The field of Family Law, although treated like a difficult child by its legal family and often behaves like a bored relative at the dinner table as a result, should be one of our most cerebrally exciting sectors which could potentially be the home of some of the finest philosophical and legal thinking known to man. But it is rarely given the opportunity to shine and show its potential.

This article, very kindly given to us to read by our perennially interesting and accomplished friend Michael Ezra, tackles one of the most awkward and at the same time fascinating areas of family law and life – the right of the child. 

Published by New York university Press, the entire book (which you can access here) is called The Ethics of Liberty by Murray Rothbard, who writes for The Ludwig Von Mises Institute, a think tank in Alabama on economics and libertarian political and social theory. And whilst we haven’t read the whole book, the chapter we’re sharing with you on Childrens’ Rights is thought-provoking. (The Mises website too is worth checking out if you like ethics and philosophy). Back to the article in question…

At its heart, we think, this ethical piece about imposition of rights and how children at every stage of their childhood fit into those rights, shows the downfalls of viewing anything as a given – and it always struck us as odd, although necessary, that as human beings living in a world where nothing can be taken for granted, we cling so desperately to self-imposed certainties in order to survive. The field of Human Rights is much-needed, but do we ever have the right to truly claim anything as ours?

That is the essence of this article, and although the logic may at times seem perverse, controversial and counter-intuitive, it must be because the banner of a Right is in itself insufficient to encompass exactly what we need in order to evolve as a society and understand ourselves better.

But the philosophical ride this piece takes us on, is worth taking. Touching upon abortion, enforcement of things like forced adoption (indirectly touched upon in this article in the section on children being regarded as property of the mother and so excludes the State to claim any rights over her child) and ownership as a concept, it is a must-read for anyone who likes to think about the deeper function of family law.

From ascertaining who has a legal right over a child (think adoption, test tube babies and cloning to name but a few areas), to the child’s own right to choose and be protected from others’ choices (think Trusts law, yes, really!) and juvenile sentencing and protocol for hearings (not to mention gender issues too), we found this article stimulating, intriguing and vital.

If nothing else, it shows how central Family Law is to everything legal and everything Life. How could anyone not be seduced by that heartbeat? We’ve added the article below too – Enjoy….

14. CHILDREN AND RIGHTS

WE HAVE NOW ESTABLISHED each man’s property right in his own person and in the virgin land that he finds and transforms by his labor, and we have shown that from these two principles we can deduce the entire structure of property rights in all types of goods. These include the goods which he acquires in exchange or as a result of a voluntary gift or bequest.

     There remains, however, the difficult case of children. The right of self-ownership by each man has been established for adults, for natural self-owners who must use their minds to select and pursue their ends. On the other hand, it is clear that a newborn babe is in no natural sense an existing self-owner, but rather a potential self-owner.[1] But this poses a difficult problem: for when, or in what way, does a growing child acquire his natural right to liberty and self-ownership? Gradually, or all at once? At what age? And what criteria do we set forth for this shift or transition?

     First, let us begin with the prenatal child. What is the parent’s, or rather the mother’s, property right in the fetus? In the first place, we must note that the conservative Catholic position has generally been dismissed too brusquely. This position holds that the fetus is a living person, and hence that abortion is an act of murder and must therefore be outlawed as in the case of any murder. The usual reply is simply to demarcate birth as the beginning of a live human being possessing natural rights, including the right not to be murdered; before birth, the counter-argument runs, the child cannot be considered a living person. But the Catholic reply that the fetus is alive and is an imminently potential person then comes disquietingly close to the general view that a newborn baby cannot be aggressed against because it is a potential adult. While birth is indeed the proper line of demarcation, the usual formulation makes birth an arbitrary dividing line, and lacks sufficient rational groundwork in the theory of self-ownership.

     The proper groundwork for analysis of abortion is in every man’s absolute right of self-ownership. This implies immediately that every woman has the absolute right to her own body, that she has absolute dominion over her body and everything within it. This includes the fetus. Most fetuses are in the mother’s womb because the mother consents to this situation, but the fetus is there by the mother’s freely-granted consent. But should the mother decide that she does not want the fetus there any longer, then the fetus becomes a parasitic “invader” of her person, and the mother has the perfect right to expel this invader from her domain. Abortion should be looked upon, not as “murder” of a living person, but as the expulsion of an unwanted invader from the mother’s body.[2] Any laws restricting or prohibiting abortion are therefore invasions of the rights of mothers.

     It has been objected that since the mother originally consented to the conception, the mother has therefore “contracted” its status with the fetus, and may not “violate” that “contract” by having an abortion. There are many problems with this doctrine, however. In the first place, as we shall see further below, a mere promise is not an enforceable contract: contracts are only properly enforceable if their violation involves implicit theft, and clearly no such consideration can apply here. Secondly, there is obviously no “contract” here, since the fetus (fertilized ovum?) can hardly be considered a voluntarily and consciously contracting entity. And thirdly as we have seen above, a crucial point in libertarian theory is the inalienability of the will, and therefore the impermissibility of enforcing voluntary slave contracts. Even if this had been a “contract,” then, it could not be enforced because a mother’s will is inalienable, and she cannot legitimately be enslaved into carrying and having a baby against her will.

     Another argument of the anti-abortionists is that the fetus is a living human being, and is therefore entitled to all of the rights of human beings. Very good; let us concede, for purposes of the discussion, that fetuses are human beings—or, more broadly, potential human beings—and are therefore entitled to full human rights. But what humans, we may ask, have the right to be coercive parasites within the body of an unwilling human host? Clearly no born humans have such a right, and therefore, a fortiori, the fetus can have no such right either.

     The anti-abortionists generally couch the preceding argument in terms of the fetus’s, as well as the born human’s, “right to life.” We have not used this concept hi this volume because of its ambiguity, and because any proper rights implied by its advocates are included in the concept of the “right to self-ownership”—the right to have one’s person free from aggression. Even Professor Judith Thomson, who, in her discussion of the abortion question, attempts inconsistently to retain the concept of “right to life” along with the right to own one’s own body, lucidly demonstrates the pitfalls and errors of the “right to life” doctrine:

In some views, having a right to life includes having a right to be given at least the bare minimum one needs for contin­ued life. But suppose that what in fact is the bare minimum a man needs for continued life is something he has no right at all to be given? If I am sick unto death, and the only thing that will save my life is the touch of Henry Fonda’s cool hand on my fevered brow, then all the same, I have no right to be given the touch of Henry Fonda’s cool hand on my fevered brow. It would be frightfully nice of him to fly in from the West Coast to provide it. . . . But I have no right at all against anybody that he should do this for me.

     In short, it is impermissible to interpret the term “right to life,” to give one an enforceable claim to the action of someone else to sustain that life. In our terminology, such a claim would be an impermissible viola­tion of the other person’s right of self-ownership. Or, as Professor Thom­son cogently puts it, “having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person’s body—even if one needs it for life itself.”[3]

     Suppose now that the baby has been born. Then what? First, we may say that the parents—or rather the mother, who is the only certain and visible parent—as the creators of the baby become its owners. A newborn baby cannot be an existent self-owner in any sense. Therefore, either the mother or some other party or parties may be the baby’s owner, but to assert that a third party can claim his “ownership” over the baby would give that person the right to seize the baby by force from its natural or “homesteading” owner, its mother. The mother, then, is the natural and rightful owner of the baby, and any attempt to seize the baby by force is an invasion of her property right.

     But surely the mother or parents may not receive the ownership of the child in absolute fee simple, because that would imply the bizarre state of affairs that a fifty-year old adult would be subject to the absolute and unquestioned jurisdiction of his seventy-year-old parent. So the parental property right must be limited in time. But it also must be limited in kind, for it surely would be grotesque for a libertarian who believes in the right of self-ownership to advocate the right of a parent to murder or torture his or her children.

     We must therefore state that, even from birth, the parental ownership is not absolute but of a “trustee” or guardianship kind. In short, every baby as soon as it is born and is therefore no longer contained within his mother’s body possesses the right of self-ownership by virtue of being a separate entity and a potential adult. It must therefore be illegal and a violation of the child’s rights for a parent to aggress against his person by mutilating, torturing, murdering him, etc. On the other hand, the very concept of “rights” is a “negative” one, demarcating the areas of a person’s action that no man may properly interfere with. No man can therefore have a “right” to compel someone to do a positive act, for in that case the compulsion violates the right of person or property of the individual being coerced. Thus, we may say that a man has a right to his property (i.e., a right not to have his property invaded), but we cannot say that anyone has a “right” to a “living wage,” for that would mean that someone would be coerced into providing him with such a wage, and that would violate the property rights of the people being coerced. As a corollary this means that, in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights.

     Applying our theory to parents and children, this means that a parent does not have the right to aggress against his children, but also that the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights. The parent therefore may not murder or mutilate his child, and the law properly outlaws a parent from doing so. But the parent should have the legal right not to feed the child, i.e., to allow it to die.[4] The law, therefore, may not properly compel the parent to feed a child or to keep it alive.[5] (Again, whether or not a parent has a moral rather than a legally enforceable obligation to keep his child alive is a completely separate question.) This rule allows us to solve such vexing questions as: should a parent have the right to allow a deformed baby to die (e.g., by not feeding it)?[6] The answer is of course yes, following a fortiori from the larger right to allow any baby, whether deformed or not, to die. (Though, as we shall see below, in a libertarian society the existence of a free baby market will bring such “neglect” down to a minimum.)

     Our theory also enables us to examine the question of Dr. Kenneth Edelin, of Boston City Hospital, who was convicted in 1975 of manslaughter for allowing a fetus to die (at the wish, of course, of the mother) after performing an abortion. If parents have the legal right to allow a baby to die, then a fortiori they have the same right for extra-uterine fetuses. Similarly, in a future world where babies may be born in extra-uterine devices (“test tubes”), again the parents would have the legal right to “pull the plug” on the fetuses or, rather, to refuse to pay to continue the plug in place.

     Let us examine the implications of the doctrine that parents should have a legally enforceable obligation to keep their children alive. The argument for this obligation contains two components: that the parents created the child by a freely-chosen, purposive act; and that the child is temporarily helpless and not a self-owner.[7] If we consider first the argument from helplessness, then first, we may make the general point that it is a philosophical fallacy to maintain that A’s needs properly impose coercive obligations on B to satisfy these needs. For one thing, B’s rights are then violated. Secondly, if a helpless child may be said to impose legal obligations on someone’ else, why specifically on itsparents, and not on other people? What do the parents have to do with it? The answer, of course, is that they are the creators of the child, but this brings us to the second argument, the argument from creation.

     Considering, then, the creation argument, this immediately rules out any obligation of a mother to keep a child alive who was the result of an act of rape, since this was not a freely-undertaken act. Italso rules out any such obligation by a step-parent, foster parent, or guardian, who didn’t participate at all in creating the child.

     Furthermore, if creation engenders an obligation to maintain the child, why should it stop when the child becomes an adult? As Evers states:

The parents are still the creators of the child, why aren’t they obliged to support the child forever? It is true that the child is no longer helpless; but helplessness (as pointed out above) is not in and of itself a cause of binding obligation. If the condition of being the creator of another is the source of the obligation, and this condition persists, why doesn’t the obligation?[8]

     And what of the case, in some future decade, when a scientist becomes able to create human life in the laboratory? The scientist is then the “creator.” Must he also have a legal obligation to keep the child alive? And suppose the child is deformed and ill, scarcely human; does he still have a binding legal obligation to maintain the child? And if so, how much of his resources—his time, energy, money, capital equipment—should he be legally required to invest to keep the child alive? Where does his obligation stop, and by what criterion?

     This question of resources is also directly relevant to the case of natural parents. As Evers points out:

[L]et us consider the case of poor parents who have a child who gets sick. The sickness is grave enough that the parents in order to obtain the medical care to keep the baby alive, would have to starve themselves. Do the parents have an . . .obligation to lessen the quality of their own lives even to the point of self-extinction to aid the child?[9]

     And if not, we might add, at what point does the parents’ legal obligation properly cease? And by what criterion? Evers goes on:

One might want to argue that parents owe only the average minimal care (heat, shelter, nutrition) necessary to keep a child alive. But, if one is going to take the obligation position, it seems illogical—in view of the wide variety of human qualities and characteristics—to tie obligation to the Procrustean bed of the human average.[10]

     A common argument holds that the voluntary act of the parents has created a “contract” by which the parents are obligated to maintain the child. But (a) this would also entail the alleged “contract” with the fetus that would prohibit abortion, and (b) this falls into all the difficulties with the contract theory as analyzed above.

     Finally as Evers points out, suppose that we consider the case of a person who voluntarily rescues a child from a flaming wreck that kills the child’s parents. In a very real sense, the rescuer has brought life to the child; does the rescuer, then, have a binding legal obligation to keep the child alive from then on? Wouldn’t this be a “monstrous involuntary servitude that is being foisted upon a rescuer?”[11]And if for the rescuer, why not also for the natural parent?

     The mother, then, becomes at the birth of her child its “trustee-owner,” legally obliged only not to aggress against the child’s person, since the child possesses the potential for self-ownership. Apart from that, so long as the child lives at home, it must necessarily come under the jurisdiction of its parents, since it is living on property owned by those parents. Certainly the parents have the right to set down rules for the use of their home and property for all persons (whether children or not) living in that home.

     But when are we to say that this parental trustee jurisdiction over children shall come to an end? Surely any particular age (21,18, or whatever) can only be completely arbitrary. The clue to the solution of this thorny question lies in the parental property rights in their home. For the child has his fullrights of self-ownership when he demonstrates that he has them in nature—in short, when he leaves or “runs away” from home. Regardless of his age, we must grant to every child the absolute right to runaway and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child’s ultimate expression of his right of self-ownership, regardless of age.

     Now if a parent may own his child (within the framework of non-aggression and runaway-freedom), then he may also transfer that ownership to someone else. He may give the child out for adoption, or he may sell the rights to the child in a voluntary contract. In short, we must face the fact that the purely free society will have a flourishing free market in children. Superficially, this sounds monstrous and inhuman. But closer thought will reveal the superior humanism of such a market. For we must realize that there is a market for children now, but that since the government prohibits sale of children at a price, the parents may now only give their children away to a licensed adoption agency free of charge.[12] This means that we now indeed have a child-market, but that the government enforces a maximum price control of zero, and restricts the market to a few privileged and therefore monopolistic agencies. The result has been a typical market where the price of the commodity is held by government far below the free-market price: an enormous “shortage” of the good. The demand for babies and children is usually far greater than the supply, and hence we see daily tragedies of adults denied the joys of adopting children by prying and tyrannical adoption agencies. In fact, we find a large unsatisfied demand by adults and couples for children, along with a large number of surplus and unwanted babies neglected or maltreated by their parents. Allowing a free market in children would eliminate this imbalance, and would allow for an allocation of babies and children away from parents who dislike or do not care for their children, and toward foster parents who deeply desire such children. Everyone involved: the natural parents, the children, and the foster parents purchasing the children, would be better off in this sort of society.[13]

     In the libertarian society, then, the mother would have the absolute right to her own body and therefore to perform an abortion; and would have the trustee-ownership of her children, an ownership limited only by the illegality of aggressing against their persons and by their absolute right to run away or to leave home at any time. Parents would be able to sell their trustee-rights in children to anyone who wished to buy them at any mutually agreed price.

       The present state of juvenile law in the United States, it might be pointed out, is in many ways nearly the reverse of our desired libertarian model. In the current situation, both the rights of parents and children are systematically violated by the State.[14]

     First, the rights of the parents. In present law, children may be seized from their parents by outside adults (almost always, the State) for a variety of reasons. Two reasons, physical abuse by the parent and voluntary abandonment, are plausible, since in the former case the parent aggressed against the child, and in the latter the parent voluntarily abandoned custody. Two points, however, should be mentioned: (a) that, until recent years, the parents were rendered immune by court decisions from ordinary tort liability in physically aggressing against their children—fortunately, this is now being remedied;[15] and (b) despite the publicity being given to the “battered child syndrome,” it has been estimated that only 5 percent of “child abuse” cases involve physical aggression by the parents.[16]

     On the other hand, the two other grounds for seizing children from their parents, both coming under the broad rubric of “child neglect,” clearly violate parental rights. These are: failure to provide children with the “proper” food, shelter, medical care, or education; and failure to provide children with a “fit environment.” It should be clear that both categories, and especially the latter, are vague enough to provide an excuse for the State to seize almost any children, since it is up to the State to define what is “proper” and “fit.” Equally vague are other, corollary, standards allowing the State to seize children whose “optimal development” is not being promoted by the parents, or where the “best interests” of the child (again, all defined by the State) are promoted thereby. A few recent cases will serve as examples of how broadly the seizure power has been exercised. In the 1950case of In re Watson, the state found a mother to have neglected three children by virtue of the fact that she was “incapable by reason of her emotional status, her mental condition, and her allegedly deeply religious feelings amounting to fanaticism.” In its decision, fraught with totalitarian implications, the court stressed the alleged obligation of parents to bring up children respecting and adjusting to “the conventions and the mores of the community in which they are to live.”[17] In 1954,in the case ofHunter v. Powers, the court again violated religious freedom as well as parental rights by seizing a child on the ground that the parent was too intensely devoted to a nonconformist religion, and that the child should properly have been studying or playing, rather than passing out religious literature. A year later, in the case of In re Black, a Utah court seized eight children from their parents because the parents had failed to teach the children that polygamy was immoral.[18]

     Not only religion, but also personal morality has been dictated by the government. In 1962, five children were seized from their mother by a court on the ground that the mother “frequently entertained male companions in the apartment.” In other cases, courts have held parents to have “neglected” the child, and thereupon seized the child, because parental quarrelling or a child’s sense of insecurity allegedly endangered the child’s best interests.

     In a recent decision, Justice Woodside of the Pennsylvania Superior Court trenchantly warned of the massive coercive potential of the “best interest” criterion:

A court should not take the custody of a child from their parents solely on the ground that the state or its agencies can find a better home for them. If “the better home” test were the only test, public welfare officials could take children from half the parents in the state whose homes are considered to be the less desirable and place them in the homes of the other half of the population considered to have the more desirable homes. Extending this principle further, we would find that the family believed to have the best home would have the choice of any of our children.[19]

     The rights of children, even more than those of parents, have been systematically invaded by the state. Compulsory school attendance laws, endemic in the United States since the turn of this century, force children either into public schools or into private schools officially approved by the state.[20]Supposedly “humanitarian” child labor laws have systematically forcibly prevented children from entering the labor force, thereby privileging their adult competitors. Forcibly prevented from working and earning a living, and forced into schools which they often dislike or are not suited for, children often become “truants,” a charge used by the state to corral them into penal institutions in the name of “reform” schools, where children are in effect imprisoned for actions or non-actions that would never be considered “crimes” if committed by adults.

     It has, indeed, been estimated that from one-quarter to one-half of “juvenile delinquents” currently incarcerated by the state did not commit acts that would be considered crimes if committed by adults (i.e., aggression against person and property).[21] The “crimes” of these children were in exercising their freedom in ways disliked by the minions of the state: truancy “incorrigibility,” running away. Between the sexes, it is particularly girl children who are jailed in this way for “immoral” rather than truly criminal actions. The percentage of girls jailed for immorality (“waywardness,” sexual relations) rather than for genuine crimes ranges from 50 to over 80 percent.[22]

     Since the U.S. Supreme Court’s decision in the 1967case of In re Gault, juvenile defendants, at least in theory, have been accorded the elementary procedural rights of adults (the right to notice of specific charges, the right to counsel, the right to cross-examine witnesses), but these have only been granted in cases where they have actually been accused of being criminals. As Beatrice Levidow writes, the Gault and similar decisions:

do not apply to any adjudicatory hearings except those in which the offense charged to the juvenile would be violation of the criminal laws if committed by an adult. Therefore, the safeguards of Kent, Gault, and Winship do not protect the due process rights of juveniles who are dependent, neglected, in need of supervision, truant, run away, or accused of other offenses of which only juveniles can be guilty such as smoking, drinking, staying out late, etc.[23]

     As a result, juveniles are habitually deprived of such elemental procedural rights accorded to adult defendants as the right to bail, the right to a transcript, the right to appeal, the right to a jury trial, the burden of proof to be on the prosecution, and the inadmissability of hearsay evidence. As Roscoe Pound has written, “the powers of the Star Chamber were a trifle in comparison with those of our juvenile courts.” Once in a while, a dissenting judge has levelled a trenchant critique of this system. Thus, Judge Michael Musmanno stated in a 1954 Pennsylvania case:

Certain constitutional and legal guarantees, such as immunity against self-incrimination, prohibition of hearsay interdiction of ex parte and secret reports, all so jealously upheld in decisions from Alabama to Wyoming, are to be jettisoned in Pennsylvania when the person at the bar of justice is a tender-aged boy or girl.[24]

     Furthermore, the state juvenile codes are studded with vague language that permits almost unlimited trial and incarceration for various forms of “immorality,” “habitual truancy,” “habitual disobedience,” “incorrigibility,” “ungovernability,” “moral depravity,” “in danger of becoming morally depraved,” “immoral conduct,” and even associating with persons of “immoral character.”[25]

     Moreover, the tyranny of indeterminate sentencing (see our chapter above on punishment) has been wielded against juveniles, with juveniles often receiving a longer sentence than an adult would have suffered for the same offense. Indeed the rule in contemporary juvenile justice has been to impose a sentence that may leave a juvenile in jail until he reaches the age of majority Furthermore, in some states in recent years, this evil has been compounded by separating juvenile offenders into two categories—genuine criminals who are called “delinquents,” and other, “immoral” children who are called “persons in need of supervision” or PINS. After which, the PINS “offenders” receive longer sentences than the actual juvenile criminals! Thus, in a recent study, Paul Lerman writes:

The range of institutional stay was two to twenty-eight months for delinquents and four to forty-eight months for PINS boys; the median was nine months for delinquents and thir­teen months for PINS; and the average length of stay was 10.7 months for delinquents and 16.3 months for PINS. . . .

     The results of length of stay do not include the detention per­iod; the stage of correctional processing prior to placement in an institution. Analyses of recent detention figures for all five boroughs of New York City revealed the following patt­erns: (1) PINS boys and girls are more likely to be detained than delinquents (54 to 31 percent); and (2) once PINS youth are detained they are twice as likely to be detained for more than 30 days than are regular delinquents (50 to 25 percent).[26]

     Again, it is mainly female juveniles that are punished for “immor­al” offenses. A recent study of Hawaii, for example, found that girls charged merely with running away normally spend two weeks in pretrial detention, whereas boys charged with actual crimes are held for only a few days; and that nearly 70 percent of the imprisoned girls in a state training school were incarcerated for immorality offenses, whereas the same was true of only 13 percent for the imprisoned boys.[27]

     The current judicial view, which regards the child as having virtually no rights, was trenchantly analyzed by Supreme Court Justice Abe Fortas in his decision in the Gault case:

The idea of crime and punishment was to be abandoned. The child was to be “treated” and “rehabilitated and the procedures, from apprehension through institutionalization, were to be “clinical” rather than punitive.

     These results were to be achieved, without coming to conceptual and constitutional grief, by insisting that the proceedings were not adversary, but that the State was proceeding asparens patriae (the State as parent). The Latin phrase proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme; but its meaning is murky and its historical credentials are of dubious relevance.

     . . . The right of the State, as parens patriae, to deny the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right “not to liberty but to custody.” . . . If his parents default in effectively performing their custodial functions—that is if the child is “delinquent”—the state may interfere. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the “custody” to which the child is entitled. On this basis, proceedings involving juveniles were described as “civil” not “criminal” and therefore not subject to the requirements which restrict the State when it seeks to deprive a person of his liberty.[28]

     It may be added that calling an action “civil” or “custody” does not make incarceration any more pleasant or any less incarceration for the victim of the “treatment” or the “rehabilitation.” Criminologist Frederick Howlett has trenchantly criticized the juvenile court system, and placed it in a wider libertarian context. He writes of

the denial of certain basic rights of individuals—the right to associate with those of their choice and to engage voluntarily in acts that harm no one but themselves. The drunk who clogs, our courts should have the right to get drunk; the . . . prostitute and her client should not have to answer to the law for an act that is their personal decision. The misbehaving child likewise has a fundamental right to be a child, and if he has committed no act that would be considered criminal were he an adult, why seek recourse through the courts . . .? Before rushing to treat or “help” a person outside the justice system, should not the community first consider the alternative of doing nothing? Should it not recognize the child’s right, as a person, to nontreatment and noninterference by an outside authority?[29]

     A particularly eloquent judicial defense of the rights of children oc­curred in an 1870 Illinois decision, years earlier than the modern assertion of state despotism in the juvenile court system, beginning with the turn of the century Progressive period. In his decision in People ex rel. O’Connell v. Turner,Justice Thornton declared:

The principle of the absorption of the child in, and its com­plete subjection to the despotism of, the State, is wholly inad­missible in the modern civilized world. . . .

     These laws provide for the “safe keeping” of the child; they direct his “commitment,” and only a “ticket of leave,” of the uncontrolled discretion of a board of guardians, will permit the imprisoned boy to breathe the pure air of heaven outside his prison walls, and to feel the instincts of manhood by contact with the busy world. . . . The confinement may be from one to fifteen years, according to the age of the child. Executive clemency cannot open the prison doors, for no offense has been committed. The writ of habeas corpus, a writ for the security of liberty can afford no relief, for the sovereign power of the State, as parens patriae, has determined the imprisonment beyond recall. Such a restraint upon natural liberty is tyranny and oppression. If, without crime, without the conviction of any offense, the children of the State are thus to be confined for the “good of society” then society had better be reduced to its original elements, and free government acknowledged a fail­ure. . . .

     The disability of minors does not make slaves or criminals of them. . . . Can we hold children responsible for crime; liable for their torts; impose onerous burdens upon them, and yet deprive them of their liberty, without charge or conviction of crime? [The Illinois Bill of Rights, following upon the Virginia Declaration of Rights and the Declaration of Independence, declares that] “all men are, by nature, free and independent, and have certain inherent and inalienable rights—among these life, liberty, and the pursuit of happiness.” This language is not restrictive; it is broad arid comprehensive, and declares a grand truth, that “all men,” all people, everywhere, have the inherent and inalienable right to liberty Shall we say to the children of the State, you shall not enjoy this right—a right independent of all human laws and regulations. . . . .Even criminals cannot be convicted and imprisoned without due process of law.[30]

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[1]John Locke, in his Two Treatises on Government, p. 322, put it this way:

Children I confess are not born in this full state of equality (of right to their natural freedom), though they are born to it. Their parents have a sort of rule and jurisdiction over them when they come into the world, and for some time after, but ‘tis but a temporary one. The bonds of this subjection are like the swaddling clothes they are wrapt up in, and supported by, in the weakness of their infancy. Age and reason as they grow up, loosen them till at length they drop quite off, and leave a man at his own free disposal.

[2]What we are trying to establish here is not the morality of abortion (which may or may not be moral on other grounds), but its legality, i.e., the absolute right of the mother to have an abortion. What we are concerned with in this book is people’s rights to do or not do various things, not whether they should or should not exercise such rights. Thus, we would argue that every person has the right to purchase and consume Coca-Cola from a willing seller, not that any person should or should not actually make such a purchase.

[3]Judith Jarvis Thomson, “A Defense of Abortion,” Philosophy and Public Affairs (Fall 1971): 55–56.

[4]On the distinction between passive and active euthanasia, see Philippa R. Foot, Virtues and Vices(Berkeley: University of California Press, 1978), pp. 50ff.

[5]Cf. the view of the individualist anarchist theorist Benjamin R. Tucker: “Under equal freedom, as it [the child] develops individuality and independence, it is entitled to immunity from assault or invasion, and that is all. If the parent neglects to support it, he does not thereby oblige anyone else to support it.” Benjamin R. Tucker, Instead of a Book (New York: B.R. Tucker, 1893), p. 144.

[6]The original program of the Euthanasia Society of America included the right of parents to allow monstrous babies to die. It has also been a common and growing practice for midwives and obstetricians to allow monstrous babies to die at birth by simply not taking positive acts to keep them alive. See John A. Robertson, “Involuntary Euthanasia of Defective Newborns: A Legal Analysis,”Stanford Law Review (January 1975): 214–15.

[7]The argument of this and succeeding paragraphs relies heavily on Williamson M. Evers, “Political Theory and the Legal Rights of Children,” (unpublished manuscript), pp. 13-17. Also see Evers, “The Law of Omissions and Neglect of Children,” Journal of Libertarian Studies 2 (Winter 1978): 1-10.

[8]Evers, “Political Theory,” p. 17.

[9]Ibid., p. 16.

[10] Ibid., pp. 16–17.

[11]Ibid., pp. 15–16.

[12]It is now possible to make “independent placements” from one parent to another, but they can only be done with the approval of a judge, and such placements are officially discouraged. Thus, inPetitions of Goldman, the Supreme Court of Massachusetts refused to permit a Jewish couple to adopt twins born to Catholic parents, even though the natural parents were fully agreeable to the adoption. The ground of the refusal was that state regulations forbade cross-religious adoptions. See Lawrence List, “A Child and a Wall: A Study of ‘Religious Protection’ Laws,” Buffalo Law Review (1963–64): 29; cited in Evers, “Political Theory,” pp. 17-18.

[13]Some years ago, the New York City authorities proudly announced that they had broken up an “illegal baby ring.” Babies were being imported for a price from Greece by enterprising merchants, and then sold to eager parents in New York. No one seemed to realize that everyone involved in this supposedly barbaric transaction benefited: the poverty-stricken Greek parents gained money, as well as the satisfaction of knowing that their babies would be brought up in far more affluent homes; the new parents gained their heart’s desire of having babies; and the babies were transferred to a far happier environment. And the merchants earned their profits as middlemen. Everyone gained; who lost?

[14]On the current state of juvenile law in relation to the libertarian model, I am indebted to Evers, “Political Theory,” passim.

[15]Immunity was originally granted parents in the 1891 decision of a Mississippi court in Hewlett v. Ragsdale. Recently, however, courts have been allowing children their full rights to sue for injuries. See Lawrence S. Allen, “Parent and Child-Tort Liability of Parent to Unemancipated Child,” Case Western Reserve Law Review (November 1967): 139; Dennis L. Bekemeyer, “A Child’s Rights Against His Parent: Evolution of the Parental Immunity Doctrine,” University of Illinois Law Forum (Winter 1967): 806-7; and Kenneth D. McCloskey, “Parental Liability to a Minor Child for Injuries Caused by Excessive Punishment,” Hastings Law Journal (February 1960): 335-40.

[16]Thus, see the report for Cook County in Patrick T. Murphy, Our Kindly Parent—the State (New York: Viking Press, 1974), pp. 153-54.

[17]Compare the dictum of Sanford Katz, a prominent “child abuse” specialist: “child neglect connotes a parent’s conduct, usually thought of in terms of passive behavior, that results in a failure to provide for the child’s needs as defined by the preferred values of the community.” Sanford Katz, When Parents Fail (Boston: Beacon Press, 1971), p. 22. On parental quarrelling, and on In re Watson, see Michael F. Sullivan, “Child Neglect: The Environmental Aspects,” Ohio State Law Journal (1968): 89–90,152–53.

[18]See Sullivan, “Child Neglect,” p. 90.

[19]Quoted in Richard S. Levine, “Caveat Parens: A Demystification of the Child Protection System,”University of Pittsburgh Law Review (Fall 1973): 32. Even more bizarre and totalitarian in its implications is the often proposed concept of a child’s “right to be wanted.” Apart from the impossibility of using violence to enforce an emotion on someone else, such a criterion would arm outside parties, in practice the State, with the power to determine when “wanting” exists and to seize children from parents who don’t meet that scarcely definable criterion. Thus, Hillary Rodham, of the Children’s Defense Fund, has challenged this criterion: “How should a ‘right to be wanted’ be defined and enforced? . . . The necessarily broad and vague enforcement guidelines could recreate the hazard of current laws, again requiring the State to make broad discretionary judgments about the quality of a child’s life.” Hillary Rodham, “Children Under the Law,” Harvard Educational Review (1973): 496.

[20]On compulsory education in the United States, see William F. Rickenbacker, ed., The Twelve-Year Sentence (LaSalle, Ill.: Open Court, 1974).

[21]See William H. Sheridan, “Juveniles Who Commit Noncriminal Acts: Why Treat in a Correctional System?” Federal Probation (March 1967): 27. Also see Murphy, Our Kindly Parent, p. 104.

[22]In addition to Sheridan, “Juveniles Who Commit Noncriminal Acts,” p. 27, see Paul Lerman, “Child Convicts,” Transaction (July-August 1971): 35; Meda Chesney-Lind, “Juvenile Delinquency: The Sexualization of Female Crime,” Psychology Today (July 1974): 45; Colonel F. Betz, “Minor’s Rights to Consent to an Abortion,” Santa Clara Lawyer (Spring 1971): 469-78; Ellen M. McNamara, “The Minor’s Right to Abortion and the Requirement of Parental Consent,” Virginia Law Review (February 1974): 30532; and Sol Rubin, “Children as Victims of Institutionalization,” Child Welfare (January 1972): 9.

[23]Beatrice Levidow, “Overdue Process for Juveniles: For the Retroactive Restoration of Constitutional Rights,” Howard Law Journal (1972): 413.

[24]Quoted in J. Douglas Irmen, “Children’s Liberation—Reforming Juvenile Justice,” University ofKansas Law Review (1972–73): 181-83. Also see Mark J. Green, “The Law of the Young,” in B. Wasserstein and M. Green, eds., With Justice for Some (Boston: Beacon Press, 1970), p. 33; Sanford J. Fox, Cases and Material on Modern Juvenile Justice (St. Paul, Minn.: West, 1972), p. 68.

[25]See the dissent of Justice Cadena in the 1969 Texas case of E.S.G. v. State, in Fox, Cases and Material on Modern Juvenile Justice, pp. 296–98. Also see Lawrence J. Wolk, “Juvenile Court Statutes—Are They Void for Vagueness?” New YorkUniversityReview of Law and Social Change (Winter 1974): 53; Irmen, “Children’s Liberation,” pp. 181—83; and Lawrence R. Sidman, “The Massachusetts Stubborn Child Law: Law and Order in the Home,” Family Law Quarterly (Spring 1972): 40–45.

[26]Lerman, “Child Convicts,” p. 38. Also see Nora Klapmuts, “Children’s Rights: The Legal Rights of Minors in Conflict with Law or Social Custom,” Crime and Delinquency Literature (September 1972): 471.

[27]Meda Chesney-Lind, “Juvenile Delinquency,” p. 46.

[28]Fox, Cases and Material on Modern Juvenile Justice, p. 14.

[29]Frederick W. Howlett, “Is the YSB All it’s Cracked Up to Be?” Crime and Delinquency (October 1973): 489—91. In his excellent book, The Child Savers, Anthony Platt points out that the origin of the juvenile court—reform school system in the Progressive period at the turn of the twentieth century, was specifically designed to impose a despotic “reform” on the “immorality” of the nation’s children on a massive scale. Thus, Platt in The Child Savers (Chicago: University of Chicago Press, 1970), pp. 99–100, writes that the “child savers”

were most active and successful in extending governmental control over a whole range of youthful activity that had been previously ignored or dealt with informally. . . . The child savers were prohibitionists in a general sense who believed that social progress depended on efficient law enforcement, strict supervision of children’s leisure and recreation, and the regulation of illicit pleasures. Their efforts were direct­ed at rescuing children from institutions and situations (theaters, dance halls, saloons, etc.) which threatened their “dependency” The child saving movement also raised the issue of child protection in order to challenge a variety of “deviant” institutions: thus, children could only be protected from sex and alcohol by destroying the brothels and saloons.

     Also see ibid., pp. 54, 67–68, 140. For earlier expressions of “child-saving,” parens patriae, and the incarceration of juveniles for truancy, see J. Lawrence Schultz, “The Cycle of Juvenile Court History,”Crime and Delinquency (October 1973): 468; and Katz, When Parents Fail, p. 188.

[30]55 111. 280 (1870), reprinted in Robert H. Bremner, ed., Children and Youth in America (Cambridge, Mass.: Harvard University Press, 1970–74), vol. 2, pp. 485–87. Naturally, the “child saving” reformers chafed at the results of the O’Connell decision, which the prominent Illinois social and child reformer Frederick Wines called “positively injurious. It proceeds from a morbid sensitivity on the subject of personal liberty.” See Platt, The Child Savers, p. 106.

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Much has been made in the last few days of the terrible tragedy which saw six children die in a house fire at the hands of their parents. Mick and Mairead Philpott were accused of manslaughter along with an accomplice and friend Paul Mosley and on April 4th this year, all three were sentenced to prison for the deaths of these children.

Viewed as the driving force behind the incident, Mick Philpott received a life sentence for his part in the house fire, having to serve a minimum of 15 years whilst Mairead and Paul were told they would serve half their 17 year sentences.

Now widely acknowledged to be aggressive, abusive and controlling, Mick Philpott leaves behind a litany of violent crimes, sprawling almost forty years. From breaking a former girlfriend’s arm, to receiving a caution for slapping his wife and dragging her by the hair, as well as stabbing another woman thirteen times with a knife, Mr Philpott was also facing a court case whilst on trial for the murder of his children: he was on bail for a violent road rage incident.

His lifestyle too, has been put under the microscope, with journalists and politicians all clamouring to pick out what they feel are the salient bones of the travesty. Predictably, like tired 80s game show hosts, our politicians flick their perfectly coiffed hair-dos in front of the camera to hash out age-old platitudes which put down our welfare system, because punishing the many for the sins of a few is what our politicians have come to do best.

That Mr Philpott was perhaps a benefits scrounger, had a Catholic upbringing, or indeed engaged in polyamory has somehow sparked the rather jaded imaginations of those who write for a living, but we can’t understand why. All of these topics can be summed up, perhaps rather brazenly, in one sentence: it’s not what you do, it’s how you do it that matters. We have nothing against polyamory, or organised religion as long as all parties are happy and benefits scroungers are not the result of the welfare system and do not account for the majority of desperate families, who will grow in number as austerity measures kick in, and who need that support in order to survive. The real issues in this case have largely been ignored and they speak to the heart of the now deceased children whose deaths could easily have been prevented.

On Detection and Prevention

Mick Philpott was not a quietly violent man. His behaviour had been documented since before the 1980s and the police were aware that he was domestically violent. At no point in this story do Social Services emerge. At no point are we told that the police decided to share the information they had with Derby Social Services, knowing the nature of the domestic violence in the home and Mr Philpott’s violent tendencies. There were no unannounced visits to their home and no one came to check up on the children to see if they were experiencing things that might have caused them to suffer.

It seemed as if Mick Philpott, despite his powerful posturing and loud lifestyle, was invisible. Invincible.

On Celebrity Status

Having read several articles on the internet about Mick Philpott, it turns out he had acquired a kind of celebrity status, by association. Having appeared on TV for the Jeremy Kyle show (our equivalent of the Jerry Springer Show in America) and done various other things on TV, including doing a documentary with Ann Widdecombe, perhaps as this journalist suggests, Mick Philpott felt he was untouchable.

Even more poignantly though, we would suggest that perhaps others felt he was untouchable as a result. Did Social Services know about Mr Philpott’s violent behaviour at home and decide to turn a blind eye, or did the police take the view it would be too much hassle meddling with someone who appeared to have influential connections? These may be things we will never know, but if Mick Philpott’s status in his community affected the manner in which his children were neglected by the local authority, we still have much to learn in the wake of the Jimmy Savile case, where celebrity status was the shield behind which Savile performed some of his most unpleasant performances.

On Multi Agency Co-Operation

For us at least, the Philpott case is not about money or marriage or lifestyle, but about how our support services in England fail to protect our children at various stages. The many failings are now heavily documented: from a lack of trust between police, social services and the legal profession to conflicts of interest and the illusion of power, bandied about between officials, used as a shield by some of our most dangerous offenders, these are the underlying dynamics at play in this terrible story.

What if the police and social services had worked together? What if Mick Philpott had had a psychiatric assessment and was given a course of treatment or had been removed from the family home? What if the mother had been given the support she needed to make the right decisions for her children?

We will never know the answers to any of these questions, but it would have been wonderful to have been given the chance to find out: not least of all, because Jade, John, Jack, Jesse, Jayden and Duwayne might still be alive today.

It’s not always the case that as human beings we must enter a world before we can empathise with it on some level, but for the vast majority of people it is often the only way to truly understand the world in which we inhabit – with all its flaws and failings. And that is exactly what happened to two senior social workers, who found themselves on the other side of the fence, after having been wrongly accused of child abuse.

The experience of being investigated for child abuse under our current system, described, perhaps ironically, by the social work couple as ‘a nightmare’, started when someone complained about the way they were caring for their own daughter.

Interestingly, the article published by The Guardian, says the investigation was ‘unlawful’ presumably based on the way in which the investigation itself was handled, however there is no indication in the article that this couple were investigated any differently than countless other parents who have to face the nightmare of shoddy investigatory procedures, every day. Let’s just say, the turn of phrase caught our attention.

The article goes on to tell us that, “The two [social worker parents] argued that not only were there no grounds for a full child protection investigation because there was no evidence that EF was at risk of harm, but that the entire process was “so flawed procedurally and so fundamentally lacking in the essential minimum requirements of a guidance-complaint process that it was unlawful”.

It would be interesting to note whether the two social workers were in fact practicing in the same area in which the investigation of the alleged abuse regarding their daughter took place. In other words, were they staring directly into the same corner of the system in which they themselves had been practicing as social workers. We note from the article that the social worker parents were outraged by the way they were treated by their own.

Of the investigating social workers, the mother says in the article, “They thought they were completely unaccountable – but today they have been held to account by the court. This is a landmark case for parents. One wonders how many families are out there suffering.” It is fascinating to note how quickly professionals will turn on each other and make damning statements once the action becomes personal. A compelling and completely human reaction, but a telling one too: working in a culture where professionalism is synonymous with distance and rational thought without feeling may be the greatest obstacle to a sexy justice system that actually works. The mother’s last sentiment is an eye opener – one wonders how many families are out there suffering. That she doesn’t know, despite working in the system herself, is an appalling indictment on an unfeeling and patchy system.

So many of the incidents reported in this article happen to parents on a daily basis inside the system – social workers calling schools and GPs without informing the parents first, being bullied by social work staff who insist they know best and a complete lack of respect for the family unit and everyone inside it.

The parents’ reaction, one of anger at being investigated (the local authority were well within their rights to do so based upon a letter they received), hostility and defiance is a natural reaction to being poorly treated, whatever the circumstances. And whilst we are wary of any potential double standards this cases raises, we are glad that finally, those reactions are being understood and given the space they deserve in our system. We would even go so far as to re-iterate something we feel very strongly about – having Social Swap Days, as we call them, where professionals spend the day on the receiving end of their practice, so they can get in touch with the system, how it works and what needs to change, as and when.

A seriously fascinating case, which we hope will shed light on the need for change, understanding the human condition and above all, the crucial role respect, compassion and empathy must play in a truly stellar family justice system.

In a report that’s out today, the Select Committee on Adoption has made several very interesting proposals on central issues surrounding the adoption process. They are, to our mind, sensible, poignant and relevant, and a must-read for anyone interested in family or adoption.

Chairman of the Committee, Baroness Butler-Sloss, made several observations which have been highlighted on the Parliament website, including the following:

• Children who are adopted often need extra support – this should be provided to adoptive families to ensure that those children are properly cared for
• Adoption should not be the only avenue to addressing the placement of children. Kinship carers, special guardians and other alternatives must be considered
• Any drive to increase adoption should not be done at the expense of keeping families together wherever possible
• A pilot scheme should be put together to offer families who have lost their children to adoption, much-needed support
• The system needs better cross-departmental communication
• More independent professionals are preferable to ensure the welfare of the child remains the main consideration in every case
• Getting teachers involved should be considered, so that they can support and be there for adopted children at school
• Improve professional training inside the system

You can check out the members of this worthwhile Committee here, and below are some more links to more content:

• Report: Adoption: Post-Legislative Scrutiny
  
• Report: Adoption: Post-Legislative Scrutiny (PDF)
• Evidence – Adoption Legislation
• Select Committee on Adoption Legislation