‘It’s Grace and Favour, It’s Not Law’: Extra-Legal Regulation of Foreign Foster Homes in China

Abstract

This Article examines the scope, law and norms of foreign- run foster homes caring for children from Chinese state-run orphanages, a previously undocumented social sphere. Based on in-depth field interviews and participant observation, I trace the development and expansion of the sector over the last twenty years, then examine and analyze the various interactions occurring between the foster homes — predominantly run by foreign mission workers — and the Chinese state. It is shown that at the local interface between state officials and the foreign foster homes, unofficial extra-legal norms are frequently more effectual and salient in practice than the official and restrictive rules and policies on charities and orphan welfare. Such extra-legal regulation of the sector has resulted in an experience of, at times, uncertainty and vulnerability on the part of the foreign humanitarian workers in terms of the permissibility and sustainability of their work. Despite this, the sector continues to slowly expand in the shadow of fairly well defined informal rules, with social legitimacy rather than formal legality functioning as the most important determinant of stability in this politically charged field. Finally, I examine the practical ramifications of the extra-legal nature of the foreign foster-home and implications thereof for orphan welfare in China generally. The most notable outcomes of this tentative equilibrium are an absence of collaborative advocacy efforts, and a sense of instability and insecurity on the part of workers in the field. As a result, the ability of this sector of civil society to promote reform and improve the welfare of China’s orphaned children is being unnecessarily stifled

Keywords: child welfare law, orphanages, China

JEL Classification: K00, K30