The trend in child welfare has been to err on the side of protection, often considered erring on the side of the child. While this approach may have been appropriate to overcome a long history of State abstinence from involvement in the family domain, it has been under-inclusive in protecting the child's fundamental right to a parent-child relationship. A delicate balance must be struck between family autonomy and State intervention. This balance is best achieved in the family court when the child's best interest is represented and the family is addressed as a whole. Under traditional criminal procedure, which focuses on the parent-defendant versus the State, one of these two parties is presumed to represent the child's best interest. This presumption effectively precludes the notion that the child may have an interest that is independent of either the parent or the State. The result has left the child voiceless, dependent on the judgment of the parent, the State or a court. This judgment will always by under-informed without input from the child. The criminal justice system, by focusing on the parent's claims against the State and the State's interest in child protection, is inadequate in accommodating the constitutional rights of the child to self-determination. Neglect is more appropriately adjudicated under the FCA, which considers the best interests of the child first and foremost, and which strives for family preservation.
Alison B. Vreeland,
The Criminalization Of Child Welfare In New York City: Sparing The Child Or Spoiling The Family?,
27 Fordham Urb. L.J. 1053
Available at: http://ir.lawnet.fordham.edu/ulj/vol27/iss3/11