ABSTRACT
According to Westman (1991), under eighteenth century English common law, children were regarded as chattels of their parents and wards of the state-under this system children had no legal rights. Gradually children began to procure legal rights as an outgrowth of the protective doctrine of parens patriae, which justifies state intervention into family life under certain circumstances (Westman, 1991). During the twentieth century, the rights of children slowly began to emerge in the United States. The children’s rights movement has been largely responsible for the protections now extended to children from the state. The following quote summarizes the current position of children’s and parents’ rights within the United States (Westman, 1991):
In practice, the legal adjudication of parent-child rights occurs largely when protection of a child’s interests is an issue. The state has the power to intervene and assume temporary custody or guardianship of children when neglect, abuse, or parental incompetence exists. Children can be placed in foster care, and parental rights can be permanently terminated. The state exercises responsibility for determining custody in divorce cases and for establishing a legal parent-child relationship through adoption. Unfortunately, criteria for making these decisions are not well-defined, so that the general practice is to exercise judicial restraint and perpetuate the status quo rather than resolve issues in a timely and definitive manner for a child’s benefit. For example, many youngsters spend years in foster care, because no one has assumed the responsibility for making the definitive decisions that are necessary in the legal pursuit of their interests. (p. 47)
What is clear from this quote is that legal rights for children cannot be considered apart from the rights of their parents and the state. Furthermore, the legal criteria for state intervention into family life is not well defined.
