Institutional Involvement with Children’s Rights: Interactions between the Family and the State
Introduction
“The problematic set of relationships between individuals, the ‘family’, and the wider society, particularly the state, cannot be wished, or even legislated away.”1
The complex issues grouped under the heading of “children’s rights” serve to highlight the intimate, frequently problematic, relationship between the institutions of the state and the family; while the “American family and the American government are inextricably intertwined”2, their interests often clash. I propose to unpack and explore the interaction between these two fundamental institutions in the arena of children’s rights. Specifically, I am interested in the locus of responsibility–if children have rights, which institutional sphere has the responsibility, duty or obligation to secure those rights? Do parents possess ultimate authority over their children? Does the state possess the authority, or even an affirmative duty, to intervene in family affairs? Such questions may best be addressed through a thorough examination of the three-way relationship between the child, the parent, and the state.
If one accepts Clifford Geertz’s assertion that law functions as a “window to culture”, an inspection of the laws and social policies dealing with children’s rights would provide one with considerable insight into both the nature of state/family interaction, and the conception of responsibility which arises from that interaction. Social policies reflect the zeitgeist; the law “both affects and is affected by the culture in which it arises.”3 Thus, a historical examination of children’s rights policy and law will highlight the changes in state/family interactions. By tracing the gradual development of laws governing children’s rights and the parent/child relationship, I hope to isolate the changes in the relationship between the family and the state. The existing sociological research and scholarship on the nature of the state/family relationship has tended to focus on the inclusive, rather amorphous category of “family law.” Those studies with a narrower focus, tend to concentrate on one particular aspect of family law: marriage/divorce regulations. My research would differ from much of the existing sociological research by focusing exclusively on the state/family interaction and construction of responsibility as they apply to the rights of children.
Currently, the state/family interaction is undergoing a significant change. According to scholars such as Mary Ann Glendon, in recent decades a “historic shift in the relationship of the state to the family has taken place.” She speaks of an “unparalleled upheavel in the family law systems of Western societies. . . . The legal norms which had remained relatively undisturbed for centuries were discarded or radically altered. . . . [additionally] in other branches of law not ordinarily thought of as family law, such as public assistance, official regulation has increasingly touched everyday life.”4
Contemporary laws and social policies dealing with children’s rights differ from past regulations both quantitatively–the family is subjected to more state regulations–and qualitatively–state policies and regulations reflect the “expanding public component of the therapeutic apparatus.”5 As Michel Foucault claims, psychology forms the “knowledge base for the new form of state autyhority.”6 Current state policies highlight how the “therapeutic form of coercion represents an extension of psychologically based governmental power.7 As Christopher Lasch asserts, “Today the state controls not merely the individual’s body. . . not merely the public realm, but the darkest corners of private life, formerly inaccessible to political dominations. The citizen’s entire existence has now been subjected to societal direction, increasingly unmediated by the family.”8 In the area of children’s rights, the therapeutic orientation is evidenced by the expansion of state concern for the external/physical well-being of the child, to a concern for child’s internal, emotional needs as well. There is a new concern with self-esteem and with the child’s opportunities for self-fulfillment and self-determination. Additionally, the proliferation of new government bureaucracies employing social workers, psychologists, and other “helping professionals”9 provides further evidence of the increasingly salient therapeutic orientation.
In addition to the historical changes in the law and social policy dealing with children’s rights, I will also use interviews with various government agents in both Wisconsin and Massachusetts to explore the changes in state/family interaction. I am interested in discovering the state agents’ conceptions of their roles within the state/government interaction. How do they view their interaction with the institution of the family? To what extent has this interaction actually changed over time; to what extent have these state agents abandoned their “traditional” historical roles? In the views of these social actors, where does the ultimate responsibility for the nation’s children lie? Who has the right to determine what is best for the child? As the state extends its involvement to new areas, and appropriates more “parental” functions, do state practitioners begin to view their interference with parental authority as problematic? Do they feel that their interaction with the family is generally conflictual, or does the family welcome the state’s intrusion/assistance? In other words, do the pressures on Poggi’s “state/society” line result from “the state being pulled over the line” by society, or is the state “pushing itself over it”?10
Research Background
When viewed on a historical time scale, the concepts of “childhood” and “rights” are both relatively recent social constructs; the very “terms ‘children’ and ‘rights’ had to be invented and reinvented by organized society.”11 As the research of Phillipe Aries and Norbert Elias has demonstrated, “no clear distinction existed between adulthood and childhood in the early Middle Ages”12; the social organization of the state was necessary to create this distinction. After entering into our cultural vocabulary, notions of childhood and rights remained malleable; the concepts of children and rights “create different associations at different times and are connected to different kinds of ideas.”13 This holds especially true for the concept of rights; throughout history, rights continue to be construed differently by different people: as defensive rights against others or as rights over others.
Before exploring the government/family interactions in the area of children’s rights, it is necessary to first develop a working definition of the phrase “children’s rights.” For purposes of discussion, these “rights” will be arranged into three groups: general/Constitutional rights, entitlements, and rights versus parents. The first category, general/constitutional rights, encompasses the various rights which were granted in the 1960s-70s through landmark cases, such as the Gault case. In this case, Gerald Gault, a 15 year-old boy accused of telephoning a housewife and “making remarks of the irritatingly offensive, adolescent sex variety,”14 was sentenced to be committed to a state juvenile institution until his twenty-first birthday.” The boy had no lawyer, the housewife never testiied, no hearing transcript was kept and no appeal was possible.”15 If Gerald Gault had been an adult, he would have received a jail sentence of two months maximum. The Gault case worked its way up to the United States Supreme Court, which in its 1967 opinion declared, “neither the fourteenth amendment nor the Bill of Rights is for adults alone.”16 The Supreme Court’s Gault decision granted children a slew of legal rights: the right to prompt notification of charges, the right to consult a lawyer, the right to avoid self-incrimination, and the right to cross-examine witnesses.
Such general/constitutional children’s rights are concrete; they may be granted at the national level through judicial interpretations of the Constitution, and at the state level through local court rulings and legislation. The state’s role in advancing such rights is generally accepted; general/constitutional rights are not overtly threatening to the institution of the American family. While general/Constitutional rights do increase children’s power in interactions with the legal institutions they leave another respected social institution, the American family, virtually untouched.
The second category of rights, entitlements, is more abstract and thus, these rights are more difficult to secure. Unlike the general/constitutional rights, they cannot be granted through a single judicial ruling. I have borrowed the term “entitlements” from Kenneth Keniston, Professor of Human Development, Massachusetts Institute of Technology. He defines entitlements as “broad ideals about what every child should have while growing up.”17 These basic entitlements include: the right to be loved, the right to be a member of a stable family, the right to housing, the right to healthcare, and the right to economic security. The Children’s Bill of Rights contains multiple examples of such intangible rights, such as “the right to grow up nurtured by an affectionate parent”‘8 As long as they remain in this rather abstract form, and largely divorced from specific policy proposals, such entitlements do not directly threaten or interfere with the family’s domain.
This is not the case with the third category of rights–rights versus parents–which includes the right to be removed from parental custody, and the right to legally terminate parental rights. In this category of children’s rights, governmental institutions may directly clash with the institution of the “family.” By actively advancing the rights of children, various state institutions, such as the juvenile court and the Department of Social Services, may be perceived as challenging parental authority. In such cases, the state uses its power to assert the child’s rights against his or her own parents. Understandably, some parents feel threatened by government interference and thus view the expansion of children’s rights as a direct affront to their parental rights.
The need for children to possess “rights versus parents” is well-documented: earlier this century, the Washington State Supreme Court refused to hear a suit brought by the young Lulu Roller, who claimed that her father had raped her, stating “the rule of law prohibiting suits between parent and child is based on the interest that society has in preserving harmony in the domestic relations”19. Fortunately, the courts no longer habitually place society’s interest in preserving domestic harmony above society’s interest in preserving and protecting the child’s best interests. However, some individuals still believe that the government does not possess the right to interfere with the institution of the family. These individuals believe that the locus of responsibility for children resides solely with their parental units.
Early in our nation’s history, this assumption that the family possessed the sole responsibility for children was dominant; the courts and other government bodies were loathe to interfere with internal family affairs.20 It was a “legal tenet that the state should refrain from crossing the threshold of the home, especially where the upbringing of children was concerned. The role of the government in providing for basic human needs was small.”21 Up until the mid-nineteenth century, the government did not involve itself in child and family policy. With the onset of industrialization and the resulting shifts in social structure, private voluntary organizations formed to protect children from the harsh conditions of working-class existence. Although the late nineteenth century proliferation of Societies for the Prevention of Cruelty to Children (SPCCs) and philanthropic Children’s Aid societies resulted in some conflict with the familial institution, these organizations were still reluctant to directly encroach upon parental authority.
The notion that the government could, and in certain cases, should act to secure and protect children’s rights did not gain social currency until the turn of the twentieth century. In response to the “repeated failures of the private system in coping with the needs. . . of the immigrant, some municipal governments began to provide publicly financed services to destitute, abandoned, and handicapped children.”22 With the creation of the Children’s Bureau in the Federal Department of the Interior in 1912 and the passage of the Sheppard-Towner Act in 1920, the federal government dramatically increased its role in child and family policy. Those concerned with family rights vigorously opposed this new, active governmental role; they believed that setting a “precedent of federal government inquiry into private family life and child-rearing was dangerous as best, socialistic at worst.”23
As the processes of modernization led to structural pluralism and to an increasingly bureaucratized modern state, the family came to be viewed, in Christopher Lasch’s terms, as a “haven in a heartless world.” Individuals withdrew into the “emotional fortress of the family…. [with the] hope that private satisfaction could make up for the collapse of communal traditions and civic order…. [But] from the moment the conception of the family as a refuge made it’s appearance, the same forces that gave rise to the new privacy began to erode it.”24 State interference with the family became increasingly bureaucratized; parental authority has been increasingly delegated to governmental agencies.
The state does possess a vested interest in promoting “healthy” families, for, as Margaret Mead stated at the 1973 US. Senate hearing on Families, “as families go, so goes the nation.”25 Families socialize children and instill the values which will ultimately turn them into productive citizens of the state. Additionally, as Mary Glendon asserts, “Families at all income levels are a major resource for the government, sharing the burdens of dependency with public agencies. . . . even with the proliferation of various kinds of public assistance, services, and institutional care, families are still the major means through which societies deal with dependency.”26
It is well-documented that the state plays an increasing role in the protection of children’s rights. As Poggi asserts, “the state tends to increase its power by widening the scope of its activities, by extending the range of societal interest on which rule is brought to bear.”27 However, the state’s growing appropriation of traditionally “parental” functions, has been, at least partially, in response to social demands: not only is the state pushing itself over the state/society line, but it is being pulled over this line as well. Currently, families expect and demand more from the state. During my January 1999 winter study internship with the Pittsfield Department of Social Services, I witnessed both cases in which the parents did not believe that the state possessed the right to interfere with their families and cases in which families welcomed state assistance (some families were perhaps too welcoming and appeared to rely on the Department of Social Services to, resolve all family problems.) The majority of the cases I observed fell in between these two extremes: in most cases, the relationship between the institutions of the state and the family was not overtly confrontational. Their institutional roles did not collide, but rather overlap and blur together. I observed numerous instances in which the distinction between the traditional institutional roles was blurred: Department social workers providing parenting advice, creating appropriate family rules, and acting as surrogate parents; juvenile court probation officers setting and enforcing curfews. As part of my investigation into the evolution of state/family interaction, I plan to explore how, and to what extent, the state and the family have abandoned their traditional roles.
Research Plan
I propose to explore the interaction between the institutions of the state and the family in the area of children’s rights. Tracing the development of children’s rights laws will allow me to examine the historical evolution of the state and family roles. While the federal and state governments are responsible for creating family policy, the individuals involved in local programs are responsible for interpreting and applying these policies. Thus, to understand the current state/family interaction, it is necessary to explore the conceptions local government agents hold of their own roles and responsibilities. Additionally, as currently the laws dealing with the parent-child relationship and children’s rights are rapidly changing, talking with the local officials will provide the most current information. Thus, I plan to conduct interviews with such individuals in both south-central Wisconsin and western Massachusetts.
In addition to building a broader theoretical/informational base of knowledge of both children’s rights and notions of state/family interaction, this upcoming summer, I will conduct extensive fieldwork in and around Madison, Wisconsin. In preparation for my thesis fieldwork, I have contacted Mary Beth Keppel, the Family Court Commissioner for Dane Country; she has agreed to assist in arranging interviews with the various social workers and judges closely involved with children’s rights. Additionally, I have been in contact with Nan Brien, the Associate Director of the Wisconsin Council on Children and Families, a research and watchdog group. This organization has offered me a summer research internship. To assist my thesis research, Nan Brien is willing to facilitate interviews, and has invited me to participate in the monitoring of children’s rights legislation in the capitol. In my dealings with this organization, I will take care to maintain a “sociological imagination” and perspective; rather than becoming a children’s rights activist, I will seek to understand how such individuals view their interaction with the institution of the family, and, more specifically, with parental authority. Where do they place the locus of responsibility for children’s rights?
As previously mentioned, during the month of January, 1999, I participated in the winter study course ANSO 012 “Children and the Courts” and thus had the opportunity to observe the workings of the Pittsfield juvenile court, the North Adams juvenile court, and the Massachusetts Department of Social Services. In addition to observing the Massachusetts Department of Social Services’ attorney, Judith Locke, in courtroom proceedings, I shadowed Megan Lieu, a social worker in the adolescent/ongoing protective unit; I was both introduced to some of the laws, regulations, and social policies dealing with children’s rights and provided with a “clinical”, therapeutic perspective on the cases. I kept an extensive journal of my experiences both observing the courtroom actors and accompanying Megan Lieu on home visits to families, meetings with therapists, skill-builders, and caseworkers. This past week, I have resumed contact with the course instructor, Judith Locke.
Beginning in late August and continuing into September, I plan to conduct and tape-record interviews with Attorney Locke, social workers arid possibly the juvenile court judges and probation officers. As with the interviews conducted in Wisconsin, I plan to ask open-ended questions while adhering to a semi-structured interview format. This will both lend uniformity to the interviews, and provide a sound basis for comparison and, ultimately, evaluation. In addition to conducting interviews, I plan to accompany social workers on home visits; this would allow me to observe the state/family interaction firsthand. Such observations are especially vital because, at this point, it is not certain whether or not I will be able to conduct formal interviews with client families. As such interviews would provide me with a more balanced, two-sided perspective on state/family interaction, I will strenuously pursue this avenue of fieldwork. I am fairly optimistic, for during my January Pittsfield internship, both parents and children were surprisingly open and candid with me. Regardless of whether I am able to conduct formal interviews with clients, I will observe the direct interaction of government representatives, parents, and children through activities such as home visits.
By both tracing and documenting the evolution in the roles played by the state, and conducting fieldwork in Wisconsin and Massachusetts, I plan to gain an understanding of the current conceptions of both state/family interaction and of the construction of responsibility. I am interested in exploring the extent to which the state has appropriated “parental” functions, as well as the implications of a “blurred” state-society line. Is the blurring of the state/society line in the area of children’s rights useful Will the state, or society as a whole, eventually take the place of the private family? I am intrigued by the prospect of exploring both the nature of the state/family interactions and their possible implications.
Bibliography
Books
Aiken, William and Hugh LaFollette, eds., 1980. Whose Child?: Children’s Rights, Parental
Authority, and State Power. Totowa, New Jersey: Rowman and Littlefield.
Brown, Robin. ed., 1994. Children in Crisis. New York: H.W. Wilson Company.
Clinton, Hillary Rodham. 1996. It Takes A Village. New York: Simon ~ Schuster.
Glendon, Mary Ann, 1991. Rights Talk: the impoverishment of political discourse. New York: Free Press.
Glendon, Mary Ann, 1989. The Transformation of Family Law: State, law, and family in the United States and Western Europe. Chicago: University of Chicago Press
Lasch, Christopher, 1977. Haven in a Heartless World: the family besieged. New York: Basic Books.
Lasch, Christopher, 1997. Women and the common life: love, marriage, and feminism. New York: WW Norton.
Nolan, James L, Jr., 1998. The Therapeutic State: Justifving Govemment at Century’s End. New York: New York University Press.
Poggi, Gianfranco, 1978. The Development of the Modem State. Stanford, Calif: Stanford University Press.
Poggi, Gianfranco, 1990. The State: it’s nature, development, and prospects. Stanford, Calif: Stanford University Press.
Polsky, Andrew Joseph, 1991. The Rise of the Therapeutic State. Princeton, NJ: Princeton University Press.
Zigler, Edward F., Sharon Lynn Kagan and Edgar Klugman eds., 1983. Children, families, and govemment: Perspectives on American Social Policy. Cambridge: Cambridge University Press.
Journal Articles
“Assembly Acts on Items Concerning Rights Of Child, Education.” UN Monthly Chronicle March 1981: 35-39.
“A ‘Bill of Rights’ for Children.” Scholastic Update, 3 January 1991: 3.
Bruce, Michael G. “Legacy of the Year of the Child.” Phi Delta Kappa, June 1980: 707-8.
Carpenter, Ted Galen. “The New Anti-Youth Movement.” The Nation, 19 January 1985: 39-42.
“Children’s Rights: The Latest Crusade. Time, 25 December 1972: 41-42.
“A Children’s Rights Movement?” USA Today, August 1984: 9-10.
Cottle, Thomas J., “Our Country’s Neglected Children.” Parent Magazine, December 1975: 36-7.
Cullingford, Cedric. “Children’s Social and Moral Rights.” Society November 1993: 48-60.
Dickerson, Debra. “Stiffer the Children.” The Nation, 24 June 1996: 4-5.
“Declaration of the Rights of the Child.” UNESCO Courier, January 1979: 18-19.
“Drive for Rights of Children.” US News & World Report, 5 August 1974: 42-44.
“Family Discipline, Intimacy, and Children’s Rights.” The Center Magazine, November 1981.
Gleick, Elizabeth. “The Children’s Crusade.” The Nation, 3 June 1996: 30-5.
“In Response to ‘Invasion of the Child Savers.” The Progressive, 6 November 1985: 6-8.
Keniston, Kenneth. “More Rights for Children–What an Expert Says.” US News & World Report, 31 October 1977: 33.
Lech, John. “Hillary’s Children’s Crusade.” US News & World Report, 31 August 1992: 28.
Ludke, Melissa, et al. “The Children’s Crusade.” Time, 3 June 1996: 30-5.
Manciaux, Michel. “The Right To Be Heard.” UNESCO Courier, October 1991: 13-15.
Nolan, James L, Jr. “Acquiesence or Consensus? Consenting to Therapeutic Pedagogy,” forthcoming.
Paulson, Monrad G. “Do Children Have Rights.” The PTA Magazine, February 1964: 7-9.
Peterson, Paul E. “Give Kids the Vote.” Harper’s, February 1993: 22-26.
“Rights ‘R US: Kids, Hillary & the Law.” Commonwealth, 8 May 1992: 4-5.
Salk, Dr. Lee. “Privacy: What Rights Do Children Have?” McCall’s, January 1979: 24.
“This is What You Thought.” Glamour, March 1993: 165.
Traver, Nancy. “They Cannot Fend for Themselves.” Time, 23 March 1987: 27.
Urquhart, Ian. “Let them eat cake and let them eat spinach.” Maclean’s, November 1978: 42.
Wexler, Richard. “Invasion of the Child Savers: No one is safe in the war against abuse.” The Progressive, September 1985: 19-22.
“Year of the Child Meets Positive Response on National Level.” UN Chronicle, July 1979: 97-100.
(Note: My bibliography is not yet all-inclusive.)
NOTES
1. Cedric Cullingford, “Children’s Social and Moral Claims,” Society, December 1993, p.52.
2. Edward Zigler ed., et al. 1983. Children. Families. and Government, p.98.
3. Mary Ann Glendon 1989. The Transformation of Family Law, p. 311.
4. Glendon 1989. p.306.
5. Andrew Joseph Pólsky, 1991, The Rise of the Therapeutic State, p. 211.
6. James L. Nolan, Jr., “Acquiesence or Consensus? Consenting to Therapeutic Pedagogy,” forthcoming, p. 124.
7. Nolan, “Acquiesence or Consensus? Consenting to Therapeutic Pedagogy,” p. 123-4.
8. Christopher Lasch, 1977. Haven in a Heartless World, P. 189.
9. Lasch, 1977, p.18.
10. Gianofranco Poggi, 1978. The Development of the Modern State, p. 31.
11. Cedric Cullingford, “Children’s Social and Moral Rights,” Society, December 1993, p. 52.
12. Cullingford, “Children’s Social and Moral Rights,” p. 52.
13. Cullingford, “Children’s Social and Moral Rights,” p. 52.
14. Time, “Children’s Rights: The Latest Crusade,” 25 December 1972, p. 41.
15. “Children’s Rights: The Latest Crusade,” p. 41.
16. “Children’s Rights: The Latest Crusade,” p. 41.
17. U.S. News & World Reports, “More Rights for Children — What an Expert Says,” 31 October 1977, p. 33.
18. William Aiken and Hugh LaFollette, ed., 1980. Whose Child: Children’s Rights, Parental Authority, and State Power, p. 244.
19. “Children’s Rights: The Latest Crusade,” p. 41.
20. Polsky, 1991.
21. Glendon, 1989, p. 298.
22. Zigler et al., 1983, p. 96.
23. Zigler et al., 1983, p. 97.
24. Lasch, 1977, p. 168.
25. Zigler et al., 1983, p. xi.
26. Glendon, 1989, p. 306.
27. Poggi, 1978, p. 135.
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