Parens Patriae Doctrine

Parens patriae translates from the Latin as “father of the people” and is the legal principle that allows the state to intercede on behalf of juveniles, those who are mentally ill, and others who are unable to protect themselves. The parens patriae doctrine was first enunciated in English common law and referred to the king as exercising protective functions in his role as “father of the country.” The parens patriae doctrine should not be confused with the in loco parentis doctrine, which is more temporary in nature and not limited to governmental entities. It should also be noted that in the United States parens patriae power is a state government’s exercise of power and not one that can be exercised by the federal government. The doctrine was conceived as a benevolent intercession by the government and addressed the obligations of the government to protect individuals. However, because this doctrine allows the usurpation of the rights of natural parents and legal guardians, as well as individuals deemed incapacitated, it has generated controversy on several fronts with regard to the limits of those powers.

Several questions arose with regard to the truncation of civil liberties that occurred with incarceration for mental illness and whether or not the state was necessarily acting in a citizen’s best interests. Challenges to civil commitment proceedings revolved around the state’s reliance on the medical model in determining when a mentally ill individual met criteria for incarceration and whether commitment was, in fact, in an individual’s best interests given the conditions and lack of treatment in mental institutions. Issues were also raised as to whether commitment proceedings unreasonably deprived citizens of due process, particularly in situations where the deprivation of rights for the mentally ill was greater than for individuals who were dealt with through the criminal system. Reforms in civil commitment proceedings have considerably narrowed the state’s ability to intercede on behalf of the mentally ill and have replaced the assumption of benevolence with the recognition that the state can only deprive individuals of liberty through due process of law. While the state’s parens patriae power allows the state to make decisions regarding mental health treatment, the extent of intrusion is limited to “reasonable and necessary treatment.”

Parens Patriae and Civil Commitment

Civil commitment proceedings, in which the mentally ill are held in a restrictive setting for treatment, appear to have been the earliest exercise of parens patriae power. Until the 1960s, there were few restrictions on the states’ exercise of paternalistic benevolence in dealing with the mentally ill. At that time, however,

Parens Patriae and Juvenile Law

The evolution of juvenile courts is also intimately connected with the parens patriae concept and is another arena in which challenges have generally resulted in a more careful definition of when the state may intercede and how. Originally, the parens patriae doctrine gave the state power to intervene whenever this was viewed as being in the best interests of the child. However, in 1966, in Kent v. United States, there was a recognition that juveniles had the same rights as adults with regard to due process, and the entire juvenile jus-tice system came under scrutiny. In many ways, challenges to the state’s ability to intercede in juvenile matters paralleled the challenges raised with regard to incarceration of the mentally ill: the lack of due process, the lack of consistency in defining which juvenile behaviors required intervention, and the absence of clear indicators that the state’s intercession resulted in appropriate rehabilitative efforts. Ultimately, it became clear that juveniles, as with the mentally ill, were receiving worse treatment under the parens patriae doctrine than would be afforded to them as adults in criminal settings. Reforms resulted in the state having less discretion than had previously been afforded under parens patriae as formal procedures were subsequently implemented in juvenile hearings.

Parens Patriae and Child Abuse and Neglect

Another arena in which the doctrine of parens patriae is fundamental has been in the state’s intercession on behalf of abused and neglected children. This is an area fraught with conflict between the care and protection of children, on the one hand, and constitutional freedoms related to family privacy and parental liberty, on the other. This conflict is particularly evident in cases involving religious tenets of the parents clashing with recommended medical treatment for their children. In general, courts have concluded that religious freedom does not allow parents to risk impaired health or death for their children. In these cases, the state has relied on the parens patriae doctrine to justify intervention on behalf of the children. As with the previously described arenas in which parens patriae is a fundamental legal concept, the concept has been exercised with considerable latitude historically and then limited by reforms more recently. Difficulties in operationally defining abuse and neglect, as well as the state’s inability to prove that its interventions result in a superior outcome for children, have compli-cated the delicate balance between protecting children and respecting family privacy. This issue has been particularly relevant with regard to the removal of children from the family for placement in the foster care system given the documented flaws in that system. Other areas that have been raised under parens patriae with regard to child abuse and neglect issues have revolved around child labor and school attendance, with clearer justification for the state’s interest in intervening.

Parens patriae has been an important doctrine in delineating a protective role by the government toward vulnerable members of society. Although a setting forth of state’s obligations toward citizens who are incapable of protecting their own interests is an important aspect of governmental functioning, this doctrine also has the potential to justify incursions into fundamental liberties. In each arena in which this doctrine has been prominent, historically there has been a trend toward limiting the broad powers of the state to intervene in favor of achieving an appropriate balance between the exercise of the state’s obligations to its vulnerable citizens and the retention of fundamental freedoms.


  1. Kent v. United States, 383 U.S. 541 (1966).
  2. Koocher, G. P., & Keith-Spiegel, P. C. (1990). Children, ethics, and the law. Lincoln: University of Nebraska Press.
  3. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1987). Psychological evaluations for the courts. New York: Guilford Press.

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