In the Best Interests of an Indian Child: The Indian Child Welfare Act

Before passage of the Indian Child Welfare Act in 1978, state, private, and federal agencies systematically removed Indian children from their families and tribal communities, placing them with non‐Indian families with little appreciation for the detrimental impact that cultural deprivation would have on these children. State courts often ignored the sovereign authority of tribal courts with regard to their children, and were, more often than not, unwilling to acknowledge the importance of the perspective of the child's tribe and/or extended family members. With passage of the Indian Child Welfare Act in 1978, Congress imposed upon state child welfare practices substantive and procedural requirements to which state courts must adhere, most notably the mandate that state courts must now give primary consideration to the placement of Indian children within their extended families and tribal communities. In addition, federal law requires state courts to recognize tribal court authority and jurisdiction over tribal children. This article reviews the history of federal, state, and private practices that propelled Congress to pass the ICWA, the changes that have resulted from this vital legislation, and the challenges that face courts in ensuring that state courts meet these requirements.     

Exploring Indian Child Welfare Act implementation and case outcomes

Despite the passage of the Indian Child Welfare Act (ICWA) more than four decades ago, little is known about how or how well it is being implemented into practice by the state courts or how implementation may be related to improved outcomes for Indian children and families. This study explores how ICWA implementation in five state court sites is related to case outcomes. One hundred and fifty-one ICWA cases were reviewed for factors including active efforts findings, tribal presence at hearings, use of qualified expert witness (QEW) testimony, notice, and confirmation of ICWA status. Results are mixed. Specific ICWA implementation measures and aggregate measures were mostly not related to outcomes, but early implementation, such as having the tribe present at the first hearing, did appear related to timely permanency. Implications of these findings and future research directions are discussed.     

Clashing Rights, the Welfare of the Child and the Human Rights Act

Under the Human Rights Act so far there has been until very recently little judicial or even academic recognition of the difference between resolving clashes of Convention rights and addressing conflicts between utilitarian concerns and such rights. This article has chosen to illustrate that failure of recognition and to consider methods of resolving the conflict between rights, by concentrating on one particular clash of rights – that between media free speech under Article 10 and the privacy of children under Article 8. It argues for presumptive equality for the two rights and for conducting a 'parallel analysis' of their application to the circumstances of a particular case. It contends that therefore the principle that the child's welfare is paramount must be abandoned in its present form, as must the presumptive priority accorded to Article 10 where that principle is not found to apply.     

Child protection under the Children Act 1989: Prevention rather than care?

I owe a debt of gratitude to Professors Hugh Bevan and Michael Freeman for reading and commenting helpfully on earlier drafts. The usualcaveat applies.     

Protecting Childhood: Rights,Social Goals and the First Amendment in the Context of the Child Online Protection Act

In Dun & Bradstreet v. Greenmoss Builders, the Supreme Court of the United States reintroduced a subject matter test into libel law, holding that private figures defamed in the discussion of matters of private concern did not need to prove actual malice to collect punitive or presumed damages. The sweeping language of some of opinions, coupled with the Supreme Court's references to subject matter in subsequent cases, led to confusion over whether and how constitutional protections apply in private plaintiff-private issue cases. This article explores how lower federal and state appellate courts have interpreted Dun & Bradstreet and offers three alternate solutions to appropriately balance the First Amendment rights of defendants with the reputational interests of private plaintiffs in cases arising from the discussion of matters of private concern.     

Infanticide, physicians, and the law: the "Baby Doe" amendments to the Child Abuse Prevention and Treatment Act

Infanticide, like most other species of homicide, is probably coeval with the human race itself. In modern Western civilization, what were formerly the most powerful incentives to infanticide have virtually disappeared. As with other social problems that affluence has seemed to solve, however, infanticide has reappeared in a new form that seems to have been made possible by affluence itself. This "new infanticide" occurs in a place whose very existence is the result of a tremendously wealthy society's devotion to its most vulnerable and least "useful" members. The modern neonatal intensive care unit, which treats, and often saves, extremely ill newborn children, who during most of history would surely have died, has proven to be a setting where many of the age-old incentives for infanticide have begun to operate again. The "new infanticide" consists of withholding food or needed medical treatment from selected infants who suffer from one or more serious, though treatable, medical problems. The national government has now enacted legislation designed to curtail the practice of infanticide by the medical profession. This paper traces the genesis of that legislation, explores the problem to which it is addressed, and evaluates its prospects for success.     

"Son Of CDA": The Constitutionality Of The Child Online Protection Act Of 1998

In 1998, Congress passed a second law to regulate online content in the name of protecting children. Although the Child Online Protection Act is arguably a more narrowly tailored approach to protecting children from online indecency than the Communications Decency Act of 1996, the COPA still suppresses a large amount of speech that adults have a constitutional right to receive. This article explains the two laws, analyzes how courts have treated them and finds that while there are slight differences between the two laws, the courts have thus far held that these differences are insignificant compared to their shared constitutional defects. The article recommends that Congress stop attempting to enact laws that technology and parental control make unnecessary and that would harm freedom of expression.     

Strategizing for the Future through the Civil Partnership Act

Using Fraser's 'status model of recognition' as the conceptual lens through which to view the 'misrecognition' of gay and lesbian relationships, this paper assesses the value of the Civil Partnership Act in light of family law policy and gay and lesbian politics. The second section considers the context of Northern Ireland where the issue is complicated by prevailing moral conservatism and the historical reductionism in the politics of identity.     

Finding a Safer Harbor: Mandating Health Care Clinics to Intervene in Child Sex Trafficking by Amending the Safe Harbor Act

When it comes to child sex trafficking, health care clinics have become spaces of duality. While these facilities provide medical care to child victims, many argue that this facilitates traffickers in concealing evidence of child sex trafficking. This Note proposes an amendment to New York's Safe Harbor Act and various sections of the Social Services Law to cure legislative ambiguity with respect to health care clinics. The amendment will mandate that all state‐run health care clinics implement a uniform process, utilizing mental health professionals and a standardized interview process, to identify and report instances of potential child sex trafficking.