The state's claim that it can represent children's interests plays a significant role in defining the structure of families, the relationships within families, and the development of children's interests. This paper explores three different contexts involving the state and the contested nature of how the interests of minors are represented in both national and international law: first, in restricting the abortion rights of minors, the state claims to be protecting them; second, in allowing parents to decide who will act as caretaker for their children if both parents are dead, the state defers to parents' wishes; and third, in dysfunctional countries, where the state cannot protect children and the exercise of rights in court is virtually meaningless, it is non-governmental organizations who speak on behalf of minors. In examining the state's role in speaking for children, this article serves as a critique and a defense. The state's actions and efficacy in advocating the interests of minors is context-dependent; there are contexts in which the state's stated agenda of protecting children really is primary, while in other situations, there is another agenda altogether - or the state may be altogether incapable of acting at all. The paper argues that the state may be serving its own interest when it claims to be acting in a child's best interest, as when it regulates minors' abortions; it may be according primary value to children's interests, as is the case with guardians appointed once both parents are dead; or the state may be completely unable to serve anyone's interests. Children have different needs for third party understanding of their situations, depending on the posture of state, parent, and other institutional actors. Ultimately, the paradigmatic state/parent/child triangle must include, at a minimum, civil society and other non-governmental actors.
GW Paper Series
GWU Law School Public Law Research Paper No. 212; GWU Legal Studies Research Paper No. 212
Naomi Cahn, State Representation of Children's Interests, 40 Fam. L.Q. 109 (2006).