Introduction
This article reviews and comments on the literature and arguments about parental licensing. In doing so, it cites readily accessible statistical data from the USA and Australia.
Parental licensing as proposed by LaFollette (Reference LaFollette1980; Reference LaFollette2010):
was not for a requirement that one be licensed to get pregnant, carry a baby to term, or to give birth, but a requirement that one be licensed to raise a child. If you have a baby, are not licensed to raise children and do not get licensed, the baby would be removed from your home and put up for adoption (by someone who is licensed) (paraphrased by Cohen, Reference Cohen2017).
This idea has recently received new attention in the USA (Cohen, Reference Cohen2017; LaFollette, Reference LaFollette2010; Lykken, Reference Lykken, Millon, Simonsen, Smith and Davis1998; Stuck, Reference Stuck2009), in England (Liao, Reference Liao2015; Reference Liao2017; Shields, Reference Shieds2018) and in parts of Eastern Europe (Bracanovic, Reference Bracanovic2019; Pusic, Reference Pusic2016) and elsewhere (Barry & Leland, Reference Barry and Leland2017; Habinger, Reference Habiger2001). It is generously promoted, especially by Cohen (Reference Cohen2017), as a “harm reduction” strategy in relation to child abuse and neglect by ensuring that the state prevents incompetent parents from raising a child. Cohen promotes this idea through his media blog Bleeding Heart Libertarians (Reference Cohen2014).
Comparative figures
In this section, statistical data from the USA and Australia are compared. The USA is selected for comparison purposes as it is in the USA that parental licensing is currently receiving most attention.
The US context
In the USA in 2017, there were 2,359,911 screened-in cases of child abuse and neglect (US, Department of Health and Human Services (HHS), Adoption and Foster Care Analysis and Reporting System (AFCARS), Child Maltreatment, 2017. Table 2-1). Whether the US screening-in figure is the number of completed investigations or the number of substantiations of abuse and neglect is unclear from this document. This translated into 442,965 children in foster care at September 2017. Of these children, 149,675 were in kinship care and 119,360 were in nonrelative foster care. A further 17,449 are listed as in pre-adoptive homes (US, HHS, AFCARS report - no. 25, 2018). Other miscellaneous categories account for the remaining balance, for instance, runaways.
In the USA, adoptions from care numbered 59,430 in 2017 (US, HHS AFCARS report – no. 25, 2018). Even so, 69,525 children, whose parental rights had been terminated, were awaiting adoption at 10 August 2018. This suggests that there is no list of adults waiting to become adoptive parents, especially for older children (US, HHS, AFCARS report – no. 25, 2018). The figures indicate that parental licensing and the rapid adoption of babies born to unlicensed mothers will not be easily achieved.
The Australian context
In Australia in 2017–2018, there were 23,224 substantiations of child abuse and neglect. These figures exclude New South Wales (NSW), the most populated state (Australian Institute for Health and Welfare (AIHW), 2019, Table 2.2). This is against a figure of 55,006 finalised investigations (AIHW, 2019, Table 2.2). As of June 30 2018, there were 45756 children in out-of-home. Of these children, 10,012 were in foster care, 23,341 were in kinship care, a further 1229 were in other home-based care and 2827 were in residential care (including group homes) (Productivity Commission, 2019). The rates for children admitted to out-of-home care in 2017–2018 were at its highest for children under the age of 1 year at 7.2 per 1000 and for those aged 1–4 years at 2.2 per 1000. These rates fell as children’s age increased. The median age of children admitted to care was 6 years (AIHW, 2019, p. 48).
In 2017–2018, 330 adoptions were finalised in Australia of whom 65 (20%) were overseas adoptions (AIHW, 2018, p. 13). Of the other adoptions, 32 were local adoptions (AIHW, 2018, table 3.7) and 233 were known adoptions (that is by foster carer or relative, i.e. step-parent) (AIHW, 2018, table 3.11). Of the known adoptions, 147 of the 233 were by foster carers (AIHW, 2018, table 3.12). In addition, 186 of the 233 known adoptions were in NSW. This is a result of the NSW policy of advocating adoption as a route out of care (Ainsworth & Hansen, Reference Ainsworth and Hansen2016, AIHW, 2018). In 2017–2018, the number of children who exited out-of-home care numbered 189. Those who exited in under 2 years are likely to have been restored to parental care. This number was 130. The remaining 59 had been in state care for 5 years or more (Productivity Commission, 2019, Table 16A.17).
Neither, the Adoptions Australia (AIHW, 2018) or the Child Protection Australia (AIHW, 2019) reports indicate how many children are waiting for adoption. This is, in some measure, because not all states and territories have adopted the NSW policy in relation to adoption from care. Of the 36,700 children (excludes NSW) nationally, who were on care and protection orders, almost 22% or 6200 were on finalised custody orders (AIHW, 2019, p. 38).
We know that 51% of children in out-of-home care are in kinship care (AIHW, 2019, p. 49). This is estimated at 18,717 children. It is also known that 39% of the remaining children are in foster care (AIHW, 2019, p. 49). This number is estimated at 14,313. Theoretically, these foster care children are available for adoption. Given that in 2017–2018 there were only 330 adoptions in Australia, which included 65 overseas adoption (AIHW, 2018), the idea that parental licensing and the immediate adoption of children born to incompetent parents should become national policy looks like an impractical and farcical idea for the Australian child protection system. In fact, these figures show that most foster care children would age out of care before adoptive parents could be found.
The harm principle
Cohen (Reference Cohen2017) bases his argument for parental licensing and the removal of children from incompetent parents and their adoption by competent or licensed parents on the “harm principle” as outlined by John Stuart Mills in his On Liberty (Reference Mills1978). Mills differentiates between hurt and harm in terms of “harm as a wrongful setback to interests – not mere hurts, which are setbacks of interests but not wrongful.” Thus, Cohen’s position is that harm, and only harm, justifies interference by the state in family matters. Child abuse and neglect is then classified as harm; hence, the state’s obligation to remove children from incompetent parents and to see that they are safe and out of harm’s way through adoption. For a study of child removal by the state, across multiple national jurisdictions, see Burns, Poso and Skivenes (Reference Burns, Poso and Skivenes2017), although none of the states given as examples have a parental licensing policy in place.
Astonishingly, in a footnote on page 6 of Cohen’s 2017 article, he states:
I assume transfer of a newborn from unlicensed biological parents to licensed parents is not traumatic for the child; this should be clear when one considers that hospitals have mismatched newborns and parents without causing harm to the child. (Cohen, Reference Cohen2017, p. 6., footnote 11)
This is a truly amazing assumption. How would Cohen know this as there appear to be no studies of mismatched children as adults. Alas, such a position ignores social science research about child development and the outcomes of adoption.
A loving family forever
‘A loving family forever’ is how the adoption story is told (Department for Education (DfE), 2013; LaFollette, Reference LaFollette1980, Reference LaFollette2010; NSW Family and Community Services (FaCS), 2018) and Cohen (Reference Cohen2014, Reference Cohen2017) would no doubt approve. But the evidence suggests that this claim in not entirely true. A recent longitudinal study by Neil, Beek and Ward (Reference Neil, Beek and Ward2015) that covers a 21-year period with data collection points at 7-year intervals to investigate post-adoption birth parent contact arrangements paints a less promising picture. Similarly, Curtis and Pearson (Reference Curtis and Pearson2010) report on differential psychological adjustment for adults adopted as infants.
Firstly, not all adoptions are enduring. When the adopted person reaches adolescence, difficulties may arise and some adoptions fail at this point. Both LaFollette (Reference LaFollette1980; Reference LaFollette2010) and Cohen (Reference Cohen2014; Reference Cohen2017) appear to be subscribing to the old model of “closed adoption,” where there is no contact at all with birth parents once the legal adoption process has been completed. This practice has been shown to be harmful to the adopted child when they come to know that who they thought were “Mun and Dad” are not their biological parents; and many adoptees, as adults, search for their birth parents. Numerous academic articles report on this phenomenon, but now there are several Facebook and similar media sites that actively promote these searches. See, for instance, Adoptees Looking For Birth Parents Or Siblings http://facebook.com/AdopteesLookingForBirthParentsOrSiblings/ or 3 Free Ways to Search For Your Birth Parents https://adopteessearch.com/3-free-ways-search-birth-parents/
Closed adoption is not the model of adoption practice currently in use. “Open” adoption is now the expected norm, where there is ongoing contact, either face to face, or by other means such as letters, birthday and Christmas cards and photographs or via social media between the birth parents and the adopted child, with the full cooperation of the adoptive parents (Ayers-Lopez et al., Reference Ayers-Lopez, Henney, McRoy, Hanna and Grotevant2018; Berry, Reference Berry1993). The proponents of parental licensing do not appear to be aware of contemporary adoption practice.
In vitro attachment
In Cohen’s (Reference Cohen2017, p. 836) paper at footnote 26, he states, “I do not deny that most women – and many fathers – form an emotional attachment to their biological children even before they are born.” He cites Anderson (Reference Anderson1990) in support of this view. If this is true, and experience suggests that it is, it raises questions about Cohen’s view of the harm principle when he claims that the trauma of removal of a child from a birth mother does not cause harm to the child. Yet, it is hard to imagine that the child and mother, who has carried the child in her womb in most cases for nine months, do not have significant attachments. The denial that parental licensing harms the parents does indicate that harm to biological parents, especially the mother, is acceptable to the advocates of parental licensing.
A further issue in relation to parental licensing is the way it may discourage pregnant women from using prenatal medical services, at the expense of their own health and that of the yet to be born child. It may also encourage parents to try to conceal a pregnancy from child protection authorities for fear of losing custody of the child at birth. In NSW, a Memorandum of Understanding (MoU) between the health services and the child protection authority requires health personnel in prenatal clinics to ask mothers who attend the service about their history of contact with the child protection authority and, if this exists, to report the mother’s new pregnancy to that authority. The result is that a note is placed on the mother’s medical file that requires the hospital to report the birth of the new child immediately to the child protection authority. This then allows the protection authority to come to the hospital and serve the parents with legal documents that allows the said authority to “assume the care” of the child and prevents the parents from removing the child from the hospital. The matter then proceeds by the authority making a care application in the Children’s Court, which the parents can contest. These conditions have been known to cause attempts at home births, without medical supervision (Personal communication, 2016).
The United Nations conventions
There are seven United Nations declarations, conventions and covenants which deserve examination in regard to the issue of parental licensing. These have been formulated over more than 70 years and are listed in the Appendix.
On examination of the articles that constitute the various parts of these documents, parental licensing would contravene a significant number of these articles. For example, racial discrimination would almost certainly play a part in a parent being denied a license. This is because in the USA, African-American and Hispanic children are overrepresented in the child welfare population and this is almost certainly as a result of parental poverty. This is confirmed by the fact that parents from these racial groups are overrepresented among low-income families. In Australia, Aboriginal parents would be at most risk as they are clearly the most disadvantaged group economically (AIHW, 2019, figure 3.6).
When state interference is warranted
Cohen (Reference Cohen2017) uses two examples of situations that warrant state interference or regulation that are of a totally different order and bear no relation to the issue of parental licensing.
For example, driving a car can result in harm, even death, if done badly, so state regulation is warranted, and a license can be denied if a potential driver is incompetent. This, however, is a false analogy since there are alternatives to driving a car. You can walk, ride a bicycle, catch a bus and in, some places, ride a horse. Likewise, being refused entry to an elite military group, such as the US Marines or the Australia Special Air Services (SAS), no matter how desired does not mean you have no other career opportunities.
But there are no alternatives to parenting a child. Having a pet cat or dog, which some people refer to as their baby, is not the same as raising a child. Parenting denied is final.
The denial of a parenting license and the removal of a baby at birth from a mother (and the father) is a heart-wrenching experience (Ainsworth & Hansen, Reference Ainsworth and Hansen2016). As Schofield et al. (Reference Schofield, Moldestad, Hojer, Ward, Skilbred and Young2010) indicate, removal of a child from parental care and the sense of loss that is associated with the removal threatens the identity of parents. For the mother, the result is a spoiled identity as a female as she will never be able to satisfy the maternal part of her person. In addition, the shame of being singled out as an incompetent parent (Gibson, Reference Gibson2019), and the likely alienation from relatives and friends, is more than likely to raise mental health issues for parents, especially for the mother. Removal of a child from parental care causes harm for the child and the parents and not just mere hurt (Ainsworth & Hansen, Reference Ainsworth and Hansen2012). That is the paradox and the question is: can the state justify causing harm?!
Measuring parental competence
Cohen (Reference Cohen2017) identifies two tests for parenting licensing identified in Reference Mangel1988 by Mangel. These are the “Child Abuse Potential Inventory” (CAPI) and the “Family Stress Checklist” (FSC). In a footnote to Cohen’s paper (Cohen, Reference Cohen2017, p. 836, Footnote 26), he references Sandmire and Wald’s (1990) and Peters and Barlow’s (Reference Peters and Barlow2003) caution about the use of these instruments for licensing purposes. It is worth noting that the CAPI is described as a screening instrument for physical child abuse. It is not a screening device for other forms of abuse.
Laulik, Allen and Browne (Reference Laulik, Chou, Browne and Allam2013), in reviewing the use of the CAPI in the assessment of parents in care proceedings, noted that while there is evidence that this instrument has validity and reliability there is a lack of evidence about predictive validity due to a dearth of prospective studies. Yet, it is predictive validity that is vital in parental licensing decisions. Given this fact, the conclusion is that the CAPI in not a suitable test, and has never been so, when consideration is being given to parental licensing.
The FSC was originally developed by Murphy, Orkow and Nichola and published in Child Abuse and Neglect in Reference Murphy, Orkow, Ray and Nicola1985. The checklist was said to be a prenatal predictor of child abuse and neglect by parents. In a later edition of the same journal, Orkow (Reference Orkow1985) states that the “The form was never shared with the patient because it had never been validated” (p. 405). An instrument that has never been validated cannot act as reliable predictor of potential child abuse and neglect by parents. Hence, the two tests identified by Cohen (Reference Cohen2017) for use in parent licensing, the CAPI and the FSC, have no scientific standing.
An awkward but important question is: if we had a perfect way of predicting which adults would harm children, would we be justified in refusing them a parental license? Just because the idea of parental licensing has appeal does not mean we should embrace this proposition. Just because we can do something does not always mean we should.
Which parents would be at most risk?
Firstly, can you imagine both the size of the testing process and the cost to test all pregnant women in Australia. Such a test is likely to identify a small number of Australian women as incompetent. In Australia in 2016, there were 311,104 births (Australian Bureau of Statistics, (ABS), 3301.0 press release). In comparison, 168,352 children in 2016–2017 were receiving child protection services (AIHW, 2018, p. 9). This figure covers children and young persons aged 0–17 years of age. In 2017–2018, children under the age of 1 were most likely to receive child protection services, a sign which can be viewed as a marker of parental incompetence, at the rate of 37.8 per 1000 (AIHW, 2019, p. 16). In 2017–2018, this was 2.2 per 1000 for those aged 1–4 (AIHW, 2019, p. 47). These figures allow for a speculation that under a parental licensing system less than 7000 pregnant Australian women would be deemed to be incompetent. This is 2.1% of those women who gave birth in 2016. If parental licensing had been in place, 97.9% of women who gave birth in 2016 would have unnecessarily been tested for competence. And the cost of this in administrative terms, as well as parental anxiety, is hard to justify.
There is also the question as to how a testing system would deal with potential parents with an intellectual disability, those with a physical disability, those who are illiterate and migrants who cannot speak English. The activist groups who support these disadvantaged sections of the community would be loud in their opposition to any form of parental licensing.
There is also the question of parental licensing being a concealed policy of eugenics which raises the question as to which group of potential parents might be most affected by parental licensing? It is hard, for example, to image the German state during the 1930–1940s issuing a license to Jewish parents. A refusal of a parenting license in such circumstances would guarantee the eventual dying out of the Jewish community.
The opposing view
Four authors (Barry & Leland, Reference Barry and Leland2017; Harbiger, Reference Habiger2001; Pusic, Reference Pusic2016) put forward the opposing views about parental licensing. Barry and Leland cite Liao’s (Reference Liao2015) argument, put forward in his book The Right to be Loved, that biological parenting is a fundamental human right and that fundamental human rights should not be licensed. Liao concludes that biological parenting should not be licensed. It might also be said that if biological parenting must be licensed it ceases to be a human right. Parent licensing is also likely to violate article 12 of the UN Universal Declaration of Human Rights (1948) as it relates to privacy, family and home.
In contrast, Harbiger (Reference Habiger2001, p. 2) invokes God to justify his opposition to parental licensing. To quote:
A person is made in the image of God. A person has inestimable worth and possessing an immortal soul will exist forever. To consider a physically or mentally handicapped person to be of inferior stock is to reduce him or her to the level of object.
This is something which Harbiger (Reference Habiger2001) thinks a parent licensing authority is likely to do.
Pusic (Reference Pusic2016) also takes exception to parent licensing on the grounds that it would subject too many people to unnecessary tests and that parenting cannot be compared to other professional licenses issued by the state. This is in line with the earlier criticism of Cohen’s (Reference Cohen2017) example of driving a car or joining the US Marines or the Australian Special Air Services.
Conclusion
Parental licensing may be possible. But how this would be implemented is a major issue. Would there be a Bureau of Parental Licensing in every state, city or sizable town? Who would be the Director of such a Bureau and what qualifications would they need to have to be eligible for such an appointment? Who would fund the Bureau and at what level? Would there be an appeals mechanism for parents who were denied a parental license? And so on.
In an NSW study of the use of section 106A of the NSW Children and Young Persons (Care and Protection) Act 1998 in the three Sydney metropolitan area Children’s Courts, it was established that 37.4% of the children removed from parental care during the 6-month period January–June 2015 were assumed into care in hospital, shortly after the child’s birth (Ainsworth & Hansen, Reference Ainsworth and Hansen2017).
Section 106A (2):
Evidence adduced under section (1) is prima facie evidence that the child or young person the subject of the care application is in need of care and protection.
This section of the Act is invoked when a previous child has been removed and not restored to parents. The removal of a child under section 106A may be followed by an application to the NSW Children’s Court for a parenting capacity assessment that will be undertaken for the court by an appropriately qualified psychologist or social worker. This document will then be available to the court when consideration is being given to the making of a legal order that will give parental responsibility for the child to the Minister for Family and Community Service. A child removed in this way may be permanently placed in foster care or kinship care with the potential for the child to be adopted by the carers at a later date.
How close is the use of section 106A to parental licensing, especially as future children born to these parents may be removed in a similar way?
In the USA, “the termination of parental rights’ is functionally equivalent to having a parental licensed revoked” (Cohen, Reference Cohen2017, p. 833, footnote 17). Is NSW doing the same when Section 106A of the Children and Young Persons (Care and Protection) Act 1998 is used as the ground for placing a child into the care of the Minister?
Appendix A
The Universal Declaration of Human Rights (1948).
International Convention on the Elimination of All Forms of Racial Discrimination (1965).
International Covenant on Economic, Social and Cultural Rights (1966).
International Covenant on Civil and Political Rights (1966).
Convention on the Elimination of All Forms of Discrimination against Women (1979).
Convention on the Rights of the Child (1989).
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990).
Convention on the Rights of Persons with Disabilities (2006).
Statutes
NSW Children and Young Persons (Care and Protection) Act 1998.
