by JOHN L. BROWN, FRSH, ACSW, AGPA
There is a movement currently in vogue in North America — and maybe elsewhere, but the movement in North America is the one I am most familiar with — to grant children separate and legal rights. There have been a number of dramatic accounts in the media of children who, with the help of lawyers, have sued their parents for support, or have sued adoption agencies for not having put them up for adoption, etc. Generally, the plea is that the child is a separate being who has separate individual and legal rights and that these separate rights should be established in law. In Canada, these individual rights don't exist for children or adults, we exist at the pleasure of the state. A child has the same rights as any other individual person has, but these rights have not been recognized in practice. Children have always been treated as though they did not have the same legal rights accorded other persons and, in consequence of that, children have been subjected to all manner of coercive measures which forced them to submit to treatment or placements that were inappropriate, or even harmful, once their own family was taken out of the picture.
This was a matter of great concern to us in our earlier work because we realized that not only was the child without legal rights in practice, but he had very few human rights. This was, of course, particularly true of the child who had been identified as a problem, the child who had a difficulty of some kind. All those children who were in any way deviant were lumped together within a graduation of acceptability. So that the delinquent, or acting out child who expressed his problem through disruptive behaviour, was the least desirable and the least likely to have consideration given to him when people planned for his care and treatment. Then it would go on up through the scale through neurotic children, psychotic children, mentally retarded children on up to brain damaged children. Because if you could identify some type of brain damage, it was more likely that you could establish services that gave the child more. It was as though the brain damaged child had an "acceptable" handicap. It was as though he and his parents were absolved from blame for that handicap and so deserved better or more costly services.
For many years, very little was done for the mentally retarded child because families were ashamed of having a mentally retarded child and often kept them hidden away at home, or placed them in institutions and tried to forget about them. But as families got organized, the retarded child achieved a higher status in terms of attention and care from society not as a result of pressure from lawyers, professionals in human services or government, either civil servants or politicians, but as a result of families demanding more support and help with the special needs of their retarded child. Families organized, lobbied and demanded that the rights of retarded children be recognized. Families are just now beginning to gain acceptance of the retarded child's right to service within his own family.
But always, in our experience, the child who presented behaviour problems, the child who wasn't nice and obedient, the child who acted as if he expected some consideration even though he was an orphan, or a foster child, or hadn't adjusted to adoption, or whatever, a child who didn't take his "come-uppance" lying down, this type of child was seriously abused and neglected in terms of having his rights protected. The state as parent has always failed the children taken from their families. No amount of legal rights will ever protect the child unless these rights begin with the statement that no child shall be ever arbitrarily separated from his family.
We became interested in this because we felt that a child has certain basic rights, certain basic human rights, and we started our programs on the premise that the alternative care that was offered to a child away from his own family should, as a minimum, at least be equal to what he would have gotten in terms of human care had he not been removed from his family. We tried to go further than just physical care. We tried to provide love, involvement, concern, commitment, advocacy, all those kinds of dimensions that should be part of what a child should be guaranteed as a basic right. Even though we weren't his parents, we were sponsored by his guardian or parents to do a job for the child because of the problems that he had. We always addressed ourselves to the question, 'What would we do for this child if he were our own?' We said, treat the child as though he were our own, as a means of communicating that we recognized that the child with problems shares the same needs that any child has and that these needs can best be met within a functional family model that approximates the family care, love and support of the extended family in nature.
We had a number of court cases that we became involved in because of this. The first one never became a celebrated case because by the time we got into wardship court an arrangement had been agreed to. That was the case of a girl named Betty who had been made a ward of a Children's Aid Society, and whose mother had subsequently married. We found Betty's mother for her and got them back together and the mother wished to have her child returned and the child wished to be returned. At that time there had been no case of a child having wardship reversed to the parent. During the preliminary discussions we were told that the difficulty was that it wasn't legally possible, according to the spokesman for the Children's Aid Society, to reverse a wardship decision. Once a child had been declared a child of the state that was the end of the matter; there was no legal way you could, at a later time, declare the parents fit parents and have the child returned to them. Family failure was seen as irreversible. We challenged that. We worked it out with the parents, with the child, with the Children's Aid Society and with the juvenile court judge who was quite agreeable to reversing the wardship procedure and Betty was returned to her mother. I heard from her many times after that and, as far as I know, she has lived happily ever after and is still doing so, somewhere in Eastern Ontario.
The second case we dealt with, again, did not become a case in law because we were able to resolve it outside the courts. This was the case of two girls who had been made wards of the Toronto Children's Aid Society but who remained under the watchful eye of their father. He had never accepted the fact that he had been deemed incapable of coping with them and he had continually hassled the Children's Aid Society. Furthermore, he had refused to pay the fee that had been assigned at the time of the wardship hearing as his contribution to the cost of their care. So not only was he obnoxious in his dealings with the Children's Aid Society, he also refused to meet his financial obligations to them.
We became involved with this man after he had tracked down his children to our treatment facility in Newmarket, Ontario. We began to work with the father and the mother. Tedda Petri, a Dutch social worker who was a member of our staff at that time, was extremely tactful and sensitive in her work with families, helping to bring out the strengths and good qualities that parents had around their children. She spent a lot of time working with the father and the mother to re-establish their parental confidence. Eventually, we reached an agreement with the Children's Aid Society and the courts to return the children to their parents. First we returned the older daughter, then the younger daughter, with a three-month interval between them, so that the family could become used to having children in the house again, and to taking care of them, and also to repeat their original experience of having the first daughter alone with them for a while before the second daughter was born. The children, too, had to relearn to have confidence in their "unfit parents" being in fact fit parents again. This placement, too, was successful. The children went home, and of course, like any other family, they went through all the problems that come with growing up, going to school, getting a job, getting married, and so on. The father died while the children were still in high school, but the mother continued to raise the children and, as far as I know, this was another case of the successful return of children to their parents.
The first case of this kind that became a case in law was the Langtree case. This became a teaching case, not so much because of what it taught about the rights of the child (the right to treatment and care), although that certainly came into it, but because it dealt with the problems of funding. Basically, what this case established was that a municipality from which a child came could be charged with the costs of the child's treatment and care in a facility outside that municipality. We had to test that principle in law and we won the case, and that became the first, thin edge of the wedge in terms of children's rights in Ontario or, more specifically, the rights of emotionally disturbed children in Ontario.
I am going into this history in some detail because I think it is important to understand that you cannot work in services for children in Ontario without being concerned about children's rights. You cannot deal with the public school system, you cannot deal with the juvenile courts or the government of Ontario, children's agencies and hospitals without being concerned about children's rights. It is important to be concerned about children's rights, but the direction your concern takes is also important. You cannot separate the child from his family when you talk about his rights. Yet in all the history of family and child law in the Western world, certainly in the United States and Canada, the family and child have been separated more and more. Our social services separate them, our courts separate them.
The adult may be capable of surviving that kind of hurtful separation experience and may be able to continue to function, more or less adequately, afterwards, but the child needs a family in which to grow and mature. The role of the state is not to be the parent or family for a child, but rather to be the sponsor of programs that help families meet the needs of their children and themselves.
Because this is so, separating the child from his family has been something that we have worked against over the years. We have always said, a child has his basic roots and you cannot ignore the existence of those roots without damage to him. The essential part that the ancestry of the child, the relatedness he feels to his family, plays in the development of his own sense of values, of self-worth, has been described in more detail in the article on "Rootedness".* Because we have always recognized the importance of a person's roots, while we have worked for the rights of the child, we have also worked for the right of the child to have his family and the right of the family to have its child; we never separated those rights. The child cannot grow and mature in a vacuum, nor can the legal statutes that spell out a child's rights nourish, care for, love or protect him.
Now, what I'm getting to is that in the present big push within the legal profession, the people who are sponsoring legal rights for children seem to be approaching the whole field in a rather naive way. They are acting as though the child can have rights separate from the family when, in reality, all of the individual rights that you could acquire for a child would still leave him naked and alone if you haven't also declared the right of the child to his family and the right of the family to their child and the right of both parties to support and service in the family's efforts to raise its children.
As I see it, the child must first be understood in terms of his need for family ties, for family support, for family belonging, for family care; then we can talk about the rights of the child within the framework of the family. Because if, in the act of declaring individual rights for the child we absolve, or remove, the family from the child, we have then done more harm to the child than all of the individual rights that we have assured for him can compensate for.
We need to get back to a more careful analysis of what it is that a human child needs. In the Browndale movement we have some formulations that we have used for a number of years. We say, you should approach the child you are trying to help as a whole human being with all the needs that every human child has, plus those special needs that bring him to our attention, or into our care. Along with that, we have always said that every child has a need to be integrated into his family, a need to exist and function within the family unit. That through that family unit the child becomes a part of the social order that makes up the community in which the child and family live.
Nothing that we do to protect the individual rights of mothers, fathers or children should interfere with that relationship between the child and the family. Everything that we do as a society, as professional people, should be done to enhance that relationship, that bond, that structure, to secure it, to make it stronger and to make communications between the members of the family more helpful to the child. We must then, once this is decreed, address ourselves to creating a society that has something to offer both child and family.
My concern with the people working in the legal rights for children movement is that they become blinded by their enthusiasm for individual children's rights to the point where they rob the child of the family. They don't see that without the child being related to the family individual rights are meaningless. Individual rights for children assures state control over the child but it does not assure the child a family unit to grow up in. State services have, historically, failed children more consistently than families. The state as parent has been a dismal failure in the United States and Canada.
We are going to have more and more cases in which the legal rights for children movement is going to lead courts to separate children from families, only to find that those children are never again properly cared for in family structures. Only to find that those children are handled by indifferent people who are not related, are not invested and that the children are basically, fundamentally and permanently alienated from the rest of society as a result of that. Only to find that their legal rights have been a hollow victory because it lost them their families. Every statute that has been designed to protect the child has endangered the child because these protections did not at the same time protect the child within the family structure. When the child's rights demand that he come into care, his family must come with him. This can only be done if the service is brought to the family, rather than the child brought to the service.
I believe that it is a very dangerous step that is being taken at the present time and one which needs to be corrected. But I fear it is not going to be possible to correct it if we get into a hassle over the wrong issues. The legal rights for children people should be able to accept legal rights for children within the framework of the family. What am afraid may happen is that when we try to steer the discussion toward the right of a child to a family taking precedence over the child's individual rights, we are going to be criticized for interfering in the movement for children's rights. Although it is obvious from my own personal history, and from the work in Warrendale and Browndale, that we have always been the champions of children's rights, but we have always seen children's rights as being, of necessity, within the framework of the family, not separate from the family. Evidence of this is the present situation where the legal rights for children organization recently started in Ontario has been unable to identify itself with the Browndale movement which not only fought for children's rights but established services that make children's rights meaningful.
I cannot think of anything more harmful to children, or to families and to society in general, than to have children's rights championed separately from family rights. Within an adversary legal system, where there has to be a contest, rather than a resolution of differences, the child, the family and society lose. In a situation where the child stands on one side and the rest of the family stands on the other, fattening the pocket books of the lawyers who represent them, they become implacable adversaries and it is impossible for a resolution of the problem to occur. Our social order is threatened when children and families are alienated, or treated as though they are separate entities. Let the legal rights for children people first address themselves to improving the social order that weakens and corrupts families, that victimizes us all, rather than fragment children even more from their families.
What children and families need is a supportive mediator of some kind. Because the interests of the child and the interests of the family overlap. At birth they overlap 100 per cent, at legal age maybe only 20 per cent. But the interests of members of the family always overlap to some extent. Within the adversary legal system, everyone acts as though that isn't true, as though parents and children are true adversaries, when the most important thing that characterizes family members is not their opposition to one another but the things they have in common, the needs that overlap.
This fact is illustrated most horribly in situations that involve families of our minority groups. Children's services are generally calloused against minority groups anyway — ignorant concerning them, belligerent and antagonistic toward them. It is easy for people to say that children should not have to put up with drinking in the family, for example, that they should be protected from that. And so we remove children from families where there is the deepest love, belonging and affection that you could possibly have between parents and children. In an adversary legal system it is possible, under the pretext of children's rights, for a child to lose the most precious thing he will ever experience in his lifetime, the closeness, love and commitment of his parents.
The family may have all kinds of problems, but where can you replace a mother's or father's love for and commitment to their child? We don't find replacements for this love and commitment in the alternatives that we offer these children. (The professionals treat them objectively and work 6-hour shifts; the non-professionals, struggling for professionalism, remain unin-volved and work 8-hour shifts.) What the child needs is love and involvement. And the existence of this love is far more important than the fact that the father gets drunk, or the mother gets drunk, or even that the child is neglected. If you deal with the rights of children within the frame of reference of the family, you start with what are the essentials: the child has a right to belonging and love; the child has a right to his history and roots; the child has a right to the kinship that is his and no one else's. All of these essentials are in danger of being violated unless you make sure that the family is included in all of our considerations.
We are often asked, if you believe so strongly that the child's rights must be considered within the framework of the family, rather than on an individual basis, what do you do about the child who is abused, or physically harmed; the battered child, for example, who has caught the attention of the media and about whom, consequently, it is fashionable to be concerned now? But you cannot measure parental love in those behavioural terms. Parents are human beings with their own needs and their own limitations. They suffer in their own dimension. The child, because he is a child of their's comes into their sphere of need, comes into their sphere of acting out, precisely because he is their child. To remove the child because he is a "victim" of his parents, is to remove the child from all the positive things that affect him because there is one negative thing. It means we have not understood the nature of the family role or the child's needs.
I remember, in our early work at Warren-dale, we received three children from a family in which the mother had abused the children; neglected mostly but, also, in an act of desperation, she had burnt the children's hands on a hot stove because they had stolen something and she had been warned that she had to keep them from doing that or they would be removed from the home. In her inadequacy, in her inability to cope with the pressure, in her anxiety to protect the children from being taken away from her, she did the very thing that caused the children to be taken away because she wasn't fit, or a "safe" mother. Yet, the fact of the matter is, in all their history from that day forward, they never received the love that their mother and father had given them. As far as I know, nobody else ever burnt their hands, but out of one single hurt from the parents, the children lost all of their ties, all of the affection, all of the sense of belonging that we have in our relationships with the people who bore us and raised us and have a commitment to us that cannot be equalled by an unrelated person.
From every angle, thinking is so inadequate, so meagre, we hasten to find excuses to rip children off from their families, or rip families off from their children. As I see it, this whole fad about the battered child is one more excuse to rip off children, to avoid real solutions to real problems. It used to be if the house was dirty, or if the children missed meals, the child was removed. Now we rip them off if family problems are too great for parents to cope with and they take out their frustrations in physical abuse or alcohol. The Minister of Social and Community Services cannot discharge a staff of a state run institution for kicking a retarded adult woman in the head, but a parent who batters his child can be "fired" by the most bigoted, unconsciously hostile person in the community, the potential batterer who becomes the saviour of battered children.
In all of these situations there is an obvious alternative if you don't exclude the family from the very beginning of your thinking about the problem. What would happen if instead of taking the children away from the family, the family got support? What would have happened to the mother who was trying to keep her children from misbehaving in the community and burnt their hands in a last, desperate attempt at disciplining them if, when the children had first misbehaved in the community, somebody had assessed that she needed support? What if a worker had gone into that family and supported the mother? Had taught her what she needed to learn in order to become a more adequate mother? Had taught her ways of coping with the children's behaviour other than with such severe measures?
Had that alternative been tried, the children could have remained in the family, they would have continued to receive parental care and affection, the tie would not have been broken, the mother would have felt better about herself, about her adequacy as a parent and she would have suffered less, the children would not have suffered separation from their parents and society would not have had to bear the expense of raising the children through means that were, at best, inadequate to their needs and the children would not have grown up alienated from society.
We need to get into the habit of asking, why this alternative that we use out of all the alternatives available? What we should do if we are concerned about the legal rights of children is realize that one of the first rights of the child should be that a child should never be deprived of his family. That the state, the social service agencies and the courts are mandated to find alternatives that keep the child within his family.
As we begin to use our ingenuity for finding ways to be supportive to the parents, ways of keeping families together, instead of splitting them up, I know we will find those alternatives are much more effective. They are certainly more humane and I would be very surprised if we do not also find they are much more economical.
I welcome the new interest in the legal rights for children, but I hope that the child does not have to become the victim of this new movement on his behalf. Because I am certain that the only way we can guarantee that, is to make sure that the principle of legal rights for children is incorporated within the family, not separate from the family. What is the sense of a movement for children's rights when the family has none?