Separate Childhood Laws and the Future of Society

I. Introduction

In Roald Dahl’s children’s novel The Witches, ¹ a seven year old boy is unwittingly witness to the secret annual meeting of the witches of England which is held in Hotel Magnificent in Bournemouth. During the meeting, The Grand High Witch unfolds a diabolic plan to get rid of all children in the whole of England by turning them into mice. To mask their secret reunion the witches pretend to be members of the “Royal Society for the Prevention of Cruelty against Children.” Obviously, the irony of it is that under the pretext of forming a society to protect children from cruelty, the witches conspire how to best eliminate them all.

The story intimates that there are always possible discrepancies between the officially stated objectives of legislative and institutional arrangements for children and the often concealed interests which are actually pursued. ² During the drafting of the UN Convention on the Rights of the Child (hereafter: CRC), which was adopted in 1989 and has subsequently been ratified by almost all countries of the world (except the United States, Somalia and South Sudan), some child rights advocates pointed at the risk that rather than strengthening respect for children’s fundamental rights the Convention may actually weaken them. They feared in particular that the adoption of a specific children’s rights instrument would cut off children from general human rights frameworks and make them the exclusive adult preserve. ³ What these critics feared was that the adoption of a children’s rights convention would paradoxically serve the interests of those who wanted to restrict, not expand, children’s fundamental rights. Over a period of more than twenty years since the adoption of the CRC, numerous practices have been developed on both national and international levels which at the same time support and contradict these critics’ fear. ⁴ On the one hand there are cases such as those concerning children’s legal standing in national civil proceedings or the rights of children who have been victims of violence, in which the CRC has clearly strengthened children’s legal position. On the other, however, the CRC has also contributed to confining children to a downgraded set of rights, as in the case of children’s work-related rights or procedural safeguards in criminal proceedings, two cases which I will explore in some depth in this article. My argument is that long before discussions about the adoption of an international treaty dealing with children’s rights had started, social interests far removed from a concern with the protection of children had already taken center stage in childhood legislation. In the cases of child labor and juvenile justice in particular, rather than with improving children’s actual social and legal position, the establishment of separate childhood laws resulted from concern with the adults that children would become in future.

My two cases are obviously of limited scope and do not replace a systematic comparison between all settings and themes where childhood laws and children’s rights have been, in practice, instrumental to strengthen respect for children’s fundamental rights, with the instances where they have served other, at times even conflicting, social interests. But they nevertheless highlight the importance of moving debates on childhood laws beyond expressions of intent and to engage with broader political, economical, social and cultural interests at stake. The article engages with interests that often remain hidden behind lofty intentions about granting children rights but fail to take into account the complexity of children’s legal and social positions. I approach the children’s rights field from a critical, emancipatory perspective rather than from a strictly legal one. This emancipatory perspective on children’s rights, and my critique of dominant legal frameworks pertaining to children are grounded within current interdisciplinary approaches to children’s rights and human rights studies. ⁵ The main point I want to make is that childhood laws do not necessarily improve children’s legal status, even if that is their stated intention, but have also been used to address other social interests. In relation to child protection, juvenile justice and child labor, childhood laws have pushed children outside existing legal frameworks and have ironically prevented young people from exercising their rights.

In what follows, I first discuss the origins of the establishment of child protection and juvenile justice legislation, which have built upon a particular image of children as future citizens. Second, I look into debates on child labor at the beginning of the twentieth century and discuss the centrality of the child savior, rather than the child, in these discussions. Third, I examine the establishment of separate childhood laws, which have been motivated by the need to better take into account children’s special status, but have in practice partially pushed children out of existing legal frameworks.

II. Saving Children, Saving our Future

The history of the Child-saving movement which appeared in the industrialized world at the turn of the nineteenth and twentieth century illustrates particularly well the many different social interests at stake in the adoption of childhood legislation. The name of the society which the witches in Roald Dahl’s novel misuse, hints at the National Society for the Prevention of Cruelty against Children (NSPCC), an extant British child protection charity which was founded in 1884 and that now runs a range of services for children and adults across the UK. The NSPCC was created after one of its founders came into contact with The New York Society for the Prevention of Cruelty to Children (NYSPCC), which had been established in the US in 1875. My first encounter with the genesis of this child protection agency was via Peter Singer’s book Animal Liberation. ⁶ According to Singer, the creation of the NYSPCC, in the aftermath of a child abuse case in which animal defenders had intervened, had been directly inspired by the American Society for the Prevention of Cruelty to Animals that existed in New York since 1866. ⁷ It is remarkable how the animal liberationist movement resorts to the history of child protection to construct a teleological project to free animals from human oppression. Following upon the recognition of the fundamental rights of a growing number of humans, including slaves, black people, women, children and disabled persons, animal liberationists believe the inclusion of animals in this list to be unavoidable. ⁸ Similarly, the story of the origins of the NYSPCC is also illustrative for how we lend a benevolent ear to a Whig historiography of child protection and childhood legislation. ⁹ In this view, current child legislation is thought of as the results of past efforts which have necessarily led to an idealized end, that is the protection of the vulnerable that were left unattended for under previous regimes.

Actions of the Child-saving movement lie at the basis of the emergence of the first child protection institutions and the establishment of specialized juvenile courts, child labor legislation and compulsory education. ¹⁰ Uncontrolled industrialization during the nineteenth century had impacted the living conditions of the emergent working-class and immigrant families, including many poor children. The Child-saving movement was greatly concerned with the morals of neglected and delinquent children and youth and considered it their duty to alleviate their plight. Vulnerable children were seen as passive victims and mere objects of intervention. One of the crowning achievements of this progressive reform movement was the establishment of the juvenile court in Illinois in 1899, the first of its kind in the United States. ¹¹ The institution rapidly spread to other US States and to other countries, mainly in Europe. ¹² Legislation was adopted that established systems for dealing with juvenile offenders separately from adults offenders, and by the same token bringing juvenile delinquency and child protection together in one legal system.

Textbooks on the history of children’s rights often see these developments as signaling the beginnings of a serious engagement of the law with child protection. However, ideas that informed the introduction of specialist juvenile justice and child protection systems, and the reasons for amalgamating child neglect and youth crime, have much more to do with a concern to protect society against juvenile delinquency than protecting children against a criminal justice deemed to be too harsh for youthful offenders. A compelling expression of the need to protect society against juvenile delinquents can be found in a book on penal science and penal legislation published in 1899 by Adolphe Prins. ¹³ Prins, a Belgian criminal law professor, was an emblematic figure of the intellectual climate around criminal law and criminal policy at the turn of the nineteenth and twentieth century in Europe. Together with his German and Dutch colleagues Franz von Liszt and Gerard Anton Van Hamel he was one of the founding members of the International Criminal Law Association [L’Union Internationale de Droit Pénal] (hereafter: ICLA) which was created at the end of the nineteenth century and had translated the ideas from the Italian Positivist School into penal law and policy. ¹⁴ The purpose of the ICLA was to influence criminal policy and penal legislation by showing, through empirical research, that crime was a social phenomenon against which society must be protected. In keeping with these objectives, Prins and his colleagues worked towards the elaboration and implementation of a separate child protection and juvenile justice legislation.

According to Prins, youth crime is caused by parents who abandon their children to the street where they commit petty thefts, wander around as vagrants and beggars or engage in prostitution. He considers it our urgent duty to extricate the lower-class child from his environment, not in order to provide him police or prison, but to offer him the protection, education and compassion he needs. Underlying this reasoning is the view that the “child in danger” of today will become the “dangerous child” of tomorrow. It is this dangerous child or juvenile delinquent that will grow into a persistent offender the day after tomorrow. To protect society as much as possible from crime − which should be according to the Social Defence school of thought to which Prins belonged the final aim of any criminal policy − incorrigible, habitual delinquents should not only be confined “beyond the possibility of harm for as long a time as possible.” ¹⁵ The very possibility of anyone becoming even an occasional offender should be prevented. For Prins, to realize a crime-free society, the root causes of crime need to be tackled. These lie for Prins in the abandonment and negligence of children, which he saw as the main cause for juvenile delinquency leading to the emergence of incorrigible, habitual offenders responsible for the vast majority of crimes. The problem with juvenile delinquency, Prins further argues, is the lack of care given to abandoned children before they commit a crime. The separate juvenile justice and child protection systems he proposed would allow intervening “before it is too late,” that is before a crime has been committed. Since adult criminality starts in childhood, the important place of children in these legislations is fully justified, Prins writes, because “by acting from the beginning we can hope to reform tendencies against which it is not longer possible to fight once developed by an adult.” ¹⁶

It may be useful to recall that the establishment of child protection legislation and separate juvenile justice regimes took place in a situation of widening social and economic inequalities that were responsible for the wretched circumstances under which working-class children and their families had to live. The singling out of one particular group did little else than address the symptoms of these inequalities. The focus upon children in need of rescue was instrumental in creating a special intervention regime and special institutions which together held the promise to transform them.

In their bid to decrease the overall crime rate and realize a future enlightened crime-free society, this specialized legal regime strengthened the idea that children are incomplete, and that their lives can be effectively molded. The particular conception of childhood as progress which emerged during the Enlightenment period in the eighteenth century was clearly also influential in the establishment of separate childhood laws. ¹⁷ In the emerging ideology of progress, children were increasingly seen as the “future” and were expected to give shape to the forthcoming “enlightened society.” Children, who were principally defined as “not-yets,” were gradually considered as a separate social category with specific characteristics for whom separate institutions and legislations had to be created. A romantic view of children as sentimental, even sacred beings, informed the belief that by saving children the future of society would be, by the same token, improved. ¹⁸

III. Saving Others in Order to Save Ourselves

I now turn to the debates surrounding child labor, another issue, next to child protection and juvenile justice, in which legislative frameworks for children have been radically disconnected from adult ones. The historical campaign against child labor, which in the United States began in the same period of progressive reform, draws equally upon the image of the child as future citizen of an enlightened society. The widely circulated child labor photographs of Lewis Hine stand out as visual metaphors for the changing ways in which children in general and child labor in particular were viewed in the industrialized western countries of a century ago. Hine was an investigative photographer who worked for the National Child Labor Committee (NCLC), which in the first decades of the 20th century conducted major campaigns against the exploitation of children in North America. ¹⁹ His photographs were taken throughout the United States between 1906 and 1918 and represent working children in a variety of industrial and commercial settings including textile mills, coal mines, commercial agriculture and street trade. The child-labor photographs served as visual, empirical evidence of the widespread employment of children and formed part of a political reform movement to abolish child labor. Hence, they do not as much illustrate the “reality” of children’s work, but are mainly employed to emphasize the abolitionists’ position on child labor. This position entailed the belief that legislation prohibiting child labor under a certain age was the best way of protecting children against exploitative labor conditions.

Hine’s photographs are still widely used for awareness and education campaigns on child labor, often alongside pictures of children performing hazardous work in countries in the South. ²⁰ Highlighting the tenacity of teleological interpretations of the history of childhood legislation, the present-day use of these photographs suggest an analogy between the situation at the mills at the beginning of the twentieth century and the working conditions of contemporary child workers. ²¹ The photographs aim to convince the public that the contemporary child labor phenomenon in the South was once also a reality in the North. Thanks to the efforts of well-meaning reformists, children in the North would have been rescued from these appalling situations. This would provide evidence, the reasoning goes, that the same end goal for children in the South can be reached and that we can abolish also there all forms of child labor by the same means. All it would need is strong leadership and determined political will to reach that goal.

On a NCLC Poster from 1915, Hine’s photographs of child laborers are used to represent them as “human junk,” which is for art history scholar Georges Dimock incompatible with the need of preserving the integrity of the subject; “child-labour photographs are used (…) to devalue rather than sacralize the child worker.” ²² The history of Lewis Hine’s photographs is revealing of how the views on children informing legislative reform were those of members of a middle-class who saw its own lifestyle and choices as the only valuable and morally acceptable ones. The desacralization and lack of concern for the subject is powerfully illustrated by the story of an eleven year old boy, William McCue, whose photograph had been taken by Hine and was reproduced in a book on juvenile delinquency. McCue, who had never been arrested or charged with delinquency, filed a lawsuit against the foundation that had published the book. The New York Supreme Court (1914) awarded McCue $3,500 in damages on the basis of his presentation as “the toughest kid on the street.” In his ruling Justice Ford admonished the practices of the photographer who had told the boy that he wanted to take “Boy Scouts Pictures,” while in reality he was collecting pictures on juvenile delinquency in these words:

That is the great trouble with these movements. […] These people from their height of self-conscious righteousness and superior excellence peer down on and discuss these humble beings as though they were so many cobblestones in the street, without any regard at all for their feelings or their rights in the community. ²³

Images of suffering children continue to influence the public’s perception of children’s lives particularly in poor countries in the South. In a critique of how the award winning documentary Born into Brothels (2004) portrays children of sex workers in Kolkata’s red light district, Oishik Sircar and Debolina Dutta point at the degree to which the terms “children” and “innocence” have become synonymous. For the authors, these images “carry with them notions of idealized victim subjects who attract the most amount of compassion. Children – especially from non-western geographies – are such a group, for whom vicarious appeals by activists, philanthropists and the state alike contribute towards a discourse of compassion that is globally throbbing with funds, protectionist laws and images.” ²⁴

The viewers of these images are promised that by helping poor children, they can also help themselves, in a way similar to Hine’s photographs a century earlier. We are invited to experience these images, as Dimock observed regarding the aesthetics of Hine’s photographs, with the fantasy “that we can ‘save’ (or have ‘saved’) those children.” ²⁵ The mechanism at work when saving children in order to save ourselves is tenacious, and comes close to Erica Burman’s analysis of the ambiguity of appeals to “honor,” where we honor others to honor ourselves. ²⁶

IV. Separating Children via Separate Legal Regimes

Compassion can result in the adoption of legislative frameworks which offer children protection and help that secures their basic rights to physical integrity or to education. Joseph Hawes for instance comments on the dilemma between securing children’s protection rights and other fundamental rights by stressing the benefits that children gained via their specialized institutions. He admits that the creation of the juvenile court at the end of the nineteenth century in the US probably led to children losing legal guarantees central in adult criminal law procedures. But for him this loss did not lead to the weakening of other basic rights, such as the right to life or to protection against abuse and was compensated by the juvenile court’s power to protect children even against their parents. ²⁷ My position is far from intending to condone egregious forms of child exploitation, be it as victims of domestic violence or as cheap workforce. My point is rather that the production of children as merely passive victims has carried the risk of neglecting children’s fundamental rights that go beyond protection and helplessness and deal with agency, a centerpiece of the human rights framework. ²⁸

The establishment of separate welfare oriented juvenile justice systems did not happen without opposition. Critiques include the far-reaching interference of state agents in poor families’ and poor children’s lives, the absence of legal guarantees, the tremendous powers conferred to the juvenile court judge and the dovetailing of delinquency and negligence. In spite of the critiques, the introduction of juvenile justice was met with much less resistance than the introduction of similar ideas in the adult criminal justice system. Not only did children not participate in the drafting of the new legislation, their lack of a recognized social status as legal subjects and the prevailing paternalistic treatment “in the best interests of the child” contributed to making the introduction of these ideas possible. As Antonie Peters observes: “Since children were not fully-fledged legal subjects, therapeutic and rehabilitative intervention in their lives by the State did not encounter the same constitutional objections as in the case of adult offenders.” ²⁹

Existing international legislation with respect to children at work, in particular ILO Convention no. 138 on Minimum Age (1973) and ILO Convention no. 182 on the Worst Forms of Child Labor (1999) ³⁰ endorse an abolitionist view on child labor remindful of the view defended during the 19th century campaign against child labor in the US. These ILO Conventions aim at abolishing child labor by requiring states to adopt a minimum age under which children are not allowed to work; children can be legally employed only for particular forms of work if they are older than the minimum age. In practice, the adoption of legislation and accompanying policies and programs do not, however, by themselves lead to the abolition of child labor, in particular during times or in regions where families rely on children’s earnings to uphold a minimum standard of living. Other developments, and most importantly economic change, have proven to have had a great impact on the dramatic decrease of child labor in the North since the beginning of industrialization. Children’s work, as childhood sociologist Jens Qvortrup argues, is system-immanent and embedded in the prevalent economy and modes of production. ³¹ In the course of Western industrialization, children’s useful activities have changed from manual work in the household economy into symbolic work at school where children learn the skills needed to be effective in modern and postmodern economies. Children, in sum, are inextricably linked to the environment in which they grow up and largely share in its burdens and pleasures.

Organizations of working children which have emerged during the 1990s in Latin America, Africa and Asia have voiced concern about the protectionist, paternalistic character of the current abolitionist legislative framework, claiming in contrast that their right to work in dignity should be recognized. ³² Child labor legislation indeed differs drastically from how labor law functions in case of exploitative work performed by adults, where law is mobilized not to prohibit but to regulate their labor. International labor standards aim at strengthening the position of workers by providing them particular rights, such as the right to decent conditions at work, fair wages, non-discrimination or to freedom of association. ³³ These work-related rights all contribute to guaranteeing respect for a person’s fundamental right to work. Conversely, child labor legislation is deployed, not to regulate children’s work or to foster respect for children’s fundamental rights, but to prevent children from working against a wage. Save for some intermittent activities such as child acting or modeling, the prevalent international child labor regime makes children’s paid work illegal. However, as I suggest above, it is not because the law prohibits child labor that children no longer work.

As in the case of child protection and juvenile justice legislation, the adoption of specific laws which aim to abolish child labor under a certain minimum age isolates the case of children’s labor from the broader social and economic world of which they form part. By confining children’s labor in a specialist legislative framework, the endeavor to alter the economic and social conditions under which children have to perform work outside school is left unattended. Due to the formal ban on child labor, working children see the possibility to rely on fundamental workers’ rights to eliminate the exploitative character of their work restricted. From a legal point of view, working children under the established age limits have to work clandestinely, outside the law and outside protective networks. ³⁴ In cases where child labor prohibition is used as a justification for denying the possibility of elaborating legislation which imposes certain safeguards for working children, other, subsumed interests than the protection of working children take center stage, such as the elimination of competitors in the labor force, or securing a nation’s future by sending children to school in order to provide it with a well-trained workforce. ³⁵ In short, as illustrated by juvenile justice and child labor legislations, childhood laws based on images of the child as vulnerable or representing the future which have pushed children into separate worlds, have especially alienated children who stood to benefit most from struggles for the respect of their fundamental rights.

V. Conclusion

In this article I have dwelled on how law and legal regulations on behalf of children have responded to childhood by setting up separate legal regimes. The creation of a specialized juvenile justice system, separated from the adult criminal justice system, as well as the adoption of legislation prohibiting child labor, both rely on a view which sees children as being inherently different from adults. The differences are deemed so fundamental that they have justified the setting up of different legal regimes for children, which are thought of as being better equipped to take children’s particularities into account and hence to better prepare them for the future. The establishment of separate childhood laws in order to better take children’s special needs into account, has in practice partially pushed children out of existing legal frameworks. This has prevented children from exercising a whole other set of fundamental rights and has not only strengthened but in some instances paradoxically also weakened their legal status.

Child saving movements have promised perfect, new societies that would be beneficial to children, their future citizens. However, while awaiting the realization of these ideals in the imperfect societies they are actually living in, children have to pay a price. Notwithstanding discourses on children’s rights that claim to consider children as active participants and holders of fundamental rights, they continue, in particular, to be essentialized as vulnerable and innocent human beings with limited individual freedoms. For Sircar and Dutta, there is hence:

an urgent need for developing and emulating practices of research, representation and intervention that foreground the issue of child rights, not from a saviour-from-outside point of view, but one that shifts our observational frames to put in the centre of rights concerns the opinions of the children […], and regard them as powerful advocates of their rights – who know best about what will ensure them a more dignified life free of compassionate attempts to ‘rescue’ them. ³⁶

If we are serious about granting children rights, it may be necessary to replace compassion with solidarity and social justice, and bring into the debate the structural inequalities that largely contribute to children’s suffering and violations of their rights. Not by adopting legislation that considers children as merely passive targets of good intentions of others, but through a conception of rights that takes their agency, a fundamental principle of human rights, as a starting point. In this view, children’s rights are not seen as something to be imposed upon them from the outside, but as a living social practice which is responsive to perspectives of children themselves on their rights and to the solidarity they urgently need. ³⁷