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  Preface I  am  a product of the 1960s. The various ways in which thatdecade has influenced my life are unworthy of an entire book. Butin one particular sense the social upheavals of that remarkable dec-ade had a profound and lasting impact on me: as soon as I gradu-ated from law school in 1971, I joined a new field of practice verymuch still being invented. I became a children’s rights lawyer.Children’s rights lawyers came into being only a few years earlierbecause of a landmark Supreme Court case holding that childrenaccused of being juvenile delinquents in juvenile court have a con-stitutional right to free court-assigned counsel if their parents aretoo poor to hire a lawyer themselves. Until then, juvenile court, aninvention of the early twentieth century, eschewed lawyers for chil-dren because they were regarded as an obstacle to furthering achild’s best interests.  In re Gault   changed this in one dramatic deci-sion and, as a consequence, created the need for thousands of law-yers to work in a previously nonexistent field.I began my professional life working in the largest office devotedto representing children in the United States, a legal services officefor children in New York City. Two years after beginning my firstjob, I was fortunate to be asked to create and teach the JuvenileRights Clinic at New York University School of Law. Working un-der my supervision, students in the clinic represented children in de-linquency and other legal matters in New York’s Family Court. In Brought to you by | New York University AuthenticatedDownload Date | 8/30/19 12:14 AM  the mid 1970s, I also worked at a national project devoted to fur-thering the rights of children.By the mid 1980s, I, or students working directly under my su-pervision, had represented many hundreds of children in a wide va-riety of legal proceedings in New York and throughout the UnitedStates in state and federal court, including a number of cases inthe U.S. Supreme Court. The various kinds of cases on which Iworked included juvenile delinquency, child protection, foster care,termination of parental rights, and custody disputes arising fromdivorce-related cases. By this time, I enjoyed a reputation as a na-tionally known expert in children’s rights and was known in pro-fessional circles as a leading advocate for children’s rights. I havecontinued to work in the field of children’s rights ever since, as ascholar, litigator, and teacher of scores of students who have goneon to make their own careers in fields connected to children.And yet, something rather odd was going on almost from the be-ginning. As advocates for children continued to press for changes inthe laws affecting children, it became increasingly clear that theseadvocates sought things to which I was diametrically opposed. Themore engaged I became in advocating for changes in law or policyaffecting children, the more I began realizing that my fiercest dis-agreements were with others also wearing the mantle of children’srights advocate.What began as a journey defending children against prosecutionby state officials became a growing internal fight among children’srights advocates. Within a decade I even reached the (what stillseems to many) remarkable conclusion that providing children withlawyers in a whole variety of legal matters was antithetical to chil-dren’s interests.As deeply as I’ve always thought of myself as a children’s advo-cate, much of what I read and hear being advocated in furtheranceof children’s rights seems to me misguided. And yet, I continue toidentify myself as a children’s advocate while rejecting much of what falls under the rubric of children’s rights. This book is, in part,an effort to make sense of how this could be so.Because the concept of children’s rights entered the legal field at x Preface Brought to you by | New York University AuthenticatedDownload Date | 8/30/19 12:14 AM  about the same time I did, I have had the fascinating benefit of watching it develop in its earliest stages. Beyond the excitement of the new, this vantage point invites a critical perspective: nothing isyet set in stone when the foundational steps in a field of law are justbeing laid. It is easier to see that we have choices about the politicaland legal values we are adopting when it comes to children’s rightsthan with respect to more developed areas of law. We are not yetcommitted to any particular path. Thus we have the privilege, andthe responsibility, of making these choices consciously.Broadly speaking, the children’s rights movement since the 1960shas focused on two sometimes intertwined but often completelyseparate matters. One concerns the rights of children with respectto the exercise of state power; the other, the rights of children withrespect to the exercise of parental authority. Because these two situ-ations are theoretically and practically distinct, they are best treatedseparately.Children’s rights as protection against the exercise of state poweris an important subject involving the arrest and prosecution of young people and the rights of students in schools, among manyother topics. In an era in which children are being permanently ex-cluded from public schools because of “zero tolerance” policies,and young people are being charged in adult criminal court and arereceiving adult-like sentences, including life imprisonment, in re-cord numbers, there is little doubt that children need rights to con-strain state officials in the exercise of their official duties. Except inpassing, however, this book does not address this subject.Instead, this book is concerned primarily with the way in whichthe children’s rights movement has been invoked when it comes tothe family and, particularly, parental rights. In this area, I am farless confident that children need rights or that speaking in terms of “rights” is even good for children.Within the context of child-parent relations, this book will ex-plore the subject of “children’s rights” as a phenomenon: how therhetoric of children’s rights is used, by whom, and to whose advan-tage. It will describe how the children’s rights movement began andwhat became its fashionable choice of language. We will come to Preface xi Brought to you by | New York University AuthenticatedDownload Date | 8/30/19 12:14 AM  see that the subject is considerably more complicated than is some-times appreciated.“Children’s rights” is both deeper and more shallow than is oftenrecognized. It has less substantive content and is less coherent thanmany would suppose. It has provided very little by way of a usefulanalytic tool for resolving knotty social problems. One of its shib-boleths, for example, is its call for “child-centeredness.” But this at-tractive phrase tells us nothing about how to use it or what are itssensible limits. It surely calls for too much to examine matters af-fecting children exclusively from the child’s perspective. There arecountless ways American society would change were children theonly consideration. Certainly we would outlaw cigarette smoking,alcohol consumption, toxic pollutants, and war, for starters. But wehave all of these things despite a consensus that they are not partic-ularly good for children. And that is because there are other per-spectives apart from a child’s that we rightly take into account evenwhen we talk about children’s rights and needs. Children are, to besure, a precious part of our world, but they are only a part.Nor could child-centeredness be a manifesto to do things chil-dren themselves want at the time. Our society is premised on theopposite concept. Adults decide what the rules are for childrenbased on what adults believe is good for them. When this manifestodictates only that we should do what is good for them, the problembecomes, of course, gaining consensus.But there is also much more to children’s rights than is appar-ent. It has staying power because it serves adults too. Adults gainin a number of important ways by presenting themselves as car-ing about children. Across a very wide range of areas, includingdisputes between adoptive parents and unwed fathers, between bio-logical parents and others who act as parents but lack legally en-forceable rights, between grandparent and parents, between di-vorcing parents, between child welfare agencies and parents, andbetween parents and state officials over details of childrearing, therhetoric of children’s rights works well for adults on a number of levels.Sometimes, it serves as a useful subterfuge for the adult’s actual xii Preface Brought to you by | New York University AuthenticatedDownload Date | 8/30/19 12:14 AM
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