72 Am. U. L. Rev. 2075 (2023).
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.
* Assistant Professor of Law, University of Alabama School of Law. My thanks to the participants of the Drexel Faculty Workshop, the University of South Carolina Children and the Law workshop, the Younger Comparativists Committee Conference, the Law and Society Association and the SEALS 2022 Annual Conferences, and the International Society of Family Law 2023 World Conference in Antwerp, Belgium. My particular thanks to the participants in the NY Area Family Law Scholars Workshop for their deep and insightful feedback. My thanks also to my colleagues at LSU and the University of Alabama for their thoughtful comments at many stages of this project. I am grateful as well for the excellent work of my research assistants, Sidney Weferling and Margaret-Anne Moyes Stewart.