13
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
Childhood as a Legal Status
THE PECULIAR LEGAL STATUS OF
CHILDREN
The legal status of children reveals impor-
tant developments and transformations in
societal understandings of children and
their place in society. The rights of
children, the standard on which we most
appropriately can evaluate their legal status,
have catapulted from an obscure and
essentially nonexistent concept to a
globally recognized phenomenon at the
forefront of modern human rights move-
ments. Much of this transformation
occurred at the very end of the last century,
and it rapidly spread at an unprecedented
pace. Despite these impressive develop-
ments, children continue to occupy a
peculiar status in law and society. Most
notably, all modern societies now champion
a wide range of children’s rights as impor-
tant to recognize and foster. Nevertheless,
children still may not actually control their
applicable copyright law.
own rights even when societies acknowl-
edge the need to recognize children as
individuals worthy of independent rights.
Perhaps more peculiarly, a great disjunc-
ture often appears when we examine claims
of children’s rights and compare them with
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 38
Roger J.R. Levesque
the realities of children’s lives. Children
have gained recognition under law, but it
remains to be determined more precisely
what that recognition means in practice.
The peculiar failures and disjunctions in
recognition stem from a variety of sources.
The disparity between laws recognizing chil-
dren’s place in society and the reality of their
status is the product in part of the traditional
view that rights belong only to fully rational,
autonomous people capable of exercising
free choice. Because most children lack fully
developed rational capabilities necessary to
be direct recipients of many rights, the law
necessarily deems children dependent
‘incompetents’. To complicate matters even
more, children are not really ‘individuals’
who can stand alone from all others; children
are, in many ways, dependent, and their
dependency implies relationships with
others. These complexities render the rights
of children important to explore, not just to
help us decipher the nature of children’s legal
status in society. A look at the complexities of
children’s rights also allows us to understand
the place of relationships and rights in
modern civil society as well as how societies
determine everyone’s legal status and the
benefits that accrue to the various types of
05-11-2013 15:40:53
 Childhood as a Legal Status 39
legal status societies find worth conferring.
In a real sense, examining children’s legal
status tells us about societies’ views of chil-
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
dren, child development, and what it means
to no longer be a child.
This chapter briefly overviews develop-
ments relating to children’s legal status, with
a particular emphasis on the nature of their
rights. We begin by examining prevailing
conceptions of ways societies historically
have approached the legal status of children
and how that status determined the nature of
children’s rights. We then examine the place
of children’s status in family law jurispru-
dence, the major area of law that regulates
children’s social and legal environments both
within and outside families. We proceed with
examining groundbreaking developments in
conceptions of children’s human rights. That
analysis permits us to revisit the nature of
children’s legal status to highlight different
ways legal systems could envision children’s
rights. We conclude by highlighting key
points about recent developments in chil-
dren’s legal status. Throughout, we empha-
size a persistent shift in conceptions of
children’s rights: a shift toward full legal
personhood status, a status that involves the
development of legal systems that directly
protect children’s rights and a status that
views an increasing number of children’s
rights as no longer derivative of those of their
parents. We end by highlighting the signifi-
cance of recent efforts to revise, reformulate,
innovate, and strengthen the rights with
which we wish to endow children that will
serve as a catalyst for profound cultural
changes concerning the legal status of children
in families and society.
applicable copyright law.
PREVAILING CONCEPTIONS
OF CHILDREN’S LEGAL STATUS
The most central debate in modern concep-
tions of children’s legal status focuses on
the proper balance among parents’ rights,
children’s rights, and a community/state’s
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 39
place in recognizing and fostering those
rights. Legally, this debate plays out in
numerous and varied contexts, including
sexual health, child custody, religious free-
dom, immigration, schooling, crime, child
welfare, poverty, medical care, family vio-
lence, and even countries’ participation in
international treaties. The debate becomes
particularly vociferous and the stakes espe-
cially high in these contexts for the simple
reason that championing one view of rights
necessarily implicates and may even deter-
mine the manner in which a society more
broadly approaches the social issues sur-
rounding these particular issues. Thus, in
the context of child welfare law, we often
witness particularly charged and polarized
debates between advocates of parents’ rights
and those who champion a turn to children’s
rights (see Levesque, 2008a); the same is true,
for example, for legal responses to education
(Levesque, 2002a), sexuality (Levesque,
2000), religion (Levesque, 2002b), and free
speech (Levesque, 2007). In these areas, crit-
ics of the focus on parental rights argue that a
focus on parents creates a system that sacri-
fices children’s open futures. The focus on the
rights of parents leads to the creation of a
system that permits the state to be deferential
to parents’ rights and resists protecting
children’s own independent rights, such as
the right to protection from maltreatment in
their own homes. On the other hand, critics
of legal approaches that focus on children
themselves contend that these systems
create incentives for states to intervene too
readily in families, which runs the risk of
unfairly removing children from their
homes. The debates certainly are complex
and become considerably nuanced when
one takes a close look at how legal systems
operate. Legal systems often adopt a variety
of approaches depending on the involved
issues, and the approaches often conflict.
These general approaches are worth
examining briefly given that the manner in
which societies conceptualize the legal
status of children inevitably results in
important implications for (and often
05-11-2013 15:40:53
 40 THE SAGE Handbook of Child Research
reflects perceptions of) children, parents,
families, and broader society.
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
The rights of parents
Conceptions of children’s rights operate in
the shadow of a long-standing legal principle
that still dominates and influences this entire
area of law. That principle is quite basic:
the law fervently protects the rights of par-
ents to the care and custody of their children.
This core principle has deep historical roots
and important contemporary adherents who
champion parental rights as the most effec-
tive way to protect children’s interests. The
principle drives many jurisdictions and even
shapes legal doctrines that focus on chil-
dren’s own rights. In Western countries, most
notably, the notion of parents’ rights reaches
as far back as Roman law. For example,
Blackstone’s Commentaries highlights how
Roman law conferred on fathers’ nearly com-
plete control over their children, and the
courts had no role in mediating this relation-
ship (Blackstone, 1765, 2001). This principle
was embodied in the concept of patria potes-
tas, which granted the male head of a family
full legal authority over his legitimate and
adopted children, as well as further
descendants in the male line, unless
emancipated. This authority was quite
expansive, as it included, for example, power
over life and death (Flugge, 1996). Not
surprisingly, legal analyses describe this
view as conceiving children as parental
property.
The once dominant conception that
­children essentially were parental property
certainly has faded, but the impulse contin-
ues and shapes efforts to conceptualize and
develop notions of children’s rights. Arguably,
applicable copyright law.
the related principle that parents control their
children, with minimal state intervention,
remains alive and well. Many countries
express and follow this legal principle as they
struggle to recognize children’s rights, with the
United States remaining an exemplary staunch
supporter of this approach. The modern
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 40
expression of this legal principle is found in
many iconic Supreme Court decisions estab-
lishing that the Constitution protects parents’
fundamental right to the care, custody, and
management of their children (see Wisconsin
v. Yoder, 1972). Solicitude for parents’ rights
continues to play out in several important
ways within systems where children find
themselves: families, child welfare, schools,
juvenile justice, and even religious organiza-
tions. Again, these conceptions influence the
role of the state: strong protection of parental
rights increases protection from states’ efforts
to intervene in families and the rights of par-
ents. This approach, importantly, does not
mean that children do not have rights; it does
mean that the extent to which they do (barring
extreme cases that warrant a state’s taking
over parental responsibilities) largely depends
on their parents’ decisions to respect them.
The focus on parents continues to have
considerable appeal beyond the legal rules
that would support them. Given the profound
attachment to parental rights, rationales for
supporting them appear quite persuasive. For
example, parents seem particularly well situ-
ated to determine and act in a child’s best
interest, at least in areas not squarely within
the state’s expertise and not in circumstances
when parents’ decisions transgress certain
limits. Protections from state interventions
also safeguard cultural and moral diversity in
matters of childrearing. Limiting a state’s
intrusion into family life ensures that a state
does not impose a uniform view of parenting.
In democratic societies, this protection from
governmental control in the name of diver-
sity is seen as the foundation of democratic
principles. Parents’ rights also protect parents
from state intervention on impermissible
grounds, such as race, or for improper rea-
sons, such as preferring one set of parents
over another purely for the material benefits
available from an alternative family. The
focus on parental responsibility also, of
course, means that parents have the primary
responsibility to support their children and
families. This certainly reduces considerable
burdens (such as financial ones) that a state
05-11-2013 15:40:53
 Childhood as a Legal Status 41
would otherwise need to carry if it took chil-
dren under its charge. Finally, the weight
granted parental rights ensures that states
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
offer procedural protections that will provide
parents with the resources to counter a state’s
allegations when they intervene in their
­children’s lives. This certainly would seem
particularly important in light of the potential
for the dehumanization of parents and
­children involved in a variety of legal ­systems.
Overall, then, much can be said for systems
that bestow on parents the right and duty to
direct and control their children’s upbringing.
The rights of children
The concept of parental rights may have a
long history and retain considerable appeal,
but so does the concept of children’s rights.
The same laws and principles that granted
parents’ rights also placed on parents the high
duty to foster their children’s healthy devel-
opment and prepare them for appropriate
roles in society (Wisconsin v. Yoder, 1972).
The concept of children’s rights, just like the
concept of parental rights, also has developed
in a variety of ways (see Levesque, 1994).
For our purposes, three related yet somewhat
different views of what should constitute
children’s rights illustrate the complexity of
children’s legal status even when we adopt an
orientation espousing ‘children’s rights’.
One approach to ensuring children’s rights
centres on permitting children to assert rights
against their parents. This approach, argua-
bly the earliest recognized strand of ­children’s
rights, fundamentally adopts a protectionist
view. Legally, the approach dates to the nine-
teenth century, when courts challenged the
view of divine parental authority to control
children. This movement located the author-
applicable copyright law.
ity to control children, in part, to a parent’s
civic duty and with the understanding that
the child was a future citizen. This approach
bestowed on the state the power to regulate
parental authority by ensuring that such
authority was exercised in the interests of
children as well as the public. The ‘child
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 41
saving’ movement illustrates this trend. That
movement spread during the nineteenth cen-
tury and contributed to the creation of state
supported educational systems as well as
systems that permitted the removal of chil-
dren from their homes in order to save them
from their families and protect communities
(see Myers, 2006). This movement’s influ-
ence continues to be felt, but the rationales
that supported the movement often become
entangled with other approaches conceptual-
izing children’s rights.
Another approach to conceiving children’s
legal rights focuses on claims against the
state, such as claims against unnecessary state
intervention, which could involve unneces-
sary intervention in children’s relationships
with their parents. This preservationist strain
of children’s rights reflects the view that
unnecessary state intervention in families
infringes on a child’s right to maintain rela-
tionships with their parents. This approach
has considerable appeal to the extent that
preservation reflects respect for both parents’
rights and children’s own rights. Although
this sharing of interests is often ignored (for a
notable exception, see Melton, 1996), legal
systems have recognized its appeal and
­significance. Courts in societies known for
embracing strong parental rights models have
noted, for example, that children and parents
share vital interests in preventing the
­erroneous termination of their relationships
(see Santosky v. Kramer, 1982). Surprisingly,
commentators have tended to shy away from
this approach, although some rightly argue
that conceptions of children’s rights must
include more general protections against the
state, a claim supported by research indicat-
ing that the state may unnecessarily remove
children from their homes and have them
spend needless time in alternative care away
from their families (Guggenheim, 2005).
Yet another, related approach focuses on
children’s direct interactions with social sys-
tems in ways that the law recognizes their
interactions as independent from their
­parents. Perhaps the clearest example of this
view involves the recognition of a child’s
05-11-2013 15:40:53
 42 THE SAGE Handbook of Child Research
right to access, even absent their parents’
permission, social services. Although this
approach also remains buttressed by several
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
important rationales, the approach essentially
aims to liberate children from their parents’
hold over them and to limit a state’s power to
control them more than they would adults.
The approach certainly recognizes that not
all children can act independently, a point
highlighted by the approach’s general claim
that children’s autonomy should be dictated
by their ‘evolving capacities’. The most fre-
quently recognized examples include medi-
cal decision making without parental or
judicial intervention and children’s power to
waive their own rights when they interact
with law enforcement (see Levesque, 2007).
These proposals, however, run counter to
deeply held societal perceptions of who
should guide children’s development.
There has been some recognition that ado-
lescents can have an independent right to
certain services (such as medical testing).
But the major rationales supporting inde-
pendent rights even for adolescents often are
blurred, with some rationales being bottomed
on efforts to protect the public from disease
and crime rather than protect children from
their parents or the state itself. As a result, it
remains to be seen how receptive societies
will be to efforts that advocate children’s
independent rights, for example, to freedom
of thought, conscience, speech, and religion
(Levesque, 2008b). Although this lack of
development need not mean that the approach
has no currency, it does mean that the extent
to which it will succeed ­necessarily turns
on its ability to address prevailing societal
perceptions of children’s relative status in
society, especially in ­­families.
applicable copyright law.
Preliminary conclusions
Children’s legal status necessarily links to
societal perceptions of children. Most nota-
bly, children’s legal status depends on the
extent to which, and if so when, society
views children as dependent or independent
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 42
beings. The diverse views of children’s rights
have important implications to the extent that
they most likely lead to strikingly different
outcomes. The clearest example involves
arguments that children are capable of
knowing and exercising their rights. This
­
may work well in some contexts and lead, for
example, to what some view as greater pro-
tection. The important example of this would
be permitting minors to obtain judicial waiv-
ers for the usual requirements of obtaining
parental permission for medical procedures
that parents may not wish their children to
have. A judicial waiver could both protect
minors from parental harm and protect soci-
ety from harms that would ensue from
minors’ lack of access to services. On the
other hand, arguing that certain children can
be capable of exercising their own rights may
lead some states to permit treating them like
adults for the purpose of punishing them (see
Levesque, 2006). Neither approach works
very well when we move outside families,
when we focus on potential relationships
with other institutions like religious groups,
justice systems, and schools as well as the
general public. The approaches to conceptu-
alizing children’s legal status do account for
these relationships, but the tensions that arise
leave much to be desired. It is not surprising
that all sides of debates offering different
conceptions criticize others for fundamen-
tally undervaluing the welfare of children.
The reality, however, is that each espouses
different ways of resolving the dominant
practical tensions that children’s rights must
confront. We now turn to those and focus on
the context in which they tend to arise in the
manner that legal systems approach family
life.
THE PLACE of CHILDREN’S
LEGAL STATUS IN FAMILY
LAW JURISPRUDENCE
The legal status of children closely ties to
developments in family law and conceptions
05-11-2013 15:40:53
 Childhood as a Legal Status 43
of families. Societies have devised special
laws that apply to families. Legal systems
justify these unique rules by focusing on the
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
family’s relational aspects and its intimate
nature. As a result, ‘family law’ typically
involves efforts to define the structure of
families, responsibilities of members toward
one another, and the claims or rights indi-
viduals have as family members. In addition,
this area of law also includes a focus on the
proper relationship between families and the
state. The dominant theme that has character-
ized much of family law has been its casting
relationships in families as constituting ‘sep-
arate spheres’ from public life. Jurisprudence
typically conceives of the family (the private
sphere) and the state (the public sphere) as
largely independent of each other. The image
of separation generally seeks to capture a
vision of family privacy in which direct state
intervention remains the exception. This
approach relates to and shapes several impor-
tant tensions in ways legal systems approach
rights, including those of children.
The extent to which legal systems separate
families and individuals from states’ actions
necessarily relates fundamentally to the manner
that societies balance ‘negative’ and ‘positive’
conceptions of rights. Internationally, we
know that societies vary in terms of the
extent to which they champion negative or
positive rights. Although no pure positive or
negative rights may exist in practice, these
rights are readily distinguishable in theory.
Essentially, negative rights seek to prevent
the state from violating individuals’ auton-
omy; positive rights impose a duty on the
state to provide certain goods and services.
Western societies tend to adopt the classic
Western notion of rights as negative, as
stressing choice and autonomy. As we will
see below, much of the modern human rights
applicable copyright law.
system has roots in Western political traditions
and philosophy, which has led the human
rights movement, at least historically, to
assume a greater emphasis on negative rights.
Other countries and important human rights
documents, however, do focus on cultural,
economic, and social rights and adopt a more
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 43
‘positive’ approach. This approach highlights
ways that governments should support
families. Even these approaches, however,
­
recognize the family as the fundamental unit
of society and place a focus on protecting
families from governments’ actions.
Another related tension deals with concep-
tions of individuals and families. Societies
and legal systems vary in the extent to which
they view individuals as independent or
dependent beings. This stance, in turn, also
tends to relate to the extent to which legal
systems focus more on negative than on
positive rights. The negative rights approach,
for example, presents a conception that rests
on an individual’s capacity to exercise
rational choice as an autonomous human
being. Under this model, rights comprise
negative freedoms to protect the individual’s
self-determination from violation by the
state. In this way, the rights model tradition-
ally pits the individual against the state and
erects barriers to protect the individual’s self-
hood from arbitrary government incursion.
The model reflects a fear of governmental
tyranny and seeks restrictions on governmen-
tal power through legally recognized rights.
The approach asserts the status of the indi-
vidual and the individual’s priority over both
the state and society. Importantly, the posi-
tive rights model also seeks to protect indi-
viduals, but it also tends to place focus on the
rights and obligations of communities,
including the state, to foster individual devel-
opment. The negative rights model appears
less accepting of the view that people are
defined by their relationships with others. As
expected, legal systems tend to balance their
legal systems between these poles and we
would be hard pressed to find a legal system
that adopted only one approach.
The tension relating to our connections
with others versus expressions of our
­individuality relates to the extent to which
children can be deemed as separate from
families. The different ways of approaching
legal systems and families bring a different
impulse to the different, possible conceptions
of children’s rights. Legal systems valuing
05-11-2013 15:40:53
 44 THE SAGE Handbook of Child Research
non-interference would protect families from
intrusion; those valuing support would
encourage engagement with services and
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
support systems. These differences also
would influence internal family dynamics.
Systems that focus on autonomy must find
ways to develop children so that they could
become autonomous adults. Protection for
autonomy need not translate into protection
of children’s own autonomy. Children, even
teenagers, are not fully autonomous in the
eyes of the law or societies in general. The
history of the classic right to privacy reveals,
for example, that the leading cases contribut-
ing to the development of this right have
involved the rights of adults to procreate, to
refrain from procreation, and to raise their
children as they see fit. This body of law
may lead to placing at the core of the privacy
right the fundamental decisions that shape
family life, that is, such decisions when
made by adults. Given the background of the
privacy right in the notions of individual
autonomy and family (parental) autonomy, it
is clear that a privacy right for children is
almost an oxymoron. If adults express their
autonomy in part by creating and raising
children, it follows that those children can
have little or no autonomy of their own and
thus no claim to a legal right of privacy. An
effort remains, however, to recognize that
children must be provided with opportunities
to become autonomous, self-reliant persons;
and those efforts also seek to protect their
autonomy from unwarranted government
regulation of certain life-shaping decisions.
This impulse is most noticeable in efforts to
recognize children’s ‘evolving capacities’,
which in some countries has been approached
by recognizing the extent to which children
have the requisite maturity to exercise their
own rights. As we have seen, this is quite
applicable copyright law.
significant in that children can well have
rights, but they may not necessarily control
them: parents often are deemed the ones who
have the requisite maturity, experience, and
wisdom to exercise the rights of their children.
Family law jurisprudence, then, continues to
struggle in its effort to balance the appropriate
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 44
place of individuals in families and continues
to develop ways to determine and affect that
balance.
The relegation of children and families to
a separate sphere parallels the relationship
between the state and federal government as
well as federal governments and interna-
tional governments. Among other things,
these spheres have posed an important bar-
rier to the constitutionalization of children’s
rights and to their development across inter-
national borders. Concerns about federalism
in the United States are illustrative. Federal
courts are reluctant to interfere with matters
historically viewed as within individual
states’ jurisdiction, deeming children’s inter-
ests both local and private. Children’s rights
are perceived as part of family law, the para-
digmatic turf of the states. While refusing to
constitutionalize children’s rights and impos-
ing a more national standard, American con-
stitutional traditions have, nonetheless, long
recognized parental rights over their chil-
dren. Although the Constitution is silent on
specific rights for children or any other
family members, parental rights gained a
constitutional foothold during the heyday of
court decisions expanding on substantive
due process rights. By exercising constitu-
tionally protected rights to physical custody
and control over children’s upbringing, par-
ents can define the rights of children. The
focus on protecting the rights of parents at
local levels eventually translates into reluc-
tance to embrace international human rights
standards that are perceived, arguably
wrongly, as adding yet another level of con-
trol over parental rights and moving power
increasingly away from local jurisdictions,
including federal systems (see Levesque,
1996a).
Given how societies approach jurispru-
dence regulating family life inevitably has
local, federal, and even international dimen-
sions, it should not be surprising to find that
the place of children’s rights in modern
family law jurisprudence presents important
implications for public policy. A close look
at children’s place in family jurisprudence
05-11-2013 15:40:53
 Childhood as a Legal Status 45
indicates that relationships among children,
families, and state are not fixed; the relation-
ships remain potentially dynamic. The place
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
of children in families also illustrates how
the family is not a natural entity with a form
that is constant and essential; families are
societal creations. Relationships among chil-
dren, families, and the state can be reconfig-
ured, and have been reconfigured, to reflect
different sets of expectations and aspirations
for children, families, and the more general
society. These reconfigurations and aspira-
tions suggest that society would benefit from
periodic self-conscious considerations about
the continued viability and desirability of
historic assumptions about ‘the family’ as an
institution as well as assumptions of
­children’s status in them and society.
These changes are significant for concep-
tions of children, families, and the law. Even
though legal systems continue to characterize
families as distinct and separate from the
state, for example, the modern state no
longer is as distinct as it once (apparently)
was; nor are families. Laws still may desig-
nate the family as the quintessential ‘private’
institution, one that is essentially outside the
law. For the modern private family, protec-
tion from public interference remains the
publicly stated norm. State intervention con-
tinues to be cast as exceptional, requiring
some justification. Yet, families continue to
change. What constitutes a family, responsi-
bilities within families, and relationships
within families change. And these changes
influence the relationship between the family,
its members, and the state. As a result,
modern legal systems must adapt and per-
haps imagine the relationship between the
state and families as symbiotic more so than
as separate spheres.
In many ways, families and governments
applicable copyright law.
are interactive; they define one another.
Alterations in the scope or nature of one insti-
tution alter the scope or nature of the other.
Although law initially defines the family by
controlling entry and determining the conse-
quences of its formation, once formed, the
family is a powerful constituency within a
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 45
state. The expectations for the family relieve
a state of some obligations. Family actions
(or inactions) can place pressure on a state
and require adjustments and accommodation
that alter the nature of state governments.
This symbiosis is undoubtedly part of what is
meant when we view families as the building
blocks of civil society.
THE INTERNATIONALIZATION OF
CHILDREN’S RIGHTS: MOVING FROM
RECOGNITION TO IMPLEMENTATION
OF CHILDREN’S INDPENDENT LEGAL
STATUS
Although the general public is unlikely to
have heard about an international movement
involving children’s human rights, the
modern human rights movement has long
included special attention to children. The
human rights movement contains interna-
tional treaties and statements that relate
directly to children, some that pertain spe-
cifically to families, and others that concern
them in a more general way through the
enumeration of rights for all. An analysis of
these documents is beyond the purview of
this chapter, especially since one can
approach international children’s rights by
looking at how human rights law addresses,
for example, armed conflict (de Berry, 2001),
child maltreatment (Levesque, 1999a), child
labour (Myers, 2001), health (MacDonald,
2007), homelessness (Panter-Brick, 2002),
immigration (Hernandez-Truyol and Luna,
2006), juvenile justice (Levesque, 1996b),
education (Levesque, 1998), family violence
(Levesque, 1999b, 2001), poverty (Andrews
and Kaufman, 1999), etc. For our purposes, it
is instructive to examine briefly the most
recent and expansive human rights document
detailing children’s rights: the United
Nations’ (1989) Convention on the Rights of
the Child. The Convention, which was
approved unanimously by the United Nations
General Assembly in 1989, quickly entered
into force in 1990 and was almost universally
05-11-2013 15:40:53
 46 THE SAGE Handbook of Child Research
ratified by all countries a few years later,
presents the first and only comprehensive
international articulation of children’s rights.
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
The treaty is important to examine to the
extent that it highlights the nature of
­children’s rights as well as, equally impor-
tantly, how those rights are to be respected.
The Convention fundamentally aims to
give priority to children in the adoption of
state measures and in the allocation of state
resources. To achieve this goal, the Convention
adopted the following basic principles:
(1) children need special legal protection
beyond that provided to adults; (2) the ideal
environment for a child’s survival and devel-
opment is generally within a protective and
caring family setting; and (3) governments
and private citizens, including parents, should
respect and act in the best interests of chil-
dren. The treaty further reflects the priority
given to children as it delineated six cate-
gories of specific and substantive rights:
(a) economic rights (including adequate
standards of living, social security, and health
care); (b) social and cultural rights (including
minority rights and educational rights);
(c) political and civil rights (including freedoms
of thought, conscience and religion, associa-
tion, expression, and prohibitions against
discrimination); (d) legal process rights
(civil and criminal procedural rights, prohi-
bitions against certain punishments, and
periodic reviews of placements); (e) human-
itarian rights (protections during armed con-
flict); and (f) family rights (parental
responsibilities and the right to know and be
cared for by parents, maintain contact with
parents, and basic rights to a family environ-
ment). Although other important rights still
do need to be developed (see Freeman,
2000), the enumeration of rights remains
quite impressive. The unprecedented and
applicable copyright law.
immense breadth of the rights recognized in
the Convention, coupled by its focus on a
group that has yet to be fully recognized in
law, certainly places the Convention in a
category of its own. It clearly is one of the
greatest achievements of modern human
rights law.
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 46
The rights enumerated in the Convention
certainly are expansive; but the reality is that
the ‘simple’ enumeration of rights is not the
same as ensuring that they are taken seri-
ously. The Convention highlights the chal-
lenges of placing ideals into practice. Indeed,
the manner by which the Convention enu-
merated rights and charted mechanisms for
its implementation has been the subject of
considerable controversy. Most notably, the
Convention has been criticized relentlessly
for being impossible to implement. On its
face, this criticism appears considerably
valid. Compared to other human rights trea-
ties, the Convention offers the weakest form
of legally binding protection. For example,
the implementation mechanisms of the
Convention do not establish any concrete
means of enforcement at the international
level. (An optional protocol, at this writing
not yet in force, will enable private parties to
petition the UN Committee on the Rights of
the Child for consideration, after domestic
remedies are exhausted, of alleged violations
of children’s rights. Even in the process,
however, the Committee will have no mecha-
nism other than enlistment of international
public opinion to enforce its judgments.)
Thus, at present, the Convention depends
almost exclusively on the regular submission
of fact-finding and other reports for monitor-
ing implementation; rather than relying on
international courts, enforcement relies on
treaty committees and special reporters who
scrutinize and regularly report on countries’
adherence to the Convention. In addition,
the Convention does not directly offer chil-
dren legal remedies within countries. The
Convention, for example, does not mandate
direct access to court systems for children
who would have their international human
rights violated. Instead, the Convention
requires countries that ratify the Convention to
take steps to ensure respect for the enumer-
ated rights. Furthermore, the Convention
introduces and relies on the idea that, in sev-
eral instances, private individuals have an
affirmative duty to act to ensure children’s
rights. As we have seen above, this focus on
05-11-2013 15:40:53
 Childhood as a Legal Status 47
private parties may not necessarily result in
increasing respect for children’s own rights.
As a whole, then, the Convention variously
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
and vaguely places burdens on parents, com-
munity members, and participating countries
to ensure that children’s rights are recognized
and accepted. In doing so, the Convention
requires countries to take steps to develop
laws consistent with the Convention’s man-
dates. It is this more programmatic and soft
approach to ensuring the recognition and
enforcement of children’s rights that leaves
the Convention open to the criticism that its
enforcement mechanisms lack the bite
needed to move children’s rights to the fore-
front of countries’ political agendas.
Criticisms of the Convention’s approach to
enforcement are likely to continue, but they, in
many ways, obfuscate important developments
in thinking of how to envision children’s rights.
As we have seen above, the traditional approach
to ensuring children’s rights has been to grant
control of their rights to adults, especially par-
ents and family members. The Convention does
mark a departure from that tradition. Although
precedence is given to the family in terms of
promoting its responsibility to assure the pro-
tection of children’s rights, the majority of
provisions are written so that, instead of being
parents or families, countries are supposed to
‘recognize’, ‘ensure’, ‘undertake’, ‘promote’,
‘assure’, ‘respect’, ‘encourage’, ‘pursue’, and
‘take appropriate measures’ to ensure rights.
More specifically stated, 38 of the 41 substan-
tive articles in the Convention are devoted to
enumerating enforceable rights. Of these,
25 have been drafted to place the duty on the
government, with no mention of the child’s
family or parents. In half of the remaining
articles, parents are simply mentioned as
receiving assistance to carry out the rights
guaranteed to the child. The other articles
applicable copyright law.
either support the family relationship with the
child for the child’s benefit or limit parental
rights or responsibilities by (1) protecting the
child from abuse or parental kidnapping,
(2) recognizing the child’s ‘evolving capaci-
ties’, and (3) ensuring the child’s ‘best
­interests’ (see Levesque, 1996a). Although the
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 47
Convention may not be a forcefully binding
international treaty, it does set into motion a
rights agenda for children and does require
governments to move in directions that depart
from traditional conceptions of children’s legal
status.
Given the international approach’s move-
ment away from traditional conceptions of
children’s legal status, it is important to high-
light the prominent role families continue to
have in envisioning children’s rights. Despite
its strong child-centred language that protects
children’s independent rights, the Convention
still highlights the important role of families
in fostering rights. The Convention remains a
pro-family document. The Convention ‘rec-
ognizes the family as the natural environment
for child development and makes clear that
parents have the primary right and responsi-
bility to raise their own children, without
interference from their government’ or the
United Nations. The Convention further
includes numerous provisions aimed to pre-
serve the integrity of the family. For instance,
the Preamble asserts 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’.
Furthermore, Article 7 imbues the child with
the explicit ‘right to know and be cared for
by his or her parents’. This is the flip-side of
the more established right of parents to con-
trol their child’s ­custody and upbringing. In
this way, the Convention actively protects the
family and the parent–child relationship as
integral ­elements of the rights of children.
Although the Convention safeguards the
parent–child relationship, it maintains ‘the
best interests of the child’ to be ‘a primary
consideration’. Children’s rights are not
defined as ­antagonistic to parents’ rights, but
rather as their source. Of course, the question
remains what the child’s ‘best interests’ actu-
ally are, and who gets to define them.
However, the rest of the Convention gives
content to this open-ended standard and,
05-11-2013 15:40:53
 48 THE SAGE Handbook of Child Research
at least conceptually, it holds the child’s best
interests as the guiding principle. In addition
to emphasizing governmental guidance and
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
enforcement, the Convention lends formal
support to the participation and autonomy or
self-determination rights of children. That is,
nearly one fourth of the substantive articles
are participation and self-determination
rights, including the following protections
and freedoms: personal and national identity,
access to information, movement and asso-
ciation, belief, expression, privacy, and
development toward independence. To use
the language that we have been using
throughout, the c­hildren’s human rights
movement seeks to recognize children’s
independent legal status. Families certainly
continue to figure prominently in children’s
lives, but unlike traditional conceptions of
children’s rights that saw those rights as
determined and controlled by children’s par-
ents, families exist to foster children’s rights
and self-determination.
Despite important criticisms, then, the
children’s human rights movement remains
relatively consistent. The primary model
aims to regulate the relationship between
children and the government, with parental
and familial involvement which, although
respected, essentially assumes secondary
importance. This approach is truly revolu-
tionary: it limits reliance on parental assur-
ance of children’s rights. Although the
children’s human rights movement remains
far from complete and potential conflicts still
remain, and although some rights are purely
aspirational, the current documents guiding
this movement do make clear that govern-
ments assume the role of protectors, benefac-
tors and standard-bearers. In a real sense,
international human rights law dealing with
children abandons the public/private, nega-
applicable copyright law.
tive/positive dichotomies. The children’s
human rights movement uses language indic-
ative of intent to impose human rights
obligations protective of children on both
­ rights and would no longer ­presume a direct
state parties and private actors. It does so by
granting children a person status independent
of their parents. By placing the burden on
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 48
governments to take affirmative steps toward
fostering children’s rights, these modern
developments go a long way toward assuring
children’s independent, full legal personhood
status.
THE SIGNIFICANCE OF HUMAN
RIGHTS APPROACHES TO
RECOGNIZING CHILDREN’S LEGAL
STATUS
We already have seen the tensions that guide
jurisprudence relating to children’s legal
status as well as those embedded in family
law. International developments in children’s
human rights potentially provide important
ways to revisit these tensions and can help
transform the manner in which societies
view children’s legal status. These transfor-
mations can occur for a variety of reasons,
but all rest on the way that the human rights
approach provides a universal standard on
which we can evaluate children’s status in
law and society.
Human rights developments foster the
notion that rights are indivisible, that govern-
ments have both affirmative obligations as
well as obligations to resist infringing in
people’s lives. This remains a troublesome
position for governments that view basic
rights as limitations on governmental actions,
rather than viewing rights as requiring affirm-
ative state action. It becomes even more
troublesome when a government’s basic
­conception of rights also presumes autonomy
and a direct relationship between the indi-
vidual and the state. The position also, of
course, continues to be problematic for coun-
tries that focus less on limiting government’s
role in controlling individual’s lives. Accepting
the human rights approach would mean adopt-
ing a completely different stance. It would
require protecting the entire gamut of human
relationship with the state as a necessary
­prerequisite for assuring those rights. Human
rights developments permit impinging on
05-11-2013 15:40:54
 Childhood as a Legal Status 49

parental rights. Although human rights law autonomy a principal goal of the family. The
explicitly states that parental rights will be same is true for non-Western societies, those
respected, the assertion that their children which have been characterized as viewing
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or

have state-guaranteed rights necessarily children’s legal status as one of responsibility

weakens the parental role as traditionally
conceived. As the laws now stand, the ten-
dency has been to have the state remain a
minor legal actor in children’s lives. In con-
trast, under the human rights approach, the
minimalist intervention approach would be
replaced by a need for greater state supervi-
sion and the inevitable pressure to intervene
in family matters. Moreover, the weakening
of parental and traditional familial protec-
tions would reach far beyond current state
intervention to protect children, something
which has itself been controversial. The
traditional governmental intrusion into the
­ would ensure that parents respect and recog-
family domain to provide discipline and
­education would be supplemented by intru-
sion to ensure that the family appropriately
liberates and respects its children. The
modern human rights movement embraces
civil, political, and religious rights that are,
to the extent practicable, bestowed onto
children themselves.
Developments in human rights also essen-
tially entail reimaging the role of parents and
the family. The human rights movement
regards increased governmental ‘interven-
tion’ in the family as the best protection for
children’s rights. Governmental intervention
between parents and children raises i­ mportant
psychological, social, moral, and political
issues. The moral and political implications
of this issue already have emerged in the
diverging approaches to children’s rights.
The move toward increasing children’s
independent rights has been fraught with
­ playing down their personhood by ascribing
controversy over the role of the children’s
voice, the parents’ authority, and a govern-
ment’s responsibilities. Resistance is likely
applicable copyright law.
for their parents and families (see Panter-
Brick, 2002); and this is especially true in
societies that perceive children as a family
resource (in the context of sub-Saharan
Africa, for example, see Rwezaura, 1998),
a perception that runs counter to the idea that
children are separate individuals vested with
certain independent rights. In many ways, the
human rights movement adopts a different
and opposing stance. Under the human rights
framework, not parents but states would
ensure that children’s rights were respected
and recognized; and, in doing so, states also
nize children’s rights. The human rights
movements invoke governments as the insur-
ers of children’s legal status.
The human rights framework also involves
accepting its clear policy choice, a stance that
could revolutionize jurisprudence regulating
family life. Its potential import in this regard
simply cannot be overstated. Underlying the
human rights movement is the belief that
children’s legal personhood should be
respected. The movement dictates that chil-
dren’s views should be heard and that their
liberty should not be taken capriciously.
Furthermore, it requires that their mental
health be protected and promoted and that
their familial relationships preserved. To
implement the human rights movement, legal
systems would have to recognize children’s
capacities. Legal systems no longer would be
able to merely salute children’s rights while
vulnerability and incapacity to them as to
render them dependent and rob them of their
rights. In addition, legal systems would have

to continue. In the United States, for exam- to consider children’s best interests when
ple, the current trend has swung toward making decisions affecting their lives.
respecting greater parental authority. This Although the best interest standard currently
trend places emphasis on the sovereignty of pervades jurisprudence that seeks to recog-
the normal parent whose affection and nize children’s interests in legal responses
self-interest combine to make the child’s
­ to their circumstances, the standard leaves

EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667

BK-SAGE-MELTON-130602-Chp03.indd 49 05-11-2013 15:40:54

 50 THE SAGE Handbook of Child Research
v­ irtually unbridled discretion in the hands of
those who would determine what constitutes
children’s interests. The reason for this inde-
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
terminacy is that there currently is no state-
ment of key values that should be honoured
in matters pertaining to children and fami-
lies, and societies continue to fluctuate about
which rights should be assured children and
when those rights should be assured.
However, the human rights approach would
transform the ‘best interests’ standard by
providing a forthright statement on compet-
ing and merging interests in family settings:
children come first.
The moral and political implications of the
‘children first’ stance promoted by the human
rights movement become even more obvious
when one begins to consider some of its pos-
sible legal consequences. The historical
record reveals, for example, that when ado-
lescence was conceived, it was merged into
the familiar category of childhood, with its
attendant need of protection and nurturing.
The result of this conception was that adoles-
cents’ rights were limited because of their
status. Although there was a burgeoning
march away from the child as a dependent
person and a move toward the view that they
could enjoy independent legal rights, most
recent legal developments have continued to
curtail the rights of adolescents and to subor-
dinate them to adults. For instance, the con-
stitutional rights of minors in the United
States are still limited because of their status,
because they are always in some form of
custody. Thus, adolescents and children not
only are subject to control by their parents,
but are also subject to control by educational
and similar institutions. Moreover, legal sys-
tems consistently have declined to require
that full legal standards of protection be
applied to those relationships. As a result,
applicable copyright law.
numerous regulations and practices could be
challenged under the human rights standard.
These could range from re-examining
positions on juvenile nocturnal curfews,
­ will not necessarily ‘fix’ them because we
cultural or race-matching adoptions, child
­ would need to resolve the fundamental prob-
custody decision making, school curriculum,
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 50
prosecution and incarceration of juveniles,
corporal punishment in schools, special edu-
cation programs, out-of-home care for chil-
dren, illegitimate children’s status, and
parental notification requirements in teen
abortion decision making. That the human
rights movement opens the door to debates
on these issues is nothing short of phenome-
nal and offers important opportunities to
examine the nature of children’s legal status.
In the end, the need to re-examine these
areas of jurisprudence, and the great hesi-
tancy to develop mechanisms that foster
children’s own rights, essentially results in
the need to avoid a myopic view of rights
when determining the legal status of chil-
dren. Recent lessons relating to efforts to
recognize children’s rights again are instruc-
tive. Earlier interventionist efforts have high-
lighted strong reasons for caution (Levesque,
1995; Sealander, 2003). Rights-based models
themselves have been challenged for failing
to protect children, parents and families (see
Levesque, 2008a). Recent examinations of
child welfare law reveal, for example, that
official decisions are often driven by racial
biases and political expediency. Equally
problematically, procedural safeguards and
court adjudications that are designed to pro-
tect rights often do not lead to careful, relia-
ble decisions. In addition, state intervention
to protect a child’s right to be free from abuse
and neglect may be essential in some cases,
but intervention also may come at a high cost
to the child in the typical child welfare cases
when removals are based on such factors as
lack of familial resources and less than ade-
quate available alternatives to care. Myopic
views of rights might assume that the rights
bearer is an autonomous individual seeking
freedom from the state. Yet, vulnerable indi-
viduals need more than autonomy; they need
concrete assistance.
These realities support the conclusion that
simply adding resources to current systems
lems associated with myopic views of rights.
05-11-2013 15:40:54
 Childhood as a Legal Status 51
Children’s relationships are part of a web of
complex systems, much of which are not
fully understood. It also is unclear whether
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
legal systems would welcome or operational-
ize findings from social science; any attempt
to interfere in children’s lives and relations
might very well be made without the benefit
of findings from research that has at least
attempted to understand the nature of those
relations. These realities confirm the need to
consider the legal status of children as we
seek to understand their place in society.
Admittedly, much still needs to be done to
turn aspirations into reality (Freeman, 2000;
Rwezaura, 1998). Despite words of caution
and nagging pessimism about the potential
impact of the children’s rights movement, the
children’s human rights movement actually
has led to a significant proliferation of
regional and international changes in its wake.
On the fifteenth anniversary of the adoption
of the Convention, UNICEF (2004) con-
ducted an analysis of 50 countries to deter-
mine the extent to which countries had
engaged in law reform consistent with the
Convention’s obligations and principles. The
study concluded that the Convention had been
incorporated into the national legal frame-
work of most of the countries under analysis,
either through its automatic integration
through existing constitutional principles,
constitutional reform, or by legislation spe-
cifically designed for that purpose. The study
further found that incorporation of the
Convention into national legal systems is
nearly universal in Central and Eastern
Europe and Latin America. Importantly, it
also was found that some countries have
enacted ‘children’s codes’ while others have
opted for more gradual reform of different
legislation concerning children, with a focus
on regulations. Others have focused more on
applicable copyright law.
the design and implementation of programs
rather than on law reform itself. All of these
efforts constitute critical components of com-
prehensive approaches to protecting children’s
rights and ensuring different ways to recognize
that children actually do have a legal status.
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 51
CONCLUSION: FOSTERING
AN APPROPRIATE LEGAL STATUS
FOR CHILDREN
Across the globe, children occupy a peculiar
legal status. There are many ways to express
that status, but it appears clear that a new
standard has emerged on which we can
evaluate it. The human rights movement has
asserted a number of rights for children
worldwide. This has resulted in an ambitious
agenda to reconfigure children’s legal status.
This movement gains considerable signifi-
cance in that, in addition to formulating basic
principles to help implement these rights, the
international community has taken upon
itself a legal obligation to put the recognized
rights and principles into practice. The move-
ment has carefully formulated principles to
foster the development of rights while still
leaving room for some flexibility and cul-
tural interpretation, especially in terms of
children’s status in families. The movement
has heralded a change in the prevailing
approaches to determining children’s status,
from highlighting the needs of children and
their dependency on families to defending
their rights as citizens. As a result, the move-
ment has fostered efforts to reconstruct the
entire concept of children’s status. The global
community is on the move to recognize that
children have their own, independent status.
Recent developments in conceptualizing
children’s legal status attempt to address two
important tensions: inclusion and separation.
The first tension involves an effort to extend
to children the already recognized founda-
tional rights adults already enjoy. This effort
at inclusion would be true for a panoply of
rights regardless of a particular country’s
focus on rights either as protections from
governments or as governmental protections
in the form of addressing social needs.
Regardless of the orientation, addressing
children’s peculiar status would mean that
we must address children’s capacity to par-
ticipate and exercise civil liberties. The
second tension involves the extent to which
05-11-2013 15:40:54
 52 THE SAGE Handbook of Child Research
children’s peculiar status engenders specific
entitlements to respond to vulnerabilities that
may arise because of their status in diverse
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
societies. This effort to separate children’s
specific needs would be true for numerous
rights relating, for example, to the need to
recognize children as a group for special
interventions, such as rendering them a prior-
ity group for education, health, and anti-
poverty programs as well as efforts to protect
them from harm and exploitation due to their
special status as children. Regardless of a
country’s efforts in these areas, recent con-
ceptual developments tell us that children
should be taken on their own terms, as indi-
viduals requiring distinctive and particular
approaches to rights that recognize their
peculiar legal status.
A look at legal history reveals that, upon
discovering the biasing and excluding effects
of a status and then deciding to address it,
legal systems’ default responses typically
seek to incorporate the group into dominant
legal responses. Recent developments in con-
ceptualizing children’s legal status clearly
could be viewed as embracing this approach,
but children’s peculiar status may require
more. Despite the tendency to have children
become beneficiaries of new programs and
recognitions, a deeper reflection reveals that
children are embedded in relationships, espe-
cially families, and that their legal status also
is embedded in existing areas of jurispru-
dence, such as family law. This continues to
be true throughout legal systems. This reality
presents important opportunities and chal-
lenges. The focus on children’s independent
legal status strongly challenges conventional
views. Efforts to reconceptualize children’s
status still recognize the important role of
families, but they also seek to ensure that
children benefit from shifting moral, politi-
applicable copyright law.
cal, and practical orientations that ultimately
determine how we treat one another. As citi-
zens, children have rights that entitle them to
the resources required to protect and promote
their development. These rights mean that we
must revisit how legal systems define rights,
approach relationships, and envision families
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 52
if we are to understand and eventually influ-
ence the status of children.
ACKNOWLEDGEMENTS
I would like to express my appreciation to
Sara M. Walsh, who has helped collect com-
mentaries relating to the rights of children
outside the United States.
REFERENCES
Andrews, A.B. and Kaufman, N.H. (eds.) (1999)
Implementing the U.N. Convention on the Rights of
the Child: A Standard of Living Adequate for
Development. Westport, CT: Praeger.
Blackstone, W. (1765, 2001) Commentaries on the
Laws of England. Vol. 1. London: Cavendish.
de Berry, J. (2001) ‘Child soldiers and the Convention
on the Rights of the Child’, Annals of the American
Academy of Political and Social Science, 575(1):
92–105.
Flugge, S. (1996) ‘On the history of fathers’ rights and
mothers’ duty of care’, Cardozo Women’s Law Journal,
3: 377–97.
Freeman, M. (2000) ‘The future of children’s rights’,
Children and Society, 14(4): 277–93.
Guggenheim, M. (2005) What’s Wrong With Children’s
Rights. Boston, MA: Harvard University Press.
Hernandez-Truyol, B. and Luna, J. (2006) ‘Children
and immigration: International, local, and social
responsibilities’, Boston University Public Interest
Law Journal, 15(2): 297–317.
Levesque, R.J.R. (1994) ‘International children’s rights
grow up: Implications for American jurisprudence
and domestic policy’, California Western International
Law Journal, 24(2): 193–240.
Levesque, R.J.R. (1995) ‘The failures of foster care
reform: Revolutionizing the most radical blueprint’,
Maryland Journal of Contemporary Legal Issues,
6(1): 1–35.
Levesque, R.J.R. (1996a) ‘Future visions of juvenile
justice: Lessons from international and comparative
law’, Creighton Law Review (Special Issue: Issues in
Juvenile Justice), 29(4): 1563–85.
Levesque, R.J.R. (1996b) ‘International children’s rights:
Can they make a difference in American family
policy?’, American Psychologist, 51(12): 1251–6.
05-11-2013 15:40:54
 Childhood as a Legal Status 53
Levesque, R.J.R. (1998) ‘Educating American youth:
Lessons from children’s human rights law’, Law &
Education, 27(2): 173–209.
Copyright © 2014. SAGE. All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or
Levesque, R.J.R. (1999a) ‘Piercing the family’s private veil:
Family violence, international human rights, and the
cross-cultural record’, Law & Policy, 21(2): 161–87.
Levesque, R.J.R. (1999b) Sexual Abuse of Children: A
Human Rights Perspective. Bloomington, IN: Indiana
University Press.
Levesque, R.J.R. (2000) Adolescents, Sex, and the Law:
Preparing Adolescents for Responsible Citizenship.
Washington, DC: American Psychological
Association.
Levesque, R.J.R. (2001) Culture and Family Violence:
Fostering Change through Human Rights Law.
Washington, DC: American Psychological Association.
Levesque, R.J.R. (2002a) Dangerous Adolescents,
Model Adolescents: Shaping the Role and Promise of
Education. New York: Plenum/Kluwer.
Levesque, R.J.R. (2002b) Not by Faith Alone: Religion,
Adolescence and the Law. New York: University Press.
Levesque, R.J.R. (2006) The Psychology and Law of
Criminal Justice Processes. Hauppauge, NY: Nova
Science Publishers.
Levesque, R.J.R. (2007) Adolescence, Media and the
Law. New York: Oxford University Press.
Levesque, R.J.R. (2008a) ‘Regardless of frontiers:
Adolescents and the human right to information’,
Journal of Social Issues, 64(4): 725–47.
Levesque, R.J.R. (2008b) ‘Rethinking Laws Regulating
Child Protection’, in Child Maltreatment and the Law:
Returning to First Principles. New York: Springer, pp.
169-92.
applicable copyright law.
EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 5/22/2014 2:45 PM via UNIVERSIDAD CATOLICA DE
MAULE
AN: 686617 ; Melton, Gary B., Ebooks Corporation.; The SAGE Handbook of Child Research
Account: s7053667
BK-SAGE-MELTON-130602-Chp03.indd 53
MacDonald, T.H. (2007) The Global Human Right to
Health: Dream or Possibility? Oxford: Radcliffe
Publishing.
Melton, G.B. (1996) ‘The child’s right to a family envi-
ronment: Why children’s rights and family values
are compatible’, American Psychologist, 51(12):
1234–8.
Myers, W.E. (2001) ‘The right of rights? Child labor in
a globalizing world’, Annals of the American
Academy of Political and Social Science, 575(1):
38–55.
Myers, J.E.B. (2006) Child Protection in America: Past,
Present, and Future. New York: Oxford.
Panter-Brick, C. (2002) ‘Street children, human rights,
and public health: A critique and future direction’,
Annual Review of Anthropology, 31(1): 147–71.
Santosky v. Kramer, 455 US 745 (1982).
Sealander, J. (2003) The Failed Century of the Child:
Governing America’s Young in the Twentieth
Century. New York: Cambridge University Press.
Rwezaura, B. (1998) ‘Competing ‘images’ of childhood
in the social and legal systems of contemporary Sub-
Saharan Africa’, International Journal of Law, Policy,
and the Family, 12(3): 253–78.
UNICEF (2004) Summary Report of the Study on the
Impact of the Implementation of the Convention on
the Rights of the Child. Florence, Italy: UNICEF
Innocenti Research Center.
United Nations (1989) Convention on the Rights of the
Child, GA res. 44/25, annex, 44 UN GAOR Supp.
(No. 49) at 167, UN Doc. A/44/49 (1989), entered
into force 2 September 1990.
Wisconsin v. Yoder, 406 US 205 (1972).
05-11-2013 15:40:54