Child Welfare in a Free Society

I have long had an interest in child welfare issues and have worked to prosecute child welfare cases, as a guardian ad litem in such cases, and as a court appointed special advocate in custody proceedings. I have also represented parents in divorce and custody proceedings and am a trained divorce and custody mediator. All this experience has led me to one conclusion: the state does a poor job in preventing or remedying child abuse or neglect, and the state cannot competently determine and act in the “best interests” of children. Attempts by the state to take on child welfare have resulted in large, ineffectual bureaucracies and grotesque intrusions into families. They have not resulted in happier or safer children. (This is why such agencies measure performance in terms of “activity” rather than results.)

How should child welfare issues be handled in a free society? One possibility would be to recognize more or less absolute parental rights and do nothing about abuse or neglect. This would be low cost and involve no intrusion into families, but it would leave some victims without any remedy or escape. Another possibility would be to recognize children as having all the same rights as any adult with the freedom to seek redress for abuse or neglect. However, given the dependency of children on their parents and their vulnerability, they may not be able to avail themselves of protection under such a system.

It seems clear that, if children are to be protected from abuse and neglect, some adult will have to intervene on their behalf. I would propose recognizing a right for any person to petition for custody or guardianship of any child based on abuse or neglect by a custodian. I reckon that this would lead to the development of private charitable organizations devoted to child welfare issues, and that these organizations would fund petitions and provide services to children. These agencies would be superior to state bureaucracies in that they would depend for funding on satisfying the aims of their patrons and success in performing their mission. Moreover, there would be competition among such agencies for philanthropy, and the most effective would be more likely to survive.

The standards for what might constitute abuse or neglect warranting a change of custody or guardianship should be set high enough to discourage frivolous petitions but low enough to protect children from serious injury.

This proposal would permit us to dispense with intrusive, costly and ineffective child welfare agencies while providing a mechanism for removing children from dangerous homes.