A brief historical account may be helpful in understanding the uncertainty and the reasons why a Restatement of Children and the Law would be particularly useful in clarifying legal doctrine and in supporting emerging reform trends.

The traditional legal model of family regulation, established during the Progressive era in the early 20th century, was relatively simple, allocating full authority and control over children’s lives between the parents and the state.  In this scheme, minor children were categorically viewed as dependent, vulnerable, and lacking the capacity to make competent decisions or to protect their own interests. Children were assumed not to be accountable for their choices or their behavior, an assumption reflected in legal policy toward their criminal conduct under the rehabilitative model of juvenile justice. They also were assumed to be unable to exercise the rights and privileges of adults—an assumption that undergirds current prohibitions against voting, drinking alcohol, driving and making most medical decisions. Authority and responsibility over children resided primarily in parents.

Parental rights, which were almost property-like before the Progressive era, continued to be robust: decisions about care, discipline, religious upbringing, medical treatment and education all traditionally were subject to parental control. The state’s role, in part, was one of paternalistic oversight. When parents failed to provide adequate care or threatened harm to their children, the state’s authority to intervene was triggered; in the extreme case, a child could be removed from parental custody and parental rights terminated, if necessary, to protect the child’s welfare.  In order to protect children’s welfare and development, the state also sometimes preempted parental authority, by requiring school attendance, prohibiting child labor, and mandating vaccinations, for example. Doctrinal ambiguity and legal disputes involved questions of when and to what extent the state could supersede parental authority.

To an extent, this legal model of regulation persists. Parents continue to enjoy substantial legal control over their children, subject to state oversight and intervention when child welfare and social welfare demand. And for many purposes, children are deemed dependent, vulnerable, and incompetent under the law. But developments since the late 1960s have complicated the law’s conception of childhood, and of the legal category itself, in ways that have undermined several aspects of the traditional legal approach.

First, during this period, courts and legislatures increasingly have recognized children as legal persons, with rights independent of their parents. The children’s rights movement was inspired by the civil rights movement, and gained momentum from a series of the Supreme Court decisions that extended a range of constitutional protections to children. In a 1967 opinion, In re Gault, the Court held that children in delinquency proceedings have a right to an attorney and to many procedural protections that adult criminal defendants enjoy. In the next decade, the court extended free speech and procedural due process rights to children in schools. Most controversially, in the 1970s, the Court held that a mature minor had a right of access to abortion without parental consent. In the wake of these developments, some states have also enacted laws allowing minors to consent independently to contraceptive treatment and treatment for conditions that have public health dimensions—such as substance abuse and STDs.

These developments have challenged the traditional conception of parental rights and of children (or at least adolescents) as lacking the capacity for self-determination. For some purposes, children today are rights-bearing persons, and parental authority has become more limited. These complications have destabilized the traditional model of family regulation, at a time when the model was also increasingly subject to criticism on the ground that strong parental rights lack a solid contemporary rationale. But the basis for recognizing children’s autonomy interests and limiting parental and state authority has not been well articulated. Nor is there clarity about the conditions under which the law should, and should not, recognize children’s rights. Further complicating the picture is another trend:  In recent decades, dependency has extended into early adulthood as children prepare for self-sufficiency, raising questions about the scope of parental and state obligations.

In the 1990s, the traditional model of legal regulation was undermined from a different direction, with the erosion of the rehabilitative model of juvenile justice. Under a wave of punitive law reforms, many youths were transferred to the adult justice system and held fully responsible for their crimes. Meanwhile, the juvenile system greatly increased the use of incarceration in response to youthful offending. This trend toward criminalization was described by some lawmakers, including a Supreme Court justice, as wholly consistent with the recognition of children as rights-bearing persons. But the impact was to transform the role of the state in this context, setting aside the longstanding goals of rehabilitating young offenders and promoting their development to productive adulthood.

Then, over the past decade, lawmakers, including the Supreme Court, have retreated from this punitive approach, rejecting laws and policies that equate juvenile and adult offenders. The new wave of reforms presumes that juvenile offenders, due to their developmental immaturity, are different from adults in ways that are relevant to their involvement in criminal activity and to the justice system’s response to their offenses. The view that most juveniles are both less culpable than their adult counterparts and more likely to reform as they mature into adulthood has gained momentum.  To some extent, the contemporary reforms have revived the rehabilitative model, but lawmakers have invoked recent behavioral and neuroscience research on adolescent development in formulating regulation on a more sophisticated scientific foundation.

The upshot is that the legal regulation of children has undergone substantial changes in recent decades and is in need of clarification and greater coherence. Parents continue to enjoy robust authority over their children’s lives, but the extent of, and rationale for, that authority is contested. Lawmakers are struggling to articulate a modern rationale that is consistent with contemporary values. The state’s role also has become more complex: The dramatic swings in juvenile justice regulation suggest that the goal of promoting child welfare and development can be subverted under pressure. Moreover, a persistent question raised by the developmental approach to doctrinal reform is how to reconcile the conception of children as rights-bearing persons in some settings with parental authority, and with the law’s paternalistic commitment to promoting child welfare on the basis of youthful dependency and developmental needs. Courts and legislatures implicitly balance multiple legitimate interests in formulating doctrine and responding to legal disputes involving children, but often the basis for their conclusions are not clear and outcomes seem inconsistent.



Elizabeth S. Scott

Reporter, Children and the Law

Elizabeth S. Scott is the Harold R. Medina Professor of Law at Columbia Law School. Scott teaches family law, property, criminal law, and children and the law. She has written extensively on marriage, divorce, cohabitation, child custody, adolescent decision-making, and juvenile delinquency. Her research is interdisciplinary, applying behavioral economics, social science research, and developmental theory to family/juvenile law and policy issues.


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