Why Does the Federal Government Get a Pass? Applying Child Welfare Principles to the Circumstances of Migrant Children and Families

75 Pages Posted: 28 Sep 2021

Date Written: July 28, 2021


For too long, the United States has had a separate child-caring system for migrant children and families that operates alongside our domestic child welfare systems. The latter is a robust system focused on the principles of safety, well-being, and permanency; while the former flouts constitutional protections, separates children from parents, and perpetuates a system that is detaining children, warehousing them in large jail-like settings at worst, and sheltering them in large congregate care facilities at best. Children are being harmed, some irreparably.

Yet, if our child welfare laws reflect what we know to be proper standards for caring for vulnerable and traumatized children, why is it that these same protections are not afforded to migrant children and families? Why does the federal government get a pass? Does the fact that we are addressing the needs of migrant children and families alter the responsibilities of the agencies charged with caring for the children? What laws exist to hold the federal government accountable? And what would change if child welfare principles were relied upon to guide the circumstances and care of migrant children in the United States? This article seeks to answer these questions and to fully explore the application of child welfare principles in the immigration context, both in terms of family separation policies as well as the care and custody of migrant children.

It must be acknowledged that there are serious concerns with how our domestic foster care systems function, particularly the disproportionate number of children and families of color involved within these systems, and the disparate outcome for children and families of color, especially Black and Native American children and families. Yet, we also must recognize that basic child welfare principles, along with constitutional protections and international laws and norms, provide a necessary roadmap for ensuring that the basic rights and needs of migrant children and families are met. For when the government steps into the role of “parent” or caregiver, it must be held accountable for ensuring the safety, well-being, and protection of those in its custody.

Suggested Citation

Mandelbaum, Randi, Why Does the Federal Government Get a Pass? Applying Child Welfare Principles to the Circumstances of Migrant Children and Families (July 28, 2021). American University Law Review, Vol. 71, No. 5, 2022, Available at SSRN: https://ssrn.com/abstract=3926325

Randi Mandelbaum (Contact Author)

Rutgers School of Law - Newark ( email )

Newark, NJ
United States

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