Child Rights and Remedies

By Robert C. Fellmeth | Go to book overview

Preface

Scholarship on children and the law reflects a movement from a view of children as property, to children as a protected underclass, to children as rightsbased citizens. The first English book on children and the law, Law, Both Ancient and Modern Relating to Infants, published in 1697, described children as paternal chattel.1 Subsequent scholarship from Elizabethan England to 20th Century America reflected changes in the status of children as they gradually came to be viewed as worthy of society's protection. This publication, Child Rights & Remedies, represents the next step in our evolving understanding of the place of children in society.

The evolutionary component of this work is found in its treatment of rights-based versus welfare-based thinking, and how that distinction dictates law and public policy. While it may be agreed that society as a whole probably cares about children, it can be more important to ask how we care about them. Whether we provide for children out of a benevolent sense of care-taking (a welfare-based approach) or because we believe children are entitled to certain treatment (a rights-based approach), these motives serve as ideological principles that guide our law and policy.

In the context of the legal representation of children, where we are situated on that ideological continuum determines in large part which type of legal representation we provide. If we take a welfare-based view, we are inclined to protect children by providing advocate-directed representation where the representative determines the best interests of a child (as is currently the norm in child abuse and neglect proceedings) and then advocates for it. If we take a rights-based approach, we are inclined toward client-directed representation where the child client is given an independent voice (as is the case in juvenile justice / delinquency proceedings).

It can be argued that as we review the history of juvenile law, we see progress toward better outcomes for children through the movement from welfarebased systems toward rights-based systems. At one time, the only protection children could receive from parental abuse was to see their parents prosecuted in criminal court. Children were not entitled to care or services; as one 19th century court wrote, “"t"he state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand.”2 At the turn of the 20th century, however, with the advent of juvenile courts, society began to provide special care for children as part of the “child saving” movement. Ultimately, that child saving welfare-based movement was struck down (for delinquent children) by a Supreme Court which, having reviewed the history of the care-taking experiment, created a rights-based juvenile court in which youth would be entitled to the protections of due process of law.3 The Court wrote, “"j"uvenile court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.”4

But just how evolved was the new juvenile court? Did a rights-based due process court produce better outcomes for children? In many instances yes, but at the same time it can be argued that in actuality it tipped the balance too far away from beneficence and toward autonomy; resulting in a juvenile court that is

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