Abstract
Family law, and the systems with which families interact, and child law or children’s rights, are typically viewed as separate legal subjects or categories. This essay challenges that separation and its consequences for family issues, arguing that family law and the systems with which families interact would benefit from a stronger infusion of children’s perspectives, interests and rights. One benefit would be a stronger structural or systemic focus to family law, reflecting the responsibilities of the State for children in the form of positive socio-economic supports for systems of health, education, housing and employment that are critical to children’s development. Through the example of immigrant children and their families, the essay explores the potential structural impact of children’s rights and perspectives in order to illustrate how a child rights perspective would affect the content and implementation of law and policy.
Highlights
The separation between a legal focus on family and on children is quite strong.[1]
The separation is exemplified in the identification of family law and child law as separate academic areas, and the organisation of statutory frameworks that separate the two
In contrast to the recognition of family law and child law or children’s rights as distinct legal specialties in the Nordic countries, in the US children in general are subsumed under family law
Summary
The separation between a legal focus on family and on children is quite strong.[1]. These distinct perspectives can be valuable and justified; but losing sight of each other can be. Even where children’s perspectives might be different, or in conflict with parents, those differences would enrich our resolution of issues, and are critical to address, rather than assuming parental rights should prevail In this first category of the consequences of a child-centred perspective we might include such critical family law issues as the doctrines and rules defining ‘family’, family formation, the legal definition of parenthood, care obligations, the rights of parents no longer living together, and the recognition of multiple (more than two) parents. It would infuse the ubiquitous ‘best interests of the child’ standard with a more strongly child-centred perspective rather than mediating those interests solely through parents or the State. See generally Malcolm Langford et al (eds), Children’s Rights in Norway: An Implementation Paradox? (Universitetsforlaget 2019), exploring the paradox that Norway is at the top of children’s rights indicators, yet there is uneven implementation in certain areas
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