The First Chapter Of Children’s Rights

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In the quiet New York courtroom, the little girl began to speak. “My name is Mary Ellen McCormack. I don’t know how old I am. … I have never had but one pair of shoes, but can’t recollect when that was. I have had no shoes or stockings on this winter.… I have never had on a particle of flannel. My bed at night is only a piece of carpet, stretched on the floor underneath a window, and I sleep in my little undergarment, with a quilt over me. I am never allowed to play with any children or have any company whatever. Mamma has been in the habit of whipping and beating me almost every day. She used to whip me with a twisted whip, a raw hide. The whip always left black and blue marks on my body. I have now on my head two black and blue marks which were made by mamma with the whip, and a cut on the left side of my forehead which was made by a pair of scissors in mamma’s hand. She struck me with the scissors and cut me. I have no recollection of ever having been kissed, and have never been kissed by mamma. I have never been taken on my mamma’s lap, or caressed or petted. I never dared to speak to anybody, because if I did I would get whipped. … Whenever mamma went out I was locked up in the bedroom. … I have no recollection of ever being in the street in my life.”

More than a century ago an abused child began a battle that is still being fought today

At the beginning of 1874 there were no legal means in the United States to save a child from abuse. Mary Ellen’s eloquent testimony changed that, changed our legal system’s view of the rights of the child.

Yet more than a century later the concerns that arose from Mary Ellen’s case are still being battled over in the courts. The classic dilemmas of just how deeply into the domestic realm the governmental arm can reach and what the obligations of public government are to the private individual take on particular urgency in considering child abuse.

Early in 1989, in the case of DeShaney v. Winnebago County , the Supreme Court declared that the government is not obligated to protect its citizens against harm inflicted by private individuals. DeShaney brought the case be- fore the court in a suit against county social service agencies that had failed to intervene when her estranged husband abused their son, Joshua, who, as a result of his father’s brutality, suffered permanent brain damage. The father was convicted, but his former wife believes that fault also lies with the agencies, whose failure to intercede violated her son’s Fourteenth Amendment right not to be deprived of life or liberty without due process of the law. Chief Justice William H. Rehnquist wrote that intervening officials are often charged with “improperly intruding into the parent-child relationship.” Justice William J. Brennan, Jr., dissenting, wrote: “Inaction can be every bit as abusive of power as action, [and] oppression can result when a State undertakes a vital duty and then ignores it.”

The difficulty in bringing Mary Ellen McCormack into the New York Supreme Court in 1874 grew from similar controversy over the role of government in family matters, and Mary Ellen’s sad history is not so different from Joshua DeShaney’s.

When Mary Ellen’s mother, Frances Connor, immigrated to the United States from England in 1858, she took a job at the St. Nicholas Hotel in New York City as a laundress. There she met an Irishman named Thomas Wilson who worked in the hotel kitchen shucking oysters. They were married in April 1862, shortly after Wilson had been drafted into the 69th New York, a regiment in the famous Irish Brigade. Early in 1864 she gave birth to their daughter, whom she named Mary after her mother and Ellen after her sister.

 

The birth of her daughter seems to have heralded the beginning of Frances Wilson’s own decline. Her husband was killed that same year in the brutal fighting at Cold Harbor, Virginia, and with a diminished income she found it necessary to look for a job. In May 1864, unable to pay someone to watch the baby while she was at work, she gave Mary Ellen over to the care of a woman named Mary Score for two dollars a week, the whole of her widow’s pension. Child farming was a common practice at that time, and many women made a living taking in unwanted children just as others took in laundry. Score lived in a tenement in the infamous warrens of Mulberry Bend, where thousands of immigrants crowded into small, airless rooms, and it is likely that providing foster care was her only means of income.

Finally Frances Wilson became unable to pay for the upkeep of her child; three weeks after the payments ceased, Score turned Mary Ellen over to the Department of Charities. The little girl… whose mother was never to see her again—was sent to Blackwells Island in July 1865. Her third home was certainly no more pleasant than Mulberry Bend. Mary Ellen was among a group of sick and hungry foundlings; fully two-thirds of them would die before reaching maturity.

The same slum-bred diseases that ravaged the children on Blackwells Island had also claimed all three children of a couple named Thomas and Mary McCormack. So when Thomas frequently bragged of the three children he had fathered by another woman, his wife was more receptive to the idea of adopting them than she might otherwise have been. Those children, he told her, were still alive, though their mother had turned them over to the care of the city.