Towards a Public Health Legal Structure for Child Welfare

70 Pages Posted: 7 Sep 2013 Last revised: 15 Jul 2014

See all articles by Josh Gupta-Kagan

Josh Gupta-Kagan

University of South Carolina School of Law

Date Written: 2014


The present American child welfare system infringes upon the fundamental liberty interests of millions of children and parents, is adversarial and punitive, and fails to prevent child maltreatment or protect children adequately from its most severe forms. Many in the field now recognize that a public health model would more effectively support the parent-child relationship and protecting children from maltreatment than the current paradigm. Despite much attention to such an approach, the field has yet to develop a clear vision for how the law could or should support a public health approach or shape the actions of individuals and institutions best suited to lead a public health response. This Article is the first to identify the core legal reforms necessary to shape a public health approach to child welfare.

This Article identifies several legal pillars of the present parental fault paradigm which impede a public health approach, and conceptualizes new laws designed to foster a public health approach. First, mandatory reporting and mandatory investigation laws — requiring professionals to report and child protection agencies to investigate all instances of suspected neglect — inhibit a public health response by imposing a coercive legal regime on an overly broad category of cases, and preventing these professionals to make more effective interventions for millions of children.

Second, state laws’ overly broad definition of "abuse" and "neglect" expand the range of situations subject to mandatory reporting and mandatory investigations laws, and permit coercive interventions to become the dominant means of responding to serious child welfare problems.

Third, the law should separate provision of services to children and families from findings of fault by CPS agencies. In the aggregate, families involved with CPS agencies have relatively high levels of needs and would benefit from services provided as soon as possible. Yet CPS agencies tie services to findings of fault, denying services to many families.

Fourth, federal funding law should cease preferred treatment of foster care and permit greater flexibility to provide a full spectrum of interventions.

Fifth, the law should identify institutions, such as schools, hospitals, and doctors, poised to implement a public health approach and develop legal reforms to push those institutions to do so.

Keywords: Child welfare, child protection, juveniles, public health

Suggested Citation

Gupta-Kagan, Josh, Towards a Public Health Legal Structure for Child Welfare (2014). 92 Nebraska Law Review 897 (2014), Available at SSRN:

Josh Gupta-Kagan (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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