Many heretics, including myself, have been impressed by the online magazine Spiked on account of its vociferous support for free speech, distaste for state oppression, and its robust backing of civil rights, including for paedophiles.
So when one of its leading contributors, sociologist Frank Furedi, recently joined the media chorus of those attacking paedophilia, the virulent hostility of his diatribe came as a shocking disappointment. The context was an article, “What PIE and the NSPCC have in common”, which was fine up to a point. Its central theme was actually a rather interesting argument in defence of parents against the concept of “children’s rights”. Bizarrely – but, as I say, to interesting effect, Furedi presented the Paedophile Information Exchange (PIE) back in the 1970s and the National Society for the Prevention of Cruelty to Children (NSPCC) as improbable ideological allies. Both organisations, he said, claimed to speak on behalf of children but neither was as benignly disposed or as well placed to secure their best interests as parents.
My reaction was to fire off a counterblast. I submitted an article to Spiked that focused on defending children’s rights – not the right to be protected from various ills, real or imaginary, which is the NSPCC’s stock in trade, but the right to exercise real autonomy and to experience real freedom. Editor Brendan O’Neill emailed me on 25 March to say he was travelling in Europe and Australia and “I will be in touch very soon, I promise”. That sounded, well, promising, but over two weeks have passed since then and despite me sending a reminder I haven’t heard from him again.
So I have decided to answer Furedi here instead, in what amounts to an open letter. The text is a slightly edited version of my original draft article for Spiked.
WHY CHILDREN REALLY DO NEED RIGHTS
As a champion of parents over the years against “experts”, and the insolent intrusions of a busybody state, Frank Furedi is to be admired. He is right to castigate the NSPCC, too, for going far beyond its legitimate brief.
But when he says children are not moral agents, and on that basis attacks the concept of children’s rights, he is just plain wrong. Children become moral agents during childhood, not at its end; and even before that stage they may have non-trivial wishes and interests that require independent representation through robust rights-based action. Proper rights, that is: rights to real liberty of personal choice, not just protection from harm.
To begin with moral agency, has Furedi never heard of Gillick competence? In 1986 the House of Lords rightly accepted that “the authority of parents to make decisions for their minor children is not absolute, but diminishes with the child’s evolving maturity”. The highest court in the land in the case of Gillick v. West Norfolk & Wisbech Area Health Authority ruled that those under 16 could consent to medical treatment as long as they had sufficient understanding and intelligence to appreciate what was proposed and to express their own wishes. The context was the child’s right to advice on contraception for sexually active youngsters, a right which, were it more widely known and supported through sex education, would do more to bring down Britain’s high rate of teenage pregnancy than ineffectual attempts to suppress youthful sexuality.
For present purposes, though, the salient feature of the Gillick ruling is not the sexual aspect but rather the judgement’s recognition of an important reality: adult competences do not suddenly begin at an arbitrary age of majority; they grow over time. Good parents know this and allow their children to “spread their wings” as they grow older, and even take off: they understand that the occasional crash landing is a possibility and can be a valuable learning experience. It is all part of an apprenticeship in life.
Like Furedi, I believe that in general no one is better placed than parents to make judgements as to what their own children are ready for; no one knows them so well, nor will anyone else be more strongly disposed to secure their best interests. I have never been hostile to parents, either when I was Chair of the much traduced Paedophile Information Exchange (PIE) long ago, or since. At the risk of setting off a fresh spate of tabloid excitement, I can honestly say some of my best friends have been parents.
That does not mean, though, that I would defend particular family structures to the last ditch, especially the all-too-explosive nuclear family, forged in relatively recent historical times not out of high purpose and dignity – an Englishman’s home is his castle, and all that – but from the grim necessity for a mobile labour force, detached from wider family and community, as the Industrial Revolution took hold.
Indeed, the tensions inside the nuclear family, and its frequent breakdown, constitute a fair proportion of the need for children to have rights. Parents do not all have their children’s best interests at heart. Step-parents, especially, who now make up such a substantial proportion of the whole, have much to answer for. The “wicked” step-parent is no myth. Frequently they resent their newly acquired brood; their hatred may even be murderous. Stepchildren are 60 times more likely to be killed than genetically related offspring [Daly & Wilson, 1994]. Not that this lets biological parents off the hook: taking parents as a whole, the latest figures show they kill on average over one child per fortnight in the UK, often in the context of a relationship breaking up, when one of the adult partners (usually a father) murders his children to spite his former partner [Office for National Statistics, 2013].
It is an ugly reality, so grim we cannot bear to face it; which is probably why these horrible cases tend to be dismissed in a paragraph or two in the media and described as a domestic “tragedy”, rather than in the more floridly anathematising terms (“evil”, “vile”, etc.) reserved for even the most mild and non-coerced paedophilic encounters. I recall one case somewhere in the West Country a couple of decades ago in which the father impaled the decapitated heads of his three children on spikes, leaving them for his ex to see. Even that spectacularly ghastly case disappeared from the news after a day or two. The vanishingly rare murder of a child in a sexual context, by contrast, is kept alive for a decade or more, such is the public’s need to project its own darkest feelings onto a monstrous Other.
Of course, the criminal law applies in the case of murder. Children do not need any rights in this regard beyond the human right to life. But there are many circumstances in which distinct rights for children would help enormously, both as regards invoking Gillick competence and, for children who are not yet competent to assert their own just claims, rights which can nevertheless be enforced in law on their behalf. These rights should take account of their wishes, not just their (adult defined) “best interests”. This, too, already has some standing in law. The 1989 UN Convention on the Rights of the Child acknowledged the right of children to be heard. This principle was incorporated into the Children Act of the same year, which said that while the children’s welfare should be paramount, courts should take into account “the ascertainable wishes and feelings of the child concerned”.
This formulation was far too wishy washy: wishes can be heard, but may still be ignored. The move towards a more effective measure is inhibited by confusion. The law will be deficient as long as we remain in thrall to the classic, albeit weak, argument that rights imply responsibilities, and that young children, before they become Gillick competent, cannot have truly enforceable rights because they are incapable of discharging the responsibilities that go with them. But as philosophers, including, most famously, John Rawls, have acknowledged, this is misconceived. As human rights lawyer Paul Sieghart put it:
In all legal theory and practice, rights and duties are symmetrical. It is a popular fallacy to believe that this symmetry applies within the same individual: that if I have a right, I must also have a correlative duty. This is not so: if I have a right, someone else must have a correlative duty; if I have a duty, someone else must have a corresponding right [Sieghert, 1985].
Children “in care”, may have significant rights claims against a range of professionals who act in loco parentis as teachers, etc. Having said that, the family is the most obvious locus of children’s claims, just as Furedi asserts. This is because, famously, most abuse, whether in terms of outright neglect and cruelty, or unwanted sexual attention, takes place in the home. This is a robustly quantified reality, not a feminist myth: in the most authoritative study to date, regression analysis indicates that dysfunctional family background is nine times as predictive of adult psychological harm as “child sexual abuse” (CSA) [Rind et al., 1998]. Had it been possible to separate non-coercive so-called CSA in the figures from coercive molestation and rape, the ratio would probably have risen dramatically, to infinity, because CSA thus defined would emerge as, on average, not psychologically harmful at all.
As for what distinct children’s rights might be needed, probably the most compelling cases are those concerning the right of children (1) to make medical decisions on their own behalf, especially when the issue of life and death is engaged; (2) to decide on their own custody in the event of parental separation and divorce; (3) to “divorce parents in the event of incompatibility. In all three areas considerable progress has been made in this century: we are not talking about a dead 1970s concept.
In the United States, for instance, it is relatively routine now for older children to have access to the law and to divorce a parent in the event of serious incompatibility, as for instance in the case of a gay teenager subjected to constant disparagement by a disappointed and unsympathetic father. It happens. It’s serious. These kids die by their own hand way disproportionately to their peers when they cannot find a supportive environment. As for medical decisions, doctors are moving towards the view that even quite young children can make rational and (given professional advice) informed decisions in difficult cases, such as whether or not to accept dangerous kill-or-cure surgery, or whether they wish to accept therapy inevitably committing themselves to years of pain and distress. And who could doubt that parents who are Jehovah’s Witnesses act against their children’s best interests when they refuse to sanction blood transfusions for a child in an emergency? This cries out for a child’s right, if they wish, to override their parents’ views.
The case for children’s sexual rights is a more complex matter, so I’ll close with a brief response to Furedi’s flaying of PIE’s “self-interested” stance. I look forward to him now denouncing his own self-interested lack of credibility: he campaigns for the rights of parents rather than children. Well, he would, wouldn’t he: he’s a parent!
Seriously, Frank, this essentially ad hominem way of shutting us up is a cheap shot, and unworthy of you. It makes you look like the politicians and judges who have been in such a hurry lately to publicly renounce their previous support for the basic civil rights of paedophiles: with their careers under immediate threat they appear to have panicked. One reason this has happened in such a big way, incidentally, is the failure of Liberty to defend liberty. The former National Council for Civil Liberties (NCCL) did a better job. Spiked editor Brendan O’Neill is to be congratulated for his staunch and principled recent defence of the NCCL’s former affiliation with PIE.
Daly, M & Wilson, M; “Some differential attributes of lethal assaults on small children by stepfathers versus genetic fathers”, Ethology & Sociobiology, Vol 15(4), Jul 1994, 207-217.
Office for National Statistics (2013); Focus on: violent crime and sexual offences, 2011/12 http://www.ons.gov.uk/ons/dcp171778_298904.pdf
Rind, B, Tromovitch P Bauserman R (1998); “A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples”. Psychological Bulletin 124 (1): 22–53.
Sieghert, P; The Lawful Rights of Mankind, OUP, 1985, p.94