The Law and Child Development

Mavis Maclean, Emily Buss

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754628118
• eBook ISBN: 9781351887021
• Edition: 1
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

This volume asks what legal and socio legal scholarship can contribute to understanding the role of law in the care and development of children. The editors have selected key articles ranging from theoretical analysis to empirical data based research that address the law's approach in the United States and the United Kingdom to resolving parenting disputes after separation, protecting children from abuse and neglect, and affording children procedural protections in the juvenile justice system. Their introduction to these important and often distressing areas of the law confirms the importance of understanding how law works in practice, and reaffirms that law itself remains responsible for articulating and protecting society's values.

Part I
Overarching Issues

[1]
The Legal Construction of Adolescence

Elizabeth S. Scott^*

I. Introduction

American lawmakers have had relatively clear images of childhood and adulthood—images that fit with our conventional notions. Children are innocent beings, who are dependent, vulnerable, and incapable of making competent decisions. Several aspects of the legal regulation of childhood are based on this account Children are assumed not to be accountable for their choices or for their behavior, an assumption that is reflected in legal policy toward their criminal conduct They are also assumed to be unable to exercise the rights and privileges that adults enjoy, and thus are not permitted to vote, drive, or make their own medical decisions. Finally, children are assumed to need care, support and education in order to develop into healthy productive adults. The obligation to provide the services critical to children’s welfare rests first with parents and ultimately with the state. When children cross the line to legal adulthood, they are assumed to be autonomous persons who are responsible for their conduct, entitled as citizens to legal rights and privileges, and no longer entitled to support or special protections.

This picture is deceptively simple, of course. In fact the legal regulation of children is extremely complex. Much of the complexity can be traced ultimately to a single source—defining the boundary between childhood and adulthood. Thus, the question, “What is a child?” is readily answered by policy makers, but the answer to the question, “When does childhood end?” is different in different policy contexts. This variation makes it very difficult to discern a coherent image of legal childhood. Youths who are in elementary school may be deemed adults for purposes of assigning criminal responsibility and punishment, while seniors in high school cannot vote and most college students are legally prohibited from drinking.¹

The picture is complicated further by the fact that policy makers have no clear image of adolescence. Generally, they ignore this transitional developmental stage, classifying adolescents legally either as children or as adults, depending on the issue at hand. For many purposes, adolescents are described in legal rhetoric as though they were indistinguishable from young children, and are subject to paternalistic policies based on assumptions of dependence, vulnerability, and incompetence.² For other purposes, teenagers are treated as fully mature adults, who are competent to make decisions, accountable for their choices and entitled to no special accommodations.³

For the most part, this binary classification scheme works well. A bright line rule that designates a particular age as the boundary between childhood and adulthood for multiple purposes (the “age of majority”), regardless of actual maturity, has the advantage of providing a clear signal of the attainment of adult legal status. It is also administratively efficient and promotes parental responsibility. Moreover, by shifting the boundary and extending adult rights and duties at different ages for different purposes, lawmakers accomplish the transition from childhood to adulthood gradually, without creating an intermediate category for adolescence. Adolescents may benefit if they are allowed to make some adult decisions or perform some adult functions, but not others. Thus, for example, the gap between the minimum legal threshold for driving and drinking offers young persons independence and mobility, while protecting them (and us) from the costs of immature youthful judgment. Indeed, the experience with the burdensome administrative and social costs of an intermediate category in the context of abortion regulation reinforces the conclusion that the transition to adulthood generally is regulated more efficiently through binary legislative categories—even if the crude classification of adolescents sometimes distorts developmental reality.⁴

In some contexts, however, categorical assumptions that ignore the transitional stage of adolescence can lead to harmful outcomes. In particular, juvenile justice policy offers ample evidence of the costs of using crude categories to define legal childhood and adulthood.⁵ In this setting, the boundary of childhood has shifted dramatically over the course of the twentieth century. Since the establishment of the juvenile court in 1899, young offenders have been transformed in legal rhetoric from innocent children to hardened adult criminals.⁶ On my view, however, both the romanticized vision of youth offered by the early Progressive reformers and the harsh account of modern conservatives are distortions—and both have been the basis of unsatisfactory policies. The architects of the traditional juvenile court pretended that youth welfare was the only goal of juvenile justice policy. This fiction ignored the government’s interest in punishment and public protection, and ultimately, it did not serve the interests of young offenders or that of society. Modem reformers focus only on punishment and public protection, and ignore any differences between juvenile offenders and adults.⁷ A policy that ignores youth welfare is not only anomalous, but is unlikely to achieve the utilitarian goal of reducing the social costs of youth crime. In this context, effective legal regulation requires the (conventional) accommodation of youth welfare and social utility goals, and also (and this is less typical) a realistic account of adolescence.

This Essay proceeds as follows: Part I presents the legal account of childhood, sketching the traits that are assumed to distinguish children from adults and the policies that are based on these assumptions. Contrasting with the straightforward account of childhood is the absence of any clear vision of adolescence. Part II turns to the issue of how the state draws the legal boundary between childhood and adulthood. The analysis of the presumptive age of majority includes an examination of the passage of the Twenty-Sixth Amendment, which offers interesting lessons on how we fix this boundary. Part II then examines medical decision-making and abortion rights, contexts that clarify the benefits of a binary classification scheme. Abortion regulation particularly is instructive of the costs of an intermediate category that uses a case-by-case approach. Part III examines juvenile justice policy, a context in which the general efficiency of binary classification does not hold. Strikingly different (and largely fictional) accounts of young offenders have been deployed in service of the policy agendas of Progressives and of modern conservatives. I conclude that a justice policy that treats adolescence as a distinct legal category not only will promote youth welfare, but will also advance utilitarian objectives of reducing the costs of youth crime.

II. Legal Images of Childhood and Adolescence

A. Assumptions About Childhood in Legal Policy

Paternalistic legal regulation of children is based on a conventional understanding of childhood, an understanding that conforms quite well to the developmental account of human capacities in the early stages of life. Immature youths are assumed to be unable to look out for themselves, and thus are in need of adult supervision and guidance. Several interrelated dimensions of immaturity are important in shaping legal policies that treat children differently from adults. First, children are dependent on others—initially, for survival and, as they grow, for the care that will enable them to mature to adulthood. This dependency means that others provide for their basic needs—for food, shelter, health care, affection, and education—so that they may become healthy, productive members of society. Children also lack the capacity to make sound decisions. Because of their immature cognitive development, children are unable to employ reasoning and understanding sufficiently to make choices on the basis of a rational decision-making process.⁸ Children’s decision-making also reflects immature judgment, which may lead them to make choices that are harmful to their interests and the interests of others.⁹ This decision-making immaturity warrants giving others authority over important decisions affecting children’s lives. Finally, children are assumed to be malleable and thus vulnerable to both influence and harm from others.¹⁰

This account of childhood leads quite naturally to the conclusion that children must be subject to adult authority, and that the deeply ingrained political values of autonomy, responsibility, and liberty simply do not apply to them.¹¹ Under American law, primary responsibility for the welfare of children and authority over their lives is given to their parents. Justice Burger captured the conventional rationale for this assignment in Parham v. J.R.,’¹² a United States Supreme Court opinion dealing with parent’s authority to admit their children to state psychiatric hospitals.¹³

The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.¹⁴

Parents are charged with their children’s basic care and with the duty to protect them from harm. They also are authorized to make decisions on (heir behalf about matters ranging from nutrition, medical treatment, and residence to (in theory) the choice of friends and reading material. Parental responsibility and authority go hand in hand. In some sense it is fair to view parental “rights” as legal compensation for the burden of responsibility that the law imposes on parents.¹⁵

Of course, parents do not have total authority over their children’s lives. Society has an important stake in the healthy development of children, and it will bear the burden of parental failure to fulfill their obligations. Moreover, under its historic parens patriae authority, the government has the responsibility to look out for the welfare of minors and other helpless members of society.¹⁶ Thus, parental authority is subject to government supervision; if parents fail to provide adequate care, the state will intervene to protect children’s welfare. The state also preempts parental authority more categorically on some issues. For example, under child labor and school attendance laws, parents cannot decide that their children should work instead of attending school.¹⁷ Traditionally, policy debates in this area have focused on the allocation of authority between parents and the state.¹⁸

It may be useful to sketch more precisely how assumptions about children’s dependency, incompetence, and vulnerability are expressed in legal regulation. First, children’s rights and privileges are far more restricted than are those accorded adults.¹⁹ Because they are assumed to lack the capac...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I OVERARCHING ISSUES
• PART II PRIVATE LAW ISSUES
• PART III PUBLIC LAW ISSUES
• Name Index