This chapter, which focuses on English law, considers preference for adoption in some circumstances from a comparative law perspective, before comparing the treatment of adoption to that of other forms of care: parental care, kinship care, foster care, and institutional care. It argues that although adoption is the most satisfactory outcome for some children, it should not be considered a panacea. While a range of options is available for children in England whose parents encounter difficulties in looking after them, the government has a stronger preference for adoption than is the case in many other jurisdictions. I view this preference with a critical eye, given that it is likely to be “easier” than investing properly in foster care services and other forms of lesser intervention.
John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari‘a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari‘a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ‘ibadat.
The world of reproductive technology, including donor gametes and surrogacy, brings new challenges to identifying parents and respecting children’s rights. An intending parent—married or unmarried—is not necessarily the genetic contributor to the resulting child. And children have interests in knowing the identity of their genetic progenitors. This chapter focuses on whom the law recognizes as parents when a child has been created through assisted reproductive technology. While the chapter traces how intent has emerged as the critical factor in determining parentage, it also shows how intentional parenthood might sometimes be in tension with functional parenthood. The chapter provides a brief history of the technologies and their implications for parentage law and children’s rights to know their genetic origins. It also considers how the law might better adjust to changing technologies and family structures to produce outcomes that respect the child, rather than abstract concepts of equality—or even the parents’ interests.
This chapter begins by outlining the routes through which children drop out of school. It then draws on the failings of the English system to suggest six key lessons for other jurisdictions. The first centers on how academic results–driven accountability measures push schools and decision-makers into unjustifiably excluding children. The second demonstrates the vulnerability of discretionary frameworks to perverse incentives and unintended negative consequences for children at risk of school dropout. The third highlights the difficulties created by increased autonomy for teachers and schools. The fourth reveals how additional protections for particularly vulnerable children are constrained by the broader exclusion regime. The fifth and sixth demonstrate the need for jurisdictions to revisit the conceptual and empirical basis of their legal frameworks for exclusion, whether grounded in best interests, competing interests, or children’s rights. The chapter concludes by emphasizing the need to develop empirical evidence to underpin decisions around dropout.
Sara McLanahan, Kate Jaeger, and Kristin Catena
Families formed by unmarried parents increased dramatically in the United States during the latter half of the 20th century. To learn more about these families, a team of researchers at Princeton University and Columbia University designed and implemented a large birth cohort study—The Fragile Families and Child Wellbeing Study. This chapter highlights several findings from the study. First, most unmarried parents have “high hopes” for a future together at the time of their child’s birth; but their resources are low and most relationships do not last. Second, unmarried mothers experience high levels of partnership instability and family complexity, both of which are associated with lower-quality parenting and poorer child well-being. Finally, welfare state, child support and criminal justice policies play a large role in the lives of fragile families.
Patrick Parkinson and Judith Cashmore
This chapter explores the different ways that children can participate in custody and child protection cases. It is not only articulate older children and young people who ought to have an input into decisions. Children can “speak” in a variety of ways, and not only through words. To allow them to participate effectively, adults need to assist them through “scaffolding” their participation. Hearing the voice of the child also involves dilemmas. Children may not want to be involved for a variety of different reasons, some of which they may not feel free to disclose. The chapter concludes by offering four principles about how to hear from children in cases involving parenting arrangements.
This chapter examines how (if at all) children’s right to privacy is concretely implemented in the legal realm. It considers children’s privacy when they are involved in legal proceedings, children’s privacy in schools, children’s online privacy, children’s involvement with media publicity, and children’s right to confidential medical advice and treatment. It also considers children’s privacy in their relationship with their parents, focusing on parents’ surveillance and monitoring of their children and parents’ use of social media in a manner that involves their children. Existing legal policies and rules across these contexts fail to carve out a space where children can be free from constant adult gaze and supervision. This chapter argues that there is insufficient research about children’s needs and interests in privacy, and where research does exist lawmakers fail to take notice of its findings; privacy theories are mainly adult-centered and cannot adequately be applied to children; and family law conceptions still focus on parental authority, and around the idea of “the family” as a unit.
This chapter discusses the tension over recent decades in child welfare policy in the United States between two conflicting value systems, one focusing on parent and group rights over children, and the other focusing on child rights to grow up with nurturing parental care. It describes the leading legal and policy movements that have promoted keeping children with the family of origin and in the racial, ethnic and national group of origin. It contrasts these with some laws and policies that have instead prioritized protecting children against abuse and neglect, and placing them with nurturing parents including in adoption. It situates domestic US child welfare policy debates within the larger international context.
Khiara M. Bridges
This chapter examines the dual system of family law in the USA. It observes that the USA has a set of laws that regulates more affluent families and an entirely distinct set of laws that regulates poor families. Moreover, the family law for the poor is uniquely punitive. The chapter offers that the dual system of family law, and the brutal nature of family law for the poor, can be explained in terms of the moral construction of poverty—the idea that poverty is a result of an individual’s shortcomings. The chapter proposes that the moral construction of poverty offers a unique framework through which to view and critique the family law for the poor. It demonstrates the utility of the framework through an analysis of the Court’s 1970 decision in Dandridge v. Williams, upholding the constitutionality of family cap policies that restrict the size of the grants that welfare beneficiaries receive to support their families.
Francine T. Sherman
From the time the first US training school for girls was opened in 1856 to today, girls have been over-represented in the juvenile justice system for behaviors that stem from trauma, and the justice system has been used to promote a narrow and typical view of female gender-conforming behavior. This chapter examines the pathways girls and LGBTQ youth take into and through the juvenile justice system to show disparate impact on black girls, girls with child-welfare histories, girls who experience violence in their homes, girls with mental and behavioral health issues, and girls and LGBTQ youth who are victims of sex trafficking. In all these categories, best practices would reduce juvenile and criminal justice system involvement in favor of community-based, positive developmental solutions. Some of those more promising and evidence-based solutions are provided at the conclusion of the chapter.
The Incorporation of Shari‘a in North America: Enforcing the Mahr to Combat Women’s Poverty Post-relationship Dissolution
This article examines the shari‘a debate in North America, particularly the argument that shari‘a must be banned in Canada and the United States based on the belief that Islam is a threat to western culture and that Muslim men are dangerously sexist against women. It contends that the mahr or bridal gift, a key element of every Islamic marriage agreement, must be enforced in North America as a means to combat poverty among post-relationship dissolution women. The article begins by assessing false assumptions and myths about shari‘a law and its interaction with state law and policy. It then considers how US and Canadian courts have actually recognized the diverse desires of their Muslim citizenry, paying attention to various Muslim requests and shari‘a-based rules. It argues that an outright denial of the mahr as contrary to vague notions of public policy is unjust and contrary to longstanding American and Canadian traditions.
Marci A. Hamilton and Leslie C. Griffin
The laws that protect children apply to everyone, religious and nonreligious. Too often, however, parents claim exemptions from child-protecting laws in the name of religious freedom beyond that which is required by the First Amendment. They refuse to vaccinate or to secure medical care for injury or illness, or they harm, abuse, or even kill their children, claiming they are doing so for protected religious reasons. This chapter argues that all children need full protection of the laws prohibiting abuse and neglect, and all parents must obey them. Children are no longer property; they are persons, and the laws that affect them should prevent harm, not cause it. Children’s health, safety, and well-being are rights that should be protected even against parents who harm them.
Katharine K. Baker
This chapter explores the contemporary relevance of genetic connection to legal parental status. After briefly explaining the legal origins of the link between genetic and legal parenthood—mostly through paternity law—the chapter analyzes the U.S. Supreme Court’s dance with the constitutional relevance of genetic connection to legal parenthood. Although the Supreme Court was eager to dispense with marriage as the sole arbiter of legal parenthood, it was unwilling to embrace genetics as a complete substitute. Instead the Court suggested that genetics must sometimes be relevant to legal parenthood, without giving any clear guidelines on when or why. The absence of any guidelines is particularly relevant in the United States today because 40 percent of children are born to unmarried mothers and, thus, usually have a father identified through a regulatory mechanism rooted mostly in genetics. The men identified as legal fathers in this way, while often desirous of being good fathers, are often—through no fault of their own—unable to provide either financially or emotionally for their children. Attempts to bolster the legal rights and parenting opportunities of these men often expect the law to do what it cannot: force two people (in this case, the genetic parents) to trust and cooperate with each other. This chapter thus raises the question of whether the link between genetic and legal parenthood still serves any useful purpose. The best solution for children may be for the law to grow more comfortable with the legitimacy of single parenthood.
Ralph Richard Banks
This chapter considers the role of race in the adoptive placement of children. In examining the law and policy issues, the chapter raises questions both about the role of race in American society and about the needs of children. These issues are reflected in the interplay in adoption law of two pivotal principles: the best interests of the child standard and the antidiscrimination principle. The best interests of the child standard is the guiding principle of child welfare law; the antidiscrimination principle has been incorporated into family law during the past half-century and disfavors decision making on the basis of race and certain other characteristics. Policy makers confront the challenge of how best to define each of these principles, and also how to balance or choose between them when they conflict. The chapter also identifies an apparent persistent gap in this realm between official policy and the daily practices of the social workers who orchestrate adoptions in the foster care system.
Marcia Robinson Lowry
Child welfare has changed in some superficial ways over the years but key problems remain. The foster care population is once again rising, and most states fall far short of meeting even lax federal standards. States seem to have short attention spans to address these problems, reacting to the inevitable abuse- or neglect-related deaths of children with calls for more “preventive” services, while many such services are often inadequate, unproven, and not individualized. Rather than tolerating systemic problems—such as the shortage of meaningful services, high worker caseloads, and low numbers of foster homes, particularly adequate ones—many states continue to seek to reduce their in-care populations, leaving children with neither foster care nor necessary services. Litigation on behalf of children can change that, or at least move things forward. Marcia Robinson Lowry, a long-time child advocate engaged in many landmark child welfare lawsuits, surveys the current landscape from the vantage point of years seeking to reform child welfare systems, points out the advantages to this litigation, and urges more common sense approaches to delivering what children need.
I. Glenn Cohen
In its 1972 decision in Eisenstadt v. Baird, the US Supreme Court announced that: “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” But, in fact, both within and outside the United States, this firm-sounding principle has often been honored in the breach. Both as to coital and assisted reproduction, but particularly the latter, the state has asserted significant control over reproductive decision-making. This chapter details various forms of reproductive regulation prevalent today in a variety of areas including: Sterilization, abstinence education, surrogacy, sperm and egg “donor” anonymity and paternity, insurance funding, cloning, and mitochondrial replacement therapy. More conceptually, it divides state regulation of reproduction along the axes of attempts to influence whether, when, with whom, and how we reproduce and the means by which the state intervenes. Finally, it examines variations on child welfare justifications the state has or might offer for such reproductive regulation, and raises some questions about those justifications.
Relational Parents: When adults receive rights in children because of their relationship with a parent
Robin Fretwell Wilson
Significant changes in family forms and dynamics (such as increases in nonmarital cohabitation, children cared for by extended family, and same-sex couples with children) have prompted policymakers to rethink the question of who is a legal parent. Specifically, the law is grappling with which adults will be granted parental status or rights based on their relationship with a child’s parent and why. This chapter reviews the mounting number of doctrinal hooks used by courts, legislatures, and law reformers for deciding when adults can make claims in children. It examines traditional parentage and family privacy doctrines, reviews justifications for a dramatic widening of the parental tent, and then turns to a set of fairness and child-welfare concerns raised by these concepts, highlighting four major worries. It argues that costs of considering the parentage claims of relational parents—both to the legal parent and to the child—have received inadequate weight to date.
Morgan Polikoff and Shira Korn
This chapter summarizes the history and effects of standards-based school accountability in the United States and offers suggestions for accountability policy moving forward. It analyzes standards-based accountability in both the No Child Left Behind Act and the Every Student Succeeds Act, and discusses the effects of accountability systems. The authors argue that school accountability systems can improve student achievement, but that unintended consequences are possible. How accountability systems are designed—the metrics and measures used and the consequences for performance—has both symbolic and practical implications for the efficacy of the system and the individuals affected. Synthesizing what is known about the design of school accountability systems, the authors propose policy choices that can improve the validity, reliability, transparency, and fairness of these systems.
James G. Dwyer
The state scrutinizes potential parents with some rigor in the context of adoption, and with good reason. There is no justification for not doing so as well in choosing a newborn child’s first legal parents. This chapter describes nascent efforts to identify unfit biological parents at the time of birth, before they assume custody and subject a child to maltreatment—specifically, toxicology testing of newborns and examination of birth parents’ child-maltreatment history. The chapter then provides a theoretical normative argument for further developing such efforts. It analogizes state creation of legal parent-child relationships to state creation of legal family relationships between adults (i.e., marriage). It explains that parentage law can and should imitate marriage law in one crucial respect—namely, requiring a mutuality of consent between the two parties, with the state serving as an agent for the child in consenting to (or rejecting) a family relationship with particular adults based on its best judgment as to whether forming a legal family with those adults is in the child’s best interests all things considered.
This article examines the place of “shari‘a law” in Australian society, where Muslims are a minority. It begins by considering a paradox: some aspects of shari‘a are viewed positively, particularly those that have potential financial or economic benefits for Australia, but its other aspects, such as the recognition of Islamic family law, are either ignored or outright rejected as incompatible with the Australian context. It then provides a historical perspective and overview of the development of the discourse on Islam and shari‘a in the Muslim minority context of Australia, along with the emergence of Muslim communities in the country. It explores some key areas of shari‘a in Australia, including family law, Islamic finance, Islamic dress codes, and shari‘a courts. Finally, it discusses some of the key arguments and debates surrounding the practice of shari‘a in Australia.