'Independent Children and the Legal Construction of Childhood' by Jonathan Todres in (2014) 23
Southern California Interdisciplinary Law Journal 261-304 [
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The law, and more generally the prevailing construct of childhood, envisions children foremost as part of a family. Indeed, the family has been recognized under international law as “the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children.” Although there is consensus on this ideal, the reality for millions of children today is that they are spending significant portions of their childhood apart from, or independent of, the traditional family environment and the care of an adult. Globally, millions of children are operating in their daily lives as independent actors. This phenomenon can include street children, unaccompanied migrant children, orphaned children (whether due to armed conflicts, AIDS, or other causes), and many others. While these children are forced to confront the world without an adult caregiver at critical times in their development, laws in many jurisdictions still idealize childhood and thus fail to properly account for independent children. The law often operates to marginalize independent children and expose them to further harm, instead of ensuring that they receive the care and support that they need.
This Article examines this special population of children and the implications that their experience has for the prevailing construction of childhood. It also explores how law and policy related to children must change in order to ensure the well-being of all children. Exploring the experiences of independent children and hearing their perspectives reveals a very different picture from the one traditionally associated with childhood. The dominant conception of childhood, in the United States and numerous others countries, is that it is a period of dependency that precedes maturity. The law typically reflects and reinforces that understanding by restricting the capacity of children to make decisions associated with maturity (e.g., to vote or to enter into a contract). Yet independent children are often making very mature decisions under the most difficult circumstances. The maturity that independent children exhibit at times and the circumstances that they confront challenge traditional, idealized constructs of childhood.
Prior to eighteen years of age, children are typically expected to reside in the family home, follow their parents’ rules, attend school, and otherwise remain largely in the private sphere of society; as such, children are typically beyond the reach of law, except in cases of abuse and neglect. Independent children challenge that baseline assumption. In examining the narratives and experiences of these children, we see that even though “children’s family status remains premised on the presence of one or more independent adults,” many children live as autonomous individuals—that is, without a regular adult caregiver. Whether independent children are living on the street or migrating unaccompanied across international borders, they do not comport with the traditional notion of childhood. The result is that the two primary functions law advances vis-à-vis children — disciplining children who exhibit counterproductive behavior and aiding children in need — have a perverse impact on independent children. First, the law’s punitive power is used to police independent children’s behavior and often to punish choices they make, frequently criminalizing them with little regard for the individual, family, or community circumstances that have thrust them into these autonomous roles. Second, the helping hand of the law often falls short of reaching independent children, because most services and assistance programs for children must be provided through a parent or legal guardian. As a result, in many cases, the law not only fails to serve independent children and to ensure their rights and well-being, but it actually facilitates harmful responses toward these children.
In prior work, I have explored legal and cultural constructs of maturity, detailing how the law’s delineation between childhood and adulthood creates a convoluted picture with benchmarks of maturity and thus autonomy differing among jurisdictions and issues. Those benchmarks limit, and indeed often fail to recognize, mature decisions made by children. Instead, the predominant legal framework in the United States and other jurisdictions is structured so that children can be punished for bad behavior but receive few, if any, rewards or incentives for positive, responsible behavior (other than avoiding criminal sanction). This Article builds on that earlier work by focusing on the experiences and legal treatment of independent children.
If the overarching goal of the body of law related to children is to help foster their successful development while protecting and ensuring their rights and well-being, then the law in many jurisdictions falls short, particularly with respect to independent children. Too often, independent children are punished harshly and are unable to access needed care and services. Children are a dynamically diverse population, and independent children often act in ways that do not comport with traditional societal expectations. That independent children depart from the norm does not necessarily make them bad kids. As discussed in this Article, their actions are often aimed at ensuring their survival and that of their family.13 The law needs to better account for their experience as well as the mature actions of other children.
This Article suggests that ensuring that law and policy fully account for independent children will require more than ad hoc exceptions to various laws. Ultimately, developing a more comprehensive construct of childhood is a critical first step toward producing law and policy that is more responsive to the range of realities facing all children, including independent children.
This Article has three aims. First, I seek to contribute to the small body of literature that challenges the dominant narrative of childhood that underlies law and policy on children’s issues. The aim is to help expand and reshape the prevailing understanding of childhood so that it reflects the diversity of all children’s experiences and actions. Second, as part of the call for a more inclusive construct of childhood, I argue that it is important to recognize independent children as a distinct category of persons. To date, independent children have received comparatively less attention from legal scholars than other categories of children, as both young children and adolescents in families have been examined in considerable depth. Scholars who have focused on independent children have examined particular sub-populations, most notably unaccompanied migrant children, but independent children have yet to be recognized or studied as a distinct category. I argue that this lack of recognition has made it easier for policymakers to view independent children as outliers and of insufficient numbers to merit reconsideration of the legal understanding of childhood. As such, the lack of recognition of independent children as a distinct group has hindered efforts to develop a legal framework that is responsive to their reality and that ensures their rights and well-being. Third, by achieving greater recognition of independent children as a population and forging a more inclusive narrative on childhood, policymakers and child advocates can develop law and policy that better fulfills the rights and needs of all children.
In examining constructs of childhood and corresponding law and policy, this Article focuses primarily on the United States as a case study because a study of all countries’ laws is beyond the scope of a single article. However, because independent children are found in almost every country, this Article draws upon examples from a range of settings to inform the discussion of the experience of independent children.
Part II explicates the prevailing construct of childhood; even though societal views on children have evolved and we are arguably in the age of children’s rights, more traditional beliefs about children continue to dominate both discourses on childhood and corresponding law and policy on children. Part II briefly discusses how the law reflects and responds to the dominant construct of childhood. Part III then introduces the population of independent children into the discourse on children and childhood, focusing primarily on street children as a test case. It demonstrates how, in many cases, the law’s response to independent children not only fails to serve these children but actually facilitates harmful responses toward them. Recognizing that the law is not meeting the needs of this vulnerable population of children, Part IV seeks to achieve two aims. Foremost, given that independent children do not fit in the current construct of childhood, Part IV explores theoretical considerations that can reshape the prevailing construct of childhood in a way that better accounts for the realities that many children confront. Part IV then briefly discusses potential law and policy implications of rethinking our understanding of childhood.
