CRC to grow up healthy and educated. They are unlikely to be able to do that if they are being sexually abused but that is not the beginning and end of it.  They also have a range of other rights  and these can overlap with or feed into the space. Governments have the final responsibility to ensure all bases are covered. Many Americans would hesitate before accepting this idea, or they would straight-out reject it.

Not all parents and families are the same

We need to get some sort of handle on the potential size of the problems that lie behind the concerns being expressed here. 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. Indeed families can be very dangerous places for children, particularly in respect of sexual abuse.

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 physical 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 a great many countries. 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, involved in gangs, will be blighted by teenage pregnancies, drug addiction, 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. 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, medical or other issues which lie behind various children’s difficulties. The internet is fully integrated into young people’s lives. It  reflects or engages both causes and effects, opportunities and dangers.  There is no hiding place or responsibility-bypass. For anyone.

How many kids are we talking about?

In the UK we have a substantial amount of data which give us a clue as to the potential size of the  challenges.

According to the NSPCC in 2011 in the UK there were 50,552 children who were  on child protection “at-risk registers” or were the subject of  what are known as “child protection plans” . 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 under 16.

Obviously there is no necessary link between simply being on an at-risk register, being the subject of a plan and being vulnerable to any of the several risks children might encounter on the internet, criminal or otherwise. To establish the degree of correlation and causality would probably require a great deal of further research. My point is these children are unambiguously in personal or family situations which inspire little confidence in the parents’ ability or willingness to sit down and effectively communicate the finer points of netiquette or provide regular support and appropriate supervision in respect of their  children’s online activities.

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  this could expose their children to and (b) they 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 yet more children who need help?

Are there any children who do not appear on the at-risk registers, are not the subject of a plan, 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  in some form or other at 31st March, 2010.

At a conference I attended where these figures were being discussed, beyond the 375,900 it was suggested there was a much larger but unspecified number of children who were  living in households with alcoholic parents, or were living in households where domestic violence was known to be a regular occurrence, or where it was known a child was to some degree or other caring for a parent with mental health problems. Again these are not necessarily indicators of ineffectiveness in every area of parenting but neither do they inspire confidence all is bound to be well for the children concerned.

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 of) 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 we should get into any kind of serious discussion of utilitarian trade offs. 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 society has responsibilities to each and every child, not just those blessed with ‘good’ parents.

How far is it reasonable, therefore, 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 nevertheless be large. It was ever thus with internet policy.

According to UK police and other sources, we know a great many children who were “not known” to the authorities for any reason at all, who were never subject to any kind of plan, were never on any register, had no special educational needs, did not come from any of the stereotypical “problem family” backgrounds, nevertheless became victims of sexual or other online crimes, or were injured in other ways because of activity on the internet.

It’s probably the same in many countries

I would be surprised if, in relation to online risks, the proportions of potentially or actually needy children in the UK were all that different across much of the developed world, including in the USA.

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”?

And what is the role of Government in ensuring this happens?