Alison S. Burke and Kate McLean

The first juvenile court was created in Cook County, Illinois, in 1899, but the concept of a separate system for juveniles dates back to seventeenth-century Europe. The term parens patriae originated in the 12th century, with the English monarchy, and literally means “the father of the country.” Applied to juvenile matters, parens patriae means the government is responsible for, and in charge of everything, involving youth. ^[1] Within the scope of early English common law, parents had the primary responsibility of raising their children in any manner they deemed fit. However, when children reached 7 years of age or committed a criminal act, chancellors, acting in the name of the king, adjudicated matters concerning the youth. The youth has no legal rights and were essentially wards of the court. As such, the courts were tasked with safeguarding their welfare. While parents were merely responsible for childbearing, the state had the primary and legitimate interest in the upbringing of the children. ^[2]

The concept of parens patriae had a substantial influence on events in the United States, such as the child-saving movement, houses of refuge, and reform schools. The persistent doctrine of parens patraie can be seen evolving from “king as a father” to a more general ideology, that of the state “acting in the best interest of the child.” Subsequent matters involving youth revolve around this notion of acting in the best interest of the child, whether children were taken away from wayward parents, sent to reform schools for vagrancy, or even held in institutions until they reached the age of majority. The idea is that the state is acting in their best interest, protecting the youth from growing up to be ill-prepared members of society. Thus, the courts may intervene for the youth’s own good.

In the nineteenth century, a popular understanding of children as vulnerable, and in need of special care, developed alongside the intertwined phenomena of urbanization, immigration, industrialization. These forces gave rise to a burgeoning number of abandoned, unsupervised, and/or impoverished children in major cities, as their parents – sometimes newly-arrived immigrants – were occupied for long hours by factory labor. In turn, the first house of refuge was establishedin New York City in 1825. Houses of refuge, more generally, were urban establishments used to corral youth who were roaming the street unsupervised or who had been referred by the courts. ^[3] These houses were not intended to house criminals, but rather at-risk youth, or youth who were on the verge of falling into a life of crime because of their social circumstances. Because of the notion of parens patriea, many of the parents of these youth were not involved in the placement of their children in these houses. The case of Ex Parte Crouse is an example. ^[4]

In 1838, a girl named Mary Ann Crouse was sent to a Philadelphia house of refuge at the request of her mother.  Her father petitioned to have her released since she was committed without his consent. However, on the grounds that the state has the right to remove children from their home, in their best interest and even sometimes over parental objection (because of parens patriae), the Pennsylvania Supreme Court denied the father’s petition. The court declared that failed parents lose their rights to raise their children. Parental custody and control of their children is natural, but is not an absolute right. If parents fail to care for their children, educate, train, or supervise them, then the children can be taken by the state, under the principle that the state is acting in the best interest of the child. Two other juvenile-facing institutions of this era are described in the gray boxes below.

Creation of the Juvenile Court

The juvenile court was created in Cook County, Illinois in 1899. The Illinois Juvenile Court Act of 1899 was the first statutory provision in the United States to provide for an entirely separate system of juvenile justice. The court was created to have jurisdiction over all matters pertaining to youth- dependent, neglected, and delinquent youth. Other states soon followed, such as Pennsylvania in first in 1901, and then in 1903 (after the original statue was struck down.) In 1905, the Pennsylvania State Supreme Court validated the authority of parens patriae in Commonwealth v. Fisher Commonwealth v. Fisher, 213 Pennsylvania 48 (1905) :

"To save a child from becoming a criminal, or from continuing in a career of crime, . . . the legislatures surely may provide for the salvation of such a child, if its parents or guardians be unable or unwilling to do so, by bringing it into one of the courts of the state without any process at all, for the purpose of subjecting it to the state's guardianship and protection."

In this case, a juvenile was given a seven-year sentence for a minor crime, which would have received a much lesser sentence in adult court. The court upheld the sentence and deemed it was in the best interest of the child. The court ruled that “importance to the commonwealth which is vitally interested in rescuing and saving its children, wherever rescue, care and a substitute for parental control are required, to the end that they may, in the enjoyment of sober, industrious and happy lives, fill the full measure of good citizenship.”