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If we agree on the ends of political education, we may yet disagree about what the state may permissibly do to prosecute those ends. Disagreement on the latter is often prompted by considerations of parents’ rights. By according a necessary role to autonomy among the ends of political education, the theory defended in this book conflicts with the educational aspirations, and hence potentially with the rights, of parents who seek to perpetuate a way of life at odds with the demands of autonomy. It is shown that if a liberal political education respects the rights of children, it will at least require a degree of autonomous development necessary to surmount the state of ethical servility.

This chapter begins with the cases of Baby Jessica and Baby Richard, in which couples believed they had adopted a child but had dealt only with the biological mother. In each, the biological father later emerged and demanded the child he said was his. The chapter argues against the view that judges should decide such cases solely according to the best interests of the child. Rather, it contends, the biological father in these cases are entitled to special standing, although not because children are the property of their biological parents. The key instead is that to create a child is to begin to act as the child's parent, and we have a general right to continue anything we begin as long as we violated no rights in beginning it and violate none in continuing. On this view, the rights of biological parents are liberty rights, not property rights.

If by “fundamental” we designate rights with a deep historical pedigree, the right to parent free from state interference cannot be numbered among them. The American legal tradition is one that treated paternal absolutism and its rights foundation as barbaric. This is nowhere better seen than in child custody cases, where courts challenged first paternal authority, and then parental control of the child generally. Custodial authority, it was maintained by jurists and legal theoreticians alike, “is not the natural right of the parents; it emanates from the State, and is an exercise of police power.” Far from being absolute, the right to parent was not even the courts’ primary consideration. “The true view,” stated one court, “is that the rights of the child are alone to be considered.” The prevailing legal currents, driven by the equitable force of trust principles, swept away claims of right advanced to support parental power.

The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding—including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel—supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right” at all, let alone a fundamental one.

Chapter 6 surveys the activities of parents and their allies across the United States. It describes a new bill of rights for parents embroiled in the child welfare system, and focuses on three areas: parent organizing to reform child welfare policy, legal representation for parents in family court, and the work of the Annie E. Casey Foundation and Casey Family Programs in promoting parents as mentors for mothers and fathers struggling to be reunited with their children in U.S. cities.

This chapter defends a sufficientarian approach to parental rights, arguing for a particular account of the good enough upbringing, which should be a condition of holding parental rights that takes into account both the interests of the child and the parent. The chapter discusses views abuse or neglect the child’s best interests as conditions attached to parental rights concluding that neither are satisfactory. The chapter argues that parental rights are conditional on not being excessively worse than the best available parent, where excess is determine by the importance of a better upbringing to the child. The chapter discusses this view in relation to practical guidelines used to determine parental rights.

The chapter provides an overview of the dysfunctions in the French child protection system which highlights the importance and complexity of the system. It has been built on institutions whose spheres of activity evolve (justice, welfare, healthcare) and on professions that defend their own skills and codes of conduct (social professionals, psychologists, lawyers, doctors etc.). However, it also reflects a series of specific and evolving rules and values: for example, the importance of parents, even where they have been identified as ‘failed’; the rejection of paedophilia; attaching importance to what children say. Cooperation among the different sectors and the coexistence of different standards has given rise to misunderstandings and flaws in the system. Despite all precautions, children continue to lack protection from their parents and to suffer. However, the attention paid to children, their experiences and their views have continuously increased in France and elsewhere in Europe. This has been accompanied by greater sensitivity to tragedies. It is this increased awareness that leads to better identification of the system’s weaknesses and, on the whole, to improving standards, laws and practices to strengthen protection and consider everyone’s rights.

This chapter explores the topic of whether we should institute some kind of parental licensing scheme, that is, require biological parents to demonstrate certain competence and character before they are permitted to parent their biological children. Existing concerns regarding parental licensing tend to be practical concerns such as whether there can be a reliable way of determining who is a competent parent and whether the parental licensing scheme can be enforced. These practical concerns leave open the possibility that parental licensing is theoretically correct. This chapter presents a new, theoretical case against parental licensing. In particular, it is argued that biological parenting should not be licensed because biological parenting is a fundamental (human) right and fundamental rights should not be licensed.

This chapter discusses how campaigns for local control of curriculum surged nationwide in the late 1970s. Conservatives often championed both the rights of school boards and those of individual parents, combining two seemingly contradictory interpretations of local control—one based on the principle of majority rule and the other on minority rights. These positions began to diverge during the late 1970s as courts limited the ability of local majorities to determine curriculum and strengthened the rights of individual parents, students, and teachers. The legal shift decoupled not only conflicting notions of democracy but the conservative movement's “radical” and “respectable” segments as well.

We expect decent parents will discharge their responsibilities to children properly and exercise their authority over children in a reasonable fashion. However, some would-be parents are either unable or unwilling to be decent parents. Such people fail to meet standards of parental competency, and their right either to become parents with authority over children or to continue as parents can be called into question. Although some failures of parental competency are obvious, there are significant controversies about what constitutes decent parenting. This chapter explores parental competency along three dimensions. First, what are the principal elements of a satisfactory account of parental competency? Second, to what degree are there feasible strategies for tracking both prospective parental competency and actual parental competency? Third, how are judgments of parental competency (whether prospective or actual) relevant to determining who has either a right to become a parent or the right to continue as parent?

This chapter explores deceit between family members who are not connected to each other as spouses, sexual partners, or romantic interests. The premise that the law should protect intimate deceivers still appears here, but is almost exclusively confined to cases considering parents who have deceived their children—including their adult children. Judges are often unwilling to penalize deceptive parents and quick to blame children for having been duped. When the parties are reversed, however, courts are frequently eager to grant remedies to parents suing deceitful adult children and willing to empower parents to inflict their own penalties on deceptive children below the age of majority. Moreover, when courts move beyond marital and parental relationships to consider deception by other relatives, they routinely presume that the judiciary should treat these family members—deceitful siblings, aunts, uncles, nieces, nephews, and the like—as if they were unrelated to the people they deceived.

Two matters are discussed, a case from South Africa and a report from Australia. In Jooste v Botha 2000 (2) SA 199 a claim for damages lack of parental love was rejected and the constitutional point discussed about whether a breach of the South African constitution can lead to damages in a claim between private individuals. The Australian report on the Family Law Reform Act 1995 (similar to the Children (Scotland) Act 1995) highlights a number of disappointments with its operation, in particular the fact that recognising joint rights in parenting after separation has led to an increase rather than a decrease in legal disputes over children between parents.

This chapter provides a critical overview and discussion of compulsory intervention in family life in England, specifically regarding care proceedings and adoption. The chapter also considers the voluntary accommodation of children. Recent statistics are provided regarding the various long-term placement options for children, which include foster care as well as family and friends care. The chapter outlines the concept of significant harm under the Children Act 1989 and considers issues in determining the thresholds for compulsory action. Given the priority placed in England on adoption as the preferred permanency option for infants and young children who are unable to return to birth families, the chapter also considers the contested matter of permanent severance of parental rights. Finally, the chapter turns to alternative court models with reference to the Family Drug and Alcohol Court (FDAC) in England.

The 1990 UN Convention on the Rights of the Child (CRC) has been ratified by all nations except the United States. The reasons for the US refusal have to do with national sovereignty and the alleged conflict of children’s rights with the rights of parents. Both are explored here. The CRC advances children’s rights by making protection and provision rights universal for all children, but also by adding the “third P,” rights of participation. Rights of participation (Article 12) in decisions that affect them give children for the first time the public agency to be heard in decision-making forums concerned with protecting the “best interests” of the child. Allowing children into the public realm challenges Arendt’s insistence that child security must keep them in the private sphere and away from politics.