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:
DEAL
WITH SOCIAL CAUSES THROUGH THE JUDICIAL SYSTEM.
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.
AN
ARBITRARY PENAL JUSTICE FOR ADOLESCENTS:
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.
CHILDREN
AS OBJECTS OF PROTECTION:
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
NEO-PROTECTIONIST
CONCEPTIONS:
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.
GUARANTORS
OF RIGHTS AND OBLIGATIONS:
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.
THE
COUNTER REFORMERS:
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.
THE
FAMILY AS A PILLAR IN THE HUMANIZATION PROCESS OF CHILDREN.
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.
SOCIALIZATION
·
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.
THE
ROLE OF MASS MEDIA
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.
CHILD
ABUSE
-
"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. |
