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This research paper offers a broad survey of the multiple ways law governs children’s lives. The legal regulation of children is neither a subset of family law nor a limited set of exceptions to the legal regulation of persons generally. Law instead creates a legal category of child and governs that category differently than it governs adults across many spheres, including the home, schools, child welfare systems, juvenile justice institutions, and the market. The research paper analyzes the justifications and effects of this legal approach, highlighting the ways law determine whether parents or state actors may exercise authority over children.
- Law across Children’s Lives
- Children’s Relationships with Caregivers
- Children’s Protection from Maltreatment
- Children’s Educational Experiences
- Children’s Relationships to the Juvenile Justice and Criminal Law Systems
- Children’s Interactions with the Market and Civic Life
- Children’s Peer Relationships
- Assessing Law’s Role in Children’s Lives
Law governs children’s lives in multiple ways. Although parents generally make decisions on behalf of their children, law grants parents that authority. Law does so by recognizing parent–child relationships, granting and protecting parental rights, and specifying that children lack the legal capacity to make most decisions on their own. In some situations, however, law carves out exceptions to parental authority, substituting the state’s judgment for that of parents. Law thereby more directly governs children’s lives through compulsory education regimes, child protection systems, child labor restrictions, and laws responding to children’s misconduct, among other means. In each of these ways, law specifies whether parents or state actors may exercise authority over children (Buss, 2004; Guggenheim, 2005). Debates continue about where to draw the line between parental and state authority (Rosenbury, 2007), but children remain subject to the decisions of either their parents or the state.
This legal framework responds to the fact that children are born completely dependent on adults and only over time develop the mental and physical capabilities needed to pursue more independent courses of action. Parents and the state therefore share the duty of caring for children as vulnerable individuals in need of protection, support, and guidance (Dailey, 2006). Yet law does more than reflect periods of reduced capacity due to chronological age. Law itself participates in the construction of childhood, most noticeably by specifying different ages for when children become legal adults for purposes of marriage, sexual activity, employment, driving, drinking, voting, and criminal prosecution, among other activities (Cunningham, 2006). Individuals therefore may be legal adults for some purposes and legal children for others.
These diverse legal definitions of childhood and adulthood at times reflect the relative nature of maturity, as individuals of a certain age may be mature enough to make decisions in some contexts but not others (Todres, 2012). At other times, however, law’s shifting age cutoffs reflect political considerations other than, or in addition to, understandings of capacity and maturity. Moreover, some forms of children’s incapacity are explicit consequences of law. Because law generally does not permit children to engage in wage labor, enter into enforceable contracts, or consent to medical care, for example, children are dependent on adults to perform those functions for them. In this respect, the age and maturity of children often does not matter; instead, the relevant factor is the legal status of ‘child’ attaching to the individual in question (Appell, 2013).
This research paper surveys the ways this legal treatment of children affects multiple spheres of children’s lives. Specific legal regulation of children varies from jurisdiction to jurisdiction, but the general legal framework set forth above produces a baseline level of treatment that is remarkably consistent across jurisdictions. Such consistency remains even in jurisdictions that have embraced robust conceptions of children’s rights, including those set forth in the United Nations Convention on the Rights of the Child, which has been adopted by every jurisdiction except the United States and Somalia (Bartholet, 2011; Guggenheim, 2006). The research paper concludes by briefly highlighting some of the strengths and weaknesses of law’s general approach to children.
Law across Children’s Lives
Law treats children differently from adults across a wide spectrum of substantive areas. The legal regulation of children is therefore neither a subset of family law nor a limited set of exceptions to the legal regulation of persons generally. Law instead affects children in many spheres, both inside and outside the family, including schools, child protection systems, juvenile justice institutions, and the market. This research paper will survey these diverse spheres by discussing children’s relationships with caregivers, including the establishment of parental ties; children’s protection from maltreatment; children’s educational experiences, including access to quality education; children’s experience in the juvenile justice and criminal law systems; children’s interactions with the market and civic life, as workers, consumers, and citizens; and children’s peer relationships.
Children’s Relationships with Caregivers
Law recognizes the parent–child relationship and then bestows rights and obligations upon legal parents and, to a lesser extent, children. The parent–child relationship arises most commonly through (assumed) genetic ties, with birth certificates listing as legal parents the woman giving birth to a child and the man she identifies as the father. Legal parentage may also arise through adoption, marital presumptions, gestational agreements, and, in limited circumstances, functional or de facto caregiving (Dwyer, 2006; Meyer, 2006). Generally, no more than two adults are recognized as the legal parents of a child. Accordingly, children may not have access to genetic parents who are not their legal parents, including sperm and egg donors, although open adoption is increasingly common (Blauwhof, 2009; Cahn, 2012).
In these ways, adults opt into the legal status of parent, through conduct or agreement. Children, in contrast, are born into the legal status of child or moved into it. Despite children’s lack of agency in this respect, the United Nations Convention on the Rights of the Child declares that children have a right to be raised by their parents, as opposed to the state, and to have a relationship with both parents, even if the parents are separated. The United States has not ratified, accepted, or acceded to the Convention, in large part because of concerns that children’s rights will threaten traditional lines of authority within the family. Children in the United States therefore do not possess an affirmative right to a parental relationship, although robust notions of family privacy generally dictate that children are raised by legal parents instead of the state (McClain, 2006; Meyer, 2000).
Once the state recognizes a parent–child relationship, it generally does not specify the content of that relationship beyond dictating that parents must provide their children with life necessities, including food, clothing, shelter, and medical care. In exchange for this financial support, legal parents are given broad authority to direct the upbringing of their children, imparting whatever values they please (Harris et al., 1990). For example, the United Nations Convention on the Rights of the Child specifies that parents have a right to control their children’s religious, educational, and cultural heritage. The United States Supreme Court has also interpreted the Fourteenth Amendment of the United States Constitution to protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Parents therefore enjoy a right to direct the upbringing of their children largely free from state intervention. The state may intervene to determine custody arrangements and specify the details of financial support when children are born to unmarried legal parents or to legal parents who subsequently divorce. In such situations, judges enter custody and child support orders based on their views of the best interests of the child (Mnookin, 1975; Scott and Emery, 2013). If parents are not subject to such custody or child support orders, parents alone may determine where their children will reside, how they will interact with others, and how they will be financially supported. If children object to their parents’ choices, they generally have no recourse in court unless the state believes their parents are defaulting in their duties, as discussed in more detail in the next section.
States may intervene in parent–child relationships, often against the wishes of parents and children, if parents require direct financial support from the state or otherwise are not performing their duties. In the United States, for example, parents receiving public assistance often must use the funds to support their children in certain ways and open their homes to social workers for inspection (Cahn, 1999). Some jurisdictions also affirmatively monitor children being raised by nonlegal parents, such as foster parents, at times disrupting relationships between children and foster parents in order to preserve the primacy of children’s relationships with their legal parents until such relationships are terminated, as discussed in the next section.
Children thereby remain under the authority of their legal parents, subject to limited exceptions, until they reach the age of majority, usually 18 years of age, or are otherwise emancipated. Children under the age of majority may become emancipated by operation of law, most commonly when they marry or enlist in the military, or by petition. In order for emancipation petitions to be successful, children often must provide evidence that they are financially independent, able to manage their affairs and, in some jurisdictions, that emancipation would be in their best interests. These requirements make emancipation unavailable for most children. Moreover, some states in the United States rescind emancipation if an emancipated child subsequently becomes indigent.
Some children have attempted to ‘divorce’ their parents outside of the emancipation context, but they have generally failed. Even if not emancipated, children may direct their own medical care in some situations. As discussed in more detail below, many jurisdictions permit children to access reproductive health care and treatment for sexually transmitted diseases or drug abuse and alcoholism without parental notification or consent. Judges in most jurisdictions may also declare a child to be a ‘mature minor’ capable of directing medical care for certain purposes (Wadlington, 1994).
Children’s Protection from Maltreatment
States most intensely intervene in parent–child relationships when parents are suspected of neglecting or abusing their children. Such intervention may take various forms, including mandated counseling and parenting classes, removal of children from the home, criminal prosecution, and the termination of parental rights. Race and class play a large role in this area of law. Poor families and families of racial and ethnic minorities may more likely experience state intervention and removal of children, often because of bias and the imposition of norms derived from majoritarian childrearing practices (Roberts, 2002). This differential treatment persists despite facially neutral laws and robust antidiscrimination norms and rights.
Jurisdictions define child maltreatment and govern the varied responses to it. When children are harmed by adults who are not their parents, jurisdictions generally invoke the criminal process. When children are harmed by their parents, jurisdictions often do not invoke the criminal process. Instead, most jurisdictions have developed separate, noncriminal child protection systems to respond to parents who are harming their children or otherwise endangering them. This noncriminal approach is thought to better protect children’s welfare, as it directs state services to parents and children and often permits children to remain with their parents or to reunite with their parents more quickly than the criminal process would allow (Huntington, 2006).
Child protection systems often employ broader definitions of child maltreatment than those found in criminal law. In the United States, for example, federal law specifies that child abuse must include “any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an imminent risk of serious harm” (42 U.S.C. x5106(g)), and most of the individual states employ even broader definitions of maltreatment. For instance, many states specify that making or selling drugs in the presence of one’s children constitutes abuse, even if that exposure does not result in serious harm or imminent risk of serious harm to the child. In addition, many states have broad definitions of neglect, hinging on parental failure to exercise a minimal degree of care in providing children with food, clothing, shelter, or medical care or failure to protect children from harms within the home. In these states, judges have found children to be neglected when they are living in dirty homes or exposed to domestic violence, for example, on the theory that children living under such circumstances will not develop properly. Over half of the children found to be maltreated in the United States are in fact neglected pursuant to such definitions (Huntington, 2006).
Given broad definitions of abuse and neglect, disputes arise about whether certain parenting decisions constitute maltreatment or instead are legitimate exercises of parental prerogatives. Corporal punishment is a classic example. Although over 30 countries ban all corporal punishment of children, parents in the United States may generally discipline their children physically so long as the force used is reasonable and moderate, both of which are subject to differing interpretations (Freeman, 2010). Other disputes arise in the context of medical decisions, including with respect to elective surgery, the administration of growth hormones, ‘corrective’ surgery for intersex children, experimental treatments, and decisions to forego both these and other treatment options. Health decisions at birth are often particularly fraught, with doctors or hospitals appealing to the state when parents refuse to follow treatment recommendations (Wadlington, 1994).
Jurisdictions generally require school officials and health care workers to report suspected child maltreatment to the police or child welfare agencies. In a minority of jurisdictions, this duty extends to anyone who knows about or suspects maltreatment. Child protection agencies then exercise discretion in determining which reports to investigate and how to respond to information discovered during such investigations. In the United States, federal law requires agencies to make reasonable efforts to avoid removing children from parents’ homes if the child will be safe. Agencies therefore often work with parents on an informal basis, achieving voluntary changes in parenting practices (Huntington, 2006). At other times, state agencies remove children on an emergency basis, although the United States Supreme Court has held that agencies may not be held liable under federal law for failure to remove children from dangerous homes. Conversely, state agencies may be liable for emergency removals in the United States if the removals are not justified by sufficient evidence of risk of immediate harm to the children removed or if adequate process is not provided to parents. Notably, children’s wishes are not part of the calculus in the United States; the state’s view of child safety is dispositive at every stage.
When state agencies believe that ongoing judicial intervention is warranted, most jurisdictions oversee such cases in special family courts. These special courts subsequently conduct adjudicatory hearings, overseen by judges or referees without juries, to determine if the state has proven, generally by a preponderance of the evidence, that parents have in fact committed conduct falling within the relevant definition of child maltreatment. In most jurisdictions, legal parents have a statutory right to counsel during these proceedings; stepparents and functional parents who are not legal parents may be considered parents for purposes of such hearings in some jurisdictions. Children have a right to participate in such proceedings in many jurisdictions, at times through legal counsel. In the United States, children are not granted that right but federal law requires that children in abuse and neglect proceedings be represented by a ‘guardian ad litem,’ who may be a lawyer or a lay advocate, and state law often goes beyond federal law to mandate that a lawyer be appointed instead of or in addition to a lay advocate (Atwood, 2005).
When courts find that the evidence is sufficient to support a finding of child maltreatment, they generally have broad discretion to make a disposition in the best interests of the child. Dispositional options include leaving legal and physical custody with parents, provided they submit to state oversight, the state taking legal custody over children but leaving physical custody with parents, and the state taking both legal and physical custody by removing the child from the home and placing the child with a relative or foster parents or in an institution. With respect to the last option, jurisdictions often permit removal only if the state made reasonable efforts to permit the child to remain in the home, generally by offering services to parents. After removal, jurisdictions also often require states to continue to make reasonable efforts to reunite removed children with their parents.
If children cannot be reunited with their parents, jurisdictions generally terminate parents’ rights, so that children may enter stable relationships with new caregivers. In the United States, federal law requires states to file termination petitions, and propose potential adoptive parents, when children have been in foster care for 15 of the most recent 22 months. This requirement is motivated by the view that children generally do not thrive while in ‘foster care limbo’ and that their best interests are served by a relationship with new legal parents when reunification efforts consistently prove unfruitful (Bartholet, 1999). Pursuant to this goal of establishing new legal parent–child relationships, most of the individual states in the United States require that adoption first be ruled out before proceeding to legal guardianship or other planned permanent living arrangements. Other jurisdictions often embrace a wider range of caregiving alternatives for children, including kinship care, when parental rights must be terminated.
To terminate parental rights absent parental consent, courts generally must find a substantive basis for the termination (severe or chronic abuse or neglect, for example) and that termination is in the child’s best interests. Some jurisdictions also permit termination in the absence of ongoing parental fault when it would nevertheless be in the best interests of the child, for example, when neglectful parents have been rehabilitated but the child in the meantime has developed strong bonds with a foster family. As in earlier stages of the proceedings, all children subjected to termination proceedings must either be represented by guardians ad litem or otherwise participate.
Children’s Educational Experiences
The United Nations Convention on the Rights of the Child specifies that all children have a right to an education. In the United States, the Supreme Court has held that access to education is not a fundamental right or liberty protected by the US Constitution, but all state constitutions provide that children have a right to free public education and require state legislatures to establish public school systems. All of these rights to education are also obligations, in that children must attend school regardless of their own desires or the desires of their parents.
Beyond compulsory education laws, laws in many jurisdictions seek to ensure access to quality education for all students. The United Nations Convention prohibits all forms of discrimination against children, including in the context of education. In the United States, the Supreme Court has held that all children, including the children of undocumented immigrants, must be able to access state public school systems that are not explicitly segregated by race. Federal law further prohibits discrimination on the basis of sex and language ability in all schools receiving federal funds and requires all states to provide a ‘free appropriate public education’ to students with disabilities. Public schools in the United States must also provide ‘fundamentally fair procedures’ to all students facing expulsion.
Within these parameters, jurisdictions remain largely in control of curricula and policies in state-run schools, even in the face of parental opposition. Parents objecting to school decisions generally lose, based on the theory that local school officials represent the majority views of the relevant population and objecting parents may send their children to privately-run schools (Rosenbury, 2007). The robust conception of parental rights discussed above protects parents’ decisions to send their children to schools run by nonstate actors, including religious institutions (Gilles, 1996). Parents generally have no right to state subsidies for private school tuition, however.
This general deference to state educational authority often limits children’s autonomy as well as the autonomy of their parents. Students, like their parents, largely have not succeeded in challenging curricula or policies in state-run schools. In the United States, for example, students in public schools have failed in challenges to the removal of books from school libraries and in challenges to school dress codes unless those codes discriminate on the basis of religion, race, or (in some states) gender identity or infringe on political speech that is not disruptive. Public school students in the United States also may not engage in public prayer at school events, or otherwise express religious viewpoints during school-sponsored activities. Students participating in extracurricular activities sponsored by local school districts in the United States must submit to drug testing if the school district so mandates.
Students have succeeded in challenging the practices of state-run schools, however, when those practices infringe on students’ individual rights and do not promote other legitimate state goals (Dailey, 2011). The United States Supreme Court, for example, has held that public school students must be given the opportunity to opt out of reciting the Pledge of Allegiance at the beginning of the school day. The Supreme Court has also held that students may express opinions in public schools so long as they do not disrupt or otherwise materially interfere with school activities.
Students in schools run by private actors are not guaranteed these protections, as such schools have wide latitude to develop their own curricula and policies. Students also are not entitled to due process upon expulsion from such schools. Private schools generally must meet minimal educational and health requirements imposed by the state, however. Private schools are also subject to jurisdictions’ antidiscrimination laws.
Children’s Relationships to the Juvenile Justice and Criminal Law Systems
Most jurisdictions maintain special courts designed to respond to misconduct by children. These juvenile courts, operating apart from criminal courts, reflect the view that children accused of crime should not be punished like adults because children are still developing and thus may be more amenable to rehabilitation than are adults. This focus on development and rehabilitation means that juvenile courts often exercise jurisdiction over a wide range of misconduct by juveniles, including conduct that would not be considered criminal if performed by adults (Scott and Steinberg, 2008).
At the same time, many jurisdictions increasingly view children accused of serious crime as responsible and culpable offenders, just like adults. These jurisdictions therefore try some children accused of crime in criminal courts, or they impose adult-like punishments on children in juvenile courts (Feld, 1993). Protections remain for children even in these situations, however. Most jurisdictions have held that children may not be subject to the death penalty and may not be sentenced to life imprisonment (Feld, 2013a).
Children in juvenile courts receive many of the procedural protections extended to adult criminal defendants, but the protections enjoyed by children are not identical to those enjoyed by adults (Birckhead, 2009). Many of these differences are thought to accrue to children’s benefit. Juvenile court hearings are often closed and court records kept confidential. Judges are often permitted to impose indeterminate sentences because it may be difficult to predict in advance how much treatment will be needed to rehabilitate the child offender. The United States Supreme Court has also held that judges in both juvenile and criminal courts must take a child’s age into account when determining whether a child was subject to custodial interrogation or validly waived their rights to a lawyer or to remain silent. Other jurisdictions, including some states in the United States, presume that children under a specified age cannot waive their rights or cannot do so without consulting a parent or guardian. Most jurisdictions require that parents be notified before state officials interrogate children (Feld, 2013b).
In other ways children accused of misconduct may receive lesser protections than adults receive. Children in juvenile court proceedings may be detained pretrial on broader preventative grounds than those that apply to adults, and children so detained are often not permitted to post bail. Many jurisdictions permit parents to waive counsel on their children’s behalf, although some jurisdictions require advice from counsel or a judge before parents may do so. In addition, although attorneys representing children in juvenile court proceedings are generally instructed to represent their clients’ ‘expressed interests,’ just as they do for adult clients, parents, prosecutors, and judges often push counsel to instead act in their clients’ ‘best interests.’ Finally, in the United States, children in juvenile court do not have a right to a jury trial, and courts have consistently held that parents may validly consent to searches of their children’s living quarters even when similar consent between adults sharing a residence, but maintaining separate bedrooms, would not be valid under the Fourth Amendment (Birckhead, 2009).
Children’s Interactions with the Market and Civic Life
All jurisdictions restrict the ability of many children to work for wages. These child labor laws are based on the theory that paid work harms children and society at large by preventing children from obtaining the education needed to develop into productive adults. Children’s paid work is therefore regulated very differently than adult labor market participation (Humbert, 2009). Employers who violate these laws are generally subject to civil, and at times criminal, liability. Parents may also be subject to criminal prosecution in many jurisdictions, although most child labor laws contain exceptions permitting children to work under parental supervision in many otherwise prohibited jobs. When children legally engage in paid work, their parents are generally entitled to their wages until they reach the age of majority or are otherwise emancipated, on the theory that such wages offset parents’ support obligations.
Many jurisdictions deviate from this norm of differential regulation of child and adult labor in one employment context, prostitution. Although the United Nations Convention on the Rights of the Child requires states to protect children from sexual exploitation, and the United States similarly has robust laws criminalizing child sexual abuse, jurisdictions that criminalize prostitution tend to treat children engaging in sex work the same as adults. This equal treatment has been criticized on multiple grounds (Birckhead, 2011). Some argue that the practice is illogical, as some children are prosecuted for prostitution even when they are under the minimum age for consenting to sexual intercourse. Others argue that children, unlike adults, are incapable of consenting to prostitution. Defenders of the practice emphasize, however, that the prosecution of child prostitutes keeps vulnerable children off the streets and induces children to cooperate with the prosecution of their pimps.
Outside of the employment context, children may enter into contracts and enforce them against other parties, but many jurisdictions also permit children to disavow most contracts at any time during their minority, or within a reasonable time after becoming adults, by invoking the infancy defense. To disavow the contract on this basis, children must return the purchased goods that remain in their possession, if any; if the contract was for necessaries, children must also return whatever value they received from the goods. Some jurisdictions go farther, requiring children to make restitution for the benefits received from any disavowed contract or to pay quasi-contractual damages in some contexts beyond the context of necessaries. Children are thought to be protected by this general approach, but the availability of the infancy defense also makes many parties reluctant to enter into contracts with children (Preston and Crowther, 2012).
At the same time, children increasingly engage in commerce, particularly electronic commerce, and companies often aggressively advertise to children as consumers. Some jurisdictions impose additional regulation on advertising targeted to children, given that children may be more subject to manipulation than adults. Some jurisdictions also impose additional regulation designed to protect the privacy of child consumers. In the United States, for example, federal law requires web sites and other online services that knowingly collect personal information to obtain parental consent before collecting such information from children under 13 years of age.
In other market contexts, children’s decisions are accorded the same respect extended to adults. In many jurisdictions, children on their own may seek contraceptive, prenatal, and abortion services, as discussed in more detail in the next section, and may seek treatment for sexually transmitted diseases or drug and alcohol abuse (Hill, 2012). In the United States, the Supreme Court also recently held that states may not limit the sale or rental of violent video games to children. In reaching that holding, the Court emphasized that although “a State possesses legitimate power to protect children from harm,” that power “does not include a free-floating power to restrict the ideas to which children may be exposed” (Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011)). In a similar vein, courts have held that schools may not limit student speech on social networking sites, so long as students did not intend for the speech to reach the school and there is no reasonable forecast that the speech would cause substantial disruption at school (Waldman, 2011).
In addition to engaging with the market, children may inherit property or receive property as gifts, and parents do not automatically enjoy legal power over such property in many jurisdictions. Children holding sole title to such property often encounter problems effecting transfers or sale, however, given that the contracts of children are voidable, as discussed above. In addition, children generally may not execute valid wills or file lawsuits until they reach the age of majority or are otherwise emancipated (Cunningham, 2006). Given such issues, courts may empower parents or other guardians or custodians to manage the property subject to fiduciary duties or court supervision. In order to achieve more flexibility, some donors or decedents convey property to children through trusts, wherein the trustee holds title to the property and manages it for the benefit of the child beneficiary.
Children’s participation in civic life is more limited than in the market. Although all jurisdictions recognize children as citizens, if they or their parents meet certain requirements, that citizenship does not enable children to vote. More than a dozen nations have lowered the voting age to 16 years for purposes of at least some elections, but no jurisdiction has permitted children less than 16 years of age to vote (Hamilton, 2012). Some believe that children’s political interests are represented by their parents, but parents neither receive more votes than other adults, nor are parents permitted to vote by proxy on behalf of their children.
Children’s Peer Relationships
Law focuses most of its attention on children’s relationships with adults, whether they are parents, other adults serving as parents at the direction of the state, teachers, or juvenile justice personnel. Law generally does not recognize or otherwise respond to children’s relationships with peers, except in two, relatively narrow circumstances: sibling relationships and harmful peer relationships.
Jurisdictions confer legal status on sibling relationships, and some states in some circumstances recognize stepsibling relationships. The effect of that status is often confined to the context of inheritance law, however. Laws in many jurisdictions direct judges to take sibling relationships into account, by keeping siblings together or arranging for meaningful visitation, when making custody or maltreatment decisions, but attempts to keep siblings together often fail, particularly in maltreatment proceedings. In the face of such failure, most jurisdictions do not guarantee that siblings may live with one another or even visit one another in different households (Hasday, 2012).
Accordingly, if the parent–child relationship falls apart, the sibling relationship is not always protected. Moreover, the value of sibling relationships is often assumed to flow primarily from the common parent–child relationship. For example, some states in the United States prohibit judges from terminating parental rights when doing so would substantially interfere with sibling relationships. Yet to preserve sibling ties, children in this context are moved into guardianship instead of termination of parental rights and adoption. Although some children may benefit from guardianship, other children may benefit more from adoption. By protecting sibling ties only by preventing the termination of parental rights, parents may benefit more than children.
Organ donation between siblings also raises complex legal and ethical issues. Siblings often provide the best match as donors, and parents often want one sibling to donate to another. In disputed cases, courts generally look at the best interests of the donor child, sometimes applying the substituted judgment rule under which the court determines whether the child would agree to be a donor if the child were old enough to make the decision (Hill, 2012). In reaching this conclusion, courts tend to consider the psychological relationship between the siblings, whether the donation will help keep the relationship intact, and the physical risk to the child donor.
Outside of the context of sibling ties, jurisdictions generally respond to children’s peer relationships only when those relationships are perceived to be threatening to the children themselves, to other children, or to larger communities. In such situations, law often authorizes state intervention designed to end the peer relationship and alleviate the harm. For example, the US Supreme Court has interpreted federal law to impose tort liability on schools that fail to protect students from harassment by other students on school grounds. Many jurisdictions have also adopted anti-bullying statutes and policies and passed various forms of anti-gang legislation (Silbaugh, 2013).
Other forms of state intervention are less directly coercive, but they still attempt to alleviate the harm presumed to flow from children’s peer relationships. By passing curfew ordinances that limit the hours in which children may congregate outside of the home, for example, jurisdictions implicitly recognize that children seek to interact with one another but seek to limit that interaction in order to prevent potential harm. In the United States, children are generally permitted in public after curfew hours only when accompanied by a parent, engaging in an organized activity approved by a parent, or running an errand for a parent, thereby reinforcing the primacy of the parent–child relationship while simultaneously positing children’s unsupervised peer relationships as threatening and unsafe (Federle, 1995).
Sexual relationships between children are often viewed as particularly threatening. Some jurisdictions criminalize teen sexual behavior in the hope that potential sanctions will deter some children (generally boys) from pursuing sex and encourage other children (generally girls) to resist. Children often are not prosecuted under such statutes, however, and the few prosecutions that occur often appear motivated by concerns about particular sexual practices, including those between same-sex partners and partners of different races and those that result in pregnancy (Goodwin, 2013). In the United States, some children have been charged with violations of child pornography laws when they sext one another, even when they are sending their own images to peers (Sweeny, 2013–14).
Some jurisdictions, in particular the United States, also do not affirmatively provide children with the means to manage the reproductive and health consequences of sexual relationships. Public schools in the United States often offer limited sex education, and none of the states mandate that schools provide children with condoms or other contraception (McClain, 2006). Some public schools in the United States have chosen to distribute condoms on their own, however, and courts have rejected parental challenges to such distribution so long as schools permit parents to veto their children’s access.
In other ways, jurisdictions address the consequences of children’s sexual relationships as part of public health initiatives (Hill, 2012). Most jurisdictions, including the United States, allow children to consent to treatment for sexually transmitted diseases or drug and alcohol abuse without requiring them to notify their parents. Many of these jurisdictions also mandate that girls be vaccinated against the HPV virus, which is transmitted sexually. Many jurisdictions similarly allow children of certain ages, generally 12 and older, to seek contraceptive services without parental involvement. Children’s access to abortion is more tightly restricted, particularly in the United States, where only two states explicitly allow all pregnant children to consent to abortion on their own, without parental involvement.
Assessing Law’s Role in Children’s Lives
This general approach to allocating legal authority over children serves multiple goals. Law treats children as a distinct legal category because children are legal subjects with vulnerabilities, developmental needs, capacities, interests, and experiences often different from those of adults. Law defers to parental prerogatives in most contexts in order to encourage parents to invest in and provide for their children, both in terms of responding to children’s incapacities and dependencies and in developing the close relationships necessary for nuanced decisions about each child’s unique circumstances (Buss, 2004; Dailey, 2006). Robust norms of family privacy also foster diversity and pluralism (Cooper Davis, 1994; Galston, 1998). At the same time, the state retains an interest in protecting and educating children in order to ensure they are properly prepared for the obligations of citizenship.
Debate remains about whether law could better achieve each of these goals and whether law’s current focus frustrates other goals. In particular, law’s focus on the appropriate allocation of childrearing authority between parents and the state may create a perception of children as objects to be possessed (Woodhouse, 1992) which, in turn, may detrimentally affect children’s perceptions of their own autonomy. Law’s emphasis on children’s dependency, and adults’ responsibility for children’s welfare, may similarly overlook the ways that children gradually attain the ability to act autonomously. Accordingly, some lawmakers and scholars increasingly have recognized children’s developing capacities, positing a continuum between infancy and adulthood, with children acquiring greater decision- making abilities as they grow older (Dailey, 2011; Zimring, 1982). As discussed above, this approach currently comes into play most often with respect to state regulation of adolescent decision making outside the home, particularly in the market and when children are accused of serious crimes, but the approach could also be invoked to support children’s agency even within the family.
Law has yet to develop a systemic approach for deciding whether children’s dependencies or capacities should govern particular contexts or a mechanism for combining the strengths of each approach. Doctrinal inconsistencies therefore abound (Appleton, 2014). For example, many children accused of committing crimes are adjudicated in juvenile courts on the theory that they lack the capacity and maturity to be held fully responsible for their crimes. This treatment resembles the legal treatment of children in other areas where doubts about children’s decision-making abilities exist, such as voting, driving, and sexual relationships. At the same time, doctrines in other areas, such as free speech and reproductive rights, reflect greater deference to children’s decisions, and many children are tried in criminal courts based on the severity of their crimes alone without regard to their decision-making abilities. Approaches privileging children’s dependency over their capacities, or their capacities over their dependency, thus have failed to produce a coherent body of law governing children’s lives.
In addition, these approaches are limited in their aspirations, emphasizing children’s dependencies and capacities while minimizing other important interests. Dependency and autonomy do not capture the full range and complexity of children’s experiences. Children also live active lives in the here and now, experiencing a full range of emotions and interactions as children, separate from or in addition to their interests in becoming adults, even as they are dependent on adults for many aspects of their lives. By focusing almost entirely on children’s relationships with adults or the contexts in which children might be treated like adults themselves, lawmakers and scholars often overlook the ways that children are more than passive recipients of adult childrearing until they become adults themselves. Law thus minimizes children’s intrinsic experiences.
This research paper offers a broad survey of the diverse ways that law governs children’s lives as a way of understanding existing frameworks of children and law and envisioning new ones. Law does more than regulate children within the family or in state institutions. Instead, law mediates children’s interactions with multiple actors in multiple spheres across public and private divides. Law’s traditional approach of allocating decision-making authority between parents and the state serves many purposes, but law does and can do more to respond to and facilitate the full range of children’s needs, desires, and experiences.
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