Doing Better for Child Migrants

Professor Ann Laquer Estin’s Child Migrants and Child Welfare: Toward a Best Interests Approach makes several important contributions to our understanding of the complicated legal questions posed by a timely and too often tragic phenomenon: large numbers of unaccompanied child migrants, including many coming into the United States. Estin helpfully disentangles and explores the welter of possibly applicable laws, from U.S. constitutional provisions to international human rights laws, federal immigration laws, and state family laws. Her careful analysis also exposes significant gaps, pointing out how some issues fall between relevant bodies of law. Although each of the sources of law canvassed in the article is animated by its own set of values and assumptions, Estin’s bottom line is that “we can and should do better” for the children in question. As an American family law expert, Estin identifies her principal area of concern as “assur[ing] that the federal agencies who take custody of unaccompanied minors are adequately addressing children’s needs for care and protection as the process unfolds, including their need for legal representation”—responsibilities assigned to the Office of Refugee Resettlement (ORR) in Department of Health and Human Services. Given her expertise and her central concern, Estin recommends infusing all the different areas of law pertinent to child migrants with due regard for family law’s ubiquitous “best interests principle.” For those of us who lament how harm to children has become acceptable collateral damage in the pursuit of stricter immigration laws and enforcement practices, Estin’s call to focus on children and to do better for them comes none too soon. This response examines whether the best interests principle is up to the job, in light of lessons learned from child custody disputes and controversies about child migrants, past and present