“Children’s Rights and their Relation to the Different
types of Families”  

David Calderón
MEXICO

Introduction: Defining rights before acting 

There are many factors that promote the increasing boom of human rights, ranking from diplomatic politics to electoral opportunism; but among them, the disclosing and proposing work of scholars, activists and officials, as well as the decisive commitment of those who are responsible for their own and other’s present situation, are not minor contributions. In any case, this almost universal convocation does not exempt –but rather demands– the analysis of their implementation. Having clear ideas is the best foundation for a successful action. This event provides us an extraordinary opportunity to deepen its understanding and explore the best possible options in order to avoid making mere declarations of adherence to rights but to address actual promotion processes. In the words of Javier Muguerza: ...never before human rights had a comparable degree of worldwide juridical recognition. Such recognition turns these rights –above or below their rather frequent violations where they are enforced and their general non compliance where they apply only nominally– in a sort of irrefutable fact. Now, to turn a right into a fact –using a famous and celebrated sentence– no reflection can be spared…[1] 

In the next sections I dare submitting for your consideration a journey through concentric circles. I propose to revisit, although briefly, a reflection on human rights and then focus our attention on children within the context of their family structures. Finally, I wish to address with you the role of public policies as strategies for the implementation of the integral exercise of rights.  

1. Children’s Rights  

Let us consider the first issue. The term “rights” obviously encompass a wide range of analogical enunciations. When we refer to rights we mean a series of actual human possibilities, a series of expressions of human self-deployment that turns any non justified restrictive intervention into an attempt to the most basic aspects of coexistence. The term “rights” then refers to a model of mankind, a definition of a full human being that postulates him/her as free and dignified, open to relations, guided by his/her own conscience, expressive, sane, creator of culture, etc. This fulfillment is conceived as a regulatory framework rather than an already achieved fact and thus results in a valid source of expectations that should in principle be promoted and safeguarded.  

It is therefore a postulate in which the true being of men, women and children demands its gradual and ongoing implementation throughout their existence by means of a conscious and voluntary action; such action, which is ultimately personal, legitimately requires the community respect and support, both informal and formal.  

Thus, this requirement, typical and innate, to reach the most complete and rich “being oneself” is stated as a duty and projects on other human beings a corresponding solidarity to what is required.[2] My duty, non conditioned in principle, is my right; the respect for and facilitation of the scope of my right under fair conditions is the duty of every other human being.  

The decision to call them “human rights” simply highlights the a priori universal and general condition of these requirements, independently from the concrete characteristics of their holders, including not only sex, origin or social and legal capacity, but also their stage of life, their concrete and discreet merits –or demerits– and even the precise limitations of this “action” that defines the possibilities of human beings. That is the case of the rights of those who are intellectually disabled (for example, with deep mental retardation), of terminal patients, of children, of babies to be born, etc.  

In essence, the only right, the right to be oneself, is nothing else than a requirement of human inviolability, the recognition of its unavailability and its eminent dignity; it consists of a sound core that compels to postpone any other “concrete desire” and submit it to the respect for and assurance of the original right.  

To make it simpler for the purpose of this presentation, let us recall that fundamental civil rights have been called “first generation” rights; “second generation” rights correspond to a fair trial and political participation, while “third generation” rights are social and cultural rights, related to due support and to the project that is shares under actual living standards. The latter are those to which we most explicitly refer when we mention children’s rights, such as provided for in the 1989 Convention on the Rights of the Child and subsequent protocols.  

Social rights are also natural rights because, for example, my right to obtain sustenance for me and my family, or to preserve the health of our children, is not “granted” or “assumed a posteriori”. The programmatic nature of social rights does not imply their resistance to a methodical scrutiny or accountability.[3] Neither civil rights nor social rights are such “because of” other people, because nobody grants them but recognizes them; but they cannot exist, they cannot be implemented “without” the other people.   

Ferrajoli cleverly states that rights are “the law of the weakest”, substantial rights because they are not merely formal (based on whom decides or how) but they refer to the essence or contents of the decision (“what is decided”)[4]. Thus, democracy requires the integrity of the relation between its political or procedural dimension and its substantive or guaranteeing dimension. Children’s rights cannot –should not– be subject to the asymmetry of purchasing power or voting caprice, government ideologies or NGOs circumstantial agendas. Revisiting Dworkin’s reflections, we might say that a government with no effective commitment to fundamental rights is nothing else than organized brutality.  

Beyond the variety of origins and fortune of human beings that are part of the society, the recognition of fundamental rights implies the establishment of equally respected and appreciated rights which do not allow for the programmed marginalization of any person, family or group as far as the Common Well Being is concerned. In order to be more sensitive to factual inequality, it is necessary –precisely for the sake of the respect for equal dignity– to establish a regulatory framework combining the maximization of legitimate aspirations and the compensation of restriction and shortage.  

Nothing is more accurate than saying that the recognition of fundamental rights has a price, even a high one. Expressing the conviction of a common and con-divisible human nature is easy; what is difficult is to undertake the concrete, personal and social effort that such conviction implies. To recognize the fundamental rights is to accept a reduction of power, an exercise of self-restraint and discipline, not only for the market and the state but also for civil associations and international organizations. Let us ask ourselves, in an honest conscience examination, whether we always bear in mind the actual rights of children, or whether we frequently give in to the temptation of using them as a reference for a political platform, a notoriety strategy, the justification of a position or the use of a foundation’s resources.  

As well as the invocation of fundamental rights contains non critical elations, sometimes a somber skepticism on its value emerges, or rather on its feasibility. The lack of resources is certainly a problem, but, as already mentioned, it is not wealth what ensures justice; furthermore, preventing violation becomes even more necessary under shortage circumstances. On the other hand, the standardization of fundamental rights, of both their various qualities (the harmonization of civil liberties and cultural rights, for example) and their different holders (parental rights and children’s rights, for example) gives rise to formidable challenges which are in principle of a technical nature and non inconsistent with each other.  

As fundamental rights are different sides of one unique right, the right to be oneself, it is not logical that the exercise of one side implies the full obliteration of another. The limits of one right are also the limits of another, the misunderstanding of both would lead us to mutual interference if we consider them unavoidable. The indivisibility of fundamental rights involves an understanding criterion that should be recalled once and again in order to face both those who are reluctant, that is, those who despair in front of the costs involves in the enforcement of guarantees, and opportunists whose interpretation of rights aims to use them as an alibi to legitimize interests which do not represent true ethical needs.  

The same happens with the perspective that recognizing one person’s rights would mean to harm another’s. There is no such thing as the consistency of rights implies that their fulfillment outreaches everybody. The greatest extension of holders reinforces each person’s fulfillment instead of compromising it, because safeguarded assets are not tangible and subject to shortage; in any case, shortage could be present on their means or in the arena where they are exercised. 

For example, “the right to health” when properly understood, does not imply a guarantee that every person will reach an endless metabolisms, or will always have available a full-range package of hospital services and pharmaceuticals; it is rather a collateral for assuming the best possible effort to provide everybody the right care under limited physical conditions and the accountable duty of providing for the promotion of a hygienic environment with the least possible physical hazards, etc. To be extremely graphic, livers, hearts and other organs for transplant are subject to shortage due to their own nature; on the contrary, what is not subject to shortage is the equity of their assignment or the quality attention of the child requiring such transplant.

The guidance to decide upon a competitive assignment must be precisely the same nature of holders; the absence of an effective and positive solution in a concrete case reflects our present inability, not their inconsistency in principle. “Every right for everybody” is an intrinsically established slogan that responds to its own evidence. The question then is “how?”, that is, how we can identify a critical path allowing for matching personal and community commitment with rights, with the fulfillment of human life.

2. The various family contexts of children

Let us go now to the second circle. What challenges present the respect for and promotion of children’s rights within the family context?

Individual rights are implemented in true living conditions. The rights to security or health are no longer abstract when we related them to crime or morbidity rates. If a huge number of our children are the object of violence or if they die as result of preventable diseases, this means that we are still far from complying with the guarantee required by children’s rights. Without exhausting the requirements of rights, violation indicators establish, so to speak, the floor of those situations we should combat and overcome. Among the data provided by reality, the most significant ones have to do with the direct well being, such as child morbidity and mortality rates, poverty compound indexes, references to maltreatment events and situations, child abuse, neglect and abandonment, measurements of unsatisfactory development on physical (weight, height, coordination, etc.), cognitive and socio-emotional aspects, school failure results, etc. One further group of indicators has to do with the mid-term consequences of vulnerability: the ongoing dependence on assistance services, tendency to addictions, delinquency or depression. Finally, it is also worthwhile to consider more articulate elaborations on inclusion or exclusion, such as the correspondence between child and adolescent experience on one hand, and the adult final achievement of satisfactory levels of employment, academic development, the creation of new families or their participation as citizens.    

A digression should be introduced here. We should never forget that indicators are theoretical constructions based upon empirical data. They are signs, not the place we are heading to. I emphasize this because the strategies which –with the best possible will– intend to respect and promote rights frequently commit the error of looking for a mechanical decrease of indicators. We can then see that reality insists in contradicting us as many direct assistance measures do not modify the results (which have multiple causes) or either new and more serious violations appear. It is the same as in a medical treatment that is only intended to eliminate the symptoms without dealing with the origin. We may fed somebody up with painkillers and achieve a dramatic reduction of the present disorder, but if we do not deal with the actual disease it will worsen and reflect in other problems, not to mention the side effects which, in an overall and careful examination, could even worsen the situation.

When social assistance is so conceived, as a mere application of the national assets to the expression of violation, we are going along the wrong path. Some programs with commendable intents may have wrong basic strategies, as it happens when we undertake isolated actions dealing with child malnutrition and consider them as isolated individuals, sort of atoms which –as half filled glasses– must be industrially processed in order to increase their body mass. If we do not start from an integral approach of the human being, understood as a family and community being, we will be trapped in a paradoxical dynamics: increasing expenditure, larger coverage, more institutions –huge service mastodons with an administrative complexity where the best energies are wasted– and very poor results, dependency, fragility, absence of beneficiaries, etc.

Most children already live in a family context that does not represent the mere scenario of their lives but the fabric of their existence itself. Trying to respect and promote their rights without considering the actual situation of their families will condemn us to the superficiality and irrelevance of our solidarity. The key role of the family as far as rights are concerned must lead us to consider it not as an inert container, a sort of “train wagon” that simply acts as a vehicle that carries children towards their adult life. They do not just have a family; for good or wrong they are a family, they live their existence within a community with a deep background history.

Therefore, the various family structures have strengths and weaknesses which, for the purpose of understanding and solidarity, suggest the need for different but harmoniously coordinated strategies in order to reach their goals. The first useful typology should consist of approaching the different variations of families on the grounds of the presence and coexistence of a larger or smaller number of persons. As the family is a relation-based reality, the mere criteria of a “shared residence” are not enough to explain the family structure; thus, the distinction between “extended” and “nuclear” family may certainly be useful for census purposes, but it is hardly appropriate for a more complex analysis, as in a networking approach.

The fact of sharing the same domicile with a few or several direct or indirect relatives has an effect on children’s human development which is not rigidly pre-determined as positive or negative. The presence of several persons at home may plan an undeniable positive role when it involves economic contributions, an adequate distribution of domestic work and the care of the younger children, and when the environment represents a friendly and lively incentive for socialization and playing. On the contrary, when coexistence involves overcrowding, when sharing is more compelled by economic difficulties than by love commitment, when educational roles are confuse and all adults require contradictory attitudes from children, such a multiple presence may become a factor for early expulsion.

Simultaneously, the coexistence of two generations in one single residence may, subject to a wide range of causes, promote individualism and lack of solidarity, children’s affectionate neglect, a huge fragility vis-à-vis the unforeseen such as the loss of employment, a child’s disability or the death of one of their parents. On the other hand, through a healthy and rich incorporation to family and community networks that family dynamics may become a very favorable environment for children’s human development.

On the other hand, a more relevant distinction is the one that identifies the presence of both or one parent in the daily family reality. Vulnerability vectors increase remarkably with the absence of one parent, the father typically, particularly when such absence is due to a commitment that was not assumed at the time of creating the family or was disregarded in subsequent stages. In empirical studies this fatherly absence easily correlates to a detrimental situation in the most varied areas of vital expectations: a greater tendency to diseases, higher levels of school drop out and expulsion, an early initiation in sexual activities, a lower development of pro-social attitudes and so on[5].

In the societies in our continent, a family where a woman raises her children by herself must overcome numerous disadvantages which often turn into vicious circles of poverty and defenselessness. Besides the increased risk situation that experience the children of single or abandoned mothers, the father’s absence generally has also a negative incidence after divorce, even adopting more severe forms than in the case of widowhood. Children of cohabiting couples where the man is not the father, and children who live with their stepfather or stepmother in many cases show a limited development level, similar to children who live only with their mother. Therefore, temporary or permanent mono parenthood has significant implications on children’s well being and –as argued in a meta-analysis of European data[6]– unmarried fatherhood actually has more features of impoverishment than empowerment. 

The various compositions of the family that may emerge as a result of transitions in life cycles and adult commitment decisions show a range which, if considered by itself, is not yet enough to implement successfully our duty of solidarity to children. It is also necessary to consider the intersection of such factors as the overall income, the number of brothers and sisters and their degree of consanguinity, migration or displacement conditions, belonging to ethnic minority, education differences within the family itself. In brief, and moving to the last part of my presentation, I think it is important to note that our knowledge of families should focus on discovering their concrete decision-making strategies, their upbringing practices, their administration of income and expenditure, their cultural patterns, which are key elements in the promotion of and respect for children’s rights, instead of intending to establish taxonomies that, due to their analytical rigidity, turn to be non operational and confusing for concrete action.

An additional risk of such non operational and confusing characteristic is its relation the ideological polarization that emerges when families are deprived from their status of right holders and become the objects of political dispute. A fair concern and an honest indignation takes some people –in an unjustified manner as from that point– to consider the family promotion and strengthening measures that include both parents as offensive, chauvinist or traditionalist, as if the social effort for the benefit of all were an insult that implies discrimination or the rejection of other forms of life. On the other end, the recognition of the intrinsic strengths of numerous families and marriage stability –that empirical research correlates to positive effects on children– does not allow for assuming that such mere composition is an automatic guarantee for human fulfillment, as not only external impact may deter such dynamics but also the family dynamics itself may create a closed environment of abuse, unhappiness and limitations.

3. Public policies as a way to implement the advocacy and promotion of rights

Taking into account the diversity of conditions and integration of each family in our nations, social public policies consist of the suitable strategies for enforcing and promoting rights. Counting on plans, programs and institutions becomes a necessary requirement, although not enough to consider that there should only be one single public policy, because without a view of the general picture we will be subject to the exhausting dynamics of trial and error without effectiveness and lessons learnt. Let us briefly revisit the most typical distortions and failures in policymaking.  

a)    A public policy is a set of plans and programs. This limited approach involves two basic risks: first, it is an approach of simple goals instead of strategies, thus promoting work overlapping, lack of defined authority, fragmentation and competition among working teams, an specialization not focused on processes but on the mere results, an assessment focused on volumes (for example, expenditure or number of beneficiaries) instead of relevant results; in the second place, the emphasis on plans and programs leads to perpetuate them and consequently to perpetuate the dependency of beneficiaries, while we feel proud for their larger coverage without realizing that the greater success of a social assistance activity precisely consists of creation conditions where it should be no longer necessary.

b)    A social public policy is a government task. Without considering the risks of opportunism and exchange of votes for promises, we disregard the fact that peoples create institutions for themselves, for the purpose of facilitating the obtainment of their vital goals instead of giving up their sovereignty –at both private and community level– while deciding what such goals should be. Government agencies are entitled to a legitimate governing action, precisely because of the guaranteeing dimension of democracy, but that does not mean that implementation and activities should be restricted to those agencies and exclude civil society entities. The regulatory, coordinating and promoting role of the government has a subtle –or in some cases rude— authoritarian face that inhibits initiative, participation and joint responsibility.

c)    A social public policy consists of a package of individual assistance. This is a huge contradiction because the full development of human beings cannot be achieved by artificially breaking his/her bonds with community and family. Basic socialization is not an optional supplement but precisely one of the determining factors of the human person. Whenever regimes feel tempted to corporate action, they intend to consider their peoples as a group of workers under their management, “individuals” that should be provided assistance packages but have no real possibilities of revoking their management or demand for accountability. When regimes cowardly desert their social work, they intend to consider their peoples as an aggregate of economic agents, “individuals” that remain adrift of the ups and downs of the market, reluctantly supporting losers or the unpleasant economic dependents. This distortion tends to privilege compensation over prevention, the provision of tangible assets over the empowerment of capabilities, the intruding segmentation of the population, and the best energies are consequently wasted in extremely complex records, increasing administration and transfer expenditure and the above mentioned trend to deal with indicators instead of problems.

To use a positive tone, a public policy consists of the implementation of the social covenant that is expressed through a set of principles, criteria and action lines allowing for the relevance, consistency and assessment of government plans and programs. It is the set of institutional strategies that guarantee the state governance in the solution of national problems, while promoting the joint responsibility of civil society, demanding the cross-sectional action of the various powers and levels of government and establishing criteria for assessment, accountability and the ongoing improvement of the performance of institutions and officials.

Thus, for the full compliance with their objectives, public policies that advocate children’s rights need to keep a family and community perspective, not only due to the practical benefit that arises from joining resources that are not exclusively coming from the public treasure, but mainly to turn assistance into a true instrument of inclusion and integral respect for rights.

Which should then be the characteristics of a public policy under such perspective? It should obviously be articulated, a coordination exercise including the initiatives and demands of civil society entities but also and mainly those of families themselves, and addressing participatory diagnosis, citizen audit, agreements and partnership alliances.

It should be a global policy, in the sense of encompassing a full understanding of situations, including their legal, economic, fiscal, administrative, and cultural aspects, which requires an important professional and inter-disciplinary level in action design, operation and assessment.

It should be a cross-sectional policy, that is, it should actively and harmoniously involve all the government powers and sectors; as it deals with strategies and not with a mere set of actions, that cross-sectional nature does not imply the “obesity” of operational teams, but making the provisions of the various agencies consistent with each other, sharing information and experience, assessing impact, promote transfers, etc.

Finally, it should be integral, because children, as above states, deploy their vital experience within family and community networks; any attempt to improve their condition without considering the role of parents, grandparents and other relatives or the due support to their neighborhood, school and community, would make them a poor favor.

International meta-analysis studies, when comparing the true living conditions of children, provide some clue on the most fruitful and profitable action lines for integral development.[7]

For example, assistance services to families have a very modest effect in serious conflict and income deterioration situations, which suggests that employment strategies are preferred to circumstantial economic support, as well as investment in reinforcing successful upbringing practices and the soundness of family and community networks.

As Bernardo Kliksberg notes on the sterility of reducing criminal responsibility age in order to avoid child crime rates, thus victimizing child offenders doubly and disregarding the economic factors that might lead children away from such option, and taking into account the vulnerability related to the father’s absence, it would be advisable to consider incentives and support that may reduce the economic expulsion from the community of origin and prevent drifting away; to promote measures privileging family stability and satisfaction and reducing marriage dissolution factors or, in such dissolution has already occurred, to adequately involve absent parents in the joint responsibility of upbringing their children. A deeper and richer offer of family guidance and care of mental health is certainly more profitable for child well being that long, costly and threatening criminal trials.

The mere offer of sexual services and education in adolescence have a minor effect on the prevention of the early activity cycle –adolescent pregnancy – abandonment – lonely maternity– as compared to strategies for an even earlier extension of opportunities, such as quality education and participation in community and reflection activities.

The role of quality pre-school education is now emerging as a focus of positive dynamics that extend through time; it not only usually raises social abilities and long-term school performance but also facilitates the articulation of family dynamics and gives place to the possibility of mothers’ incorporation. As a confirmation of what was above mentioned, studies make us think that the outcome of programs targeted on early years –Sure Start, Head Start and the like– are highly sensitive to the quality factors of care, professionalism and participation; this means that positive results may vanish quickly in subsequent years if the situation is not approached in a multi-factor and jointly responsible manner.

In summary, the action lines that emerge from the best practices address the importance of strategies that had not been considered until recently: universal access to services instead of complex segmentation; a strong policy of full employment; the assurance of harmonization between working and family life; a strong investment on professionalization, counsel and conciliation; tax incentives and exemptions with a moderate income transfer; explicit reinforcing and extension of community participation. According to this new orientation, mention should be made of such strategies as the one applied in Sweden, where between 2 and 3 percent of GDP is allocated to early development and family-work harmonization programs.

Lastly, I am interested in addressing those tasks that are irreplaceable for the family and for its relationship to public policies. Families are the best instrument for the enforcement of children’s rights. It is evident that they are not the only one, because state agencies and civil society entities also play a relevant role. What I wish to highlight is that replacing a family as such is neither legitimate nor sensible. The aspiration of public policies should be the reinforcement of its positive dynamics, the removal of obstacles that impede their action and, in such dynamics is frustrated, the mitigation of its consequences and the presentation of protection, guardianship and adoption options, in that order of importance.

The family and community perspective concerning children’s rights implies, in my view, four lines of action: recognition, support, protection and promotion.

Recognizing the work of the family on behalf of children is not over with the vague enunciation of its occurrence, but requires the expert awareness and respectful appreciation of how it occurs. Institutions which intend to serve children must access reliable research findings for an ongoing deepening and improvement. This requires a thorough conscience examination as very little importance is assigned to this issue; one additional problem is the lack of transparency and access to information as it is not at all rate that research paid as gold by state agencies, and which have therefore become public assets, cannot be universally accessed and readily available. Many civil organizations file their demands without any objective and consistent grounds, by means of biased data and references; we, academicians, on some occasions are unprofessional and sloppy in delivering our views, and we underestimate with no reason the work of others and close our minds to inter-disciplinary scrutiny. If this is the work of intelligence, then the work of will should be to restraint the interventionist attempt so that recognition becomes the antidote of replacement. 

Supporting allows for grouping the plans and programs that intend to reduce vulnerability and therefore focus on the help required to minimize risks, remove obstacles and overcame disadvantages that impede or hinder the tasks that are the natural competence of families aimed to child development. As above mentioned, the avoidance of ongoing dependency and the mobilization of their own resources are essential. 

Protecting implies the activation of all safeguard strategies whenever the family structure or condition has already lost its favorable potential.  This solidarity-based sheltering should specially safeguard the children, because adult decisions have an impact on them and often leave no room to intervention or resistance. We should maintain the strong statement that were are all jointly responsible, that –for example– the so called “children in/of the street” are in fact children who have been expelled from their families and institutions, they are our children and show us the most dramatic face of our political, economic, and cultural failures. Protection, expressed as guardianship and adoption, includes the intent to come as close as possible to the positive dynamics of the full family; the successful inclusion of thousands of adopted children should renew our hope and encourage us to improve such transitions.

Promoting means to coordinate all promotion, incentive and encouragement actions. Children’s rights are not scarce assets but unlimited potential. The best prevention dynamics arises from the improvement of positive elements than from more severe tangible or intangible penalties. What should a national promotion policy be like? In this area we should certainly explore additional educational options, such as schools for parents and cultural animation projects, a close relationship with the social media, an early initiation in citizen participation, the professional drive of family-serving agents, the large national agreements preserving basic public policies and “armoring” them against changes in administration.

Conclusions

We have seen that children’s rights are not ideal aspirations but commitments that cannot be waived. There is no doubt on the importance for every body to contribute, as usually said “a little grain of sand”: either as a father, an expert, an official or an activist. But it is not enough. It is time to raise our eyes and demand from ourselves our corresponding share in determining the whole development of our children. We cannot conceive assistance any longer as popular improvement of gracious donations, as additional and paternalist actions, disconnected with each other, inefficient, irrelevant. Our children have a date with history, but not only in the future, but right now, in the present. Their rights are our responsibilities and public policies are best available instrument for the fair reallocation of social efforts. It may seem a paradox but the maturity of a nation is provided by its children, because whenever we deny, undermine or postpone their development we become seriously insignificant. Actions in favor of children can expect to be successful to the extent that aspirations are channeled through the nation’s social covenant. 

The French philosopher Pascal said: Justice without strength is impotence, strength without justice is tyranny. Justice without strength is always opposed by evil. Strength without justice is accused. Strength and justice should be put together, for which justice should turn strong, and strength should turn just[8].

Let us work for implementing, with no exclusion, the respect for and support of our children to “be themselves” within their specific family context, with all the strength of the nation and all the justice of rights.