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Last Updated: 09/12/2011Is Every Child a Child?
Jerry M’bartee Locula
Jerry M’bartee Locula discusses the Convention on the Rights of the Child (CRC), raising questions about its universality, its practical implementation, the role of judicial proceedings in determining a child's "best interest", and ultimately posing the question of who is a child.
The United Nations (UN) Convention on the Rights of the Child (CRC) is one of the many crucial instruments based on international human rights principles formulated since the inception of the international human rights movement followeing World War II. Entered into force on September 2, 1990, the CRC’s primary objective is the ‘betterment of the child’ through protection; from the Far East in Asia and beyond, to the Great Lakes Region and the Horn of Africa. The protection of the rights of the child reaches deep into the emerging powerful economies like China, the freedom cities in Europe, the great democracy of the United States, and wherever the human population exists.
In our cotemporary world, now is the time for the rights of the child to take the center stage, because today’s children are threatened with horrors ranging from child labor to sexual slavery, from street vendors to bread winners; from child soldiers to career prostitutes; and the ill-repairable trauma of violence they continue to experience. As indicated in article three (3) of the convention, “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the ‘best interests’ of the child shall be a primary consideration.” ‘Best interest’ of the child is a phrase that strikes one with significance and curiosity. The ‘best interest’ of the child is an interesting language, but a complex factor in the child right’s movement which I must appreciate for further discussion in this brief debate.
What is the ‘best interest’ of the child? Legally, the term is related to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child, as well as who is best suited to take care of a child. With respect to court’s decision regarding the best interest of the child, let’s examine the ever famous child custody case that took place in the United States involving the Cuban Child, Elian Gonzalez, which has instituted both confusion and wide range of arguments in international human rights law with specific focus on the rights of the child and the best interest.
Elian Gonzalez- The Cuban Child
When the Coast Guard plucked 6-year-old Elian Gonzalez from the sea in November 1999, he became the subject of one of the more intense child custody dramas of recent times. Elian Gonzalez’s mother perished in the attempt to reach “freedom” in the United States. Relative to his custody, Elian’s Cuban father and his Miami relatives fought over the child in legal bottle. His grandmothers came from Cuba to see the process expedited. The U.S. relatives met with the attorney general. A Florida family court judge asserted jurisdiction while the U.S. Immigration Service argued that this matter was purely one of immigration policy and law. The Supreme Court refused to resolve these squabbles.
Elian's case appears to be an extraordinary child custody conflict. Arguments about what is in his best interests with immigration policy, federal and state procedural rules, and political agendas. But, as unusual as this case was, the ethical issues it raises are identical with those that arise routinely whenever the state is asked to take part in determining where a young child will live, who will care for him, and who else will have a continuing relationship with him supported by court-ordered visits.
As Willemsen and Willemson have argued: “Even if we agree that ‘best interests of the child’ is the gold standard for deciding these questions, there is disagreement about how that test is to be applied. How does this "best interests" test interact with the rights of individual adults to establish and/or maintain nurturing relationships with the child and to make decisions that promote their own goals for a happy and productive life?” The exclusive legal implication is quite understandable, even though complex, but should best interest only be determined when a child’s protection issue goes to court? Before I proceed with this line of examination, I must note that much of the complication of this case stems from over forty years of political tension between Cuba and the United States. Had the issue been left with the legal corridor alone, the determination would have being easy and speedy.
Now, back to the court and not court issue in determining the best interest of the child. With critical examination, in as much as I value legal proceedings, “the best interest of the child” should not necessarily be determined in court, but be exercised on a daily basis by parents, governments, and caregivers. What the child eats or drinks, where the child sleeps or resides, decisions made for the child’s education and future, whatever the child wants or does, all should be determined by their best interest in setting forth an affluent future for the child.
While the intent of the CRC considers the general good and welfare of the child in the right spirit, in my view, this is a question that is difficult to answer in the context of the different classes, cultures and structures of society from the background of poverty stricken environments, to the dissimilarities in social and economic climates; and in worst cases, the hash and tyrannical regimes of the world. In such cases, does the answer regarding the best interest of the child lies with the parents or does the rejoin remains with national institutions like the court of surrounding community or wider society?
I stand to be enormously corrected, but I am convinced that global human rights experts, especially the West African human rights advocates will agree with me that despite the endeavor and unwavering interest in advocacy for the rights of the child, the question continues to linger whether “Every Child Is A Child?” I have briefly mentioned and I maintain that in the conventional wisdom of the international legal scholars; principally the framers of this convention, they want every child regardless of the color, race, socio-economic and political surroundings to be treated with certain equal respect and grace. In this regard, such treatment, no matter what it is or in whatever case, must be in the best interest of the child.
However, the best interest of the child has been misinterpreted or misapplied either by most parents, whether ignorantly, knowingly, or as a result of the unfavorable circumstance. It is not a secret that since it entered into force, 191 member countries of the organization have signed the convention, with the exception of the United States of America based on its own domestic political rationale.
The CRC is a fascinating human rights standard. It has been observed that “the Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights.” With regards to the age, “The Convention generally defines a child as any human being under the age of eighteen, unless an earlier age of majority is recognized by a country's law. Of course, this overlooks the fact that various conceptions of age exist. The question then arises: are children receiving equal treatment and care as the convention stipulates? Is the child in drought-affected Somalia getting the same treatment as the child who is living in prosperous South Korea? Based on the economic, social, political, and cultural environments children find themselves, are they being given the equal or required best interest? I totally disagree!
The United States has not signed the convention, but it is also unimaginable to apply the same standard to a child from even the semi-urban town in Kakata in Liberia and a Child in the least village in the United States or Great Britain. Even allowing for the differences in education, social exposure, parental care, love and protection within each country, the overall trend remains. The reason is that the socio-economic and political ambiance is much advanced in the United States or Britain than here in Liberia. So, for Liberia, there is no problem with signing the convention; it is a great aspiration to do so, but to deliver the services to the child is what remains a global challenge. Here, most of these countries who have signed the convention don’t even possess the political abilities, economic power, social opportunity and practical system in placed to provide children with the basic needs and protection they require. Sometimes, the best interest is the worst interest here in my context.
Most children under the age of 18 face strenuous conditions in most African countries where poverty have become order of the day, and social, economic and political structures are broken.
Here in Liberia, many children are serving as bread winners for their families. Many have no access to school and become street vendors at a very early age. Even if a child has access to school, they often work to pay for the education themselves in disguise. So, many parents and guardians who have not come to understand “child rights” will tell you that they are teaching the kids how to be business minded for tomorrow; especially those ones that are street vendors. And the fact remains that those parents have no dependable income; and that the children are bringin in much needed income.
In my view, children in the developing world have being turned into adults before they know it; either as a result of extreme poverty or by natural disaster or other trauma. In recent years, children in Africa (as elsewhere) have being assigned adult responsibilities, some of them involving indecent roles that they struggle to bear.
Talking about the future of young people and the nation’s long term development, I tell you for instance, several thousands Liberian youths who were one way or the other born just prior to the nearly 14 years of Liberia civil conflict or during the period of the war, see violence as their best option. Most of those who took arms were exposed to violence, abuse, and drugs. Today, the futures of most Liberian youth are challenged; even though the government is endeavoring to repair the nation from several fronts.
A higher standard of living must be sought by child bearing parents, governments, and care givers to better the lives of all children around the world. Government bears greater responsibilities by providing and ensuring the availability of necessary avenues including social services to the citizens.
Let me tell you a real life story I experienced in early 2006. Currently, with the coming of President Ellen Johnson-Sirleaf’s government into power, things are a little different on the economic front, but many children working as street vendors have continued for years to the extent that the Superintendent of Montserrado County Superintendent, Grace Kpaan is working to help parents and guidance take the little boys and girls from the streets.
I was taking a stroll along the Tubman Boulevard one Saturday afternoon. There were two girl children, between 13 and 14 years. They were busy selling some stuff that they carried on their heads. I could see tiredness and hunger in their faces after several hours of walk around town. One of them had peanuts while the other had monkey apple (a natural and locally grown and harvested fruit in Liberia that is produced during the rainy season). As I walked after them, I heard the child with the monkey apple ask her friend, “I say Mba,” (Mba is a local colloquialism meaning “my friend(s)”). “How many dollars worth of peanuts have they bought from you since today?” The girl with the peanuts replied, “Just a minute”. She quickly counted the money and said “L$75.00 worth?” The little child with the monkey apple said to her friend, “you are lucky, nobody has asked for my monkey apple today.” The worry she carried was that of an adult woman who would love to feed her family after selling her goods in the market.
As I listened to the girls, the monkey apple girl continued, “I am afraid that my Mom will badly beat me today if I don’t carry money from the sales today.” I saw tears rolling down the checks. Touched by her unhappiness, I stopped them and asked for the money apple and pretended as though I had not listened to their conversation. “Three pieces for five Liberian dollars” the monkey apple girl said. At that moment, I bought forty Liberian dollars worth of money apple from her. As I handed to her the cash, I saw a smile break above her eyes and she said, “Uncle thank you!” I did this only to save the child from her mother’s imminent and misplaced anger.
The CRC has become one of the major international legal instruments I have used during my work both in the academic environment and the community-based approaches in peace building as a result of the experience they undergo. With this, I have arrived at series of questions that have brought me to realize cardinal points in the context of the CRC. “Who is a child? This question generates based on the different treatments and experiences the child encounter in diverse cultures when taking on the conventional definition of the CRC. The second major question that continues to hit the door in the convention is “what is the best interest of the child? These are questions that surface when trying to examine the mind and intent of the international legal scholars and framers of this convention.
Parental factors, social orientation, economic environment, political climate as well as the culture upbringing have tremendous influence on what makes child a child. The treatment rendering the child is another factor that influences weather the child is a true child or not.
Then, Is Every Child a Child?
Let me address the issue of parent-child dynamics in most African families, with reference to a step-mother and step-daughter encounter that I experienced in one of my psychosocial interventions which occurred in Southeastern Liberia as part of my field activities with the Trauma Healing and Reconciliation Program of the Lutheran Church in Liberia.
The episode concerns a lady who never had her own or biological child until she entered her marriage home. This is not actually bad. Unfortunately, she still did not bear a child for her husband after five years of marriage, despite the interest to conceive. Prior to her enrollment in her wedded home, the husband already had a girl child with his previous girlfriend. She stayed for over five years with high anticipation of conception, but she was never fortunate to conceive for her husband, in spite of all the medical efforts applied to enable her conceive. She lived with her step daughter all these years. But interestingly, nobody realizes that the girl’s mother was different from the one at home, because they have lived well together. She played her role to bring up her step daughter applying all the best interest as a caregiver. She was properly and adequately cared for by the step mother and was provided anything she needed that could make her happy. She walked with her in the community and elsewhere. She introduced her step daughter as her daughter. Everyday, she accompanied her daughter to her school’s campus with hug, kisses and goodbye. Based on the cordial relationship that existed between the two, only someone who knew the husband’s previous life could precisely share the experience of the step child in the home.
One day, the most terrible and strange thing occurred. On this luminous Friday evening, a visitor arrived. Still in a concise distance, an excited shout was heard from the kitchen with a run, “Oh my mom is here!” “Oh my mom is here!” “My friends come and see my mom!” The girl ran from the kitchen with that exciting shout to meet her biological mom with such an enthusiasm. Her friends and other neighbors came out to see what the shout was about. The girl herself introduced her mom to friends and neighbors. Everyone in the neighborhood were surprised and later realized that this girl was not the biological daughter of the lady in the home. The situation unleashed psychological pain and bitterness for the lady. As a result of this trauma, the lady withdrew from community activities, because people have come to realize that the girl was not her biological child as it appeared. From this moment on, the step mother concluded that surely “Not every child is a child.”
 Ibid (accessed on April 28, 2011)
 US Department of Health and Human Services, Administration for Children and Families, Child Welfare and Information Gateway, Protecting Children and Strengthening Families, “Determining the Best Interests of the Child: Summary of State Laws” available at: http://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interest.cfm (accessed on July 9, 2011)
 Eleanor Willemsen and Michael Willemson, “A child's right to have stable relationships must be central to custody decisions” The Best Interest of the Child, available at: http://www.scu.edu/ethics/publications/iie/v11n1/custody.html (accessed on July 11, 2011)
 How Many Countries Have Signed and Ratified the United Nations Conventions on the Rights of the Child?, available at: http://wiki.answers.com/Q/How_many_countries_signed_the_united_nations_convention_on_the_rights_of_the_child (accessed on April 28, 2011)
 Convention on the Rights of the Child, what is the age of a child: available at: http://en.wikipedia.org/wiki/Convention_on_the_Rights_of_the_Child (accessed on April 28, 2011)
Jerry M’bartee Locula is a Human Rights and Governance Officer for the Lutheran Church in Liberia working in the Trauma Healing and Reconciliation Programme.