Title

Bridging the “Divide” between Feminism and Child Protection Using the Discourse of International Human Rights

Abstract

“Bridging the Divide” is an essay that addresses the perceived tension or “divide” between feminism and child protection. While, in theory, women’s and children’s rights are not necessarily antithetical, the policies that have been devised (allegedly to preserve and promote those rights) are, at times, at odds. For example, the policy of social services to remove a child from the home of the mother, rather than assist both mother and child by the creation of a better home environment, is certainly at odds with rights of the mother. To simplify the issue greatly, the right of women to have and raise a child is in conflict with the way that the state operates in its protective role - and a critical issue is that the state might not be color-blind or race neutral. This is an especially important issue for African-American women because the state feels compelled to intervene in their lives as they are at times presumptively seen as “irresponsible.”

“Briding the Divide” explores the role that a human rights discourse might play in addressing the “divide” or the perceived tension between feminism and child protection. Some preliminary questions it asks are: What are the alternatives when it comes to the expression of rights? Do we identify maternal or parental rights in negative terms, saying you can do anything not prohibited, or positive terms, saying you can do only that which specifically is permitted? Does it matter? Whether parental rights are viewed in terms of “parents have rights to do anything not prohibited” or “parents have rights to do only that which is specifically permitted,” children’s rights are left undefined. Children remain on the margin. Children are in the default position. And this problem is exacerbated domestically, in the United States, by the view of some parental rights advocates that parents have omnipotent “rights” over children. Under this view, rights of children may be not only marginalized, but rendered non-existent. This view also begs any question or issue with respect to parental responsibility.

Perhaps the key to the harmonization of children’s and parent’s rights is the identification and enumeration of children’s rights, so that we can see where rights of parents and children intersect and are interdependent, and then and thereby develop policies that foster the rights of both. In the international human rights context, the Convention on the Rights of the Child is an example of the harmonization of children’s and parent’s rights, and an analysis of the legal scheme developed by the Children’s Rights Convention might prove helpful to the feminism/child protection debate. “Bridging the Divide” concludes that perhaps the “divide” is an illusion and the reality of human rights is one of intersectionality and interdependence.

Disciplines

Human Rights Law | International Law | Law and Gender

Date of this Version

August 2003