Some years ago I heard a talk by someone who, as a law student, had been involved in providing free legal services to poor people in his community. Much of what he had done involved helping people deal with the welfare bureaucracy, including the parts of it responsible for removing children from their parents. I asked him whether, on net, he thought giving the state the power to remove children from parents judged unsuitable was a good thing, whether on average it helped or hurt children. His response was that he could not judge its effect in general, but in the particular community where he had worked—I think it was Ithaca, New York, where Cornell Law School is located—it hurt them.



I was reminded of this by the FLDS case. In earlier posts I have discussed the evidence on what happened and some conjectures as to why. One conclusion I think clear is that the people controlling the Texas Department of Family and Protective Services could not have acted as they did if they cared very much about the welfare of children.



Assume, as we probably should, that they started out accepting the view of the FLDS offered by their unnamed confidential informant--presumably someone who left the sect a decade or two back and had never been inside the Texas ranch. On that assumption, they were legitimately concerned that teenaged girls were being pressured into illegal “marriages” with older men. They could have entirely eliminated that risk by seizing the teenaged girls—there were 27 from 14-17—holding them for long enough to make sure they were not being pressured into such marriages and make it clear to them that if anyone tried to pressure them into such marriages in the future they were free to refuse, and then turning them loose. Instead they seized more than four hundred children, many of them young, separated them by force from their parents, and are still holding them. Unless they are utterly incompetent, they knew that doing that would inflict enormous costs on those children. Obviously they didn’t care.



Within a week or two after the raid, the authorities knew that the story they had been sold about the FLDS was inconsistent with the facts, the striking lack of pregnant minors and the relatively small number—20 out of a total population of a thousand or two—of women who had born children before they were adults. They also knew that the phone call that triggered the raid was a hoax. Instead of returning the children to their parents, as any decent human being who cared about the welfare of the children would have done, the Department embarked on a deliberately campaign of misinformation, inflating the number of minors who were pregnant or had born children from five to 31 by classifying adult mothers as minors. Being unwilling to admit mistakes is a natural human tendency, but being willing to keep hundred of children from their parents in order to avoid, or at least postpone, the admission is not the behavior of people who actually care about the children in question.



The Texas affair is not the first, or the largest, example of this pattern. Decades ago, the Canadian government took a much larger number of children away from their parents on equally flimsy grounds, shipped them across the country, forbade them from speaking their own language. The Australian government was guilty of a similar outrage. In both of those cases, as, I suspect, in the Texas case, the real purpose was not to protect children from physical abuse but to remove them from a culture the authorities disapproved of—First Nation in Canada, aboriginal in Australia, polygamist in Texas. Somewhere in the world there are probably a few parents who care less about the welfare of their own children than the people responsible for those cases of mass child abuse cared about the welfare of other people's children, but I have never met any of them.



Which raises the general question: Would it be better if governments had no power to remove children from their parents? It is easy to imagine, probably to point out, particular cases where such removal is justified. But in order to defend giving government the power to do something, you must argue not only that it can sometimes do good but that, on net, it can be expected to do more good than harm. Judging by what we have seen in Texas over the past two months, that is a hard argument to make.



This leads to a second question: Are there alternative way of protecting children from abusive parents? One obvious answer is that even if the state cannot take children away from their parents, it can still punish parents for the crime of killing or injuring their children. In my first book, I suggested a different approach: shifting power away from parents not to the state but to the children. Weaken or eliminate the legal rules that make it possible for parents to keep control over children, especially older children, who want to leave. Make it easier for adults who care about the risk of child abuse to offer refuge to runaways.



One can, of course, imagine possible bad outcomes from that solution, as from any solution for real world problems. But it seems to me now, as it did thirty-some years ago when I wrote that chapter, that it is a better solution than giving the power to the state. The person most likely to care about my welfare is me. The people next most likely are my parents. State officials who make their living out of taking control over other people’s children are a very distant third.

