Academic journal article Journal of Markets & Morality

Children's Rights, Family Values, and Federal Constraints

Academic journal article Journal of Markets & Morality

Children's Rights, Family Values, and Federal Constraints

Article excerpt


There are many dimensions to the protection of the rights of the child. In South Africa, for example, international directives relating to children's rights have been incorporated into the constitution and are therefore protected on an equal basis throughout the country. In the United States, on the other hand, child law by and large falls within the jurisdiction of states and are therefore subject to federal constraints.

In this article, we shall first explore the South African model that fully complies with international standards and thereafter take the state of child law in the United States under review. The United States has been criticized for being one of only two countries in the world that have not ratified the International Convention on the Rights of the Child (CRC). There is strong opposition against ratification of the convention from within the ranks of evangelical Christians, based essentially on a perception that the convention undermines family values. However, this article argues that the main obstacle confronting the United States in this regard derives from the constitutional dispensation of federalism.

The South African Model and International standards Pertaining to the Rights of the child

When the question was debated in South Africa whether or not children's rights listed in the Chapter on Fundamental Rights in the 1994 Interim Constitution were to be retained in the final constitution, Mr. Tony Leon of the Democratic Party and chairperson of the Constitutional Assembly Theme Committee on Fundamental Rights stated, "Children's rights are like chicken soup, they do no harm." (1) The Constitutional Assembly did not treat the rights of the child as chicken soup but, on the contrary, extended the protections afforded to those rights to uphold international standards applying to the best interests of the child almost to a fault.

South Africa ratified the CRC on June 30, 1995, without reservation (2) and, furthermore, takes its international obligations quite seriously. Customary international law, (3) as well as self-executing international agreements, (4) is part of the law of the land unless they are inconsistent with the constitution of the country or an act of Parliament. The South African Constitution furthermore instructs courts of law to prefer an interpretation of legislation that is consistent with international law. (5) When interpreting the constitutional Bill of Rights, courts of law are permitted to consider comparable foreign law, (6) but are compelled to take international law into account. (7) They are evidently precluded from following international-law directives that are at odds with constitutionally protected rights. (8) South African child law is, therefore, a good starting point for coming to grips with the CRC, (9) and for evaluating the implications of its unconditional ratification.

The South African Constitution proclaims that a child's best interests are of paramount importance in all matters concerning the child ([section]28(2)). It affords to every child the right to a name and a nationality from birth ([section]28(1)(a)). Every child has a constitutional right to family care, parental care, or appropriate alternative care when removed from the family environment ([section]28(1)(b)); to basic nutrition, to shelter, to basic health care services and social services ([section]28(1)(c)); and to be protected from maltreatment, neglect, abuse, and degradation ([section]28(1) (d)). As a matter of constitutional obligation, every child must be protected from exploitative labor practices ([section]28(1)(e)) and may not be required or permitted to perform work or to provide services that are considered inappropriate for a child of that age ([section]28(1)(f or would place at risk the child's well-being; education; physical or mental health; or spiritual, moral, or social development ([section]28(1)(f) (ii)). The constitution guarantees to everyone the right to basic education and the right to further education ([section]29(1)). …

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