Introduction

Children are vulnerable members of society. That children are vul­nerable and therefore deserve special protection makes intuitive sense; but that children are members of society—that is, individuals with rights of their own—comes as an afterthought, if at all. The United Nations Convention on the Rights of the Child (CRC) is an ambitious interna­tional human rights treaty that strives to balance the two contrasting points of view by giving fresh attention to the latter. Shifting away from a traditionalist conception of children as purely passive objects of the authority of parents and governments, the CRC paints a modern, com­plex vision of children as in need of protection but also as individuals with rights.

The CRC is both a legal and a normative document. As a legally binding document, the CRC has been ratified by every United Nations member state (UN) but for a notable exception: the United States. Con­sequently, the United States is the target of intensifying pressure from parties at home and abroad to ratify the CRC, particularly follow­ing a report it submitted to the UN Committee on the Rights of the Child (Committee) on U.S. compliance with the Optional Protocols (OPs) to the CRC.

While the United States is a signatory to the CRC, and the U.S. government has in recent years signaled its intent to seek ratification of the CRC, efforts at ratification have stalled in Congress. This failure to ratify the CRC seems incongruous with the United States’ leading role in drafting the CRC and in promoting human rights abroad. Part of the reluctance to ratify is grounded in an enduring American hostility to international law. Much of the reluc­tance, however, hinges upon the CRC itself and its implications. After all, the CRC is also a normative, aspirational document, one that seeks to define a universal conception of the rights and position of children in the world, just as U.S. domestic law is grappling with an increasingly complex—and often perplexing—role of children in the law. The time is therefore ripe for a serious inquiry into whether and how the United States might ratify the CRC.

This Note seeks to help resolve whether U.S. law is at odds with the CRC by tackling a specific but representational issue: the relationship between the partici­pation rights of children under the CRC and the child-rearing rights of parents under U.S. law. U.S. law treasures the right of parents to control the upbringing of their children; and because the CRC potentially abrogates the power of parents to make decisions on their children’s behalf, the participation rights in Article 12 of the CRC seem to be one of the treaty’s most potent threats to U.S. law. Yet the United States cannot exempt itself from the legal mandates of the Article if it ratifies the CRC. Therefore, in order to address whether the United States may feel comfortable and ready to ratify the CRC, one must ex­plore the full impli­cations of Article 12 and its alleged conflicts with U.S. law.

Commentary on U.S. ratification of the CRC generally fails to exa­mine the legal implications of Article 12 for U.S. parental rights. This Note helps to bridge this gap. Part I explains the meaning of Article 12 and concerns about ratification, focusing on parental rights. Part II then examines relevant laws in the United States on family law proceedings, medical decisionmaking, and psychiatric commitment, comparing the three areas to the laws of other common law states that have ratified the CRC, in order to obtain greater clarity about the tension between children’s participation rights and parental authority. Finally, Part III provides suggestions on how to bring U.S. law into greater conformity with the CRC. Ultimately, this Note concludes that the conflict between parental rights and Article 12 is reconcilable and that, in fact, it presents a welcome opportunity for reform.

I. Article 12 and Its Relevance to U.S. Law

This Note grapples with the legal implications to the United States were it to adopt Article 12 specifically. To sketch a better picture of Article 12 as law, section I.A contextualizes Article 12 by providing its most relevant background, namely the drafting history and the official UN interpretation of the CRC. Section I.B then briefly describes traditional perceptions of the CRC in comparison to current U.S. law, including the tension between a child’s right to participate and a parent’s right to decide for the child. As this Part shows, U.S. jurisprudence on parental rights is, at least in a broad sense, in some tension with a central feature of the CRC—Article 12.

A. Article 12 in Context

The CRC is one of a handful of critcial international human rights treaties. Following ten years of extensive negotiations aimed at produ­cing a universal document that would best reflect a consen­sus of diverse legal systems and cultures, the CRC opened for signature on November 29, 1989, and became the most popularly and rapidly em­braced human rights treaty to date. At least part of its popularity is attri­butable to the CRC’s conscious inclusiveness. Its language is broad and speaks in princi­ples, allowing for variation in implementation, rather than imposing a code of rules. In addition, the treaty system encourages voluntary imple­mentation rather than coercive enforcement; given its weak enforcement mechanisms, the CRC “focuses on education, facilitation, and coope­ration” of the parties rather than enforcement.

The participation right of children is one of the core principles of the CRC. Citizen participation, of course, is a key value of a demo­cracy, and the CRC paves new ground by viewing children as “agents who share the power to shape their own lives” and encouraging them to exercise their own rights as members of society. This new vision of youth marks a “paradigmatic shift” from the traditional attitudes toward chil­dren and the paternalistic “best interests” focus that consider minors as passive subjects of parental or state authority. Instead, the CRC empo­wers children to be rights-bearing individuals, reflecting a key theme of the treaty, and in fact its assertion of the participation right of children is perhaps the CRC’s greatest innovation.

The CRC grants each child the right to participate in all decision-making processes that affect his or her life, so that the child might obtain a more equal role in relationships with adults and a greater opportunity to think and act independently. Article 12 sets out this right:

(1) 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. (2) For this purpose, the child shall in particular be pro­vided the opportunity to be heard in any judicial and admi­nistrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

While there are various ways to interpret the text of Article 12, it at least clearly delineates both substantive and procedural rights: Article 12(1) demonstrates a broad substantive right, and Article 12(2) follows with specific procedural requirements. Article 12 is expansive, imposing a duty upon states parties to ensure the right of children to freely express their views, whether publicly or privately, and to ensure that their views are actually “given due weight” in decisions affecting them. It is also important to note that under Article 12, children have a right to the infor­mation necessary to formulate their views and to choose to not express their views.

The CRC does not, however, delineate an unlimited participation right—and decisionmaking powers—of children. The treaty recognizes a right to free expression only for children who are capable of forming independent views, and even then, the weight given to their views de­pends upon the age and maturity of each child. Even when a child is able to express his or her views, they are not necessarily dispositive—Article 12 merely asks that children’s views, if expressed, act as a factor in decisions regarding the children.

As previously noted, the CRC encompasses different principles, and in some cases the principles are in inherent tension with one another. For example, Article 12 stands in opposition to another central principle of the CRC: the best interests of a child. The CRC arose out of a reaction to the suffering of children following World War II and the newfound recognition of the protection that children need, as expressed in the UN General Assembly Declaration of the Rights of the Child in 1959. Re­flecting this background, the CRC is committed to the protection of the “best interests” of each child, a principle best reflected in its Article 3(1). The best interests standard has been embraced internationally, inclu­ding in the United States, where the government may exercise its “parens patriae” power to protect children.

The best interests principle and the participation right of children are two fundamental pillars of the CRC, “guid[ing] the interpretation for all other provisions.” Yet the two are also in tension with each other: “best interests” of children are determined by parties other than the children themselves, such as their parents, a guardian, or a government entity; in contrast, by allowing a child to have a voice in decisions over his or her own welfare, Article 12 emphasizes the child’s autonomy against adult authority. Taken to their logical extremes, Article 3 sees children as vulnerable objects in need of protection from parents or other authority figures, while Article 12 views children as autonomous beings with the right to make their own decisions, whether or not it be in their best interests. Thus, the CRC seems at odds with itself in some respects.

B. The General Understanding About Article 12 Compatibility with U.S. Law

Before examining what Article 12 would entail for specific areas of U.S. law, it is necessary to first understand the general expectations of CRC ratification. Opinions vary widely on what bringing U.S. law into compliance specifically with Article 12 would involve; commentators debate whether Article 12 would in fact improve the lives of children and whether it poses a credible threat to such treasured doctrines in U.S. law as parental rights and federalism.

1. Reasons to Ratify: The Benefits of the CRC. — Ratification proponents argue that U.S. ratification of the CRC would bring significant benefits, ranging from substantive improvements in children’s lives to fresh reexa­mination of flagging areas of law.

First and foremost, advocates argue that adopting the CRC into domestic law would improve the lives of children by promoting their rights and thus empowering them under the law. Article 12 would provide greater representation for children in a wide range of proceedings, while other provisions of the CRC would help protect and assist children who are vulnerable to maltreatment. As a state party to the CRC, the United States would also be better able to help children abroad by obtai­ning greater legitimacy for its promotion of children’s lives and rights around the world.

Furthermore, the CRC has been effective at establishing legal frame­works and standards that in turn revitalize preexisting law on children, and it could bring the same revitalizing effect to U.S. law. As a con­sciously modern and comprehensive affirma­tion of the rights of children, the CRC is a norm-changing document. The proliferation of regional treaties and national legislation following the CRC across the globe demonstrates the power of the CRC to update norms and laws by esta­blishing an international standard for respecting each “child’s human dignity.” Consequently, adoption of the CRC into U.S. law may lead to drastic changes in family law jurisprudence by establishing a national framework of clear and identifiable objectives better suited to meet the needs of children and their families.

Specifically, adopting the CRC would help begin to untangle and update the considerable confusion that currently exists in domestic law regarding the role and rights of children. In fact, given the uncertainty about the position of children in U.S. law, the American Law Institute has commissioned the first Restatement on Children and the Law to “rein­force the child welfare goal of legal regulation, and . . . to incorporate the law’s contemporary recognition of children as legal persons.” In spite of strong social and normative trends in practice, the current rhetoric of U.S. law fails to emphasize the rights of children and the duty of parents to serve the best interests of a child. Ratification of the CRC, as well as taking note of related legal trends around the world, would help focus renewed attention on this uncertain area of law.

2. Reasons to Hold Out: Concerns About Ratification. — Many commen­tators also hold serious concerns about the prospect of CRC ratification. Some of the fears simply reflect the usual concerns regarding ratification of human rights treaties; others, however, are specific to the CRC, chief among them the fear that Article 12 would extinguish parental rights in U.S. law.

Domestic adoption of international law, and human rights treaties in particular, often faces stiff opposition within the United States. This hostility to adopting international law is generally described as “American Exceptionalism,” or the belief that the United States is somehow unique and should not be bound to international obligations. Opponents often fear that ratification will surrender American sovereignty to foreign par­ties, while others resent international attention brought upon domestic matters. Finally, some believe ratification is simply unnecessary, as U.S. law already offers robust rights protection.

Some opponents also doubt that the treaty, especially Article 12, would truly benefit children. The emphasis on children as autonomous beings, for example, may compromise the pursuit of the best interests of a child, weaken the authority of adults better situated to care for a child’s welfare, and therefore ultimately harm the child. However, the appre­hen­sion over the consequences of the CRC—and particularly the parti­cipation right of Article 12—to children’s interests often underesti­mates the ability of children to understand and exercise their right to participate in society, as well as the benefits that might result from such a right.

In addition, the CRC’s frequent focus on matters of family life impli­cates concerns over federalism, reproductive rights, and parental rights. First, opponents worry that the CRC would impinge upon federalism, as family law is traditionally within the ambit of state power, and enable the federal government to enact laws that severely curtail state regulation of family life. Second, the issue of reproductive rights is rife with political sensitivities in U.S. politics and law, and some fear that the CRC will affect the current law on abortion. Notably, the CRC takes care to avoid this political hot button.

Last but but not least, another concern is that the CRC threatens interference with the privacy of the family, particularly with the parents’ domain over their children. This “parental rights” conflict between U.S. law and the CRC (especially Article 12) is difficult to resolve yet rarely discussed in depth. By recognizing each child’s right to participate in all matters affecting the child, Article 12 arguably invites government inter­ference into private, family matters, abrogating parental authority over chilren, “family values,” and the well-being of children best left under the care of their parents.

One response to the last concern is to simply point out that the CRC is normative and aspirational, aimed at shifting attitudes about the role of children in societal settings rather than seeking to impose legally enforceable rules. But this is likely an insufficiently comforting res­ponse; after all, the right of a parent to manage the upbringing of his or her child without undue interference has a stronghold in U.S. consti­tutional jurisprudence. Since at least 1923, the Supreme Court has repeatedly recognized parents’ liberty interest in “establish[ing] a home and bring[ing] up children,” confirming the broad authority of parents to control their children. While this right is not unlimited, the extent to which the government may step in to intervene in the parent–child rela­tionship is heavily restricted, further demonstrating the extent to which parental rights act as an obstacle to Article 12. Such cases generally fail to acknowledge the child’s own views or input in the process, and in fact, courts tend to ignore a child’s rights or find that parental rights super­sede them when conflict arises.

Over time, however, the rationales posited for parental rights have shifted from protection of the patriarch, who exerts broad control over his family on the basis of his status as the head of the family, to protection of the child’s best interests, where parental discretion is often best suited for such a purpose. That is, justifications for parental rights increasingly center on the assumption that parents are in the best position to deter­mine the best interests of a child; however, by focusing on the right of parents to control their children, the language of U.S. law fails to accu­rately depict this trend of rationalizing parental control over children on the basis of parents’ duties to their children.

In any case, under Supreme Court jurisprudence, parents have a well-established right to control the upbringing of their children, whereas Article 12 attempts, arguably, to give children the right to control their lives instead. Thus, from a zero-sum point of view in which one party asserting authority infringes upon the other, Article 12—and therefore the CRC—poses a potent threat to parental rights under U.S. law. Aside from the usual opposition to human rights treaties, the perceived threat to parental rights is perhaps the greatest legal and political barrier to CRC ratification. Whether the CRC promotes greater state intrusion upon parental authority over a child or whether it is more likely to protect the family from state intrusion is largely up for debate. Rarely, however, have commentators delved into the current state of parental rights and children’s participation rights in domestic law or how Article 12 has been interpreted in practice. This Note seeks to fill this gap by examining Article 12 and its implications for domestic law.

II. Article 12 and Parental Rights: The Tension in Practice

A. Transnational Guidance on Article 12 and Parental Rights

Because the United States has not adopted Article 12 as law, under­standing the implications of Article 12 to parental rights requires an examination of how Article 12 has been interpreted in relation to parental rights in international and comparative law. To lay out the basic context, the United States is unusual in its robust protection of the rights of parents to control—i.e., make decisions on behalf of—their children. The CRC fails to recognize parental rights to quite the same extent; yet, by highlighting the sanctity of the family for the sake of children, the CRC nevertheless respects parental authority over children, albeit to a qualified degree.

1. Interpretations by the Committee on the Rights of the Child. — The Committee is the UN entity that monitors the implementation of the CRC and its OPs around the world, primarily by issuing opinions on specific state reports (Concluding Observations) and opinions on select CRC-related topics (General Comments). Over the years, the Committee has issued hundreds of Concluding Observations, as well as a General Comment on Article 12 itself. Thus, the Committee provides the most comprehensive and “official” interpretation of the CRC and is a good starting point for understanding the general import of Article 12.

In its General Comment 12, the Committee underscores the link between Article 12 and the obligation of states parties to “respect the rights and responsibilities of parents . . . to provide appropriate direction and guidance . . . to enable the child to exercise his or her rights” under the CRC. This “right,” notably, is not the U.S. right of parents to control their child but rather the right to guide their child in exercising his or her rights; furthermore, the parents’ rights diminish as the child grows in knowledge, experience, and understanding. The Committee values the importance of the family environment, as do parental rights advocates; yet the significance of the family does not hinge upon parents but instead on the development of a proper environment in which children may freely express their views. Thus, under the Committee’s interpreta­tion, parental authority takes a backseat to the development of children’s rights.

2. Interpretations in Comparative Jurisdictions Abroad. — The Committee’s guidance on implementing the CRC has its limits, however. Instead, interpreta­tions of Article 12 in other jurisdictions, such as the United Kingdom, that have had to adapt their preexisting laws to Article 12 provide useful guidance for what implementing Article 12 in the United States may entail. After all, as a body tasked with advocating for children’s rights and possessing little enforcement powers, the Committee is less limited by practical concerns and prone to holding an ambitious view of the CRC, in contrast with the tempered, more practical approaches of states burdened with the reality of limited resources, politics, and preexisting law in imple­menting Article 12. Furthermore, until the Committee issued General Comment 12, implementation of the Article by states parties was the main source of Article 12 interpretation, and the initial lack of gui­dance from the Committee resulted in a wide variety of methods of implementing the CRC into domestic law. However, the United Kingdom and Germany demonstrate that different approaches to resolving the tension between Article 12 and parental authority have some telling similarities.

The CRC has helped update the language of parental authority to emphasize duties over rights. In England and Wales, the Children Act 1989 translated key principles of the CRC, including those of Article 12, into domestic law. In doing so, the Act “replace[d] the concept of paren­tal rights and duties with the concept of parental responsibility,” aban­doning such notions as the “right[s] to custody” in favor of the child’s interests. This was an acknowledgment of the outdated language of parental “rights” and “authority,” incongruous with the modern view that “parenthood is a matter of responsibility rather than of rights.”

Germany reflects a similar trend, in which “the child and [his or her] welfare have increasingly become the focal point” in parental autho­rity. Legal reform in 1979 transformed “parental powers” into “parental care,” emphasizing both the rights and responsibilities of parents over their children. Thus, if England and Wales reflect an outright rejection of parental rights (and replacing it with parental duties), German law demonstrates a more ambivalent approach, recognizing parental rights while also linking them inextricably with parental duties. Nevertheless, both approaches mirror the Committee’s emphasis on the child, not the parent, to justify protection of parental authority.

The language of U.S. law, on the other hand, asserts the right of parents to manage their children’s lives on a basis separate from the interests of children. Yet much of the law reflects an underlying ratio­nale grounded in the best interests of a child rather than the liberty interest of parents; in other words, giving parents primary authority and discretion over the upbringing of children is often justified as being in the child’s interest. There is, therefore, an inconsistency between the rhetoric of parental rights and the practice of emphasizing the interests of children to justify parental rights.

B. Specific Areas of U.S. Law & Their Tension with Article 12

On a broad, conceptual level, the participation rights of a child seemingly jeopardize the authority of parents by chipping away at their power to make decisions on behalf of the child. This section examines the tension by applying the implications of Article 12, as it has been interpreted in practice, to three of the most threatened areas of U.S. law: First, it examines the implications for abuse, neglect, and custody procee­dings in family court, which are in fact largely consistent with Article 12; second, it addresses the area of medical decisionmaking, which shows promising trends in U.S. law that resemble the principles of Article 12 and laws that it has generated; and third, it examines Article 12’s im­plications for psychiatric commitment, the area of law perhaps most in tension with the participation rights of children.

1. Family Law Proceedings. — At a minimum, Article 12 recognizes each child’s right to be heard in judicial proceedings that affect the child. In general, U.S. law in family law proceedings, most notably abuse or neglect proceedings and custody pro­ceedings, is consistent with the requirements of Article 12 and also poses little threat to parental authority.

Legislatures and courts in the United States have been receptive to promoting child participation in family-centered proceedings despite children usually not being parties to the lawsuit. The Uniform Marriage and Divorce Act (UMDA), adopted in a small but significant minority of states, requires that a child’s wishes be factored into determining his or her best interests for custody decisions; other states have adopted an age-based rule or policy, wherein children at a specified age are granted a more substantial say in the outcome of the decision. Furthermore, in practice, judges regularly solicit and weigh the views of children in custody cases, often deferring to the preferences of older adolescents, even in the absence of statutory requirements to do so. As for abuse or neglect proceedings, an exhaustive, global study of child protective hearings has found that the statutes of a majority of U.S. states comply fully with Article 12 in such cases. Overall, U.S. law has grown to actively encou­rage child participation in family law proceedings.

This reflects the trend in the laws of countries that have ratified the CRC, albeit in different ways and to differing degrees. The United Kingdom and Ireland focus on providing guardians ad litem (GALs) who advocate for a child’s best interests, while Australia requires a judge in family law cases to consider a child’s wishes in all circumstances. New Zealand closely parallels the Committee’s view of Article 12: Without imposing age limits or giving the preferences of children dispositive weight, New Zealand focuses on affording all children the opportunity to be heard in custody proceedings, whether directly or through a repre­sentative, and taking their views into account.

While incorporating Article 12 into domestic law may take different forms, the four former and current Commonwealth states paint an impressionistic landscape of what Article 12 implies for family law pro­ceedings. In general, the voice of a child does not carry dispositive weight; rather, the emphasis is on respecting the child as an individual with a voice, consis­tent with the Committee’s interpretation of Article 12. Like the United Kingdom and Ireland, the United States provides children with some form of representation, mostly through GALs. Fur­thermore, while there is generally no bright-line rule, age is in practice a major factor in whether a U.S. judge considers a child’s views. By and large, then, the United States conforms to the requirements of Article 12 in protective and custody proceedings.

Why the easy acceptance of child participation in U.S. family law proceedings? The primary motivation for the trend is the best interests of the child, as children benefit from having greater say in such decisions. But also notable is the absence of strong parental rights concerns; that is, the state has already stepped into family affairs, to act as a child’s pro­tector or as an arbitrator between the two parents. The very existence of each proceeding abrogates the autonomy of parents to oversee their children’s lives; parental rights are already compromised in such situations. Therefore, strong child-participation rights in family law proceedings occur in a context of already-weakened parental rights.

A Massachusetts Supreme Court case is a handy illustration. Upon reviewing a custody case, the court hinted that an eleven-year-old son’s preference to remain with the father was enough to tip the balance in favor of the father, all else being equal. Here, when the two parents clashed against each other, there was no clear exercise of parental authority over the child, and thus the court was free to consider the child’s views. At least where parental authority is curtailed and does not pose a serious obstacle, therefore, the United States is arguably in de facto compliance with Article 12 in family proceedings—and a de jure recog­nition of this fact, for example through the adoption of state laws and court rules across the fifty states, would only be a small step in ensuring compliance with Article 12 in this area of law.

2. Medical Decisionmaking. — One area of law in which the power of parents to make decisions on behalf of their children more directly conflicts with the children’s own views is decisions regarding medical treat­ment. Perhaps as a result, the United States recognizes—albeit on a limited basis—the rights of a “mature minor” to make independent me­di­cal decisions. Nevertheless, developments in the common law “mature minor doctrine” suggest that, when recognized, a child’s participation rights do not necessarily clash with parental authority.

The general rule under U.S. law is that parents make medical deci­sions on behalf of a child under the age of majority. Significant excep­tions exist, however, to grant minors the right to decide on their own. Statutes in all fifty states allow for numerous exceptions under which a minor may consent to medical care. Similarly, the mature minor rule, adopted in several states, allows a “mature minor,” who can exercise the judgment of an adult and understand the relevant conse­quences, to give informed consent to or refuse medical treatment on his or her own. The child’s age plays a major role in defining a “mature minor,” though other factors are also considered. Furthermore, because informed con­sent requires that the patient be fully informed of the implications of the treatment, the doctrine ensures that mature minors receive the informa­tion needed for the decision. Consequently, the doctrine forces physicians and courts to individually gauge the maturity of a child patient and provide the guidance necessary to make an informed decision, both of which are aligned with Article 12’s principles.

Again, comparison with other Commonwealth states party to the CRC provides helpful clarification on the current law and guidance for the future. In England and Wales, minors aged sixteen and over may consent to medical treatment, and a minor under age sixteen may consent to treatment if the child can show that he or she is mature and understands the consequences of the decision. The Canadian Supreme Court has rejected age-based restrictions in favor of all children’s “right to demon­strate mature medical decisional capacity” and to have a voice in medical decisions. Accordingly, England, Wales, and Canada em­body the main principle of Article 12, giving autonomy to children in proportion to each child’s maturity; in turn, the United States has its own mature minor doctrine in common law and consent statutes that resemble the same trend.

Of course, U.S. law has to contend with the established principles of parental rights. The requirement for parental consent has significantly eroded in U.S. law, empowering children to make decisions and wea­kening paren­tal control over them. In practice, however, courts have construed the mature minor doctrine to avoid conflict with parental authority, raising the question of whether the doctrine actually complies with Article 12. For example, in a well-known mature minor doctrine case, the Illinois Supreme Court recognized the importance of parental authority and asserted that, if a parent were to oppose a child’s refusal to life-saving treatment, “this opposition would weigh heavily against the minor’s right to refuse.” In addition, U.S. courts are willing to permit minors to make decisions only in the absence of conflict with parental authority. In another notable case, the Michigan Supreme Court found that a young man had consented to a treatment but emphasized that no evidence showed that his father would not have consented. Courts have there­fore generally prioritized parental authority over a child’s right to make decisions; again, it is only when parental rights do not directly conflict with the views of children that their participation rights are recognized.

However, the laws of the other jurisdictions suggest an alternative way of interpreting this tendency. English law and Canadian law distin­guish between consenting to and refusing treatment. This results in a concurrent power to consent, in which both the parent and a mature minor may consent to medical care for the minor. The U.K. and Canadian consent–refusal split is not based on parental rights but rather on best interests grounds: the assumption that facilitating access to medical treatment serves a child’s interests (here, the improvement of his or her physical health) and that therefore it is generally preferable to allow children to consent to treatment but not to refuse treatment. The result is that consideration of the best interests of the child leads to the same deference to parental authority under U.S. law.

Under U.S., English, and Canadian law, parents retain their ability to consent to medical treatment on behalf of their children. Whereas U.S. law seems to justify this under the traditional right of parents to control their children, the consent–refusal split under English and Canadian law provides an alternative reading of this tendency: that it is in the best interests of any child to facilitate access to medical care by using parental consent as a safeguard for the cases in which a minor refuses treatment.

The mature minor doctrine and consent statutes reflect a trend in U.S. law in which minors may consent to treatment and therefore have a degree of decisionmaking powers in the medical context in line with Article 12 requirements; yet when children’s views conflict with parental authority, the law gives way to the parents. Comparisons with other states that are party to the CRC reveal a similar outcome but difference in reasoning, suggesting that the U.S. emphasis on parental rights is misdi­rected and could be substituted with a more accurate, modern rationale.

3. Psychiatric Commitment. — The question of who holds the decisional power to commit a child to a mental health facility is fraught with difficult implications in law. In the context of participation rights, the psychi­atric commitment of youths suffers from a double-incompetency bias: Because both children and the mentally disabled are commonly perceived as possessing limited decisionmaking competence, a mentally challenged child must overcome a double-layered perception of incompetency.

Consequently, under U.S. law, the decision to commit a child to a mental facility is almost entirely left to the parents rather than the child or indeed even a judge. The Supreme Court established this in Parham v. J.R., a case in which the Court deferred to the parents’ decision to commit their child, and only ruled that a minor was entitled to a “neutral factfinder” (such as a mental health practitioner), but not a full judicial hearing, to challenge the parents’ decision. The Court acknowledged the child’s liberty interest at stake in institutional commitment but found that the interest was subsumed by the parents’ interest in caring for the child. Such deference to parents revolved around the presumption that “[m]ost children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for . . . treatment.”

Some states have been more inclined to check parental discretion and empower children. For example, the Supreme Court of California has recognized that psychiatric-commitment decisions made solely by parents violate the child’s due process rights, holding that “minors aged fourteen and older who object . . . are constitutionally entitled to an administrative hearing” to challenge the commitment. A child’s rights admittedly remain limited when his or her parents make the decision, restricting the scope of procedural safeguards available to the child. Nevertheless, state laws demonstrate several notable trends in empower­ing children in psychiatric commitment decisions: First, courts increasingly recognize children’s voices; second, due process rights serve as the main rationale for that recognition, meaning the active participation of chil­dren is not the focus; and third, courts remain cautious in abridging parental authority.

Depriving children of any opportunity to express their views disem­powers them, reverting them to being passive objects at the mercy of adult authorities. This results in a greater risk of error and harm to the child’s well-being, by exposing him or her to those who may either hold inaccurate views about his or her condition or have motivations other than the child’s welfare. It also does not align with U.S. law’s emphasis on the best interests of children. All in all, granting parents too much authority and silencing the children flies in the face of Article 12. The U.S. approach to psychiatric commitment of children fails to individually assess the maturity of a child and to solicit the views of every child capable of expression, regardless of his or her capacity of judgment. Parham is a sweeping rejection of children’s decisional capacity, and even states that provide greater protections to children do so in the form of proce­dural requirements such as involvement by a judge rather than incorpo­rating the child’s voice into a decision. This is contrary to growing social science demon­strating children’s decisionmaking capacity and the significant interests of the children at stake, and the due process rights of children suffer as a result.

The right of parents to manage their children’s lives, separate from the duty of parents to care for their children’s best interests, is somewhat unique to U.S. jurisprudence. In family law and medical decisionmaking, the rights and duties of parents are compatible, but less so in psychiatric commitment. Article 12 is not as divergent with U.S. law as critics have argued, and to the extent that it conflicts with the right of parents to manage their children, the differences are not irreconcilable. The next Part provides potential solutions to the conflicts that do exist.

III. Reconciling U.S. Law with Article 12

Given the U.S. policy of “compliance before ratification,” this Part explores ways to resolve the tension between parental rights and partici­pation rights. Accordingly, section III.A examines the effect Article 12 would have on the U.S. parental rights doctrine. Section III.B then suggests specific solutions for aligning particular areas of U.S. law with Article 12. In doing so, this Part suggests that, instead of posing a threat, the CRC provides a timely opportunity to reexamine and update the law.

A. A Principled Basis: Adopting the New and Accurate Principles of Article 12

The CRC does not mandate a specific rule or procedure—rather, it sets broad principles that acknowledge the emerging norms and attitudes in laws dealing with children, including in the United States. Chief among the CRC’s base principles is the idea that children are rights-bearing individuals, and the broad language of Article 12 exemplifies this principle by asserting that children are entitled to participation in so­ciety. Article 12 is by its nature enforceable law only in official judicail proceedings; outside the courts, for instance in purely private decisions made within a family, Article 12 delineates a norm and attitude rather than a code of law. Instead, Article 12 confronts old traditions by intro­ducing a new norm of engaging children in a dialogue and respect­ing their views. It therefore presents an opportunity for the United States to self-reflect and reexamine its social and legal developments in light of modern global trends.

Meanwhile, U.S. law has been myopic, struggling to bend outdated language in the law to fit new priorities and rationales for the law. The right of parents to exercise control over their children’s lives in U.S. law may initially have been grounded in parents’ liberty interest, but over time, the justification for the right has shifted to the best interests of the child. This suggests that, as in England and Germany, the outdated “parental rights” rhetoric should be replaced, or at least paired, with the language of parental “duties” in caring for a child’s welfare. This up­graded approach to the parental rights doctrine would better accommo­date the emerging rights of children and the duties of parents into U.S. law. After all, giving the child a voice does not necessitate surrendering decisionmaking powers of the parent; it is simply a call to treat children with respect. Doing so does not constitute “abandoning” a child to the consequences of his or her judgdment, either; it is entirely possible to restrain the child’s participation and influence, commensurate with the youth’s ability to make decisions. As such, the United States should move toward embracing the language of parental duty.

Revising the definition of the “best interests” of a child to incorporate the benefits of participation is another critical element of incorporating Article 12 into domestic law. Participation rights encourage children to develop their positions as budding citizens in society in a gradual, con­trolled fashion; hence, encouraging children to gradually develop their right to participate as members of a democratic society is itself in their best interests. Respecting the views of children also teaches them by example to respect all individuals, and it reduces errors in determi­ning each child’s needs. Parents may be affected by biases or other conside­rations and may not necessarily prioritize the best interests of children in making decisions on their behalf, and in fact some children may simply know better than the parents what is best for themselves. Thus, partici­pation rights ultimately serve the best interests of children, which in turn helps align Article 12 with the familiar, prevalent “best interests” standard of children in U.S. law.

Recall, in the context for, domestic advocacy for increased children’s participation, Justice Douglas’s dissent in Wisconsin v. Yoder. There, Justice Douglas con­tended that “children should be entitled to be heard” on “important and vital matter[s]” and criticized the majority for having “little regard for the views of the child” even though “children them­selves have constitu­tionally protectable interests.” He believed that if a child objects to his or her parent’s wishes, “and is mature enough to have that desire respected, the State may . . . override the parents’ religious[] . . . objections.” The view contained within Article 12 that children possess opinions, interests, rights, and decisionmaking capacity and should be treated accordingly is nothing new; indeed, as Justice Douglas pointed out, the Supreme Court has haltingly but continually recognized the indivi­dual rights of children. The CRC is a catalyst for reform, seeking to prompt a second look at the current state of the law.

As it currently stands, domestic law on the participation rights of children utilizes traditional arguments such as procedural due process. At other times, the arguments seemingly stem from an instinct that children should have a voice in matters affecting them. While such preexisting law can become the basis for developing children’s partici­pation rights, consciously adopting Article 12’s principles and language into litigation and legislative efforts may help shift the focus squarely onto children and their rights to be heard and have agency of their own. And if ratified, and thereby formally incorporated into domestic law, Article 12 could later prove to become a new, independent legal basis—separate and distinct from, for example, the text of the Constitution—for further asserting the right of children to have a voice.

B. Article 12 in Action: How to Reconcile Specific Areas of U.S. Law

Section II.B discussed specific areas of U.S. law to illuminate the precise nature of the tension between Article 12 and parental rights. The tension, however, is not irreconcilable. This section seeks to resolve the conflicts that remain by both applying the general principles from section III.A and suggesting other specific reforms to these areas of law.

1. Family Law Proceedings. — The principles of Article 12 may help place a thumb on the scale in favor of providing children with better access to information and a greater say in judicial proceedings that affect them. By emphasizing the rights of children to be heard in such proceed­ings, Article 12 provides clearer guidance on the procedural requirements necessary to best protect children in abuse and neglect proceedings or custody proceedings.

In fact, a strong U.S. trend already exists to encourage consideration of children’s views in abuse or neglect and custody proceedings. How­ever, the general tendency is to provide children with GALs, who often are not focused on presenting the child’s views and keeping him or her informed of the proceedings. Article 12(2)’s specific focus on the right to representation of a child therefore provides a newfound focus on the proper form of support for children; to simply evaluate children and advocate for their best interests, as a GAL would do, is not enough. More precisely, Article 12 implies at least two reforms: Courts should avoid age limits on whether children’s opinions are given weight, in favor of official determi­nations of each child’s competence to understand and participate in the proceedings; also, courts should, where possible and needed, provide the child with a legal representative who actively solicits the child’s views and incorportes them into the case at hand.

Focusing on a child’s right to be heard would, first of all, result in practical benefits to children and courts. Adolescents in particular are likely to put up greater resistance and therefore require greater enforce­ment efforts if custody arrangements are contrary to their preferences. Children also benefit psychologically from staying informed and having some say in judicial decisions involving their families. Finally, if courts were to adopt a position of giving older children greater weight in custody arrangements, parents may be less inclined to litigate custody disputes, since they can, with some precision, predict the court’s likely decision based on the adolescent’s wishes. This, in turn, would decrease state interference with family affairs and help keep decisions within the pri­vacy of the family, notwithstanding those who worry that the CRC would intensify state intrusion upon the family. Parental authority is not abridged, either; after all, parental claim to authority is already weakened when the parents are not in agreement, and the child’s views are essen­tially a partial (and perhaps more preferable) substitute for an “outside” intervention that would otherwise have occurred.

Granting greater influence to children would also allow protection and custody proceedings to consider children not as mere property-like objects to be fought over but instead individuals with minds and interests of their own who cannot be simply subjugated by parental authority. As this section shows, encouraging children’s participation in such proceed­ings does not necessarily abridge parental authority, and it may in fact curtail state interference with family matters. Therefore, advocates of CRC ratification should pursue legal reforms that dismantle strict age limits and provide opportunities for children to speak their minds to the judge in each family law proceeding, pushing forth a new norm of encouraging dialogue with children in matters that affect them.

2. Medical Decisions. — The mature minor doctrine and ubiquitous statutory exceptions to the general parental-consent requirement for treating minors indicate that the United States is familiar with providing children the right to be heard in accordance with their age and maturity. In particular, the holistic approach of the mature minor doctrine imitates Article 12 closely. To bring U.S. law into greater alignment with Article 12, then, such trends should be encouraged with renewed energy.

Though the doctrine itself is frequently cited in literature on minors’ ability to consent to treatment, the actual jurisprudence on the U.S. mature minor doctrine is fairly limited in breadth, with few states ex­pressly embracing it and the vast majority of states remaining silent. What modest case law exists contains plenty of ambiguities yet unsolved, including a failure to separate decisions consenting to treat­ment from refusing treatment. However, the case law as well as the special statutes that allow children to consent to specific treatment also demonstrate a trend in which U.S. law gives children greater autonomy when it aligns with their best interests, much like the CRC itself. In order to bring the United States into full compliance with Article 12, then, lawmakers should examine corresponding laws of other jurisdictions to clarify and elaborate on this area of law, and states in particular should continue to develop laws—whether through legislatures or courts—that recognize the right of minors to consent to treatment. For instance, lawmakers should avoid strict age-based determinations of whether a minor may consent to treatment and adopt a consent–refusal distinction in medical decisions.

After all, research supports the notion that children are often competent to make decisions regarding their medical treatment—or at least have a say in it. Contrary to what the Supreme Court may have believed in Parham, studies show that fourteen-year-olds and older minors are as competent as adults in making informed decisions about medical treatment, and even children as young as nine are capable of comprehending the basic requirements of expressing an informed view about treatment. When a child’s judgment nevertheless falls short of what an adult’s may be, the law limits the potential for harm by allowing parental consent to override a child’s refusal, thereby facilitating the child’s access to treatment.

Reinforcing children’s right to make medical decisions may diminish a parent’s control over a child. But if the United States begins to seriously contemplate the current rationales behind a parent’s right to manage his or her child, the fact that medical treatments are generally in the interest of the child means that the parent has no justifiable reason to prevent a minor from consenting to treatment. The mature minor doctrine and consent statutes reflect a slow but growing trend in line with Article 12—that is, U.S. law increasingly resembles the modern, updated views of the CRC—and all that remains is to explicitly acknowledge this trend and embrace it.

3. Psychiatric Commitment. — U.S. law on the psychiatric commitment of minors is in considerable tension with Article 12, and in fact this area of U.S. law is rife with outdated norms as well as inconsistencies with trends of other areas of U.S. law in how children are treated under law. In fact, Parham has come under heavy fire for its refusal to recognize a stronger right to due process for a child; but it remains good law, for the Supreme Court has yet to revisit the specific issue despite articulating respect for children’s rights—and even specifically their right to speak—in other cases since. The psychiatric commitment of minors is also increasingly under attack for allowing parents too much discretion and thereby permitting abuses of the system or impermissible margins of error. Finally, allowing for broad parental discretion at the cost of a vulnerable child’s liberty seems outdated in light of other current legal trends in U.S. law, chief among them the increasing recognition of the right of children to participate in decisions affecting them.

U.S. law on psychiatric commitment of minors is in particular need of a revitalization effort in line with Article 12. Parham, now almost forty years old, fails to adequately showcase current U.S. justifications for parental rights and the capacity of children to make decisions on their own. Parham represents an outdated conception of children that should be updated with the modern principles of the CRC, particularly Article 12. The same body of social science used for medical decisionmaking that demonstrates children often have view-forming and decisionmaking capacities may be relevant here, to show that children themselves should participate in “voluntary” decisions to commit themselves to psychia­tric hospitals.

In the meantime, advocates of the CRC should pursue methods of encouraging children to form as much of an informed opinion on their own psychiatric commitment as they can, whether through changing cultural norms or legislative reform. For example, courts should impose greater scrutiny on decisions to commit an adolescent to a psychiatric hospital against the child’s own wishes and, if possible, provide represen­tation to the child separate from the parents. Litigators can also use developments in comparable areas of U.S. law to buttress arguments for providing children with greater influence in decisions. Only through such efforts can the U.S. law on psychiatric commitment meet the stan­dards of the normative aspirations of the CRC and its assertion of each child’s right to participate in all decisions affecting the child.

This Note has picked out some key legal and social normative trends within the United States that recognize the capacity, benefits, and right of children to share control over their own lives with their parents. The CRC, when considered seriously as both a potential source of law and a helpful articulation of key principles regarding children, draws out such trends to the fore and provides suggestions for how courts, legislatures, practitioners, and all other parties can reexamine the role of children in law, and vice versa. For example, because it is already the practice of many lawyers to rely on the voice of children to determine their fate in family law proceedings, explicitly adopting this de facto trend into actual law would bring much of the law of the United States in line with Article 12. In the context of medical decisionmaking, U.S. law has developed promising trends in common law and statutory law that recognize the right of some minors to have decisionmaking authority over their own medical care; advocates should push for such trends to be more widely embraced. Finally, the law on psychiatric commitment of youths is largely stagnant and outdated, out of line with other areas of law that provide greater rights protection for children and respect for their views, and is in need of great reform.

Conclusion

The CRC represents a modern struggle to achieve the proper balance between protecting and respecting the rights of children. As the last and only UN member state that has not ratified the CRC, the United States must seriously contemplate what ratification would entail and how it might be achieved. This Note tackles a rarely addressed but critical component of this inquiry: the perceived tension between the right of children to participate in decisions involving their own lives, as laid out in Article 12 of the CRC, and the traditional U.S. doctrine of parental rights. Much of U.S. law and its trends (as measured by common law doctrines, state statutes, scholarship, and other legal developments) are consistent with both the legal mandate and driving principle contained within Article 12. Where ambiguities and conflicts exist, however, Article 12 (both the ideas that it expresses and as a legal instrument) can act as a tool for clarifying and reenergizing engagement with current U.S. law on how children are perceived in law and in society. The CRC is both a reflection of the past and a blueprint for the future—and the treaty provides the United States a timely opportunity to reassess the state of children in modern society and the proper role of parents in looking after them.