PARENS PATRIAE

Parens Patriae

By the turn of the 20th century, there was an air of reform in America. This reform movement was the basis for the idea that children had a special place in society. This movement promoted the realization that children, who were working alongside adults in factories and were being punished as adults, should not be treated with the same harshness as their laboring adult counterparts. The leaders of this movement, or child savers as they were known, argued that children should be sent to school, should not be working long hours in factories, and should not be subjected to the sentences of adult criminals. (Chesney & Shelden, 2004)

With this, today the child savers pushed for a separate juvenile justice system. It is from the efforts of these reformers that our modern-day juvenile justice system was born. The idea of Parens Patriae, or the government stepping in to care for wayward youth, was again called into action. The juvenile justice system, unlike the criminal justice system that was one of punishment, was one designed to focus on the best interests of the child.

In the United States, Parens Patriae doctrine has had its greatest application in the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their affairs. The state is the supreme guardian of all children within its jurisdiction, and state courts have the inherent power to intervene to protect the best interests of children whose welfare is jeopardized by controversies between parents. This inherent power is generally supplemented by legislative acts that define the scope of child protection in a state.

The state, acting as Parens Patriae, can make decisions regarding mental health treatment on behalf of one who is mentally incompetent to make the decision on his or her own behalf, but the extent of the state's intrusion is limited to reasonable and necessary treatment.

The doctrine of Parens Patriae has been expanded in the United States to permit the attorney general of a state to commence litigation for the benefit of state residents for federal antitrust violations (15 U.S.C.A. § 15c). This authority is intended to further the public trust, safeguard the general and economic welfare of a state's residents, protect residents from illegal practices, and assure that the benefits of federal law are not denied to the general population. (Fox, 1970)

The inherent philosophy of the juvenile justice system, as originally envisioned by its founders, is one of rehabilitation and treatment, not of retribution. It is from this understanding of the juvenile justice system that the term juvenile delinquency comes. Juvenile delinquents were those youths who had committed crimes and were now under the jurisdiction of the state. Under the juvenile justice system and Parens Patriae, the state was charged with rehabilitating. Juvenile delinquency is thus a fairly modern concept, as it is closely tied to the concept of childhood and adolescence in the 20th century. (U.S. Department of Justice, 2008)

Parens Patriae is also playing its role in Child Protective Services ...