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Human rights, families and community interestsMoira Rayner
'To recognise the rights of families and all family members, including children, young people, and the aged' is one of the priority issues identified by the National Council for the International Year of the Family. This article addresses this issue against the background of the United Nations Convention on the Rights of the Child, and in the context of the International Year of the Family. The author states that 'Human rights claims are simply ethical statements about the essential quality of human life which are believed to be so universal in character that they transcend national, geographic and religious boundaries. They are about the recognition of the inherent worth and dignity of every human being.' She argues that families have duties to perform and responsibilities to their individual members. 'If the family is to serve its purpose, its members must promote the rights of the individual members, defining what it expects of those individuals in return, and explicitly protecting their self-respect and the personal dignity of every member'. Her conclusion is that 'There is no room for moralising or sentimental attachment to a mythical 'ideal' family type, or debates about dividing up some pie of rights among families, adults and children. The interests of the community demands respect for the rights of all'.
It is difficult to write dispassionately about the family or of 'rights' because each word is so full of associations and layers of meaning. The International Year of the Family is an opportunity to reconsider the sentimental, paternalist or platitudinous view of family life, values and authority which is encouraged by the language we use to describe our first experience of living in a community: the family is properly described as the 'smallest democracy at the heart of society' (UN General Assembly, 8 December 1989, in proclaiming 1994 as the International Year of the Family).
Australia's signing of the UN Convention on the Rights of the Child in 1990 was preceded by an intense 'family rights' campaign to prevent that event. The language of those 'rights' claims blurred the distinction between individual claims to the fundamental human rights - of autonomy, bodily integrity, and dignity - and the use of 'family' as a symbol, or mark, defining the boundary between the legitimate interest of the State in individual affairs, and private life.
Many of those who opposed the Convention's ratification saw the family, bonded by the ties of blood, shared personal experience and loyalty, as not only a bulwark against community or State interference but also as a source of authority - principally parental, probably patriarchal, certainly 'moral' in character. These made statements about moral or ethical or religious values, the proper relationships and roles of women and men, the regulation of sexual relations in and out of marriage and between different age groups, as well as portraying the family as a 'household' responsible for allocating resources among its members. Such claims seek to expand the scope of authority of the decision-maker beyond a family unit into the community of which it is a part. Their makers were alarmed by the Convention's emphasis on governments' direct obligation to protect the rights of the individual child, rather than to the child indirectly as part of an organisation called 'family'. In effect, they were opposed to the Convention's bypassing the family's sacerdotal or intermediating role.
In its presumption that fundamental rights and freedoms are each individual child's birthright, and its departure from the traditional statement of children's rights in terms of their protection from abuse, exploitation or neglect, and the quality of services provided for parents and children, the Convention has begun to clarify the way Australians describe, and thus interpret, the role of the family.
Although families do far more than incubate children, it is helpful to look initially at the bundle of 'family rights' claims made about children and young people because of their particular vulnerability and dependence, given the key priority of the International Year of the Family, 'to recognise the rights of families and all family members, including children, young people, and the aged'.
The Preamble to the Convention on the Rights of the Child states a fundamental principle of the Convention to be that the child 'for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding'. This does not define what a family is nor how it ought to look. The Preamble describes what a family does or should do - a 'family' environment is one which provides the essentials for children's development so that a child 'should be fully prepared to live an individual life in society, and brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity'. In other words, a family should protect and promote the human rights of its individual members equally.
Human rights claims are simply ethical statements about the essential quality of human life which are believed to be so universal in character that they transcend national, geographic and religious boundaries. They are about the recognition of the inherent worth and dignity of every human being: that every person is inherently worthy, and is entitled to control their own destiny, and to the respect of others, and to self-respect, the ultimate primary good, because without it 'nothing may seem worth doing' or striving for (Rawls 1971).
In the last 50 years human rights have appeared as statements of international law, in agreements between or among Governments.
Human rights claims are not 'laws' as, say, the Human Rights and Equal Opportunity Commission Act 1986 is a law within Australia, and they are effectively unenforceable within each signatory government's borders. They are, however, a public undertaking that the countries which adopt them will assure certain minimum conditions of decent human life to their citizens' which might or might not affect the interpretation of domestic laws within that country, depending on its constitutional structure, and that the governments of those countries agree that they are to be internationally accountable for their performance of, or failure to perform, those obligations.
Actually, the desire to protect human rights is the reason we live in communities. We want to live in a way which is recognisably decent and where we can reasonably expect to be moderately happy. We might call this a 'just' society, one where we feel safe and valued and treated on our merits. Rights claims are premised on the inherent worth and dignity of every human being. Every person is inherently worthy, and is entitled to control their own destiny: self-respect is the ultimate primary good, because without it 'nothing may seem worth doing' or striving for (Rawls 1971). The price of that just society is our modifying our claims to personal autonomy, which is the privilege of solitude. We live in communities because the family alone is not big or complex enough to protect and promote the minimum conditions of a good human quality of life.There are many social organisms and institutions, including family, tribe and nation, designed to protect and promote different aspects of human rights and interests. Each is an arrangement for distributing resources and establishing mechanisms for acknowledging authority and constraints on autonomy, for some greater good. One of our measures of a just society is how well it cares for those who are vulnerable and dependent. Without such rights our lives are nasty, brutish and short.
Individual adults have legally recognised rights to self- determination, freedom and safety which are not only reflected in international human rights instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, but also in domestic laws and justice systems. In principle, adults can assert those rights and protect their own interests. Most children cannot, particularly in communities which perceive them as incipient adults subordinate to adult authority. In most communities children rely on the altruistic exercise of power by adults to protect their interests.
The Convention on the Rights of the Child recognises the same rights for children as for adults, including participation rights, such as the right to be informed, to freedom of expression, and to participation in decision- making processes which affect them (Articles 12-15, 17). Although the Convention also recognises social rights, such as the right to a reasonable standard of living, education and the best available health care, it surpasses the traditional,essentially paternalist, emphasis of the Declaration on the Rights of the Child which preceded the Convention. It makes the State directly accountable to the child for the protection of all rights.
Both the Common Law and the Convention explicitly recognise the kinetic nature of power in the parent-child relationship and children's developing ability to protect their own interests. According to the Convention, and in much the same way as the Common Law recognises, a child has a right to 'appropriate direction and guidance' by parents in the exercise by the child [emphasis added] of the rights recognised in the Convention (Article 5). This direction and guidance which gradually diminish over time as the child acquires competence.
The parents' responsibilities, rights and duties to direct and guide their children must be respected by the State, under the Convention and, indeed, at Common Law. However where there is a conflict between parental authority and the child's 'best interests' - whatever that phrase really means - that conflict is resolved in terms of the children's rights, not authority. This overriding of parental responsibility can happen when the parents or a family are shown to be not fulfilling their role, of promoting and protecting the child's rights, or may even have exercised their power over the child for other purposes, or because they ought no longer to exercise that power because the child is actually able to do so themselves.
There is a need for the community to make laws to regulate dependent relationships. The relationships which give rise to the greatest need for regulation are those which contain the greatest risk of exploitation. That means those in which the power differential is greatest, where the subordinate party has a vital need for resources provided by the relationship in order to protect their vital interests, and are unable to get them anywhere else, and the more powerful party has the discretionary control of those resources (Goodin 1985). The relationship of children and young people to adult caregivers is a classic example of such relationships.
Children and Young People
Children's and young people's dependence on adults is caused by social inexperience, developmental immaturity, and financial and emotional needs. In children we tend to assume dependence by chronological age. In adults, dependence might be the end result of social practices which institutionalise the use of physical or economic power (for example, the subordination of women), or age-related disease or injury, unemployment, and inadequate social security. Whatever the cause, the community has a legitimate interest in the interests of the dependent person thrown into relationships with others where they are vulnerable to exploitation.
The message of the Convention is that children, as people, are entitled to respect as well as protection. Their special vulnerability entitles them to appropriate supports from their families, and their families from the community. Governments should protect those rights and that vulnerability with Law and institutions which are there if other supports should fail.
Respect for children is not the norm. Our social attitudes to and beliefs about ourselves shape our policies, institutions and laws. Although these have moved well away from the view that children are parental property, we have not yet bridged the divide that would allow us to treat them as seriously as adults (Rayner 1992). We perceive children and young people as the embodiment of either our hopes or fears at different stages in their development.
We do now assume, as was not always the case (Aries 1962), that there is a specific 'estate' of childhood. We also make a range of other assumptions about children: that their status is biologically determined, with its own culture and institutions, characterised by dependence, subordination and exclusion, in which children are somewhat passive and inarticulate (being 'spoken for' by their parents). Over all, the ordinary women and men still see childhood as a time of preparation for adult life. (May and Strong 1980). At the same time, we imbue the early years of childhood with an aura of holiness, a sentimentalised era of innocence, play and laughter, usually determined by chronological age and apparent helplessness or 'innocence' - what others have described as the 'sanctification' or 'sacralisation' of childhood (Zelizer 1985). At some later, unspecified, age (perhaps uncomfortably close to the child's discovery of sexual feelings or arrival at puberty, or both) the child becomes a problem.
This dichotomy can be seen in the different approaches to children. Health care providers, for example, see the child as a precious resource, a vulnerable and fascinating subject of study and delight. On the other hand, the legal system has older children or young people brought to it as actual or potential offenders, or in need of care and protection, and sees the child as a threat to social order.
There has been a dramatic change in attitudes to children in the last 50 years. This has been linked to the decline in the birth rate and children's improved chances of survival beyond infancy, with improved child health care and nutrition and environment. The number and sophistication of professions devoted to children and young people has burgeoned. The child's role as consumer has become much more pronounced, and television has come to usurp the school as the child's primary source of knowledge about the world outside the (nuclear) family.
Many of the assumptions about childhood are again being challenged, and not only by changes in the economy (the majority of married women now work, for example, and many children are regularly cared for outside the family). There is, for example, growing recognition that even very young children can give credible evidence to law enforcement and judicial bodies of events they have witnessed if proper methods of questioning are adopted and if interrogators do not assume certain events have occurred and consciously or unconsciously persuade the child to give accounts consistent with those assumptions (Spencer and Flyn 1990). That recognition has led us to modify judicial processes to allow children to participate as witnesses - although we have been much slower to recognise that children who are accused of committing offences have just as great a need for special consideration when they need to be heard in their own defence.
We have also learned that children can quite competently make a range of important decisions if we use appropriate language and concepts to discuss their options with them, but we have not yet changed many professional and parenting practices which do not respect that competence - allowing the child's voice to be heard in the Family Court, for example, or in the making of 'family' decisions.
Over the next decade we will have to deal in a more sophisticated way with major social changes affecting the relationships of immature members in families. As more and more mothers enter the workforce, business and industry are coming to terms with the need to recognise the importance of those relationships with their workers. They will have to plan for flexible working hours, leave provisions that take into account parents' responsibilities to their families. There is, quite probably, a new challenge to be met as the cottage industry, or family work unit, is re- invented, with the advent of new technology which allows some workers to work from home. Most of all, we will have to come to terms with the fact that the nuclear family has become a 'household' which goes beyond the nuclear family relations. The significant relationships include child carers, household service-providers, step-parents, de facto partners, children from other families, and the characters on television. As well, the old structures of childhood - the division of the estate of childhood into clear phases of preschool, school and work - is collapsing. The need for primary care-giving parents to work, the increasingly prevalent experience of child care by non-relatives and professionals, work experience programs through schools, and the prolongation of dependence by young people's participation in education and training programs in place of real work opportunities, are all having an impact on children and young people's roles in society.
The community will have to come to terms with its responsibility to provide adequate and proper services for children and young people which families cannot, and have not for a long time been able to provide. The Convention's promise of adequate social security, education, rest and leisure and to a supportive family environment is not well- met.
These social or economic rights, explicitly stated in the Convention on the Rights of the Child, set benchmarks for the social rights of children which, to a significant degree, determine whether or not their participatory and political rights and the development of their potential as adults will be achieved (Harris 1990). These rights are required to be enjoyed without any distinction or discrimination of any kind. All children are entitled to a decent standard living sufficient to provide for their development. They are entitled to high quality services - in particular, the best obtainable standards of health and education. These are stated in terms not of needs, but of rights.
However, as Carter (1990) points out, service delivery is almost never considered in terms of social rights. Indeed, social security and many community services are now delivered on the basis of criteria, such as parental capacity to pay, and restrictive eligibility criteria, such as benchmarks for determining need. If, however, a certain level of services are a child's right, the quality and quantity of those services might not meet those rights claims. In 'difficult economic times' family support and early intervention services for children at risk are particularly vulnerable unless they are seen as children's entitlement, and the responsibility of government to provide.
In Victoria, for example, the wretched death of a two- year-old toddler at the hands of his stepfather led to a decision in 1993 to introduce mandatory reporting of suspected child abuse. Other States have adopted or are adopting mandatory reporting too. Reporting has resource implications, at the least in its necessarily increasing the need to investigate the reports. If at the same time as mandating reporting funding is cut (as was the case in Victoria) or not adequately provided for child protection, early intervention and family support services, then States are in danger of causing Australia to breach its obligation to protect children from abuse, exploitation and neglect, and its obligation to provide the means of rehabilitation and recovery from such abuse.
When we deal with young people - older teenagers particularly - who are often in conflict with their families, we fail quite miserably to conceptualise their rights and responsibilities other than in terms of relative authority to direct or affect their life choices among family, the State and the young person. We were shocked by the findings of the Human Rights and Equal Opportunity Commission's Homeless Children Inquiry (1989), and many initiatives arose from that Report, but there is reason to be concerned that many of the recent developments to recognise the particularly disadvantaged status of older children and young people have been dramatically set back during the 1990s.
Many of the setbacks have arisen with the cutting of specialist services for young people, especially supported accommodation, psychiatric services, and drug and alcohol treatment programs. Some changes have arisen in the context of juvenile justice. In two States, Western Australia and Victoria, the right of children and young people to be given special consideration if they are accused of offending, and, if convicted, their right to special arrangements short of institutionalisation, have been explicitly and consciously legislated away with respect to sentencing. Western Australia's Crime (Serious and Repeat Offenders) Act 1992 provided for mandatory and indeterminate detention of offenders, specifically including juvenile offenders with adults, who committed fixed numbers of categories of offences, particularly motor vehicle offences and self- incrimination. Victoria's Crimes Act amendment (1993) now allows intimate body samples to be taken from children as young as 15 without consent or a court order. The Western Australian Government has even announced steps to 'toughen up' its juvenile sentencing legislation, which already indirectly impacts on some of the most disadvantaged and maltreated young people in the State - Aboriginal teenage boys.
Article 40 of the Convention on the Rights of the Child requires Australia to:
(1) ... recognise the right of every child alleged as, accused of or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
The Article also requires signatories to establish child- specific criminal laws, procedures, institutions and authorities for children accused of offending. It requires minimum ages for legal responsibility; non-judicial proceedings for dealing with children non- judicially 'providing that human rights and legal safeguards are fully respected'; and a variety of dispositions other than institutional care 'to ensure that children are dealt with in a manner appropriate to their wellbeing and proportionate both to their circumstances and the offence'.
Children and young people are enormously disadvantaged in dealing with authority when they come into contact with the criminal justice system. If they are able to formulate 'rights' claims, this is interpreted by police differently from similar claims made by adults because of the assumption of subordination and dependence, of impudence or, worse, obstruction. We have moved from a 'welfare' to a 'just desserts' model for offending children who, by definition, have not learned the limits society expects of them. We deny them the means of a fair trial and a disposition which takes their immaturity into account. We do not see young people as part of the community; we see them as a threat (White and Alder 1994).
Of course there is concern about 'juvenile offending' in the community. Young people are naturally disrespectful of calls to obedience that do not arise from their own experience, and they reject the subordination that is expected of them in childhood. There is a particular need to take care in enforcing criminal laws in the community generally, because they affect the fundamental freedoms and human rights that a community is designed to protect. It is especially difficult to make special provision for children and young people who offend, because of their vulnerability and dependent social status. It is socially, legally and administratively important to know, for example, whether we really do respect young people's rights to fair and favourable treatment as stipulated by explicit police standing orders, court decisions and preambles to juvenile justice legislation. Most of the evidence of the last five years suggests that these rights are unenforceable - for instance, the requirement that children be interviewed only in the presence of a suitable supportive adult is overwhelmingly ignored by police. If this is so, then it is counterproductive and merely deflects legitimate concern to assert such rights in the first place. If the reason for rights being unenforceable lies in entrenched police attitudes and practices, then we must change those attitudes and practices.
Young people are particularly exposed to public scrutiny and police intervention. They are visible, visibly different, an obvious group (or 'mob' to the already frightened) when they socialise in public places. The unruly, experimenting, socialising teenager does not want to stay in the family home and, often, it is no longer appropriate for them to do so. As White (1989) points out, young people's use of public space, such as streets, shopping malls and parklands, is determined to a large degree by their gender, their socio-economic class and their race or ethnicity. For many young people - infantilised by lack of employment opportunities, lack of money from unemployment, artificially prolonged education and training, and enforced dependence on adults - the street plays an important, if transient, part in their lives because neither the family nor the wider community provides them with their own space. The boundary between public interest and private behaviour is not there. This exposes them to surveillance, and, at times, clear discrimination by the representatives of authority. They are feared by older people because of misapprehension about the real risks of juvenile crime and because the habits of youth are strange cultural behaviours to other generations. They are moved on, questioned and suspected. Can there be any wonder that they become alienated, distrustful, secretive?
At the other end of the spectrum the 'family' has to find a place for, and often provide for its ageing members.
Age, like childhood, has negative connotations, at least in the Australian 'mainstream' culture. This is not necessarily shared by many migrant, Aboriginal or Maori communities, who tend to respect the experience acquired by the passage of time signified by age. The community (particularly employers) stereotypes people according to age - presumed incompetent while young, 'out of date' and too old to retrain at anything from 45 onwards, too old to work from compulsory retirement ages of 60 or 65, and not to be taken seriously at any age that is characterised by wrinkles or physical weakness. It is, of course, easier to establish a stereotype than to determine what ageing, elderly or downright obscenely old women and men can or can not, or ought or ought not to do, assessed on their chronological age.
Ageing has begun to worry baby boomers because they have begun to experience its present burden on themselves as income-producing family members. We have begun to see our own parents, in need of care which we cannot or do not wish to provide ourselves, having difficulty finding or accessing the services they need to maintain a reasonable level of dignity and autonomy. As their friends become ill, or lose their incomes unexpectedly before or at 'retirement age', people in middle age begin to realise that their own futures are not likely to be particularly comfortable. They can actually project a future where they will become old and increasingly dependent on fewer people with much fewer resources and lower incomes. They are beginning to wonder about their own health, and the degree to which they are in control of their own lives. Will there be enough services for them?
There is reason for concern. Between 30 and 40 years from now, of about 26 million people living in Australia about 16 per cent will be 65 years or older. By 2031, 1.5 million Australian families will have at least one person aged 80 to care for, and many more will have dependents aged 65 or over, and more of them will be women than men. Not all of them will be dependent, though some have predicted that aged care will be more of an issue than child care (Edgar 1992). The families of aged people will look very different from the families of their own youth because there will be more blended families, gay and lesbian relationships and childless or never-married women and men. It is probable that many unmarried women will not have family to care for them and might still be required to care for yet older relatives. This is because of traditional expectations and also because women tend to survive without partners more successfully than men do, and to retain contact with their families and extended family networks - for longer and longer as life expectancy is prolonged. Those women who are expected to do the caring will probably be working as well as carrying out the majority of family care and housework tasks. They will probably be looking for, and getting support themselves from at least some of the competent elderly. But what happens to them when they cannot contribute?
If we are not to condemn older people to poverty and depression, and women to servitude, we will have to address the very different working capacities and supports needed for women and men, older and younger people, throughout their working lives.
There was a good side to the debate about the rights of children vis a vis the rights of parents; a clearer public understanding that we can only enjoy individual rights in a consciously interdependent community of separate interests with a shared common goal.
In the decade which lies ahead, that community must come to terms with the reality that families are single parents, blended, gay and lesbian grandparents, 'households' of once and former partners and children and 'in-laws', vulnerable, violent or neglectful, and closed families. The preoccupation with the 'ideal' family type is unhelpful. Families are meant to achieve a social purpose, and the focus ought to be on how they can best achieve that purpose.
One of those issues is family violence. During the 1980s Governments began to appreciate the potential for violence to vulnerable family members, and the effect such violence could have on the stability of relationships within the family instead of the comfort and joy of good family relationships and the creativity and pleasure of the diversity of family life.
The State already has a role in preventing violence to children, but no Australian government has yet been prepared to address one of the prime causes of child abuse, the excesses of 'discipline' which arise from the legal toleration of violence to children in the form of 'corporal punishment', smacking or spanking - all euphemisms for what would certainly be assaults if they were inflicted on anyone other than children. None has tried, as six European countries have now done, to change the defence of 'reasonable correction' to a criminal charge, and child abuse laws have been unsuccessfully invoked.
There are few programs to help parents understand how to discipline their children without force, or how to deal with their own anger. Early intervention and prevention services or family support services providing support in 'non- intrusive' ways are often the first victims of cost-cutting exercises, even where the needs are greatest.
In the last six months, there have been two highly publicised criminal and coronial hearings concerned with the deaths of children, in Victoria and New South Wales, both 'disciplined' to death under the gaze of neighbours, service providers and a range of caring professionals. The friend of Daniel Valerio's mother, the two-year-old mentioned earlier, commented that she seemed 'too soft' on the child. Another was beaten to death for 'sexually abusing' another child, at the age of six. At roughly the same time, two different Victorian magistrates failed to convict parents who beat or punched or slapped their children in the name of discipline.
The best prevention of child battering is the disapproval and intervention of our neighbours. There is little if any point in introducing resource-intensive reporting requirements when professionals and the public are unsure when it is 'reasonable' to assault a child. There is little point in introducing charters of children's rights, or education campaigns, if they are not backed by the firmest possible expression of public policy, a legislative prohibition, by which we express the value the community really places on the child's right to respect.
The issue to be addressed is the simple one of the rights of family members being protected and promoted by the family.
In the decade to come, Australia should adopt the statements of human rights instruments, especially the UN Convention on the Rights of the Child, as the basis for a national children's policy. In terms of its responsibility to individuals who cannot express their personal autonomy or a full range of life choices because of their age, dependence, and exclusion from the economic wealth of the community, the government must also categorise social services to family members, through or independently of those families in terms of universal human rights, rather than needs.
We also need to reconsider the way we value the un- or under- employed young people who might, or might not, have family support. If, for example, we define entitlements to social security for older children and young people by defining them in terms of assumptions about family income and support, we are actually perpetuating dependence and inviting inter-familial conflict. Young people need to leave home and assume responsibility for their own lives. There is a risk of creating an angry and alienated underclass of young people, forced onto the financial resources of their families well beyond the age and stage of development when they should be forming adult responsibilities because they cannot find work or obtain social security benefits or accommodation.
We do expect the older child, and young people, to accept full adult responsibilities in other areas of their lives. There is a trend, in juvenile justice systems in various States and Territories, to require older children and young people to conform to an adult punishment or just desserts model which does not take into account their immaturity, the transient nature of much juvenile offending, or the social conditions which contributed to that offending. In Western Australia, for example, a large number of juvenile and youth offenders are Aboriginal boys, many of whose parents and grandparents were traumatised by being 'rounded up' and forcibly separated from their own families by a well-meaning welfare bureaucracy, and did not learn parenting or employment skills. That State's 'serious and repeat offender' sentencing legislation mandates indeterminate sentencing for children who commit certain kinds of offences, without taking these considerations into account.
We will have to take into account different criteria for assigning status to community members than employment, if many young and older people are likely to be unemployed. We will have to find a means of valuing the unpaid work and contribution of 'dependent' family members who make contributions to family wellbeing in other ways, in exchange for support and protection.
Given what we know about the ageing of the population and the increasing tendency of radical right wing governments to 'privatise' the care of the elderly and family support services to the family itself, it will be necessary, as more and more of us become old, to come to terms with the issue of age discrimination and the specialised services an ageing population will need.
Most of all, we must give up our treasured hindsight view of a 'golden age' of certainty and authority within a patriarchal nuclear family. It cannot be recaptured, if it ever existed outside our dreams. We live in an age of the individual, but individuals assuming their community and inter-generational responsibilities in order to achieve their maximum personal potential. If the family is to serve its purpose, its members must promote the rights of the individual members, defining what it expects of those individuals in return, and explicitly protecting their self- respect and personal dignity of every member. We cannot afford, in social terms, women retreating to the home, or youth locked away in classes, nor the aged, the mentally ill, the ill or infirm, dying lonely deaths surrounded by neighbours who never knock on the door.
There should not, then, be any argument about whether families as such have 'rights'. They don't. They have duties to perform and responsibilities to their individual members. A family is a social arrangement made by the human animal to protect its group interests, including the rights of immature and dependent human beings who will in turn become its decision-makers. Each family group, whose members are bound to each other by ties of love and duty, will act to protect and promote the rights of its members, altruistically or in enlightened self-interest.
The real questions are twofold. Should a community respect the institution called a family if the family does not serve those interests of its members? Does the community respect the rights of dependent and vulnerable people if it fails to provide the minimum social conditions for a life of dignity? Further, would a government which failed to provide these be a legitimate one?
There is no room for moralising or sentimental attachment to a mythical 'ideal' family type, or debates about dividing up some pie of 'rights' among families, adults and children. The interest of the community demands respect for the rights of all. The Preamble to the UN Convention on the Rights of the Child says quite simply that 'the inherent dignity and the equal and inalienable rights of all members [emphasis added] of the human family is the foundation of freedom, justice and peace in the world.' And so it is.
- Aries, P. (1962), Centuries of Childhood, Jonathon Cape, London.
- Carter, J. (1990), 'Child and family welfare', in P. Alston and G. Brennan (eds), The UN Children's Convention and Australia, HREOC, ANU Centre for International and Public Law, and ACOSS, Canberra, p.40.
- Edgar, D. (1992),'Family and intergenerational relations into the 21st century', in Ageing in the 21st Century: Law, Policy and Ethics, National Symposia, the Law Reform Commission of Victoria, the University of Melbourne School of Social Work, the Office of the Public Advocate and the Older Persons' Planning Network, Parkville, Vic, p.220.
- Goodin, R.E. (1985), Protecting the Vulnerable: A Re-Analysis of Our Social Responsibilities, University of Chicago Press, Chicago, Illinois, p.19.
- Harris P, (1990), 'All our children', Child Poverty Policy Review No. 4, Brotherhood of St Laurence, Melbourne.
- May D. and Strong, (1980), 'Childhood as an estate', in R.G. Mitchell (ed.) Child Health in the Community (2nd edn.) , Churchill Livingstone, Edinburgh, p.19.
- Rawls, J. (1971), A Theory of Justice, Harvard University Press, Cambridge, Mass., p.440.
- Rayner, M. 'The right to remain silent: the interrogation of children', Monash University Law Review, Vol.15, 30.
- Rayner, M. (1992), 'Children's voices, adults' choices', Family Matters No.33, December, p.4.
- Spencer, J. and Flyn, R. (1990), The Evidence of Children, Blackstone Press, London.
- White R, (1989), No Space of Their Own, Cambridge University Press, Cambridge, UK.
- White, R. and Alder, (eds) (1994), The Police and Young People in Australia, Cambridge University Press, Cambridge, UK.
- Zelizer, V. (1985), Pricing the Priceless Child: The Changing Social Value of Children, Basic Books, New York.
In this issue
- International Year of the Family: What are the Issues?
- The many faces of families: Diversity among Australian families and its implications
- Sharing the pleasures and pains of family life
- Integrating private and social responsibilities: Better partnerships between families, governments and communities
- Families and financial disadvantage
- The rights of indigenous peoples in the International Year of the Family
- Supporting people with a disability and their families
- Regional disadvantage and unemployment
- The Value of Care and Nurture Provided by Unpaid Household Work
- Responding to Family Crisis: Past and Future Roles of the Professional Helper
- Developing coherent community support networks
- Human rights, families and community interests
- Child support: A step towards changing parenting after separation
- Achieving a family supportive workplace and community
- Child abuse and neglect: Incidence and prevention
- Violence against women in the home: How far have we come? How far to go?
- Abuse and Neglect of Older People