A Magna Carta for Children? Rethinking Children’s Rights

A Magna Carta for Children? Rethinking Children’s Rights, Michael Freeman (Cambridge, U.K.: Cambridge University Press, 2020), 556 pp., cloth $125, paperback $39.99, eBook $24.99.

Children’s rights present a unique challenge. On the one hand, the UN Convention on the Rights of the Child (CRC) is the most widely ratified human rights treaty in history, with every country having ratified it except the United States. On the other hand, more than thirty years after the CRC was adopted, children’s rights continue to make many adults, from policymakers to parents, uneasy. It is not only in conservative circles—where hyperbolic warnings of so-called nannies in blue berets taking children away from parents stoke fear—that children’s rights have met resistance. Even among human rights advocates, children’s rights are often relegated to the margins and dismissed as not being the serious business of the rights agenda. Some of the resistance is political strategy, but some of it also reflects a genuine lack of understanding of children’s rights and their relationship with the broader human rights agenda.

Amid that muddled landscape, Michael Freeman offers a cogent, authoritative survey and assessment of the history and current state of children’s rights in his recent book A Magna Carta for Children? Rethinking Children’s Rights. For those well versed in children’s rights, reading Freeman’s book is like signing up for a walking tour of your hometown with one of the foremost authorities on the city—you wind your way through familiar territory but are nonetheless enriched at each turn by the insights of, and reflections by, your expert guide. For those less familiar with children’s rights, Freeman’s book may well be the definitive starting point.

In parts 1 and 2 of the book, Freeman offers a comprehensive course on children’s rights. He addresses foundational theoretical and practical questions, such as the definition of the child and the complexities of reconciling protection and autonomy; maps the content of the CRC and children’s rights law more generally; and identifies the central challenges of making children’s rights a reality. Then, in part 3, Freeman articulates his vision and understanding of children’s rights. He does not provide a definitive answer to every question so much as he establishes an agenda for how we can advance the rights and well-being of children. In this sense, his book has value as a framework upon which a more constructive dialogue on the rights of children can be built.

Throughout the book, Freeman notes how foundational issues—such as the appropriate balance between autonomy and protection, the insufficient accounting for children in the Global South, and the adultism that continues to dominate any discussion of children’s rights—continue to be poorly resolved. He is correct: we, as children’s rights scholars and advocates, need to make better sense of children’s rights (and we must do this in partnership with young people). It is simply unacceptable to have an ill-formulated concept and understanding of the rights of roughly 30 percent of the world’s population. Children are different (though, Freeman rightly notes, not all that different in certain respects), and the liberal tradition of rights built on the autonomous individual is an awkward fit with the realities of many children’s capacities, especially young children. Children’s rights scholars and professionals must confront and resolve these foundational issues to articulate a clearer vision of children’s rights.

Developing a construct of rights that fits the realities of children is challenging, in part because when we refer to “children” we are contemplating a diverse group of individuals with starkly different experiences and capacities (the CRC defines “child” as any individual under eighteen years of age). After all, a six-year-old is different from a sixteen-year-old, and both are radically different from the six-month-old in terms of needs and capacities. Even Freeman himself struggles at times to reconcile this. On the one hand, he critiques what is arguably the most transformative right in the CRC by suggesting it does not go far enough. Article 12 establishes that a child has the right to be heard in all matters affecting the child, yet Freeman sees Article 12 as a “reflection of a dominant adultism” and believes “it is a long way from democracy” (p. 315). Article 12 recognizes children have the right to be heard, but it gives adults the power to decide how much, if any, weight to give to the child’s views. While Freeman critiques this limited right to be heard and participate in family and community decisions, he also acknowledges that children need protection. So, he lands on “limited paternalism” (or what he used to call “liberal paternalism”) as his approach to balancing autonomy and protection. This limited paternalism would put the burden on the person seeking to limit children’s autonomy to justify such actions and limit the circumstances when such interference would be permissible (pp. 380–81). It is a bolder vision of children’s agency but, similar to the CRC, leaves adults to decide when children can exercise autonomy. Of course, there are many instances when adults are the appropriate decision-makers. Ultimately, Freeman’s grappling with the tension between autonomy and protection highlights both the need to better understand child development and the importance of integrating that understanding into any approach to children’s rights.

Throughout the volume, which is based on the Hamlyn Lectures delivered at three British universities, Freeman seamlessly moves from historical and philosophical questions to present-day issues facing children—from juvenile justice, to climate change, to bullying. Though he makes clear his position on sometimes controversial topics, the aim is not to impose his views but rather to move children’s rights forward so they may spur better outcomes for children. And for Freeman, that ultimately requires a deeper commitment than just law and policy. He writes, “If we are to make progress we have to recognize the moral integrity of children. We have to treat them as persons entitled to equal concern and equal respect, entitled to have both their present autonomy recognized and their capacity for future autonomy respected” (pp. 368–69).

While it is likely that A Magna Carta for Children? will become required reading for anyone interested in children’s rights, it really should be read by a much broader audience—at a minimum, by anyone interested in or concerned about human rights. Because, in many respects, children’s rights are foundational to human rights. Conversely, resistance to genuine recognition and implementation of children’s rights is antithetical to the broader human rights idea. After all, if rights are inherent to all human beings, they exist from birth. Not accepting that children have rights equates to saying rights are not inherent but are granted by governments when individuals reach adulthood. Dependent on government largesse is exactly what rights are not in theory and should never be in practice. Thus, an understanding of, and focus on, children’s rights is critical to any effort to advance human rights more broadly.

Following the January 6, 2021 insurrection in the United States, some commentators opined that the U.S. Constitution does not so much guarantee democracy as it depends on it. Children’s rights law is similar. In the end, it does not so much guarantee that adults will respect the rights of young people as it depends on adults accepting that children have rights and acting to help children secure those rights. The CRC and other children’s rights law—whether international, national, or local—are important steps toward the realization of children’s rights. But as Freeman explains, “Law can only achieve so much. . . . [R]ights require remedies, and remedies require the injection of resources. Much from which children suffer, such as a degraded environment, for example, can only be put right by a world committed to children and ultimately to humane world governance” (p. 298). In this regard, children’s rights might be the ultimate test not just of the human rights idea but also of who we are as a society.

—Jonathan Todres

Jonathan Todres is a distinguished university professor and professor of law at Georgia State University College of Law, where he teaches and researches a range of children’s rights issues. His recent book projects include co-editing The Oxford Handbook of Children’s Rights Law (2020), and coauthoring Preventing Child Trafficking: A Public Health Approach (2019) and Human Rights in Children’s Literature: Imagination and the Narrative of Law (2016).

To access a PDF of this review, please visit Cambridge Core.