Rights,responsibilities and regulation – the three Rs of education: a consideration of the state's control over parental choice in education

Education is both a right and a responsibility. International instruments such as the International covenant on civil and political rights and the International convention on the rights of the child affirm the right of all children to education. This right is spelt out in the education legislation of all states and territories in Australia. Education is not only free but is compulsory for all children between certain ages. The obligation is imposed on parents (in accordance with definitions contained therein) to ensure that their children are both enrolled at and attend school. However, parental choice of education provider is allowed within each jurisdiction by way of state, private or church schools, all of which are registered and regulated to varying degrees by the state. The legislation of each jurisdiction also makes some degree of provision for parents who choose to opt out their children from any formal education setting and to educate them at home. Home education is also subject to state regulation. The assumption by the state of the responsibility for education guides this policy and legislation. The argument for state control of all education, no matter how and by whom it is provided, is that the state has an overriding interest in ensuring the economic well-being of its citizens and the growth of its intellectual capital. The state acknowledges that the responsibility for education is shared with parents, primarily by providing penalties for parents who fail to ensure enrolment and attendance of their children at a school. There is evidence that more and more parents in developed countries worldwide are choosing to educate their children at home, and anecdotal evidence suggests that Australia is part of this trend. To this end, this article critically examines the balance and relationship between the exercise of parental choice and responsibility in education, and state regulation and control. It does so by examining the means by which the legislation of different jurisdictions allows for choice in the exercise of the right to education, with particular reference to home education, places limitations on that choice and imposes control on the delivery of education outside state schools.     

Freedom and Futures: Personal Priorities, Institutional Demands and Freedom of Religion

How should one define the legitimate reach of individuals' institutional obligations in the light of their right to freedom of religion? The most divisive settings for this question involve exclusions from certain jobs and schools. At the same time, some fundamental issues of ethics and law lie in the background. One of the most central concerns choice. On one approach, if there are other sources of work or education that do not make the same demands on the objector then she should choose between conforming and taking up that alternative. On another approach, even if there are such alternatives, people should not be confronted with such a dilemma: they should be entitled to stay in their preferred institution, which must make its best effort to accommodate them. The conflict between these two views arises from underlying differences concerning the nature of free choice itself; about the obligations borne by institutions in civil society; and about basic rights. The connections between these notions are investigated, and a way through the disagreement is suggested.     

STATE SUPREME COURT APPLICATIONS OF TROXEL v. GRANVILLE AND THE COURTS' RELUCTANCE TO DECLARE GRANDPARENT VISITATION STATUTES UNCONSTITUTIONAL

In this article, the author reviews state supreme court applications of Troxel v. Granville , analyzing the impact of the decision on the courts' ongoing efforts to adjudicate visitation disputes between parents and grandparents. Set against a background of legislative recognition of grandparents' rights and judicial uncertainty regarding the appropriate role of nonparents in children's lives, Troxel reaffirmed the constitutional right of parents to direct their children's upbringing. The author argues that state supreme courts evaluating gradparent visitation statutes and seeking to enforce Troxel 's presumption in favor of parents should be more willing to strike down overly broad statutes. Such an approach would be a positive step toward addressing the excessive judicial discretion that the Troxel Court found so problematic, and would signal to state legislatures the need for statutes that both provide for the needs of children and protect parental rights.     

AN EXPLORATORY STUDY OF SUPERVISED ACCESS AND CUSTODY EXCHANGE SERVICES

The detrimental effect of parental conflict in protracted child custody and visitation disputes is well established in the literature. However, little is known about the impact of parental conflict on children when visitation takes place in a protected setting. Part of a larger study that examined the broader issues related to parental and child involvement in a supervised access and custody exchange service, this article specifically explores the influence of parental participation on child well-being. This exploratory effort reveals that children's level of adjustment remained stable over 6 months of participation while visitation returned to court-ordered levels and interparental contact was precluded by staff intervention.     

Law,psychology, and children

Society's treatment of children and families is guided by the premises that children lack the ability and/or the capacity to be autonomous directors of their own lives and that the private autonomous family is best suited to provide for the best interests of children. These premises are based on two assumptions: (a) that parents will act in their children's best interests, and (b) that parents possess the maturity, experience, and judgment required to make life's difficult decisions, which children lack. We explore these premises and assumptions along with the concept of the best interests of children and the relationship between children's capacities and children's rights. We conclude that collaboration between legal scholars and social scientists will enhance the likelihood of more informed decision making about these issues.Appreciation is expressed to Sarah L. Cook, without whose assistance this special issue would never have been completed.     

INTERPARENTAL CONFLICT AS A RISK FACTOR FOR CHILD MALADJUSTMENT: Implications for the Development of Prevention Programs

This article reviews research on the effects of interparental conflict on children and examines its implications for divorce education programs designed to reduce conflict after divorce. Basic research indicates that prevention programs for parents will be most effective in fostering children's adaptation to divorce if they can reduce the level of destructive conflict that children are exposed to, foster good parent–child relationships, and keep children from being caught in the middle of parental tensions and disagreements. Programs for children are likely to be most helpful if they help children learn ways to cope with situations in which they feel pressured to side with one parent against the other and avoid feeling responsible for parental problems. Although psycho-educational programs are widely available and often court-mandated, evaluation studies are rare and support for their efficacy is mixed.     

Character-building and freedom in education

Educators, parents, and policy-makers in the United States, as in other countries, are concerned about the apparent inability of many schools to contribute to the development of character and civic virtue in their pupils. The answer, experience shows, is not for government to require a pedagogy of state-defined character education which, in a pluralistic society, would inevitably create new conflicts. Instead, education policy should take advantage of the growing interest on the part of educators in creating autonomous, distinctive schools, and the continuing interest, on the part of parents, in being able to choose what school their children will attend. Schools which exhibit a distinctive character based upon a shared understanding of the goals of education are effective not only in teaching academics but also in developing positive character traits in their pupils. Charter schools and educational vouchers are two means of encouraging and supporting such coherent schools. The article concludes with a series of policy recommendations designed to balance the autonomy of schools against the need for public accountability. This revised version was published online in August 2006 with corrections to the Cover Date.     

Parents and medical professionals: conflict, cooperation, and best interests

Abstract This paper seeks to engage with the ideas expressed by Professor Brazier in her commentary on the Charlotte Wyatt case and to develop contemporary analysis around parental rights, notions of best interests, and shared decision-making between parents and professionals. The article begins by setting the scene in relation to parental/professional conflict and frames the discussion in the context of medical decision-making. Parental rights are then explored before the analysis progresses to how the concept of best interests has recently developed. Finally, the article investigates the benefits of compromise, cooperation, and shared decision-making as the most effective method for resolving disputes concerning children.     

A GOOD EXAMPLE OF PARENT ADVOCACY FOR RIGHTS IN INCLUSIVE EDUCATION IN CHINA

While children with disabilities experience exclusion and segregation in education, parents’ involvement has been very limited due to the lack of parent support in China. Negative attitudes toward disability in an environment deeply influenced by the individual model of disability thinking makes it crucial for parents to advocate for their children’s rights in inclusive education through collaborative and organized efforts. This article examines barriers obstructing disabled children’s rights in pursuing inclusive education, barriers parents face to advocate for their children, and the development of parent support. The author argues that equal and inclusive education for all has a broader social impact beyond disability rights to eliminate barriers and pursue dignity for all. In doing so, the author reveals existing structural inequalities facing inclusive education, encourages the momentum for future changes, and utilizes a good example of parent advocacy for a deeper and meaningful policy advancement to overcome discrimination on the basis of disability that causes segregation and exclusion in education. Recommendations include strategies for the construction of a support network for parents to play their important roles in advancing the rights of their disabled children in inclusive education.     

When special needs categories for exceptional students overlap mental health diagnoses: The Canadian experience and its Charter implications

This paper explores Canadian 'educational' categorical systems for special needs students and their relation to mental health diagnoses. Parents wishing to access special education services for their children are generally required to consent to their children being formally assessed. Frequently, the school board committee will require a psychological or psychiatric assessment which may lead to diagnosis of a mental health disorder that overlaps with the special needs category to which the child is assigned. This paper explores whether Canadian parents of exceptional students are in fact providing fully informed and voluntary consent given: (a) frequent parental lack of understanding of the overlap between the so-called 'educational' special needs category and a mental health diagnosis; and (b) the power of the school board to proceed with a special education placement based on a particular category even without parental agreement. The argument is made that making special education service eligibility contingent on meeting the criteria for one or more government approved categories of 'disorder' or 'impairments', some of which overlap mental health diagnoses, infringes Canadian Charter s.15 equality rights as well as s.7 liberty and security of the person rights.     

Challenging statutory limitations on children's education rights: a re-examination of the Canadian Supreme Court Decision in Auton

The 2004 Supreme Court of Canada decision in Auton concerns the right of autistic children to access services held by their parents to be essential to their children's ability to participate as members of a democratic society. It is argued that the child's right to have his or her basic developmental needs met is a constitutionally protected one. Having those developmental needs met engages both education and health rights. In Auton the parents had sought funding for the service at issue from the Ministry of Health, the Ministry of Children and Families (which dealt with mental health services and other particular support programs for the families of disabled children) as well as from the Ministry of Education. The case raises central questions regarding the very nature of education and the constitutionality of a discretionary power of government to set out statutory limitations upon fundamental human rights including education rights.     

Fostering permanency of children in out-of-home care: psycho-legal aspects

Over the past 20 years increasing interest has been given to children's rights that grant special protections to children living apart from their biological parents. The Adoption Assistance and Child Welfare Act of 1980 was promulgated to prevent unnecessary removal of children from their original families and to ensure permanency when return to their families could not be secured. The psychiatrist's role in this process has been to ensure that effective interventions occur prior to the child being removed from home and that every effort is made to return the child to his or her family of origin once placement has been made. In the event that the child cannot return home, the psychiatrist can assist the court by providing grounds for termination of parental rights and by otherwise ensuring that the child's best interests are protected.     

Herd behavior in designer genes

The ability of individuals to choose their children's genes has increased over time and may ultimately culminate in a world involving free market reprogenetic technologies. Reprogenetic technologies combine advances in reproductive biology and genetics to provide humans increased control over their children's genes. This Article offers economic perspectives that are helpful in understanding the possibly unexpected ethical, legal, and social issues at stake in using reprogenetic technologies for trait enhancement selection. The Appendix analyzes two competitive games that might arise in such a biotechnological society. Specifically, the Article focuses on herd behavior, caused by either a popularity contest or positional competition, in the choice of genetic traits. The analytical game-theoretic models in the Appendix can have several equilibrium outcomes in terms of individual reprogenetic technological choices and corresponding beliefs about such choices by others. This multiplicity of potential social outcomes suggests that a society can attain efficiency if the state or some private organization transforms individual parents' beliefs over the choices of other parents regarding their children's traits and, thus, coordinates parental reprogenetic decisions by selecting, as focal, certain beliefs over parents' reprogenetic decisions.     

Who needs Daddy Warbucks: The Kinship Guardianship Assistance Program should apply to children of those who surrender their parental rights

Families who find themselves in the middle of child protective proceedings have three possible outcomes: (1) the family can reunify; (2) parents voluntarily surrender their parental rights; or (3) the parents have their rights terminated. While it seems we should support children in the second and third scenarios equally, having funding sources such as the Kinship Guardianship Assistance Program (KinGAP) only available to children of parents whose rights are terminated, does the opposite. This Note proposes amending the eligibility requirements of KinGAP to include children of parents who surrender their parental rights which would encourage positive safe placements for children.     

Parents and Drugs

This article examines three hypotheses about the relationship between attachment to parents and children's drug use when parents are perceived by their children as having used drugs. Hirschi's hypothesis that attachment to parents inhibits delinquency regardless of parental behavior is rejected in favor of hypotheses that predict variation in that relationship. In contrast to attachment to straight parents, attachment to drug-using parents does not inhibit drug use significantly and there are occasional hints at reversals in the relationships.     

Educational policy of the German Bundesverfassungsgericht

This article analyses the jurisdiction of the German Federal Constitution Court over the basic rights of parents, pupils and private schools and the traditional interpretation of the term “supervision of schools by the state” in Art. 7 para 1 Grundgesetz. The term “school supervision by the state” is traditionally interpretated as the state's absolute rights with regard to organisation, planning, control and supervision of schools. The author argues for a new interpretation to limit such supervision to the question of the legality of school activities. Parents should have a free choice between private and state schools. For this it is necessary to give subsidies to private schools in a way that every pupil can enter a school without differentiation according to the social standards or the income of their parents. With these principles in mind, the German Federal Constitution Court tried in 1987 in exemplary fashion to harmonise the constitutional claim and the constitutional reality. However, its recent decisions cast doubt upon this positive assessment. This revised version was published online in July 2006 with corrections to the Cover Date.     

PROGRAMS FOR PROMOTING PARENTING OF RESIDENTIAL PARENTS: Moving From Efficacy to Effectiveness

This article reviews prevention programs that target primary residential parents as change agents for improving children's postdivorce adjustment. First, we review parental risk and protective factors for children from divorced families, including parenting quality, parental mental health problems, interparental conflict, and contact with the nonresidential parent. Following a discussion of brief informational interventions, we describe the findings of evaluations of three multisession, skill-building interventions for divorced parents. Impressive evidence is presented that parenting is a modifiable protective factor and that improving parenting leads to improvements in children's postdivorce adjustment. We then discuss, in greater detail, the New Beginnings Program, which we highlight because it has shown repeated, immediate effects on children's mental health outcomes as well as long-term effects on a wide array of other meaningful outcomes, such as diagnosis of mental disorder in the past year, externalizing problems, alcohol and drug use, and academic performance. Also, mediational analyses have shown that program-induced changes in parenting accounted for changes in mental health outcomes. The remainder of the article describes a research and action agenda that is needed to successfully implement the New Beginnings Program in domestic relations courts.     

Adoption Support and the Negotiation of Ambivalence in Family Policy and Children's Services

In this paper ambivalent commitments to parenting and family life by the New Labour government are explored by reference to the example of adoption support. Developments in adoption illuminate contrasting expectations in family policy and children's services more generally. Traditional normative concerns to support family status and parental autonomy are unsettled by contemporary anxieties about child outcomes and social mobility. Impatience with the attitudes and behaviour of parents has led to a 'progressive universalism' in which enhanced parenting services and expectations for all are combined with increasingly insistent and targeted interventions for the particularly needy, reluctant or recalcitrant few. At the same time demands for greater service modernization and professional effectiveness have led government to position parents as (potential) consumers too. The paper discusses these policy and practice tensions and concludes that new spaces are being opened up for the negotiation between parents and professionals about rights and responsibilities in family life and its support.     

Parents’ Perspectives on Family‐centered Care in Juvenile Justice Institutions

Family‐centered care during adolescent detention aims to increase parental participation in an attempt to optimize treatment outcomes. However, little is known about parents’ needs in family‐centered care. To fill this gap, we interviewed 19 purposefully selected parents of detained adolescents using a semi‐structured topic list. Although needs differed between parents, they were generally interested in activities that included spending time with their child. It is important for parents to receive timely information about their child's condition and treatment, detention procedures, and activities in the facility. The outcomes demonstrated that parents expected a two‐way communication based on respect and reliability.     

Transformation or Dilution: Fundamental Rights in the EU Social Space

Abstract:  This article argues that in developing social rights to counterbalance economic freedoms, the EU has begun to reformulate traditional notions of rights. Instead of creating rights in their traditional individualised, negative, judicially enforceable, and fault-based form, a new proactive model is emerging, which aims at institutional change, based on the notion of the active citizen and the centrality of participation in both rule formation and enforcement. It is argued that while this model has important advantages, its weakness lies in its dependence on political will. The challenge is therefore to ensure that proactive strategies are firmly centred on fundamental rights rather than political discretion. Part I briefly sketches the development of social rights in the EU; Part II examines the applicability of Third Way ideology; Part III considers European employment strategy and gender mainstreaming, asking whether they represent a dynamic new manifestation of fundamental rights at work, or a betrayal. Part IV applies a similar evaluation to the EU Charter.