Childhood is often treated in law as a natural and universal stage of life, yet critical scholarship shows it to be historically and socially constructed. Historians such as Philippe Ariès argued that “childhood” as a distinct phase only emerged in early modern Europe (Ariès, 1960), while sociologists have shown how education, welfare, and criminal justice institutions actively produce and police the category (James & James, 2004).
This matters because legal frameworks constantly rely on contested definitions of childhood. In family law, childhood grounds doctrines of parental authority, custody, and best interests. In child protection, it legitimises state intervention, often based on assumptions of vulnerability and dependency. In criminal law, boundaries of childhood shape the minimum age of responsibility, age assessment in migration, and sentencing policies. These sites reveal that childhood is not only descriptive but regulatory: law both defines who counts as a child and allocates rights and duties accordingly.
Critical perspectives show how these definitions embed wider power structures. Feminist scholars critique developmental psychology and welfare law for privileging Western, middle-class norms (Burman, 1994). Racial and postcolonial studies demonstrate how childhood has been unequally distributed, with enslaved or racialised children historically denied the protections of “innocence” (King, 1995/2011). Legal analysis shows how courts have variously imagined children as parental property, vulnerable wards of the state, or independent rights-bearers (Tobin, 2012). Hedi Viterbo highlights that law sustains childhood as a fluid and contested category, one that enables protection but also legitimises control (Viterbo, 2024).
Case Example 1: Child protection and the best interests principle: When courts decide whether to remove a child from parental care, they must define the best interests of the child in concrete terms and, through it, recreate an ‘ideal’ image of childhood for the particular child, shaped by prevailing cultural and legal norms.” At the same time, international standards require that the child’s right to be heard is respected. This creates tensions: judges often reconcile children’s participation with adult assumptions of maturity or risk, recognising their agency in principle but limiting it in practice (Tisdall et al., 2023).
Case Example 2: Juvenile offenders and the age of responsibility: Criminal law illustrates another boundary of childhood. Minimum ages of criminal responsibility vary, revealing political choices rather than universal truths. Critical scholars argue that childhood here functions flexibly, sometimes mitigating punishment, sometimes justifying harsher control (Viterbo, 2024). Restorative justice offers an alternative: by treating young offenders as embedded in family and community, practices like mediation and conferencing promote accountability while affirming children’s capacity for participation and change.
Keywords: childhood, child rights, paternalism, social construction, intersectional and age discrimination, family law, child protection, criminal law, critical childhood studies, rights, race, gender.
New teaching methods :
- Rewriting judgments in child-friendly language: Helen Stalford, Kathryn Hollingsworth (2020), “This case is about you and your future”: Towards Judgments for Children. https://doi.org/10.1111/1468-2230.12536.
Further Readings (core sources students should start with)
- Kay Tisdall, Andressa Gadda, Udi Mandel Butler, Critical Childhood Studies: Global Perspectives (Policy Press, 2023).
- Valeria Llobet, Didier Reynaert, Afua Twum-Danso Imoh & Wouter Vandenhole (eds.), Critical Children’s Rights Studies: A Research Companion (Edward Elgar, 2025). (https://library.oapen.org/bitstream/handle/20.500.12657/103406/9781040398876.pdf?sequence=1&utm_source=chatgpt.com)
- John Tobin, “Courts and the Construction of Childhood: A New Way of Thinking,” in Michael Freeman (ed.), Law and Childhood Studies: Current Legal Issues (Oxford University Press, 2012), pp. 55–74. https://doi.org/10.1093/acprof:oso/9780199652501.003.0005.
Recommended Readings (broader critical scholarship students can explore, including scholarship relevant for legal approach)
- Philippe Ariès, Centuries of Childhood: A Social History of Family Life (Vintage Books, 1962 [orig. 1960]).
- Allison James & Adrian L. James, Constructing Childhood: Theory, Policy and Social Practice (Palgrave Macmillan, 2004).
- Erica Burman, Deconstructing Developmental Psychology (2nd ed., Routledge, 2008 [orig. 1994]).
- Wilma King, Stolen Childhood: Slave Youth in Nineteenth-Century America (2nd ed., Indiana University Press, 2011 [orig. 1995]).
- Dorothy E. Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty (Pantheon Books, 1997).
- Hedi Viterbo, Problematizing Law, Rights, and Childhood in Israel/Palestine (Cambridge University Press, 2021).
- UN, Office of the SRSG on Violence against Children (2016), Promoting restorative justice for children. https://sustainabledevelopment.un.org/content/documents/2599Promoting_restorative_justice.pdf
- Putri Ayu Elvina & Pujiyono, “The Restorative Justice in the Criminal Justice System of Children,” International Journal of Social Science Research and Review, 6(4) (2023). https://ijssrr.com/journal/article/view/1198.
- B Atkin (ed), Socio-Legal Approaches to Children's Rights under the African Charter on the Rights and Welfare of the Child: A Discussion of Methodology. The International Survey of Family Law 2009 Edition. Bristol: Family Law pp. 255-274, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3614361.
- Ann Skelton, Restorative Justice as a Framework for Juvenile Justice Reform: A South African Perspective, The British Journal of Criminology, Volume 42, Issue 3, 1 June 2002, Pages 496–513, https://doi.org/10.1093/bjc/42.3.496.
- Antony Anghie, Karin Mickelson, and Vasuki Nesiah, TWAIL and the Family, Florida International University Legal Studies Research Paper No. 4954631, The TWAIL Handbook, (Edward Elgar, forthcoming 2025), https://dx.doi.org/10.2139/ssrn.4954631.