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Commentary on Children’s Rights, 17 Ohio Northern Law Review 647 (1991)


"Rights talk" about children derives from and implies differing images of children. Consider the following statements:

Children have a right to be cared for, protected, and taught how to live in the world.
Children have a right not to be deprived of their liberty unnecessarily or arbitrarily.
Children have a right to receive medical care, education, and other services that will help them grow into healthy, well-socialized adults.
Children have a right not to be subjected unnecessarily to confinement in institutions or to be mistreated or denied opportunities for self-expression in schools they are required to attend.
Children have a right to be protected from responsibility for decisionmaking that is beyond their developmental competence.
Children have a right not to be denied a voice in decisions affecting their interests.

The differing images of children reflected in these statements can be seen in judicial pronouncements about the rights of children and adolescents. There is the dictum of Justice Rehnquist in Schall v. Martin, upholding pretrial preventive detention of juveniles:

[J]uveniles, unlike adults, are always in some form of custody. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the state must play its part as parens patriae.

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