Remappings of laws’ relation to children

migrantNotable at last weekend’s annual meeting of the Association of American Law Schools was an imagining of new ways that law and society might interrelate with children and children’s lives. Entitled “Evolving Responsibilities: The Impact of Recent Global Trends on Children and Families” and cosponsored by the sections on Children & the Law and International Human Rights, the session presented 4 very different visions:

Southern Methodist Law Professor Jessica Dixon Weaver depicted – in words and PowerPoint photos of the extended Obama-Robinson family – the situation of grandparents who care for their grandchildren. U.S. laws seldom take this into account, notwithstanding that intergenerational caregiving has long been common in some subcultures and is a growing phenomenon throughout American society. She urged reform along lines adopted in Sweden and other countries.

Annette Appell, Professor of Law at Washington University St. Louis (and my former classmate at Northwestern Law), outlined her proposal for a Children’s Participation Act. This statute would recalibrate a host of domestic laws about children so that they conformed with what Annette termed the “accommodation norm” – a human rights concept by which all persons are to be afforded equal access and opportunity, notwithstanding differences. Repeatedly invoking this norm is the 2006 U.N. Convention on the Rights of Persons with Disabilities (prior post). Article 2 defines it:

‘”Reasonable accommodation” means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms …’

Annette explained that embrace of that norm might require governments’ building codes to accommodate children through mandating lower counters, say, or outlawing sharp corners.

This call for legislation aimed specifically at children was followed by  an inverse proposal: William & Mary Law Professor James G. Dwyer argued that what he called “special rights” – set out in thematic instruments like the 1989 Convention on the Rights of the Child – hurt more than they help. Criticized was that treaty’s Article 21(b). In the name of “the best interests of the child,” it permits consideration of inter-country adoption only

‘as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin …’

That subsidiarity principle, Dwyer said, left an opening for measures like Russia’s new ban on adoption by Americans. He contended that an emphasis on general human rights pacts, which stress autonomy rather than dependency, would have served the orphans better.

Professor Jonathan Todres, my “neighbor” at Atlanta’s Georgia State University School of Law, described his studies of independent children. Included are young people who emigrate alone, like those in the 2009 documentary Which Way Home (photo credit), as well as children orphaned when their loved ones succumb to AIDS or violence during armed conflict. Despite their age, they display a high level of rational decision-making, build family-like networks, and lead largely autonomous lives. Yet the legal system frequently disadvantages independent children when imposing sanctions and allotting benefits. Jonathan urged greater “recognizing of children’s vulnerability and their maturity,” and of the fact that these dual traits “are not mutually exclusive.”

All told, the session provided a valuable exploration of the many facets of the child, and of what Jonathan aptly called law’s “messy demarcation” between childhood and adulthood.

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