The Missing Link: A Social Orphan Protocol to the United Nations Convention on the Rights of the Child
Sara A. Dillon
Suffolk University Law School
Human Rights and Globalization Law Review, Vol. 1, p. 39, 2008
Suffolk University Law School Research Paper No. 09-02
Social orphans are children living out of parental care. Their fates are many and varied, but in global terms they share common life circumstances of physical danger and psychic pain. In this article, the author presents a draft protocol to the United Nations Convention on the Rights of the Child (UNCRC) on the subject of the social orphan as a human rights cohort. Building on her identification of this global cohort in an earlier article, and her critique of the weak and equivocal manner in which the UNCRC dealt with the issue of children living out of family care, the author seeks to move the intercountry adoption debate to a new level. The article presents the view that we can alter the fraught ideological debate over intercountry adoption versus other forms of care for social orphans by a new emphasis on access, accountability, and genuine permanency. It is argued that by through a process of honest and objective presentation of the facts on social orphans in various countries - how many there are, where they live, the conditions under which they live, how they have come to be in non-parental care - the proper role for intercountry adoption will become evident from these facts. The author argues that there must be a clear, easy to apply set of care options set out, with an unambiguous order of preference, based on the non-negotiable need for permanency and security in the child's life. The article expresses profound concern over the role of the United Nations in encouraging national policy makers to substitute foster care for institutional care when domestic or intercountry adoption may provide viable, and far better, alternatives.
The Draft Protocol on Social Orphans, in the appendix to the article, sets out guidelines for the development of exactly such policies by national governments. The Draft Protocol recognizes that the UNCRC did not deal successfully with the enormous population of social orphans worldwide, and did not place a legal obligation on national governments to do everything within their power, and in a expeditious manner, to ensure alternative family life for children unable to reside in their families of origin. The Draft Protocol seeks to eliminate this legal deficit.
Number of Pages in PDF File: 37Accepted Paper Series
Date posted: May 24, 2008 ; Last revised: August 2, 2014
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