THE INTERNATIONAL JOURNAL OF CHILDREN’S RIGHTS

International Journal of Children’s Rights 19 (2011) 705–713 brill.nl/chil

Book Reviews

Emily Buss and Mavis Maclean, Th e Law and Child Development , Farnham: Ashgate, 2010. 491 + XXV pages. ISBN 978-0-7546-2811-8. £145.00 (hb).

Th is is the second volume in Ashgate’s Library of Essays in Child Welfare and Development (the fi rst was reviewed in this journal in volume 17(3) – see Freeman, 2009 ). Were it not for the prohibitive price, this volume would fi nd its way to many student reading lists straight away. We are off ered 15 selected papers on the contribution that legal scholarship can make to understanding the role of law in the care and development of chil- dren. Some of the essays will be new to readers of this journal: others are already classics and regularly cited. A theme which emerges is the limit of eff ective legal action when children’s interests are in issue. Th ere is one essay on Australia: the remainder are about the English and U.S. legal systems. It is a pity that the emphasis is so Anglo-American: an article or two from Scandinavia or mainland civilian Europe would have off ered a fresh perspective. Th e papers most likely to appeal to readers of this journal are those that focus most specifi cally on children’s interests – those by Eekelaar, Reece and Mnookin. But there will not be many working in children’s rights not already familiar with these papers. I would particularly recommend the papers by Scott and Buss. Scott off ers a useful corrective to Article 1 of the UN Convention. Here is a critical examination of the binary approach, the drawing of a single bright line between childhood and adulthood. Emily Buss’s paper is also most valuable: it focuses on the eff ect of law on children’s development. It is her view that parents should be off ered substantial control over the upbringing to their children. Th is, she says, best serves the interests of children. Th is fi ts well with U.S. legal traditional think- ing: perhaps less so in other parts of the world. Buss pays only a little attention to children’s rights and, as is all too common amongst American writers cites only American authors (Holt, Hillary Rodham, Dwyer). Th e book continues with two essays on the primary principle that underlies most law which has developmental eff ects on children, namely the priority aff orded to children’s best interests. John Eekelaar’s essay will be familiar to most students of the subject. It is, and will remain, a ‘classic’. Although neither Article 3 or 12 is specifi cally mentioned, the essay is about the apparent confl ict between

© Koninklijke Brill NV, Leiden, 2011 DOI 10.1163/157181811X570663 706 Book Reviews / International Journal of Children’s Rights 19 (2011) 705–713 them, which Eekelaar resolves as well as anybody has. He shows a full account of children’s interests must aim to position ‘children to develop their own percep- tions of their well-being as they enter adulthood’. His view of best interests gives central importance to developing, and making space for, a child’s emerging ability to exercise autonomy. Helen Reece’s critique of the paramountcy principle fol- lows. Although it has never convinced me, and it is over-infl uenced by a concern to defend lesbian parents’ rights, it is probably the best sustained critique of the principle. Her most far-reaching criticism is that the principle privileges the indi- vidual child over society. Th e book then divides into private law issues, and public law issues. Th ere is a useful essay (by Hetherington, Bridges and Insabella) on the problems parental separation poses for children. Th ere are essays also on contact and residence dis- putes. Th is includes Mnookin’s oft-cited 1975 essay, still very timely. We are given some English empirical work (by Carol Smart and Vanessa May), and an interest- ing account of some Australian developments by Smyth (see also now Parkinson and Cashmore, 2008 , reviewed by Freeman, 2010 ). Th ere are fewer essays on public law questions. Barbara Bennett Woodhouse is represented by her essay ‘Are You My Mother?’. Th is focuses on race and ethnicity matching policies in adoption. In her view preference should be given to race- matched placements since these confi rm the value of a child’s sense of origin. Th is is contentious (Bartholet, 1991 ) and fuels much public interest, as the ‘Madonna saga’ illustrated recently. Th e next two essays are on child protection. Mary Hayes writes on evidence questions in child abuse. She is critical of English decisions which fail to protect children from child abuse. She looks for a balance between protecting children from future risk and unwarranted interference in children’s lives and those of their parents (see also Hayes, 1997 and Freeman, 2000 ). Caroline Keenan’s paper is the most obvious comparative law piece in the collection. She is of the view that U.S. law has been less sensitive to children’s rights (in particular for protection) than has the U.K. In my view both systems have failed children lamentably. Keenan wrote her piece before ‘Baby Peter’. She has now written the defi nitive text on child abuse with Laura Hoyano (2010). Two essays on juvenile justice follow. Both emanate from U.S. authors but this is where the similarity ends though the conclusions are broadly similar. Gary Melton in ‘Taking Gault Seriously’ attacks the concept of a separate juvenile court. His essay antedates the neuroscience literature (for example Carbone, 2011 ; Maroney, 2011) and needs to be read in the light of it. It would be interest- ing to see Melton’s reaction to Roper v. Simmons or Graham v. Florida . I found Fagan and Tyler more interesting. Th ey note that children are becoming more cynical about law, and their obligation to conform to law as they develop through adolescence. Th eir ‘legal socialisation’ is, it is hardly surprising to discover, aff ected