Law and child development in the UK
and the US
Emily Buss and Mavis Maclean
Purpose – This paper seeks to consider the inter-connections between law and child development,
particularly in the areas of child custody and child protection, in both the USA and the UK.
Design/methodology/approach – The paper is based on analysis of US and UK legal systems and
child developmental research.
Findings – Although the two legal systems have much in common in their approach to safeguarding
children’s welfare, there are also notable differences between them in terminology and in concept.
Whereas the USA places a greater emphasis on the rights, particularly autonomy rights, of both parents
and children, the UK justiﬁes its laws affecting children largely in terms of parental responsibility and
Originality/value – The paper argues that each of these legal regimes has something to learn from the
other and a reader interested in thinking about the relationship between child welfare and law will proﬁt
from considering the distinctions, as well as the commonalities, between the two regimes.
Keywords Allocating residence, Child custody, Child protection, Children’s rights, Child welfare,
Paramountcy principle, Parents, Parents’ rights
Paper type General review
In a recent contribution to the Library of Essays in Child Welfare and Development series
edited by Michael Little (Buss and Maclean, 2010), we gathered together and reﬂected on
key articles from the USA and the UK representing a broad variety of scholarly approaches
and substantive topics, ranging from theoretical considerations of children’s rights and
responsibilities to empirical studies of the effect of court processes on children’s outcomes.
All considered some combination of law’s effect on child development and child
development’s relevance to law, and all shared recognition that the law has considerable
difﬁculty addressing the interests of children effectively. In this paper, which draws on the
introduction to that volume, we ask why this is so? Taking as examples, the broad theoretical
framing of ‘‘rights’’ and ‘‘child welfare’’, and the speciﬁc legal questions of management of
post divorce parenting and the protection of children, we ask what each jurisdiction might
learn from the other.
The difﬁculty can be traced, in part, to the evolution of family law over time. Although ‘‘family
life’’ has long been seen as ‘‘essential to the evolution and growth of a viable society’’, and a
primary mechanism for the ‘‘the control of human behaviour’’, the key element in the
development of family law over the past half-century has been the emergence of individual
rights-based thinking (Katz et al., 2000). Where families were formerly viewed as a unit with a
single legal identity, husbands and wives are now treated as individuals with distinct
interests to assert, not only against the state, but at times also against one another (Glendon,
1989; Katz et al., 2000). The way this splintering of legal interests has affected the law
governing children is complex and still evolving.
JOURNAL OF CHILDREN’S SERVICES
VOL. 6 NO. 4 2011, pp. 236-247, Q Emerald Group Publishing Limited, ISSN 1746-6660 DOI 10.1108/17466661111190938
Emily Buss is a Professor of
Law at the University of
Chicago Law School,
Chicago, Illinois, USA.
Mavis Maclean is a Director
of the Oxford Centre for
Family Law Policy,
University of Oxford,