The Tension Between Protection and Participation – General Theory and Consequences as
Related to Rights of Children, Including Working Children
Barnevernets Utviklingssenter i Midt-Norge
The United Nations Convention on the Rights of the Child was adopted by the General Assembly in November 1989, and has been ratified by most countries, including Norway in 1991. It is a comprehensive document which articulates a wide range of rights for children. The Convention recognizes that children below the age of 18 years are autonomous individuals who shall have many of the same human rights which have previously been extended to adults, as well as additional rights related to their special status as children.
The Convention consists of 54 articles, including 40 substantive articles giving children specific rights. These include important guiding principles such as the “best interest principle” in Article 3, which mandates that ”the best interests of the child shall be a primary consideration in all actions concerning childrenOther basic rights in the Convention include the child’s right to life and survival (Art. 6), to good health and health care (Art. 24), to an adequate standard of living (Art. 27) and to education (Art. 28).
The rights defined in the Convention have been categorized in various ways in order to facilitate understanding of the document and/or to highlight the importance of certain types of rights at the expense of others. An example of this is the five categories traditionally used to classify human rights for adultscivil, political, economic, social and cultural. Eugene Verhellen writes that the rights recognised by the Convention clearly coincide with these traditional categories. (Verhellen, 1997).
Following its adoption in 1989, UNICEF chose to promote the Convention using four categoriessurvival, development, protection and participation. Nigel Cantwell has argued that the choice of these categories reflects UNICEF’s own organizational agenda with its emphasis on survival and development. He believes that this categorization has the unfortunate side-effect of placing too great an emphasis on survival rights, because it implies, whether intentionally or not, that survival rights are more important than the other categories.
Cantwell prefers the categorization, commonly referred to as the “3 Ps” which are:
The right to provision of basic needs.
The right to protection from harmful acts and practices.
The right to participation in decisions affecting their lives.
The “3 Ps” were developed by Defence for Children International (DCI) together with UNICEF as an easily-remembered slogan to describe the contents of the Convention. According to Cantwell, they were chosen for 3 reasons:
to avoid reference to the traditional categories of human rights (civil, political, economic, social and cultural) which were believed to be too controversial-particularly the idea of civil and political rights for children,
and to highlight the innovation that children henceforth had not only the right to receive services (provision), and to be protected from acts (protection), but also to play an active role in terms of decisions about their own lives as well as in society as a whole (participation). (Cantwell, 1993).
Cantwell argues that the “3Ps” were seen initially as a pedagogical tool in which provision, protection, and participation rights were “both necessary and interdependent elements in the panoply of human rights to be accorded to children”. Cantwell warns against interpreting the “3Ps” as distinct and competing types of rights rather than as “three elements to be necessarily taken into account in formulating policies on any issue.”
Others, including Målfrid Grude Flekkøy, Norway’s first Ombudsman for Children, agree that different categories of children’s rights under the Convention should be seen in principle as “interrelated and mutually reinforcing”. Flekkøy recognizes, nonetheless, that balancing different types of children’s rights in practice may often lead to tensions and contradictions. This is particularly the case with protection and participation rights, where the desire to protect children from too much responsibility, or from decisions that are too difficult may often result in limits on their right to participate in decision-making (Flekkøy and Kaufman, 1997).
This paper will consider the relationship between these “2 Ps”protection and participation. While protection of children, especially young children, has been a longstanding and widely accepted goal in most societies, children’s rights to participation and to self-determination are of more recent origin. The 1959 Declaration on the Rights of the Child, the forerunner to the 1989 Convention, for example, contains only provision and protection rights, but not participation. Participation rights for children are more controversial and more difficult to implement than protection rights because these rights are seen as threatening by many adults, who fear that they will undermine parental authority and family stability. This paper will examine the following issues: protection and participation rights in the UN Convention, the relationship between these two types of rights, the ”competence debate” and the double-standard, levels of participation and some consequences for child labor of combining these two types of rights.
II. Protection and Participation Rights in the UN Convention
Among the 40 substantive rights in the UN Convention on the Rights of the Child are a number of important protection and participation rights. The child’s need for protection is addressed already in the Preamble to the Convention, which states ”that childhood is entitled to special care and assistance” and that ”the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.
Important protection rights defined in the Convention include:
Art. 19 Protection from violence, abuse, neglect, maltreatment and exploitation
Art. 20 Special protection for children living without their parents
Art. 32 Protection from economic exploitation and from performing hazardous work
Art. 33 Protection from illicit use of drugs
Art. 34 Protection from sexual exploitation and abuse
Art. 35 Protection from abduction and trafficking in children
Art. 36 Protection from all forms of exploitation prejudicial to child welfare
Art. 37 Protection from torture and unlawful imprisonment
I will return to Article 32 – protection from economic exploitation and hazardous work later in my talk when I consider child labor in the context of protection and participation.
The UN Convention is the first international agreement to explicitly recognize participation rights for children. As noted above, these rights were not included in the 1959 Declaration of the Rights of the Child, which preceded the current UN Convention. Important participation rights are mainly in Articles 12-17 and include:
Art. 12 free expression of views on matters affecting the child
Art. 13 freedom of expression
Art. 14 freedom of thought, conscience, and religion
Art. 15 freedom of association
Art. 17 right to information
Art. 31 right to participation in recreational activities, cultural life and the arts
Article 12 is probably the most important participation right in the the Convention. Itguarantees that children shall have the right to be heard on all matters which affect them, and to have their opinions taken seriously. It is an important extension of “the best interest” principle, because Article 3 says nothing about who is to decide what is in the child’s best interest, or to what extent children themselves shall participate in this determination. In many cases, it is parents and other adults who attempt to define and protect the interests of the child, often with little or no involvement of the child.
Art. 12-1 states:
- States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
Article 12 places no specific age limit on the child’s right to express their views, though it does tie this right to the child’s capacity and maturity, with increasing weight to be given to the views of older and more mature children. A number of Norwegian laws, including the child protection act and the law regulating relations between parents and children, give children similar rights to be heard. Unlike Art. 12, however, these laws limit full exercise of this right to children 12 years and older. The Norwegian legislature is currently considering a proposal to lower this age limit to 7 years.
III. The Relationship Between Protection and Participation Rights – Complementary or Conflicting
Various attempts have been made to describe the relationship between children’s protection and participation rights. A Norwegian White Paper on the Children’s Ombudsman calls these two types of rights the most fundamental for children. The White Paper identifies the characteristics of these two types of rights as follows:
( NOU 1995:26)
These two types of rights vary with the age and maturity of the child. This model places children’s rights in a developmental context where different rights have different importance at different ages. The younger the child, the greater the need for their protection. Participation rights will increase in importance as the child ages and matures. This relationship may be illustrated visually by a simple diagram which places children’s rights on the vertical axis and age (0-18 years)/ maturity on the horizontal access. Protection rights would then be illustrated by a descending line from left to right, while participation rights would ascend from left to right, with the two lines crossing in the middle (age 9).
Others, such as Flekkøy and Kaufman, have described a more complex relationship between these two types of rights. They agree that the child’s age and maturity affect the balance between protection and participation, but other factors must also be taken into consideration . The appropriate balance between protection and participation must be determined on an individual basis. They write:
“ The protection children need in order to exercise their rights often involves a discussion of where and in what context children can give opinions and play a part in the decision-making process. … This raises the question of how much and what kinds of protection children actually need. This is an issue to which there is, in our opinion, no simple, universal answer. Probably this needs to be considered on an individual basis, taking into consideration the maturity and experience of the child, the situation, the consequences of the decisions to be made and the benefits of increasing experience and autonomy. … It is also important to consider the consequences of not letting the child voice an opinion, make a choice or share the decision-making. The child needs experience and it is obviously better to get that experience in situations which are not dangerous or have very far reaching consequences (Flekkøy and Kaufman, 1997, p. 66-7).”
There is some disagreement as to whether protection and participation rights should be viewed as complementary or conflicting. As noted earlier, Cantwell is among those subscribing to the view that different types of children’s rights in the Convention should be seen as equally necessary and interdependent, or in the words of Flekkøy and Kaufman as “interrelated and mutually reinforcing”. Verhellen also describes the holistic and interdependent nature of rights under the Convention. He writes:
”Furthermore, a subdivision of rights into different categories would be in breach of the spirit of the Convention, which makes no distinction between the different rights, and establishes no hierarchy. Indeed, the intention of bringing them all together in one comprehensive instrument was precisely to indicate that they were all equally important and even interdependent. In other words, none of these rights can stand alone (Verhellen, 1997, p. 77).”
I would suggest, nonetheless, that when it comes to the practice of protection and participation rights for children in the real world, these may often appear to be in tension. This tension is related to the belief that too much responsibility and too much participation can be harmful to children. They need to be protected from participating in difficult decision-making or from feeling pressure to express their views on painful or controversial matters.
This may be clearly seen in the Norwegian child protection setting. A 1995 study in Bergen revealed that social workers are much more likely to talk to parents and other adults than to the children themselves in child protection investigations. Social workers spoke to young people directly in only half of these cases, mainly to young people 14 years or older. Younger children were rarely contacted. Social workers justified this lack of contact with children on the grounds of protecting them from having to talk about a difficult situation, or from having to be disloyal to their parents by revealing embarrassing details of their family life (Christiansen, Havnen, and Havik, 1998). Other Norwegian studies confirm this pattern of limited direct contact with children, contrary to the intention of Norwegian lawmakers.
Gerison Lansdown has described a similar tension between protection and participation rights for children in Great Britain. She argues that inaccurate perceptions of childhood and an exaggerated sense of children’s vulnerability often can undermine their right to participation. She describes a “self-confirming cycle” where children’s perceived vulnerability reduces their opportunities for participation:
“It is the predominance of a protective model in the construction of our relationships with children which has inhibited the development of appropriate recognition of children’s real capacity for participation. … And it is their need for protection which is used to justify the continued resistance to giving children more control over decision-making in their lives. A self-confirming cycle is established. Children are perceived as lacking competence to take responsibility for their own lives, and therefore as vulnerable and in need of protection. Because they need protection, adults are invested with powers to act on their behalf. Because children are denied the powers to make decisions or fully participate in them, they are rendered more vulnerable to the authority of adults (Lansdown, 1995, p.22-4).“
Lansdown contends that children’s perceived vulnerability and need for protection are only partly the result of inherent or biological factors such as physical weakness, immaturity, and limited knowledge and experience. They are largely a social and political construct based on social and historical attitudes about extended childhood in industrialized countries like Great Britain which are neither universal nor inevitable. She points to experience from developing countries where children are often given greater responsibility at a younger age as proof of this.
”Children are vulnerable precisely because of their lack of political and economic power, the under-valuing of their potential for participation, and consequent denial of civil rights. In other words, it is the structures within which children have to live which serve to render them vulnerable to abuse, exploitation, neglect and disregard for their views as much as their inherent immaturity, lack of knowledge, ability and experience(Lansdown, 1995, p. 22-24).”
IV. The Competency Debate and the Double-Standard
Lansdown is not alone in focusing on the relationship between children’s competence and participation rights. The UN Convention addresses the competency issue in Article 5, in relation to the duty of parents or legal guardians ”to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.” The implication being that children will require progressively less guidance from parents in the exercise of their rights as they mature and become more competent.
Eugene Verhellen refers to this ”competency debate” as follows:
”Indeed the most fundamental, recurring argument against autonomous rights for children is their supposed incompetence to take well-founded decisions. According to this view children are not sufficiently mature physically, intellectually and emotionally and they lack the necessary experience to make a rational judgement on what is and is not in their interest (Verhellen, 1997, p.27) .”
He finds this argument unconvincing, suggesting instead that the competency debate be turned upside down, using participation as a means to gain greater competence.
”In fact the outcome of the debate on competence ought to be that it is essential that children’s right to self-determination be recognised in order to make them more competent and not the other way around: that their right to self-determination be (gradually) recognised because (step by step) they have gained more competence. (Verhellen, 1997, p.28-9).”
Flekkøy and Kaufman say the competency argument is legitimate only when it is not used as a rationalization for unreasonably limiting children’s participation rights. They reject the use of a double-standard for children and adults, where children are expected to demonstrate their competence before being allowed to participate, while adults are assumed to be competent until proven otherwise.
”In particular in connection with the child’s right to partake in decision-making, questions are raised concerning whether or not the child has the competence for making decisions, at which developmental stage the child has adequate maturity to make which types of decisions. This question is often connected with the idea that there is a need to protect children from too much responsibility, from decisions that are too difficult or from the consequences of unwise decisions. This idea is only legitimate when it is not used as a rationalization, when there is a real need for protection or consideration of the child and what is in his or her best interest …Incompetence cannot fairly be a good reason for denying rights, for children any more than for adults. If this were done, many adults would also be excluded. But in the present situation there is discrimination against children, who seem to be obliged to prove competence, while adults can only be denied rights if they are proven incompetent. This should also be the principle for children (Flekkøy and Kaufman, 1997, p.48).”
Roger Hart has studied children’s participation in different cultures. He agrees with Verhellen that children’s participation in different arenas including the family, school, and the community is an important means for developing competence and self-esteem. He argues that children’s participation in meaningful projects together with their peers and with adults provides important training.
” Children need to be involved in meaningful projects with adults. It is unrealistic to expect them suddenly to become responsible, participating adult citizens at the age of 16, 18, or 21 without prior exposure to the skills and responsibilities involved. An understanding of democratic participation and the confidence and competence to participate can only be acquired gradually through practice; it cannot be taught as an abstraction (Hart, 1992, p.5).”
V. Levels of Participation
Children’s participation is not an all or nothing proposition. It can take various forms and vary in intensity depending upon the situation. Hart has developed a model which illustrates levels of children’s participation using the metaphor of a ”ladder”.
The ladder consists of 8 rungs, with more active levels of participation as one ascends the ladder. The bottom three rungsmanipulation, decoration, and tokenism are, according to Hart, really non-participation. On these levels, children are used by adults to give the appearance of participation without the substance. They participate without being adequately informed of the issues involved, and with little real input into what takes place. An example of this is “decoration”-–where children are given T-shirts related to some cause and may perform at some event, but have little idea of what it is about, and little say in organizing the event.
Hart lists four requirements for a project to be truly participatory:
- The children understand the intentions of the project
- They know who made the decisions concerning their involvement and why
- They have a meaningful (rather than decorative) role
- They volunteer for the project after the project was made clear to them
The top five rungs on Hart’s ladder are examples of participation,ranging from assigned but informed child-initiated, shared decisions with adults to…?... Only the three highest rungs, however, qualify as true” participation. Examples of true participation include young people helping to plan and design a multi-purpose park, or a highschool student-initiated effort to create a sex education program in the public schools.
Hart says true participation by young people is relatively uncommon. Even the highest rung of Hart’s ladderchild-initiated, shared decision with adults, however, falls short of full, autonomous decision-making by young people. Responsibility for determining the ”best interests of the child” remains ultimately in adult hands.
VI. Some Consequences for the Issue of Child Labor
I will conclude with a few comments on how children’s protection and participation rights may relate to the issue of child labor. The UN Convention addresses the issue of child labor as a danger from which the child needs protection, not as an opportunity for the child to participate and develop useful skills.
Article 32 is intended to protect the child from economic exploitation:
- States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.
- States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular:
- Provide for a minimum age or minimum ages for admission to employment;
- Provide for appropriate regulation of the hours and conditions of employment;
- Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article
In raising this issue, I do not suggest that Article 32 is unimportant, nor that children need no protection from economic exploitation or from work which is hazardous or harmful to their health and development. Clearly child prostitution, children in the military, street children and the exploitation of small children in industries such as carpetmaking and textiles are serious problems which need to be vigorously addressed. Economic deprivation places pressure on many families in poor and developing countries to permit and encourage their children to work at an early age in order to help support the family, often at the expense of their education, their health, and their future development.
I would suggest, however, that this issue is complicated, and that many children in industrialized countries no longer have sufficient opportunity to engage in meaningful workwhich can give them a sense of responsibility, a chance to develop their competence, and a feeling of being needed. Efforts to prohibit all forms of child labor, therefore, do not address the need for safe and meaningful work for children which increases their competence without interfering with their education, health, or development.
Flekkøy and Kaufman, acknowledge the serious plight of many child workers in developing countries, but agree that children in industrialized countries face a different reality:
” For children in industrialized countries other questions must be asked: Recognizing the value of play, have these children lost opportunities to learn to take on responsibility, for example by sharing responsibility for family functioning? If their lives become all play and no work (except in school), how can they feel necessary? The small surveys that exist from industrialized countries indicate that children of school age want responsibility.” They conclude that there is a need for more cross-cultural research on the development of competence in different life situations (Flekkøy and Kaufman, 1997, p. 119)”.
Roger Hart also calls for solutions adapted to children in varying cultures:
”The place of work in children’s lives in the industrialized and developing countries is a complex subject which cannot simply be resolved only through single pieces of legislation which prohibit children from working or which require more schooling. Experience from the industrial nations should tell us that the solution for developing nations is not just more and more schooling, for we are now seeing the effects of youth who have no opportunities to discover the pleasures of meaningful work. Our solutions must therefore involve not only a recognition of the grim realities of exploitative labor balanced against the economic realities of a child's family and the need for income; we must also consider a child’s desire to develop competence which is relevant to the kinds of work demanded of her, both now and in the future. We need more thoughtful development and evolution of a variety of solutions within each culture involving unique combinations of play, work, and school. From these different experiences, every child should be able to find a route to a meaningful role in his or her community and to discover both the rights and the responsibilities for participating with others in the development of this community (Hart, 1992, p. 27-8).“
This concludes my discussion of children’s right to protection and participation, and the tension that often exists between them. I have tried to suggest that both types of rights are important and relevant at different ages and in different situations. Participation rights are often more controversial and more difficult to implement, and for this reason require more attention and more commitment if they are to be more than empty rhetoric. Protection of the child, from danger and too much responsibility, while legitimate concerns in certain situations can also be obstacles to the realization of meaningful participation by children and young people in decision-making on matters that affect their lives. Children’s lack of competence should no more be used to deny them the right to participation than it is for adults. Participation in decisions affecting one’s own life is an important means of developing competence and learning active citizenship.
I believe that the same holds true in the case of child labor, especially in more industrialized countries. While progress has been made in reducing or eliminating the most blatant exploitation of young people in many countries, and in regulating minimum age of employment and working hours and conditions, much more needs to be done in this area, especially in developing countries. Such regulations should be applied, however, in a manner which leaves children the opportunity to participate, on a voluntary basis, in meaningful work for a limited number of hours, which can help develop their competence and sense of responsibility without endangering their health or education.
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Flekkøy, M. G. and N.H. Kaufman (1997) The ParticipationRights of the Child: Rights and Responsibilities in Family and Society. London: Jessica Kingsley Publishers.
Hart, R.A. (1992) Children’s Participation: From Tokenism to Citizenship. Florence: Unicef International Child Development Centre, Spedale degli Innocenti.
Lansdown, G. (1995) ‘Children’s rights to participation: a critique’ in C. Cloke and M. Davies (eds.) Participation and Empowerment in Child Protection. Chichester: John Wiley & Sons Ltd.
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