The case of Alfie Evans and the best-interests-of-the-child standard

British law gives more of a share in decision-making about children’s lives to the state, and less to the parents, than is typical in American law. I like American law better. [Damian Thompson, The Spectator]

A reader recommends this piece by barrister Matthew Scott in Quillette defending the British authorities’ actions. While it fills in much useful detail, I’m not at all persuaded on the central issue of whether it was proper for British law in 1989 to oust parental rights from areas in which they had been long respected, all in the name of the best interests of the child as discerned by courts, experts, and the state. In my first book, The Litigation Explosion, I argued against the specious attractions of a best-interest-of-the-child standard in the child custody modification context, pointing out that to upset an existing decree of custody it should be needful to allege something stronger than that the child would be marginally better off with a switch, or that the case for a switch was supported by marginally better expert avowals than the case for leaving custody where it was. Instead, presumptions of stability and family integrity should be respected, to be overcome only by a strong showing of likely substantial harm from not switching. Likewise, the presumption that parents are the ones to direct their infant children’s medical care should be a strong one, rebuttable to be sure in some cases of wretched or misguided parental errancy, but not simply by rhetorical flourishes, even when embodied in law, about how the best interests of the child must conquer all and we determine what those are.

For examples of the narrower scope of parental rights in the United Kingdom and its subdivisions, see this 2015 story (parents warned they may be reported for neglect if they allow under-18s to play adult-themed videogames such as Call of Duty and Grand Theft Auto); this from 2009 (seven children seized from obese couple in Scotland; but note American trends too); and the Scottish Named Persons scheme. More on expertise and best-interests-of-the-child standards: Megan McArdle, Jim Geraghty.

Filed under: child protection, children's rights, United Kingdom

Guestblogger archive week: I

Over the years about thirty friends and acquaintances have contributed their talents as guestbloggers at Overlawyered, typically posting over the span of a week while I’m away from my duties. I’d like to use this week to tell what some of them are doing now, highlight a few of their contributions, and I hope at least mention the names and link the author archives of all of them.

Ron Coleman, an IP and media law attorney attorney in greater New York, writes the excellent and longstanding Likelihood of Confusion blog on trademarks, copyrights, Internet law and free speech, from which I’ve learned a lot over the years. He’s guestblogged for us twice, covering such issues as a New York male attorney’s discrimination suit against ladies’ night discounts at bars; a suit in Romania by a prison inmate purportedly against God Himself (“He has some issues, only not justiciable ones, it seems”); and a lawsuit by NBA players over depictions of their lady interests on a VH1 show called “Basketball Wives.” His full archive is here (law-oriented and personal Twitter).

When he guestblogged for us, Will Baude was a student at the University of Chicago Law School. He’s now on its faculty, teaching federal courts and constitutional law, after doing things like clerking for appellate judge Michael McConnell and Chief Justice John Roberts. Last week he was a guestblogger at Volokh Conspiracy about his work on the law of interpretation, statutory and otherwise; sample posts here and here. During his guest week at Overlawyered he covered a dispute over whether a California city should sue over a reference to its citizens as “white trash” on a popular TV show, “The O.C.”, and wrote on popular schemes (popular in philosophical circles, at least) “to extend the right to vote to children of any age.” Full archive here (Twitter).

Pasadena attorney George M. Wallace wrote the excellent insurance law blog Declarations and Exclusions through 2013, and continues to blog on non-legal subjects at A Fool in the Forest. In his time with us he covered an advisory in the L.A. city attorney’s office on “how they should recognize a newsworthy legal case. Public safety? Important public issue at stake? Nah, this is L.A. Number one is any case involving a celebrity — ‘no matter how minor’ — followed closely by a politician. Death, mutilation, child molestation or animal cruelty are also sure bets.” And he wrote — this nearly ten years ago — about the legal showdown between TV personality Rosie O’Donnell and Donald Trump. Full archive here (Twitter).

Because I’m expecting some down time in my own blogging in coming months, I invite volunteers (and of course repeat volunteers) who might like to guestblog in this space this summer and fall. Email editor – (at) – overlawyered – (dot) – com.

Filed under: best of, children's rights, Donald Trump, guestbloggers, Los Angeles

Consent decrees: the cost to kids

13 years after Ross Sandler and David Schoenbrod’s groundbreaking book Democracy by Decree, small groups of litigators, experts, special masters and other insiders continue to run many government agencies under what are known as consent decrees, court-enforced agreements to resolve litigation. Children’s services are particularly affected: “the Illinois child-welfare system is burdened by 10 different consent decrees, including one that has lasted nearly 40 years.” But the decrees often work against the real interests of the intended beneficiaries, argue Maura Corrigan and John Bursch in a paper for the American Enterprise Institute. By design, it is made hard to get out from under a decree, which can leave the small controlling group in control indefinitely: Connecticut’s 25-year-old child-welfare consent decree “contains 22 outcome measures that all must be met and sustained for six months before exit,” which has never happened.

Filed under: children's rights, Connecticut, consent decrees, Illinois

California moves to raise smoking age to 21

Which won’t, of course, be the last step as prohibitionists work out the implications of what they call a “tobacco-free” America. But it does at least raise a slogan-atic question: Old enough to fight, old enough to vote, why not old enough to drink and smoke too? [Debra Saunders, San Francisco Chronicle, who also reminds us that for all the nostalgic talk of Reagan and individual liberty, Reagan was the one who signed the bill (passed by a GOP Senate) arm-twisting states into putting the drinking age up to 21]

Filed under: alcohol, California, children's rights, tobacco

Better stay home with your parents, kid

Watch out for this soon to be up-and-coming Safety First proposal, as outlined by Vivian Hamilton of William and Mary Law: raising the driving age from 16 to 18. [Concurring Opinions]

Filed under: children's rights, safety, traffic laws

International law roundup

Supreme Court orders rebriefing in Kiobel v. Royal Dutch Petroleum case, could address extent of permitted extraterritoriality in Alien Tort Statute [Kenneth Anderson/Volokh quoting John Bellinger, Point of Law featured discussion, Ilya Shapiro on Cato brief]
UN “food rights” official: trade, investment pacts should not go forward without “human rights impact assessments” [De Schutter; his paternalist food-policy agenda] UN panel reviews Canada’s record on race, lectures on need for more multiculturalism [OHCHR]
Courts still reluctant to restrain parents’ physical discipline of kids, but UN Convention on the Rights of the Child, for which ratification push is expected in the U.S. this year, could change that [Elizabeth Wilson, ConcurOp]
Golan v. Holder: “Copyright Case May Have Profound Effect on Treaty Power” [Ilya Shapiro, Jurist]
Web accessibility litigation spreads to UK [Disability Law, related on role of U.N. Convention on the Rights of Persons with Disabilities, earlier and background]
New tone under Ambassador Joseph Torsella: “Obama Comes Around on U.N. Reform” [Brett Schaefer, NRO]
Reviewing new John Fonte book Sovereignty or Submission, Temple lawprof Peter Spiro contends that trend toward transnational governance isn’t “reversible…. It’s mostly wishful thinking to suppose that we can stick to the vision of the Founders.” [OJ, earlier here, etc., and see chapters 11-12 of Schools for Misrule]
Dante’s Divine Comedy “offensive and should be banned,” per UN anti-discrimination consultancy [Telegraph]

Filed under: Alien Tort Claims Act, children's rights, international human rights, international law, United Nations, web accessibility

August 12 roundup

More reviews of Schools for Misrule: Counterpoint (U. of Chicago), Wilson Trivino at PurePolitics.com;
“Cops Collar 12 Year Old for “Walking Alone” in Downtown Toronto” [Free-Range Kids] Cop tells mom kids under ten “by law are not allowed outside unsupervised except in their parents’ yard.” [western Maryland, same]
As lawmakers seek budget cuts, school finance litigators are on the march to counter their plans [WSJ Law Blog]
Wouldn’t waive regs: “U.S. blocks $1 million Italian supercar” [CNN Money]
You see, entrepreneurial suit-filing does create jobs: “Hike in Wage-and-Hour Litigation Spurs Demand for Calif. Employment Law Associates” [ABA Journal] How U.S. Congress devastated American Samoa through minimum wage hikes [Mark Perry]
CCAF objects in Sirius class action settlement [PoL, earlier]
“The Phantom Menace of Sleep Deprived Doctors” [Darshak Sanghavi, NY Times Magazine]

Filed under: autos, children's rights, class action settlements, hospitals, Italy, law schools, schools, Schools for Misrule, wage and hour suits

Update: “Quebec dad sued by daughter after grounding loses his appeal”

“A Quebec father who was taken to court by his 12-year-old daughter after he grounded her in June 2008 has lost his appeal.” [CBC] For some reason the litigation has not done wonders for family harmony:

The girl — who now lives with her mother — doesn’t have much of a relationship with her dad now, [attorney Kim] Beaudoin said.

“We went from a child who wanted to live with her father, and after all this has been done, they’re not speaking anymore.”

Filed under: Canada, children's rights, divorce

“Divorce, Connecticut-Style”

One Westport split cost the divorcing couple an estimated $13 million. It differed in degree, but not really in kind, from many lesser domestic catastrophes: “Divorcing couples in Connecticut regularly rack up bank-busting legal bills that can put the lesser earning party — and there often is an economic imbalance between warring couples — into bankruptcy. … the most expensive and sought-after divorce attorneys are commonly referred to as ‘junkyard dogs.'” Then there are the hefty sums you may be forced to hand over to lawyers who get themselves appointed guardians ad litem, to represent your kids against, well, you and your ex (Daniel D’Ambrosio, Hartford Advocate, Jul. 24).

Filed under: children's rights, Connecticut, divorce, family law

Canada: court overturns parent’s grounding of 12-year-old

The father wouldn’t let her go on a school trip because he said she’d been acting up, including using a friend’s account to post inappropriate pictures on a dating site. “But [Quebec Superior Court] Justice Suzanne Tessier, who was presiding over the case, found the punishment too severe.” The mother, who is divorced from the father, was supporting the girl; the school’s policy was that both parents’ permission was required for such trips. According to a lawyer involved in the case, the father has legal custody but the girl has been living with her mother for the past month. (AFP/FoxNews.com, Globe and Mail, Eugene Volokh). Plus: Token Conservative suggests a new writ of “habeas bratus”.

Filed under: Canada, children's rights, divorce