The Convention on the Rights of the Child (UNCRC) sees the family as underpinning children’s rights. Thus the preamble to the UNCRC says:
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
This statement is further clarified by later articles, guidance from the Committee on the Rights of the Child and by the Guidelines for Alternative care of Children. It steps away from the neo-liberal ideal of the family being the fundamental group in society that is responsible for the growth and development of children through its focus on the state’s key responsibility being to create an environment in which family life and hence the rights of the child can flourish. The preamble goes on to say:
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding
The important concept that that parents have the right to make decisions and take actions regarding their child free from intervention by the state is specifically protected in article 5 which states:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Further Article 9 states:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
And Article 14(2) states:
States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.[1]
The United Nations General Assembly’s Guidelines for Alternative Care of Children provide further guidance on these rights and a key resource for considering the “desirable orientations for policy and practice” (UN 2010 p 1) to enhance the implementation of the UNCRC and of relevant provisions of other international instruments regarding the protection and well-being of children deprived of parental care or who are at risk of being so deprived. They are intended to assist and encourage governments to implement their obligations to provide a comprehensive welfare system taking into account prevailing social, cultural and economic conditions and to undertake these “to the maximum extent of their available resources”.
The Guidelines reasserts that parents have the key duty with regard to bringing up children and indicates that the state’s efforts should primarily be directed to support families and thereby to enable the child to remain in or return to the care of his or her parents or, where appropriate, to other close family members. Whilst it recognises that there are situations in which the child’s best interests are served by being placed outside of parental care, this should only be where “the child’s own family is unable, even with appropriate support, to provide adequate care” (UN 2010 Annex p 2) and “should be seen as a measure of last resort and should, wherever possible, be temporary and for the shortest possible duration”.
The Guidelines list elements of a comprehensive child welfare service that should be available to prevent the separation of children from their families. These include measures to enhance the capacity of families limited by factors including disability, drug and alcohol misuse, discrimination against families and indigenous or minority backgrounds, and to provide care and protection for vulnerable children including child victims of abuse and exploitation, abandoned children living on the street and so on. It is suggested that special efforts need to be made to tackle discrimination against parents or children on the grounds of: poverty; ethnicity; religion; sex; mental and physical disability; HIV/AIDS or other serious illnesses, whether physical or mental; both out of wedlock and socio-economic stigma; and other circumstances that give rise to children being relinquished and/or removed from their families. In particular, financial and material poverty should never be the only justification for the removal of a child or for the child continuing in alternative care but should rather be seen as “a signal for the need to provide appropriate support to the family.”
[1] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 14(2).