WHAT'S WRONG WITH CHILDREN'S RIGHTS

By Martin Guggenheim. Harvard Univ. 306 pp. $27.95

The relations among children, parents and the various agencies that purport to help them are the subject of intense debate these days, and for good reason: They touch on some of our most passionately held values -- about the needs of children, the moral authority of parents and the place of government in this most personal area of human life. In What's Wrong with Children's Rights, Martin Guggenheim, a practicing lawyer and professor of clinical law at New York University, deserves considerable credit for laying out an ambitious and wide-ranging argument that attempts to grapple with these issues. But what could have been a valuable analysis is routinely subverted by his frustrating ideological rigidity.

Guggenheim's main point is that framing legal issues involving the family in terms of children's rights actually harms children -- and society generally -- because it results in expanding the reach of the state into the lives of families at the expense of parents, who are the people who know their children best and presumably "care the most for them." Guggenheim, instead, wants to see a much greater emphasis on parents' rights, particularly their right to raise children without the threat of "state control and intervention."

Judges, caseworkers and lawyers who intervene in children's lives in the name of promoting their rights, he tells us, lack "the concern for those children or the deep, individual knowledge of them" that only parents can provide. "Government bureaucracies," he insists, ". . . have been criticized for being inept at many functions; because childrearing requires exquisite attention to each child's special needs, we should expect that state officials would be particularly bad at raising children." But who, after all, really advocates having government bureaucracies raise children?

Here lies the central problem with Guggenheim's book: It repeatedly presents the moral and social choice as between adopting an essentially laissez-faire attitude toward what goes on inside families and "unleashing state power." Either we leave parents mostly alone, Guggenheim warns, or we risk having families steamrolled by an overweening government: "Any alternative to the parental rights doctrine empowers state officials to meddle in family affairs." But that stark dichotomy, in the end, offers precious little guidance for how to grapple with the troubled state of all too many children in the real world, where the issues are nearly always murkier and more nuanced.

What's Wrong with Children's Rights examines the competing needs of parents, children and the state across a variety of categories -- including the rights of unwed fathers, grandparents and former spouses; the abortion rights of adolescents; and, perhaps most notable, the rights of parents vs. child welfare agencies in cases of alleged child abuse and neglect, a subject to which Guggenheim devotes a long and pivotal chapter that illustrates both the strengths and the ultimate weakness of his book as a whole.

The plight of children in abusive families -- sometimes compounded by mistreatment at the hands of caregivers if they are removed from their original homes -- understandably arouses deep emotion and has also inspired a remarkably politicized debate in recent years. On one side are those who believe that a massive problem of abuse and neglect has been weakly addressed by underfunded and poorly staffed child welfare agencies, leaving too many kids at the mercy of dangerous parents. On the other side are those who argue that the real problem is in the opposite direction -- that a powerful child welfare bureaucracy often runs roughshod over parents who have done little or nothing wrong, and will take their children away from them at the slightest infraction.

Guggenheim falls into the latter category. In common with a number of conservative writers, he wants us to believe that the danger to children from abusive parents is exaggerated: "Americans have become convinced (wrongly) by the media that child abuse is a prevalent social ill." Child abuse, he insists, is "over-reported": Most of the 3 million reports of abuse and neglect received by child protective agencies every year are either minor incidents in which the state has no business meddling or are "unsubstantiated." But as all students of these statistics know, there is another side to this. That a report of abuse is "unsubstantiated" does not necessarily mean that nothing happened -- sometimes, it means only that no one was able to investigate the report fully.

More important, the more than 800,000 reports that are substantiated mask a potentially vast "dark figure" of incidents that are never reported to anyone. The worst damage typically happens to children under 3 -- and often under a year old -- who cannot reasonably be expected to report the abuse on their own. Whether they get into the system at all depends on their coming into contact with someone in authority outside the family, but not all of them do. Some of the most abusive families simply fly under the radar in a society with minimal and typically understaffed public services. It's certainly true that the media tend to focus on sensational cases, but Guggenheim's spin on the statistics stretches the point too far, minimizing a social problem that kills nearly 1,500 children a year in the United States, seriously injures (and often disables) vastly more, and sharply distinguishes us from other industrial nations in terms of the risk of child death from abuse.

In order to show that children are nearly always better off with their biological parents than in what he rather tendentiously describes as the care of "the state," Guggenheim also makes fairly sweeping assertions about the alternatives that don't stand up to the evidence. "Children," he tells us, "do not thrive in foster care. The state is a poor substitute for one's family." But the research tells us, again, something more complicated: Most kids in foster care apparently feel reasonably good about their foster parents and believe that their situation is a step up from where they were before being removed from their homes.

No one who has looked hard at the plight of abused and neglected children believes that there are easy choices here. But the knee-jerk predisposition to mistrust the public sector and to trust biological parents doesn't provide much of a base on which to build a strategy that will work better for vulnerable kids than what we do now. Does Guggenheim want us to return to the laissez-faire attitude toward child abuse and neglect that, as he notes, dominated social policy before the 1960s and '70s, when we finally began to drop the traditional idea that what went on in the family was nobody's business, least of all government's? I doubt it, but that's the drift of his argument, and he doesn't offer much of an alternative.

The visceral rejection of government intervention likewise undermines what I think is his strongest point -- that the problems of the families who most often get caught up with child protective systems are usually the result of larger ills, notably poverty, which we have so far failed to challenge in a serious way. But Guggenheim stops short of saying what, if anything, we ought to do about poverty and social exclusion, and instead simply insists that we should limit government's ability to intervene when those conditions put children's lives at risk.

Guggenheim approvingly quotes Justice Louis Brandeis to the effect that we should be "most on our guard to protect liberty when government's purposes are beneficent," for "the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." It's a familiar critique, but one that seems oddly out of tune in an era that can hardly be described as suffering from an excess of good intentions. In an age when successive administrations have aimed to cut the heart out of practically every public program that might help vulnerable kids and families, the threat of being trampled by a state that is both well-meaning and all-powerful seems about on a par with that of being struck by a meteorite in family court. Raising that threat, to be sure, fits the zeitgeist of a conservative time, but I worry that it will only help to justify further retreat from responsibility by Congress and state legislatures to fund the services that kids need.

The vision of a cold, distant but zealous state opposite caring, if overwhelmed, parents stereotypes both sides. The deeper problem is that too many children, especially but not exclusively poor children, are being ill-served by nearly everyone, and that includes their parents as well as the public agencies that should, in theory, be helping to protect them. Rather than pitting the interests of poor parents against those of strained public agencies, we ought to be figuring out strategies that both improve families' chances of raising children caringly and enhance the capacity of the public sector to help when they have trouble doing so. If there is a better way to talk about this than through the idea of children's rights, by all means let's hear what it is. But I don't think Guggenheim has told us. *

Elliott Currie is professor of criminology, law and society at the University of California at Irvine and the author, most recently, of "The Road to Whatever: Middle Class Culture and the Crisis of Adolescence."