Reviewed by Susan Phillips

As someone who starts from the position that children are individuals deserving of respect, rights, and representation in court, I read Martin Guggenheim’s book What's Wrong With Children's Rights with a certain skepticism of my own. I found it challenging, exhilarating, and occasionally maddening. I was surprised by the extent to which I found Guggenheim’s arguments, particularly in the critically important area of child welfare, both compelling and well-reasoned.

In short, it’s a great mental workout for anyone who is concerned with creating a fairer and more equitable world for children.

As Guggenheim explains in his preface, he began working in the field of children’s rights at a time when the concept was undergoing major changes – a few years after the landmark Supreme Court ruling In Re: Gault. That decision held that children facing delinquency charges in juvenile court have a constitutional right to legal representation.

In Guggenheim’s telling, whatever the merits of In Re: Gault for juveniles, it opened the door to an ever-expanding understanding of the right of children to legal representation. In his chapter on divorce, custody and visitation, for instance, Guggenheim makes a powerful argument that the increasingly common practice of assigning lawyers to represent children in custody cases actually ratchets up the conflict and makes it harder for divorcing parents to negotiate an agreement that is good for kids.

One of the most compelling chapters in the book is "Child Protection, Foster Care, and Termination of Parental Rights." Here, Guggenheim wades into the fierce battle over the Adoption and Safe Families Act of 1997. This law substantially shortened the amount of time parents are given to regain custody of their children before states come under pressure to file a petition to terminate parental rights and free the children for adoption.

"For the first time in American history, federal policy supports as a prominent aspect of foster care the permanent severance of all legal ties between foster children and their parents," Guggenheim writes (p. 191).

Such a major shift, he writes, can only be justified if we know that children in foster care would face the risk of serious harm if returned to their parents. Guggenheim then argues that in too many cases, parents lose their children to foster care for the sin of "parenting while poor," and then struggle to meet seemingly arbitrary requirements imposed by hostile and overburdened caseworkers in order to try and win their children back.

Some analysts estimate that about 10 percent of the nation’s child welfare caseload involves serious and criminal cases of neglect and abuse. Guggenheim believes that media attention to the most horrific cases of abuse have magnified their impact on law and policy. (This "the media made them do it" argument is one of the least persuasive in Guggenheim’s arsenal, in my view – journalists focus on those stories because people find them compelling, not the other way around.)

More persuasively, Guggenheim points out that foster care placement rates cannot be rationalized. Placement rates vary widely between states, even when there is no statistically significant difference in rates of abuse and neglect: there are twice as many children in foster care in Minnesota than in Wisconsin, for example. New York City’s foster care population soared by almost 50 percent in the late 1990’s following a notorious child abuse case.

Meanwhile, in Chicago, more than 95 percent of the foster care caseload is African American. In New York City in 1997, only 3.1 percent of children in care were categorized as "non-Hispanic white." This, says Guggenheim, means that "somehow or other, New York City has found a way to maintain a child welfare system for its white population that treats placement in foster care as an extremely rare event." (P. 205).

The bottom line for Guggenheim is that in many instances, children’s rights are used as a "stalking horse" for adult desires. Third-party visitation, for instance, which was successfully promoted by grandparents and organizations like the AARP, he sees as an unwarranted intrusion on parents’ rights to raise their children as they see fit, and to determine who they associate with. As he argues, any grandparent who winds up filing a lawsuit for the right to see a grandchild probably has a difficult relationship with the parents’ children to begin with, that might be better addressed through conversation, mediation and "being nice."

His discussion of the rapidly evolving concept of who qualifies as a parent, driven by reproductive technology and the increase in non-traditional families, is fascinating. He points out, for instance, that grandparents – culturally sympathetic figures – have had much greater success winning access to their grandchildren than, for example, gay or lesbian individuals who have actively parented a child for years, then find themselves with no rights to continued contact after a relationship ends.

Unfortunately, while Guggenheim offers a cogent and coherent account of the evolution of children’s rights in the legal sphere in the U.S., and a useful critique of how it has played out in the lives of children, he does not do nearly as thorough a job looking at the juvenile justice arena. While he deplores the near-universal trend to shift more and more juvenile criminal cases to adult court, and juvenile offenders to adult facilities, his effort to demonstrate a connection between the expansion of children’s rights in the area of family law and the constriction of juveniles’ rights in criminal proceedings isn’t very robust.

Read the transcript from the online chat with Martin Guggenheim.