Restating the Law in a Child Wellbeing Framework
The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, in school, in the justice system, and in the larger society. And it has clarified that the core principle and goal of the law affecting children across these domains is to promote their wellbeing. This Child Wellbeing framework is embodied in the Restatement. It can be discerned most clearly in youth crime regulation, but it also shapes state intervention in families and parental rights, as well as children’s rights in school and in society.
The Child Wellbeing framework bears some similarity to the principles driving the Progressive era reforms, which also elevated the welfare of children—and which ultimately fell short of attaining the reformers’ goals. But the Restatement’s contemporary approach embodies three features that distinguish it from that of the earlier period. First, regulation today increasingly is based on research on child and adolescent development, as well as studies on the effectiveness of policy interventions. This empirical evidence provides a sturdier basis for doctrine and policy than the naive and intuitive approach of Progressive lawmakers, and a growing number of courts and legislatures rely on this research. Second, today’s lawmakers increasingly recognize the broader social welfare benefits of regulation that promotes the wellbeing of children, increasing its political viability. And third, acknowledgement by courts of the ways in which embedded racial and class bias has affected the law’s relationship to children and families has led to tentative steps to ameliorate these pernicious influences.
This Essay elaborates on the Child Wellbeing framework, using various Restatement rules as examples of its implementation. It first focuses on the regulation of children in the justice system as the prime example. It then turns to the regulation of the parent-child relationship, explaining that the Restatement’s strong protection of parental rights is solidly grounded in the Child Wellbeing principle. Finally, the Essay examines children’s rights, clarifying that the Child Wellbeing principle is at work in lawmakers’ decisions to extend or withhold autonomy-based rights, or to maintain or create paternalistic protections.