Relations between the context family-childhood in
contemporary society.

The child as subject of rights


Jorge A. Valladares
Coordinator of the Juridical Program.

 "Any society that demands the fulfillment of duties before recognizing rights is totally unjust". 

                                                                                                                           Raúl Zafaronni 

a.- The child as subject of rights. 

Whoever has been in contact recently with the world of childhood or those who worked in this area before 1989 can attest that our generation has seen a fundamental change in what childhood is and should be.

As much at the level of values as at the political-program level, the approval by the United Nations of the International Convention on the Rights of the Child has marked a "parting of waters", a before and an after in the way we see, interpret and care for children. 

It is interesting to note that historically the first groups to attend and respond to family abuse of children were agencies devoted to the protection of animals.  

Our societies created a system based on the protection/guardianship of children, but the desire to protect brought the negation and infringement of basic, fundamental rights of children. Who can forget the so called "closed systems" that institutionalized children and made the State overlook and forget the growing dissolution of families? Who can forget that through its administrative and judicial systems the State related social problems such abandonment or extreme poverty to the same agencies that looked after young people in conflict with the law? 

We cannot forget the times when school or family discipline was tantamount to pure and simple violence against the child. 

The International Convention on the Rights of the Child can be reduced to one principle: To arrive at the recognition that children be considered subjects of rights and therefore exist as a social category. 

b.  Three examples of responses to irregular situations: 


Historically, the lack of a public social policy towards children and the family on the part of the State created an obvious mix-up of attributions among the powers of the State. The executive power did nothing and the judicial power, through its "jurisdiction of minors" throughout the twenty century, concentrated its administrative prerogatives in deciding social problems and at the same time dealing with children braking the law.  

In this context, children who were passive subjects of crimes such as battering, violation or abandonment by the family were dealt with at the same centers and together with adolescents in conflict with the law, and this with disregard for age or due process. All that was done in the name of guardianship/protection.


The doctrine of the Irregular Situation also derived in the configuration of a justice system that did not recognize the fundamental rights of the young person, thus creating a system of penal justice that was arbitrary and unconstitutional. 

The application of penal sanctions that did not exist in the common penal law, such as measures of privation of liberty that were not qualified as such or violation of all guarantees of due process, were commonplace in those systems.  


Under the name of guardianship/protection, the administrative system as well as the judicial system created an image of children that corresponded to the States modus operandi.  The children were seen as objects of protection. Nationally and internationally the children were recipients of protection measures but without a juridical framework that would recognize their fundamental rights.  

c.- Progressive development of guidelines dealing with the rights of the child: 

The two great channels for reform and alignment promoted by the International Convention on the Rights of the Child were legislative harmonization and institutional realignment.

d.- The present state of the reforms 


In spite of the improvements in legislative reforms and the revision of the institutional tasks in both the public and the private sector, some people and institutions still maintain today the principles and practices of the doctrine of the irregular situation resting under the shadow of normative traces still present in the new legislation. Protection measures are still being applied without proper justification.  


Another sector manages to place itself right into the historical process of social reforms, aware that this is an ongoing process and even keeps learning and searching for new formulas to integrate and give flesh to the principles of the International Convention on the Rights of the Child. This sector is fully aware of the practices that go against the doctrine of comprehensive protection and tries to correct them. At the same time, it

keeps promoting the harmonization of legislation with the international norms and directions. 


Aware or not that the process of changing the practices at institutional, community, family and personal levels is still at its inception, they promote repressive measures to deal with key topics such as adolescents in conflict with the law, adoption, sexual education and child labor.  

e.- Is there a contradiction between recognizing the rights of the child and the rights of the traditional family? 

In the present context, this topic of the apparent conflict between laws recognizing children as subjects of rights and the classic right of the family based on guardianship is being debated.

The Convention on the Rights of the Child offers broad dispositions regarding rights and guarantees for children but it also contemplates the limits in exercising those rights with respect to the authority of parents or guardians. 

" States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures." (Art. 3.2) 

" 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". (Art. 5)

Also the Convention clearly defines the criteria for the exercise of other rights such as freedom of expression (Art. 12, 13), freedom of thought, of conscience and religion, respecting the rights and duties of the parents 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. (Art. 14). There are also recognized the rights of the child to freedom of association and to freedom of peaceful assembly. " No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others." (Art. 15). "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honor and reputation." (Art. 16)

This shows that the Convention, far from diminishing the role of the family, strengthens and centralizes it. What is actually failing, with or without a Convention, is the strength and constitution of the family in this context of a global economy, consumerism and social and family violence.  

In view of this, the debate should be directed to clearly define the situation and options of the family role in the formation of healthy children in the widest sense of the word. There are not simple answers about the best ways to achieve the comprehensive development of children and the family. 


I will dare to discuss a topic that does not belong to the juridical world, but that will give us the opportunity to escape the world of what "should be" and somehow deal with what "is" in the area of international norms.

       ·        Role of the family as agents of socialization
Role of the global mass media
·         Child abuse, the saddest of the infringements of the rights of the child.

These are three faces of the same issue. It is within the family that we can measure the profound impact of these three aspects of contemporary society. Let's briefly analyze these three aspects from the point of view of the family, its responsibility, its rights and obligations.


                ·         Teach values
          ·         Foster good habits and practices
          ·         Create good citizens
          ·         Form human beings for peace, democracy and sustainable progress. 

These might sound like principles considered conservative or anachronistic but in any case the family should be the meeting ground for the formation of these values and many others within the context of our occidental culture. 

Corruption, social violence, drug addiction, prostitution, are anti-values that for most of us seem removed and of mysterious origin. The truth is that there is no "school for parents" and therefore even the simple notions of how to transmit good behavior patterns are far from being comprehended and applied in many social strata.  


We have a society built on global information and still do not understand the implications that this has in our lives. Sometimes we refuse to accept the impact (often positive) the media has in our lives.

             - Internet
            - Television

            - Cinema
            - Press
            - Written media
            - Radio 

They all march to the tune of the laws of free market. They sell, without filters, without control, that for which there is demand, with our complicity as parents or users of vast information that gets obviously, also to children. 

Let's estimate the hours that our children spend in front of the TV and compare them with the time we offer them for dialog and participation. 

The best way to overcome a problem is to admit it. Socially our children are being inevitably molded by the mass media. The family is not any more the only mold for socialization and precisely because of that it needs to be strengthened, re-evaluated.

The attraction of mass media is hypnotic to children and gets reinforced by the use (abuse) of the adults.


      -          "The crime encircled by silence"
Between the four walls of a home
The harm that usually comes from someone who loves me, or who should love me. 

It is already well know who practices it, how badly and what effects it causes. We already have more than sufficient literature on diagnosis and rehabilitation. 

The most frequent place for child abuse is within the family, with devastating consequences.  Many call it "the torture that scourges childhood". Abuse, an anti-value, is learned at home (as many values are learned at home) and affects all aspects of the personality of an individual. It is even transmitted from generation to generation, from parents to children. Those who suffered it as children end up practicing it as parents.

In conclusion: 

Are our families playing a proper role in terms of socialization, control of violence and abuse?. These are just some of the elements of socialization that are part of the family duties.  

The role of the family in recognizing the rights of the child is even more important but families are just beginning to learn to see children as subjects of rights. Behind the social tragedy of abuse, violence or anti-social actions there is always a family that failed in fulfilling its social duties.  

The challenge is to reclaim the importance of the family in the social sphere as teacher of values and a place for development.