These are proclamations which emanate from committees of bodies such as the United Nations. They purport to enshrine universally applicable principles which engage international support, cooperation and compliance from member countries. Examples are the Universal Declaration of Human Rights (1948), the United Nations Convention on the Elimination of all Forms of Discrimination Against Women (1979) and, to give a more recent example, the Universal Declaration on the Human Genome and Human Rights (1997). Declarations and conventions are different. A declaration is not legally binding on a member country. It is simply an expression of a point of view by the United Nations. A convention imposes international obligations which are legally binding. Signing by a member country indicates in principle agreement, without committing that country to any obligations. The further step of ratification means that the member country will ensure that its internal laws conform with whatever principles are contained in the convention (Phillips, 1999, p.7). Implementation of the principles of the convention must be demonstrated by supervised compliance reports on steps which have been taken to meet the requirements contained in the principles. It is interesting to note that in Australia no parliamentary debate is required before either signing or ratification of United Nations conventions occurs and there is no public discussion or procedure for public input into the process.

Some national constitutions incorporate a Bill of Rights which states formally the most important personal freedoms which citizens of the country enjoy. These are rights which are endemic in the life of the nation. They evolve from the influence of philosophy and from long held community values which pervade the thinking of the people. An example is the American Bill of Rights, which was incorporated as Amendments to the Constitution of the United States. Cooray (1985, p.24) notes that this particular Bill of Rights

In some countries a Bill of Rights may be legislated by Act of Parliament and thus become part of the law of the land. An example is the New Zealand Bill of Rights Act (1990) which was amended by the Human Rights Act (1993). In the case of New Zealand the country has no written Constitution. The New Zealand Bill of Rights Act is thus a statute which may be amended or repealed through the parliamentary process. It has no preferential status over any other New Zealand legislation. It is an Act (i) to affirm, protect and promote human rights and fundamental freedoms in New Zealand and (ii) to affirm New Zealand's commitment to the International Covenant on Civil and Political Rights, which is a United Nations covenant. Certain inconsistencies with this covenant remain in the Act (Jefferies, 2000).

One of the oldest established sources of human rights is the common law rights which derive from the operation of long held national beliefs and institutions, interpreted and determined by judicial rulings, and sometimes enunciated in formal edicts. They evolve and are recognised in courts of law but are not enacted as formal legislation. They grow from disputes, which draw upon precedents and debate, to decide upon upholding or gradually changing publicly agreed moral standards. Common Law jurisdictions use the decisions of other common law systems to inform and support their judgements. In a lecture to the Heritage Foundation in 1996 Daniel Fung, the Solicitor General of Hong Kong, made the following comment about the working of the common law.

The High Court of Australia judgement on the Mabo case is a recent example of this source of human rights.

Common sense as a source of human rights is the most intangible source. It includes a range of constituent elements which may be widely accepted values, past traditions, factual evidence, current concerns, vested points of view and interests, financial considerations, new ideas, changing circumstances and ideals. The words 'common sense" carry with them overtones of approval, suggesting solid, workable and rational agreement over what is the best to be done in determining the rights of individuals and social groups. The source also suggests the use of collective wisdom, derived from experience and distilled through processes of public debate, using popular media as a vehicle. The message itself may thus be couched in populist terms and readily accessible to the general understanding. There is also a strong focus on community and a participant citizenry. Sometimes these statements progress to the point where they become enshrined in legislation. It is important to be aware with statements from this source that they may be disguised propaganda vehicles for vested points of view, rather than expressions of generally and widely accepted positions. Education policy statements are a good example of the use of this source of human rights, a particular recent one being the Scottish Council Foundation report, Children, families and learning: A new agenda for education (Scottish Council Foundation, 1999).

The United Nations General Assembly adopted the United Nations Convention on the Rights of the Child in 1989 and it has been signed by more countries than any other human rights treaty. It was signed by Australia in August, 1990 and ratified in December 1990. Australia submitted its first report on compliance in December, 1995 and an alternative report was submitted by Australian non government organisations in October, 1996. The Convention on the Rights of the Child contains fifty-four articles which aim

Over forty national constitutions have been identified (Marriage and Family in National Constitutions online search) which incorporate Articles pertaining to marriage and the family, and by direct or derivative reference, to the rights of children. Some examples of children's rights embodied in the constitutions of various countries are excerpted below.

No child shall be subjected to cruel treatment or humiliation or used for work that may be harmful to its physical, mental or moral development. Children shall care for their parents or persons in loco parentis and render them assistance.

The State shall have the duty to assure the protection of the Rights of the mother and infant as stipulated in the International Declarations and Conventions.

(3) Parents have the right and duty to bring up their children with proper care and affection; and, in turn, children have the right and the duty to respect their parents and to sustain them in their old age.

Children born before marriage shall be legitimized by the subsequent marriage of their parents.

It is of interest to note two examples which mark the extremes of current incorporations of children's rights into constitutions.

The constitution of the United States makes no mention of the rights of children and there is both doctrinal and political resistance to attempts to secure a place for them: doctrinal, because of the common law structure of the constitution; and political, because children do not vote and the concept of children's rights is perceived by conservatives to threaten family values and by those on the left to threaten women's autonomy (Woodhouse, n.d.).

At the other end of the spectrum the 1996 constitution of the Republic of South Africa incorporates a Bill of Rights for children which is the most detailed and explicit formulation contained in any constitution so far. The relevant section reads as follows:

28. (1) Every child has the right

(a) to a name and nationality from birth;

An example of legislation presently being enacted is the Children's Rights Commissioner Bill in England which is passing through the House of Commons. To be cited as the Children's Rights Commissioner Act 2000, it provides for the establishment of a children's rights commissioner who is charged with the following duties.

Many of the prominent common law jurisdictions have been concerned with judgements pertaining to the rights of children. Of some international interest, and important for Australia, was the judgement of the High Court in this country on the Teoh case (Minister for Immigration and Ethnic Affairs v Teoh, 1995). Ah Hin Teoh, a Malaysian, had resided in Australia on a temporary entry permit. His wife was an Australian citizen and the three children from their marriage had been born in Australia. Teoh was convicted of importing and possessing heroin before approval for permanent residence was given and the Minister for Immigration ordered that he be deported. Because his wife was a heroin addict and because there were six young children altogether in the family Teoh appealed, on the grounds that they depended on his emotional and financial support. The United Nations Convention on the Rights of the Child was invoked because in Australia such conventions can be used to influence the development of common law.

The results were twofold: first, Teoh was permitted to remain in Australia, despite his criminal record, because it was judged to be in the best interests of the children; second, the two High Court judges found that because a convention had not become part of Australia's law, even though it had been ratified, it did not mean that its ratification had no significance for Australian law (Parliament of the Commonwealth of Australia, Joint Standing Committee on Treaties, 17^th Report, united Nations Convention on the Rights of the Child, 1998, p.4). Partly as a result of that judgement the Joint Standing Committee on Treaties conducted a long and detailed inquiry into the implementation of the United Nations Convention on the Rights of the Child in order to consider aspects of community concern relating to it.

Examples of statements on the rights of children which might fit the source identified as common sense range from the real estate "open house" advice to viewing parents that "children are welcome if held by the hand" to statements reflecting attitudes or policy. An expression of attitude, which appeared in a letter to the editor of a state daily newspaper, incorporated an implied set of rights for children. According to the writer, the principal of a primary school, these were that children should be in bed at a reasonable hour, that decent meals should be provided for them every day, that both boys and girls require love and understanding, that a child should be adequately clothed, that certain values are required to be taught and that parents should teach children adequate values for them to be responsible and well-rounded adults. ("The West Australian", 22 September, 2000). An expression of policy was evident in a recent display poster generated by an Australian statement government department of family and children's services, which suggested that children should be "seen and heard and loved and cherished and nurtured and hugged and enjoyed and admired and protected and encouraged and supported and praised and respected and appreciated and valued and helped and complimented and NOT HURT" - again an oblique statement of the thinking informing their policy on the rights of children. These statements, unlike the previous examples, have no legal status. They purport to express generally accepted points of view, although the notion of what counts as "generally acceptable" is very much open to debate.

The Convention is controversial. One the one hand, when Australia ratified it in December 1990 there had been 70 petitions tabled in the Senate and 172 petitions tabled in the House of Representatives, with many thousands of signatures, urging either delay, or less than full endorsement of the Articles it contained. On the other hand, there have subsequently been calls from other quarters objecting to Australia's lack of application of many aspects of the Convention. One important reason for the controversy surrounding the Convention in Australia is the perception by many that it is anti-family. A second is the perception that it undermines parental rights and that it is anti-parent. These perceptions have given rise to specific criticisms which relate to the concept of the autonomous child. This concept has its origins in the claim that there are two aspects to the rights of children: rights to protection from hunger, neglect, abuse and so on; and rights related to an individual personality. Individual personality rights involve "choice" rights such as style of education, religious preference, how to vote, who to marry (17^th Report, p.469, paras. 27-30). The concept of the autonomous child suggests that children are individual entities possessing "choice" rights. The child is not seen as primarily part of a family unit in which parents exercise choice on its behalf, consistent with the child's developing capacity to choose for itself. The concept of autonomous child rights is highly problematic and its controversial nature is a first reason for rejecting the Convention as a source for framing the rights of children in early childhood care and education in Australia.

The Convention is ambiguous. Its ambiguity is necessary because it is a document which covers a range of developmental situations affecting children aged from birth to the late stages of adolescence. Therefore it has to cover a wide spread of evolving capacities on the part of children and hence is broad and general in its stipulations. It is thus at times open to differing interpretations. But his very ambiguity limits its usefulness in considering children who are at a developmental stage where they have very restricted decision making capacities. An example relates to Article Three which states (in part)

This Article can be interpreted (see Nyland, 1999, p.11) to justify separating children from their parents, as was done with Aboriginal Torres Strait Islander families in Australia. This is because the concept of best interests is left quite undefined by the Convention. This vagueness leads to ambiguity. Is it in children's best interests to be separated from their parents in certain circumstances or is it not? Current response from the Aboriginal and Torres Strait Islander communities suggest that it is not, implying that the family unit is the best environment for the raising of children (National Inquiry into the Separation of Aboriginal and Torres Strait islander Children from Their Families, April, 1997). Yet the Convention does not systematically support the family unit as being in the best interests of children. Rather, it seeks to set in place the concept of parents and children as having the same relationship to the State and hence opens the way for state intervention in the family unit on "best interests" grounds.

Hafen and Hafen (1996) note that the language of best interest in the Convention is ambiguous from the point of view of legal interpretation. They record that in America the claim has been made that state intervention would occur only when custody issues arise or neglect had been established. They contrast this view with legal opinion in Australia, where two Australian lawyers consider that

In view of the vagueness of the use of "best interest" and the subsequent ethical and legal ambiguity arising from it Australia would do better to look for support for policies concerning the child's point of view from sources where the term is more clearly defined and the implications more clearly spelled out than they are in the Convention. Its ambiguity is a second reason for rejecting the Convention as a source for framing the rights of children in early childhood care and education in Australia.

The Convention is unbalanced. As we have seen, its focus is on the concept of autonomous child rights. But children, even babies in day care settings, as a general rule have a parent or parents who are needed for their upbringing. It is the very nature of childhood to be in need of such support. As one group of commentators on the Convention has noted

Yet there is no focus in the Convention on the rights and responsibilities which parents must exercise in matter relating to children's development. Article Five draws attention to the "responsibilities, rights and duties of parents...to provide...appropriate direction and guidance in the exercise by the child (my italics) of the rights recognised in the present Convention. Article Fourteen requires States Parties to "respect the rights and duties of the parents...to provide direction to the child in the exercise of his or her right (my italics) in a manner consistent with the evolving capacities of the child". However, what seems on a surface reading to be references to parent rights and the responsibilities are, in fact, directing parents to support the autonomous child's exercise of rights conferred by the Convention. The only rights and responsibilities attributed to parents are in respect of upholding the child's rights to independence. Nowhere in the Convention are the rights and responsibilities of parents regarding the educational, physical, social and moral development of their children recognised (Abetz, McGauran & O'Chee, 1998, p.474, quoting Senator Robert Hill).

Nyland (1999, p.10) makes the point that "a partnership with parents is a necessity for a good quality early childhood program". This cause would be better served if supported with a policy document that, unlike the Convention, gave due consideration to a balance between parent and child rights. Its lack of balance is a third reason for rejecting the Convention as a source for framing the rights of children in early childhood care and education in Australia.

So what approach to the concept of the rights of children should be advocated as a beneficial one for early childhood care and education in Australia? My response is an endorsement of the Reggio approach with its recourse to common sense as a primary source. It is encouraging to note the increasing number of early childhood professionals who are participating in delegations visiting Reggio where the exchange with Australia has intensified over the last few years (Morrow, 1999, p.23). The Hundred Languages of Children exhibit of the municipal infant-toddler centres and preschools of Reggio Emilia has also been seen in Melbourne. One cannot, nor would one wish, to re-create Reggio Emilia in this country. But as Howard Gardner notes

The wisdom of common sense pervades the successful Reggio approach to the rights of children. Common sense, I suggest, is also the source which should inform the approach for early childhood care and education in Australia to the concept of the rights of children.

Abetz, E. McGauran, P., & O'Chee, W. (1998). Additional comments on the United Nations Convention on the Rights of the Child. The Parliament of the Commonwealth of Australia Joint Standing Committee on Treaties (1998). United Nations Convention on the Rights of the Child 17^th Report. 458-492.

Children's Rights Commissioner Act (2000). House of Commons.

http://www.parliament.the-stationery-office.co.uk/pa/cm199900/cmbills/119/001189---a.htm

Cooray, L.J.M. (1985) (Ed.). Human rights in Australia. Epping, NSW: ACER Community Education project.

The quotation appears also at http://www.ourcivilisation.com/cooray/rights/chap3.htm.

p.5

Edwards, C., Gandini, L., & Forman, G. (1993) (Eds.). The hundred languages of children: the Reggio Emilia approach to early childhood education. Norwood, NJ: Ablex Publishing Corporation.

Fung, D. (1996). "The rule of law in Hong Kong in the run-up to 1997 and beyond". The Heritage Foundation, Heritage Lecture No. 561, The Heritage Foundation Lectures and educational programs.

http://www.heritage.org/library/categories/forpol/lect561.html

Hafen, B., & Hafen, J. (1996). Abondoning children to their autonomy: The United Nations Convention on the Rights of the Child. Harvard International law Journal, 37(2), 449-491. Their position is endorsed by Maley, B. (1999). Children's rights: Where the law is heading and what it means for families. Sydney: Centre for Independent Studies, reviewed by Raynor, M. (1999). Some recent reading, Rights Now, July, 21-23.

Jefferies, P. (2000). New Zealand Human Rights Commission Report to the United Nations High Commissioner for Human Rights on the Five Year Implementation Review of the Vienna Declaration and Programme of Action.

http://www.hrc.co.nz/org/research/unhchrreprt.htm

Malaguzzi, L. (1993). For an education based on relationships, Young Children, 49(1), 9-12.

Marriage and Family in National Constitutions online search.

http://marriagelaw.cua.edu/Marriage.htm

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

Morrow, L. (trans.) 1999). The municipal infant-toddler centers and pre-schools of Reggio Emilia. Historical notes and general information. (2^nd ed.). Reggio Children Srl.

Nyland, B. (1999). The United Nations Convention on the Rights of the Child: Using a concept of rights as a basis for practice. Australian Journal of Early Childhood, 24(1), 9-14.

Phillips, D. (1999). The United Nations convention on the rights of the child.

http://northernlife.senet.com.au/9jun99.htm

Parliament of Australia Joint Standing Committee on Treaties Review of the Convention on the Rights of the Child (1997). Background to the Inquiry, pp. 3-13.

The Parliament of the Commonwealth of Australia Joint Standing Committee on Treaties (1998). United Nations Convention on the Rights of the Child 17^th Report.

The Scottish Council Foundation (1999). Children, families and learning: A new agenda for education.

http://www.scottishpolicynet.org.uk/scf/publications/paper10/chapter9.shtml

Woodlhouse, Barbara Bennett (n.d.). The constitutionalization of children's rights: Incorporating emerging human rights into constitutional doctrine.