What's Wrong with Children's Rights

by Martin Guggenheim

"Children's rights": the phrase has been a legal battle cry for twenty-five years. But as this provocative book by a nationally renowned expert on children's legal standing argues, it is neither possible nor desirable to isolate children from the interests of their parents, or those of society as a whole. From foster care to adoption to visitation rights and beyond, Martin Guggenheim offers a trenchant analysis of the most significant debates in the children's rights movement, particularly those that treat children's interests as antagonistic to those of their parents. Guggenheim argues that "children's rights" can serve as a screen for the interests of adults, who may have more to gain than the children for whom they claim to speak. More important, this book suggests that children's interests are not the only ones or the primary ones to which adults should attend, and that a "best interests of the child" standard often fails as a meaningful test for determining how best to decide disputes about children.

Genres: Nonfiction, Education

320 pages, Hardcover

First published January 1, 2005

About the author

Martin Guggenheim has taught at NYU School of Law, where he now co-directs the Family Defense Clinic, since 1973. From 1998 to 2002, he was director of Clinical and Advocacy Programs. Professor Guggenheim has been an active litigator in the area of children and the law and has argued leading cases on juvenile delinquency and termination of parental rights in the US Supreme Court. He is also a well-known scholar, having published more than fifty articles and book chapters, plus six books, including What’s Wrong with Children’s Rights (2005). His research has focused on adolescent abortion, First Amendment rights in schools, the role of counsel for children in court proceedings, and empirical research on child welfare practice, juvenile justice, and family law. He is a founding member of the steering committee of the American Bar Association’s parent representation project.

Reviews

[Patience · Rating 3 out of 5]

Really interesting read. Guggenheim documents how the children's rights movement split into two groups with competing goals and how the split created a false dichotomy between parents' rights and children's rights. He points out that under the mantel of "children's rights" legal decisions for minors were shifted from parents to judges and that this does not give minors more rights but simply changes who the decision-maker is, frequently in ways that do not benefit the children involved. Guggenheim provides a detailed analysis of the legal history involved, and how changes in the late 90s and early 2000s that took place under the banner of children's rights have led to complex legal quandaries and no-win scenarios.

Some elements have not aged well — for instance, his claim that biological connection does not really matter, as well as his continuous throat-clearing on how we cannot really know that life begins at conception. In the case of the former claim, the evidence that has come out in the nearly 20 years since writing strengthens many of Guggenheim's arguments, lending additional weight to his critique of a movement that ultimately shifted legal decisions regarding children from parents to judges. At the same time, his reluctance to argue for the importance of those biological bonds does at points significantly weaken his case and even leads him to, at one point, suggest that a system in which parents have decision-making rights on behalf of their children is simply *an* option for how children could be cared for, and the best one merely because it is consistent with America's historical values and case law. Similarly, his insistence that abortion is a constitutional right leads to a certain amount of mental gymnastics in his chapter on laws requiring parental consent for abortion, and does not always square well with his arguments elsewhere in the book.

Throughout the book, Guggenheim shows the reader the deeply complex legal and ethical concerns involved any time children's interests are considered by legislatures and courts. Especially in his chapters on adoption, custody rights, and child protection cases, he demonstrates how well-meaning people can make decisions that deeply harm the children involved, while also acknowledging how difficult it can be to craft policies that preserve the best interests of children. His final chapter reminds the reader that often the greatest threats to liberties and rights come when a government is zealously acting with the goal of being beneficent — something that has proven to be tragically true in the version of the children's rights movement that pits children against parents.

[Adam · Rating 3 out of 5]

I greatly enjoyed the voice, perspective, and passion that Prof. Guggenheim uses in articulating the development of 'children's rights' as a phenomenon that may in fact serve ends well beyond, and perhaps inconsistent, with those expressed on the face of the claim.

In "What's Wrong with Children's Rights," Marty explores the development of children's rights as a (perhaps mistaken) corollary of parental rights. The book explores the question of where both these 'rights' come from, who has the right to be a parent, how parent's rights are effectuated against the state, how children's 'rights' are effectuated against parents, and how the interplay of all three of these entities can be confusing, disconnected, and inconsistent across sub-fields of family related law.

The book is a perfect compliment to Marty's Child, Parent, and State class as here he puts forth his positions with a simple clarity and pointed arguments of an unabashed advocate. The readings help to synthesize the various materials covered in class as well as further questions about areas where the materials are inconsistent, or seemingly lead to different conclusions than those resolved by courts, legislatures, and popular perception.

An easy enough read that adds a great deal of insight into how and why 'children's rights' (as well as parents') look like they do, and what that may actually mean for children. . .