Jonathan Todres (Georgia State University College of Law) has posted Independent Children and the Legal Construction of Childhood (Southern California Interdisciplinary Law Journal, Vol. 23, pp. 261-304, February 2014) on SSRN. Here is the abstract:
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 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. 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.