Grandparenting and Children's Rights
Sheila Varadan (PhD Candidate in Child Rights and Medical Research Ethics, Leiden University)
The 21st century may well become ‘the century of grandparents’.[1] It is estimated that by 2050, the global population of elderly persons will outnumber children.[2] With longer life expectancy, declining birth-rates and rapid urbanization, grandparents are being asked to take on more complex and multidimensional roles within the family and community.[3]
Historically, grandparenting was treated as ‘a roleless role’ with no social status and no clear expectations linked to it.[4] International law paid little attention to grandparents or the role they played in the everyday care of a child. The right to family was understood as an entitlement of parents over their children, [5] rather than a relational right flowing between a child and her wider family.[6]
Yet, grandparents will often play an integral role in the functioning of family relationships,[7] making a vital contribution to the care and upbringing of children.[8] In times of family crisis, grandparents have stepped in as surrogate carers, providing support to their adult children and ensuring the continuity of a child’s upbringing within a family environment.[9] In lower- and middle-income countries, grandparents have long been viewed as the ‘crucial linchpin’[10] for social policies on childcare.[11] With rapid economic development, urban migration, and increased rural poverty, more adult children are leaving their children in the fulltime care of grandparents as a livelihood strategy, pursuing economic opportunities that benefit the family as a whole.[12] Even in Western liberal countries, where government-funded day-care may be available, grandparents continue to act as stand-by carers, providing vital support to parents balancing the demands of fulltime work with child rearing in early years.[13]
When the UN Convention on the Rights of the Child was adopted in 1989, it introduced a framework that recognised the child as a rights-holders, with an independent right to family under international law. But, it did not directly answer the question of who is family, and whether we should recognise grandparents and extended family members involved in the everyday care of a child. While the UN Convention on the Rights of the Child acknowledged the family unit as the natural environment for the growth and development of the child, it did not explicitly recognise a concept of ‘kinship’ care. Moreover, rather than define who is a ‘parent’, CRC drafters employed a confusing melange of terms to identify a child’s carers. In some cases, a child’s carers were identified on the basis of a legal relationship, while in other instances consideration was given to the caregiving relationship or customary practices. The absence of any discernible nomenclature for carers, coupled with little or no recognition for ‘kinship care’ prompted criticisms that the CRC favoured a Western liberal model of family that did not reflect the lived realities of parenting in most parts of the world.
Yet, in 30 years since the CRC entered into force, efforts have been made to forge a broad and flexible framework for ‘family’ that acknowledges the role of grandparents and extended family in the everyday parenting of a child. The UN Committee on the Rights of the Child has consistently said that ‘family’ should be understood ‘in a broad sense to include biological, adoptive or foster parents or, where applicable, the members of the extended family or community as provided for by local custom.’[14] Where parental care is not available the CRC Committee has urged States to recognise, support and assist grandparents and other extended family members to prevent family separation and preserve the continuity of the child’s family environment. In this regard, the CRC Committee has expressly highlighted the unique and important role played by grandparents, acknowledging that their child-rearing responsibilities are rarely acknowledged in domestic laws and practices.[15]
However, the CRC Committee remains reluctant to accord direct protection and assistance to grandparents and extended family, particularly when they are caring for a child alongside parents or legal guardians. Even in communities where traditional extended families structures form part of a child’s cultural identity, the CRC Committee harbours trepidations over how grandparents should be acknowledged, under what circumstances grandparental care should be protected, and what recognition grandparents should be accorded in relation to biological or legal parents under international law.
It bears mentioning that the CRC does not make any explicit reference to ‘grandparents.’ Indeed, article 5 is the only provision to acknowledge ‘extended family’ and ‘community’ alongside parents, recognising their rights, responsibilities, and duties to provide guidance and direction to a child in the child’s exercise of rights. To this end, the CRC Committee has relied on article 5 as a broad legal framework to recognise the role of grandparents and other extended family carers under the CRC. Yet, a plain reading of article 5 suggests that its scope and function are not open-ended, and the extent to which it provides a legal basis to protect and support grandparental care remains questionable. Its scope is circumscribed to ‘guidance and direction’ for the purposes of children’s exercise of rights; and its formulation suggests wide deference to parents and legal carers in the first instance, and only ‘where applicable’ and ‘provided for by local custom’ does it acknowledge the role of grandparents and other extended family members. Thus, on its face, article 5 and the CRC may not be as supportive of grandparenting, and extended family relationships as the CRC Committee might have envisaged it to be.
How we recognise and accord respect to grandparents and extended family will have direct consequences for a child’s enjoyment and exercise of rights under the CRC. As we see grandparenting taking on more diverse and complex roles within the family environment, more consideration needs to be given to a child’s relationships not just with parents, but with grandparents and wider family members if children are to be afforded an independent right to family under international law.
[1] V. Timonen, ‘Conclusions: the grandparents’ century’ in Timonen V. (ed), Grandparenting Practices around the World (Bristol: Policy Press Scholarship, 2018) 271 – 284; see also S. Arber and V. Timonen, ‘A new look at grandparenting’ in Arber S. and Timonen V. (eds) Contemporary grandparenting: Changing family relationships in global contexts (Bristol: Policy Press Scholarship, 2012) 1 – 19; see also V. Timonen, ‘Introduction: widening the lens on grandparenting’ in Timonen, V. (ed) Grandparenting Practices around the World (Bristol: Policy Press Scholarship, 2018) 1 – 20. [2] United Nations, Department of Economic and Social Affairs, Population Division (2019), ‘World Population Prospects 2019: Highlights’, UN Doc. ST/ESA/SER.A/423, p 1. Available at: https://population.un.org/wpp/Publications/Files/WPP2019_Highlights.pdf [3] Arber and Timonen, 2012, 1. [4] K. Herlofson and G.O. Hagestad, ‘Transformations in the role of grandparents across welfare states’ in Arber S. and Timonen, V. (eds) Contemporary grandparenting: Changing family relationships in global contexts (Bristol: Policy Press Scholarship, 2012) 27 – 49, 27. [5] M.D.A. Freeman, The Rights and Wrongs of Children (London: Frances Pinter Publishers, 1983), 244, 245; D. Archard, Children Rights and Childhood, 2nd edition (Abingdon: Taylor and Francis Group, 2004). [6] B. Bennett Woodhouse, ‘The Child’s Right to Family’ in Todres J. and King, M. (eds) The Oxford Handbook of Children’s Rights Law (Oxford: Oxford University Press, 2020) 237 – 252, 238; P. E. Veerman, The Rights of the Child and the Changing Image of Childhood (Hague: Martinus Nijhoff Publishers, 1992); Noam Peleg, The Child’s Right to Development (Cambridge: Cambridge Univkilkeppersity Press, 2019) 34; Archard 2004 (n 3) 159 – 164. [7] B. Ingersoll-Dayton, S. Punpuing, K. Tangchonlatip and L. Yakas, ‘Pathways to grandparents’ provision of care in skipped-generation households in Thailand’ (2018) 33 Ageing and Society 1429 – 1452, 1429; D. Price, E. Ribe, G. Di Gessa and K. Glaser, ‘Grandparental childcare: a reconceptualisation of family policy regimes’ in Timonen, V. (ed) Grandparenting Practices around the World (Bristol: Policy Press Scholarship, 2018) 43. [8] Herlofson and Hagestad, 2012: 42; Arber and Timonen, 2012: 247-248; Price, Ribe, D Gessa and Glaser, 2018. [9] B. Ingersoll-Dayton, S. Punpuing, K. Tangchonlatip and L. Yakas, ‘Pathways to grandparents’ provision of care in skipped-generation households in Thailand’ (2018) 33 Ageing and Society 1429 – 1452, 1429. [10] J. Knodel and B. Teerawichitchainan, ‘Grandparenting in developing South East Asia: comparative perspectives from Myanmar, Thailand and Vietnam’ in Timonen, V. (eds) Grandparenting Practices around the World (Bristol: Policy Press Scholarship, 2018) 65 – 86, 66. [11] Ibid, p 66. [12] J. Knodel and W. Pothisiri, ‘Intergenerational Living Arrangements in Myanmar and Thailand: A Comparative Analysis’ (2015) J Cross Cult Gerontol, 30(1), 1 – 20, 17. [13] Herlofson and Hagestad, 2012, 41 [14] CRC Committee, General Comment No 14, para 59. [15] CRC Committee, DGD ‘Children without Parental Care’, para 648.
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