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Additionally, it is difficult for children to advocate for themselves because throughout
history, children’s rights have been curtailed and they have been unable to fully participate in
society as they are seen as lacking the capacity to make their own decisions.13 Originally, in
America children were treated like property of their parents and valued for what they could provide
to the family.14 While the nation has moved away from the proprietary conception of the parent-child relationship, children’s rights are still abridged when they are seen as inferior to adults
because they have less power in determining their own future.15 Parents are given both the right
and the duty to raise their children; therefore, while children are no longer seen as their parents’
property, they are still seen as an extension of their parents.16
When parents shirk their duty to parent, their right to do so is compromised.17 When this
happens, the state must step in with the parens patriae power, meaning “parent of the country.”18
This doctrine originated in England in the sixteenth century and gave the courts both the right and
the responsibility to care for people who were unable to care for themselves, specifically the right
to intervene when parents were not adequately caring for their child.19 This power was affirmed
in the United States in Ex Parte Crouse, which stated it is in the interest of the state to raise the
child if the parents are unable or unwilling to do so.20 However, given the flaws in the system and
its inability to take the children’s perspective into consideration, its ability to step in as a parent
under the parens patriae doctrine is hindered.
A child’s entry into the child welfare system is another barrier these children have to
advocating for their needs. It is already difficult for children to advocate for themselves in the
legal system given their reduced position in society. They are not considered responsible enough
to do certain things, such as vote or enter into contracts, until they reach adulthood, which is
typically eighteen years old.21 There are also some things that children can only do with adult
permission or assistance, such as initiate legal action.22 While in some cases children are allowed
to testify in court cases, they are not allowed to file lawsuits without parental assistance.23
When children’s rights are less than those of adults, it becomes very difficult for them to
fight for themselves, particularly within a court of law. While some states—like Illinois—appoint
attorneys or guardians ad litem (GALs) to children once they enter the court system through child
protective services, this is not the only time children could benefit from representation.24 While
these appointed attorneys are advocating for the child’s rights and best interest within the particular
13 Anne C. Dailey, Children’s Constitutional Rights, 96 MINN. L. REV. 2099, 2101 (2011).
14 Joan B. Kelly, The Determination of Child Custody, 4 THE FUTURE OF CHILD. 121, 121-22 (1994),
15 Michael S. Wald, Children’s Rights: A Framework for Analysis, 12 U.C. DAVIS L. REV. 255, 256 (1979).
17 See generally Pierce v. Society of Sisters, 268 U.S. 510 (1925).
18 DOUGLAS E. ABRAMS, A VERY SPECIAL PLACE IN LIFE: THE HISTORY OF JUVENILE JUSTICE IN MISSOURI 4-6
19 Gregory Thomas, Limitations on Parens Patriae: The State and the Parent/Child Relationship, 16 J. CONTEMP.
LEGAL ISSUES 51, 52-55 (2007).
20 Ex parte Crouse, 4 Whart. 9, 10 (Pa. 1839).
21 RESTATEMENT (SECOND) OF CONTRACTS § 12 (AM. LAW INST. 1981).
22 See generally Am. Acad. of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997) (discussing minors and permission for
23 See generally Stephanie Rabiner, Why Can’t Minors File Lawsuits?, FINDLAW (Apr. 17, 2012),
24 750 ILL. COMP. STAT. ANN. § 5/506.