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Juvenile Law 101

By Thomas Wade Young

Children and youth evoke an array of emotions in adults, but few adults realize the broad range of legal issues that affect the daily lives of children. Society’s general lack of appreciation for the legal needs of children stems largely from assumptions arising from children’s lack of legal capacity and general dependence on adults.

Many lawyers overlook the rights and needs of children for the same reasons. The fact that children most often have neither wealth nor access to attorneys also accounts for the underrepresentation of children and youth.

Many parents also allow their children’s rights and interests to go unrepresented either because of conflicting interests, because they do not know the extent of their children’s rights, or because they cannot afford legal representation.

If pressed to identify a legal issue unique to children, some might stumble across general concepts of delinquency or foster care. But most would stop short of connecting the rights of children in state custody to mental health and developmental disability services, educational stability, sibling contact, and other services.

The rights of children and youth are many and include such rights as freedom of speech and association, due process, and special education services in school; rights in immigration proceedings; and the right of mature minors to assert statutory privileges to protect the confidentiality of their medical, mental health, or substance abuse records.

Today, there is no dispute that “[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution, and possess constitutional rights.” [1] “[M]inors have independent protected liberty and privacy interests that cannot simply be ignored … children are not to be considered mere possessions to be manipulated by those who claim to possess more mature thought processes.” [2]

Although the existence of children’s rights is beyond dispute today, the area of law called children’s rights remains largely undeveloped and will continue to evolve in the decades to come. An example of the evolution of children’s rights over time can be seen through comparison of cases decided by courts in Florida and West Virginia 13 years apart.

In 1993, a Florida appellate court recognized the ability of a child to “divorce” his parents by seeking the termination of his parent’s parental rights, but the court determined that the child lacked the capacity to file a termination petition in his own right. [3] Rather, the court said, the child had to file the petition through a guardian or “next friend,” who may be any “adult person of reasonable judgment and integrity.” [4] The court characterized the next friend rule as a procedural rule the child must invoke to pursue a cause of action. [5]

Thirteen years later, in a domestic violence case initiated by a 15-year-old boy, [6] the West Virginia Supreme Court of Appeals reached a similar conclusion and lowered the procedural hurdle in so doing. Without departing from the historical rule that minors must proceed through a guardian or next friend, the West Virginia court held that, when a minor files a petition without a guardian or next friend, the trial court must immediately appoint a guardian ad litem.

At first glance, the distinction between the West Virginia and Florida decisions appears slight, but in practice, the difference can be fundamental—dismissal versus a hearing on the merits. [7]

The origin of children’s rights in the United States dates to the nineteenth century House of Refuge Movement, a child welfare movement more about paternalism than rights. For a comprehensive overview of the development of children’s law in England and the United States, see “From Cause to Profession: The Development of Children’s Law and Practice” [PDF] in the January 2003 edition of The Colorado Lawyer. Judge Robert M. Murphy also wrote an excellent review titled “Random Overview of Issues in the World of Child Protection” for the Summer 2006 edition of Children’s Rights, the newsletter of the Section of Litigation’s Children’s Rights Litigation Committee.

The child welfare movement eventually led to the creation of juvenile courts, with Illinois creating the first in 1899 and all but three states following suit over the next 20 years. Almost seven decades later, juvenile courts were transformed by the U.S. Supreme Court’s landmark decision In re Gault, 387 U.S. 1 (1967), which declared that children and youth accused of delinquent acts possess the constitutional right to due process protections—in that case, appointed counsel.

Since Gault, the Supreme Court has expanded the scope and understanding of children’s rights in such contexts as free speech, searches and seizures, education, child welfare, mental health confinement, and the death penalty. The Section of Litigation’s Children’s Rights Litigation Committee’s website includes summaries of many of these landmark decisions.

Congress and state courts and legislatures across the country have also expanded the rights available to children and youth in matters of education, immigration, child welfare, family law, and delinquency.

The American Bar Association is a leader in the ongoing development of children’s rights, and the Section of Litigation’s Children’s Rights Litigation Committee is a substantial contributor to the efforts of the ABA. The committee strives to improve the lives of millions of American children and youth through education and by promoting awareness of the vast need for effective legal representation.


  1. Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976).
  2. N. Fla.Women’s Health & Counseling Serv., Inc. v. State, 866 So. 2d 612 (Fla. 2003) (Lewis, J., concurring in result only).
  3. Kingsley v. Kingsley, 623 So. 2d 780 (Fla. 5th DCA 1993).
  4. Id. at 783–784.
  5. Id. at 784.
  6. B.T. v. Jackson, No. 05-C-108, 2006 W. Va. LEXIS 119 (W.V. Ct. App. Nov. 30, 2006).
  7. In fairness to the Florida court, the boy involved was represented by an attorney ad litem who inexplicably failed to file the petition as a next friend. See 623 So. 2d at 783, n. 4. The issue of the trial court directing the attorney ad litem to file in a next friend capacity was not addressed.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

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