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TCL > July 2012 Issue > Children’s Rights Under the Law

July 2012       Vol. 41, No. 7       Page  103
Review of Legal Resources

Children’s Rights Under the Law
Reviewed by Kara C. Martin

Review of Legal Resources is published to apprise attorneys of books and other resources that may be of interest to them. Readers wishing to make review suggestions, provide review copies, or write reviews should contact Leona Martínez at For a list of titles available for review at press time, see "Read a Book. Write a Review."

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Children’s Rights Under the Law

by Samuel M. Davis
459 pp.; $95
Oxford University Press, 2011
198 Madison Ave., New York, NY 10016
(800) 451-7556;

Reviewed by Kara C. Martin

Kara C. Martin is the Director of the Domestic Violence Program at the Rocky Mountain Children’s Law Center. From 2006 through 2011, she served as an Eighteenth Judicial District county and district court magistrate, handling domestic, civil, and criminal dockets—(303) 692-1165,

In Children’s Rights Under the Law, Samuel Davis examines the unique legal status of children in the many areas of private and public law that affect them. He traces the development of law, subject-by-subject, from traditional views to modern trends. Following are some of the questions addressed:

> Who should make decisions for children—children, parents, or the state?

> When is state intrusion into family life warranted?

> When is a child civilly liable for tortious conduct?

> What constitutional protections apply to children?

> When, if ever, should the law differentiate between children and adults, with respect to rights and responsibilities?

The book begins with a description of the historical and modern treatment of children in tort, contract, and property cases. It then focuses on constitutional perspectives regarding children, including U.S. Supreme Court decisions. Davis discusses the state’s authority to regulate the education of children, personal freedoms of children, First Amendment rights, school discipline, civil commitment, medical decision making, juvenile justice, and protection from inadequate parenting.

Throughout the book, Davis explores the historical perception that children, vulnerable and often determined to lack legal capacity, are perceived as incapable of acting for themselves and thus require protection from others, from harmful situations, and often from their own improvidence. The tension between parental rights to raise children and the state’s role, as parens patraie, to restrict parental control is apparent throughout this comprehensive consideration of a child’s legal status. Davis examines the extent to which the state intrudes into the lives of children and families, weighing the interests of family autonomy against the need for protection by increased intervention. He focuses more on what is, rather than his view of what ought to be, regarding the legal treatment of children.

This A-to-Z review of children and the law highlights our country’s inconsistent treatment of children from a legal perspective, with views toward children changing from one area of the law to the next. Even the U.S. Supreme Court has yet to develop an overriding consistent theory regarding the legal rights of children. Most of the Court’s decisions include narrow rulings with limited application.

Davis advocates for an examination of the relationship of the child to the state and for the development of a consistent, rational approach for determining when children should be regarded as adults. He also advocates for a uniform view of a child’s capacity to make decisions and be held responsible for his or her actions. As part of this examination, attention must be given to whether traditional assumptions remain valid, including assumptions regarding age restrictions, based on current scientific knowledge and social data. The author first suggests that state intervention, contrary to parental decisions and children’s wishes, is appropriate only to protect against significant harm or to help further state interests in areas such as child pornography, sexual exploitation, abuse or neglect, and school attendance. Second, the author suggests that children should be entitled to the same constitutional rights as adults—unless a paramount state interest that is inapplicable to adults applies, such as with juvenile curfew laws. Third, the author suggests that children of a certain age and with a demonstrated level of maturity should be permitted to enter into contracts, dispose of property, and work, and should be held responsible for their torts. This final suggestion would require a fact-specific, case-by-case determination.

By assembling this compendium of legal issues affecting children, Davis sets the stage for a meaningful dialogue about the appropriate interaction among children, parents, and the state as a precursor for the future development of children’s law. Because the rights, responsibilities, and liabilities of children intersect with most areas of law, practitioners from nearly every specialty will find Children’s Rights Under the Law a useful reference for analyzing legal issues. Those who regularly represent children will find this well-annotated work a valuable addition to the office library.

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