Children's Separation: Lawful Or Unlawful?

The separation of children from their parents at the US-Mexico border has sparked widespread outrage, with critics arguing that it is inhumane and illegal. While there is no federal law mandating the separation of children and parents at the border, the Trump administration's zero-tolerance policy has resulted in the separation of thousands of children from their parents. This policy, enacted in May 2018, sees adults who cross the border without documentation being criminally charged and jailed, while their children are placed in shelters or foster care. Despite President Trump's claims that the policy was inherited from the Obama administration, fact-checkers have confirmed that it was introduced under his leadership. Although the practice has officially been ended, reports suggest that some family separations continue to occur, with children being kept in appalling conditions.

Is there a law mandating the separation of children from their parents at the border?

No law mandates the separation of children from their parents at the border. However, the separation of children from their parents has been a practice in the US for centuries, beginning with slavery and the forced removal of Native American children.

In 2018, the Trump administration implemented a "zero-tolerance" policy, which saw adults who crossed the border without authorization facing criminal prosecution. As children could not be detained in criminal custody, they were designated as "unaccompanied alien children" and placed in the custody of the Department of Health and Human Services.

In 2022, a federal judge banned the separation of families at the US southern border until December 2031. However, the Biden administration has continued to separate families at the border, with around 300 children separated from their parents or legal guardians in 2024. While the Biden administration has defended these separations as being in line with longstanding immigration practices, critics argue that the lack of transparency around these cases creates a lack of accountability.

What is the Flores Settlement law?

The Flores Settlement is a 1997 agreement between immigration activist groups and the US government that sets standards for the detention and release of unaccompanied immigrant children. It came about after a series of lawsuits filed by activist groups against the federal government over its treatment of unaccompanied minors in detention facilities. The settlement states that the government must:

• Release children without unnecessary delay to their parents, legal guardians, other adult relatives, or another individual designated by the parents/guardians.
• Place children in the least restrictive setting appropriate.
• Create and implement standards for the care and treatment of immigrant children in detention.

Since 1997, the Flores Settlement has been expanded upon by federal judges and now applies to all minors in detention, whether they are accompanied by their parents or not. This interpretation states that minors in detention cannot be held for more than 20 days.

In 2015, an Obama-appointed federal judge ordered that the Flores Settlement also covers accompanied children. This meant that children could be released while their parents were still detained, leading to family separations.

In 2022, a federal court appointed a monitor to oversee compliance with the Flores Settlement regarding US Customs and Border Protection (CBP) facilities. Reports from the monitor revealed that children were still being regularly separated from their parents while in CBP custody and that CBP was not providing children and parents with required visits or adequately informing them of their right to such visits.

What is the zero-tolerance policy?

The "zero-tolerance" policy is a term that was first used in US politics in 1972. It refers to a policy that imposes a punishment for every infraction of a stated rule. Zero-tolerance policies forbid those in positions of authority from exercising discretion or changing punishments to fit the circumstances subjectively. Instead, they are required to impose a predetermined punishment, regardless of individual culpability, extenuating circumstances, or history.

In April 2018, US Attorney General Jeff Sessions announced a new "zero-tolerance" policy to increase the criminal prosecution of people caught entering the US illegally. This policy led to the separation of nearly 3,000 children from their parents before President Trump signed an executive order halting family separation in June 2020. However, the "zero-tolerance" policy remained in place.

The Trump administration claimed that it was enforcing existing laws and that the family separations were a consequence of the "zero-tolerance" policy combined with a federal court action limiting the detention of children. However, critics argue that the "zero-tolerance" policy did not lead to the prosecution of 100% of adults apprehended at the border, and that the government specifically chose to prosecute parents travelling with children. This is in contrast to previous administrations, where parents travelling with children were rarely prosecuted.

The "zero-tolerance" policy has been widely criticised for its negative impact on children and families, with human rights groups and Democrats sharply condemning the separations and warning of the long-term trauma inflicted on the children. The UN Human Rights Office called on the US to "immediately halt" the separations.

Despite the criticism, the Trump administration defended the measure, stating that separations were "not our goal" but that it was not always possible to keep families together. The administration also argued that it was necessary to address a recent increase in apprehensions of immigrants at the southern border.

What is the impact of separating children from their parents?

The act of separating children from their parents has been deemed traumatic, with children's development being impacted in numerous ways. Research has shown that children, especially younger children, are dependent on their parents for their emotional well-being.

The removal of children from their parents' care is an additional trauma on top of any previous adverse experiences. This separation removes the child's protection and generates a new trauma, which can have long-term negative consequences for their psychological and physical health.

The stress of separation can lead to higher levels of the hormone cortisol, which has been linked to negative effects on brain structure and connectivity, slowing neuronal growth and reducing the volume of critical brain structures. This can result in higher rates of depression, anxiety, and "externalizing" behaviours such as aggression, defiance, and vandalism.

Additionally, the separation can lead to intergenerational cycles of family separation and dysfunction, with children experiencing higher rates of family break-up and individuals experiencing interpersonal dysfunction, psychiatric disorders, and high incarceration rates.

The impact of separation is particularly harmful when it occurs between the ages of 9 months and 9 years, as this is when the most child-parent separations occur, and the child is most vulnerable. The negative effects of separation include psychological trauma, neurological changes, precocious sexual maturity, academic delay, poor peer relations, psychosomatic symptoms, and behavioural problems such as depression, anxiety, self-harm, substance abuse, and inappropriate sexual behaviour.

The trauma of separation can be long-lasting, and the uncertainty surrounding the situation can exacerbate feelings of anguish, despair, guilt, blame, and depression in both children and parents.

What is the history of family separation in the US?

The separation of families in the US has a long and cruel history. From slavery to mass incarceration, America has separated families for centuries.

During the era of slavery, slave families were often separated as children were sold away from their parents. Slave owners could sell children with no legal repercussions, and parents had little power to stop them. This practice was justified using the Bible, specifically the Apostle Paul's command in Romans 13 to "obey the laws of the government because God has ordained them for the purpose of order".

Following the abolition of slavery, the US government began a policy of forcibly removing Native American children from their families and placing them in boarding schools. This practice, which lasted over a hundred years, was done in the name of "civilizing" the children and destroying all Indian traditions and nature within them. Native American children were forced to cut their hair, forbidden from speaking their native languages, and made to accept Christianity and white customs. This practice formally ended with the Indian Child Welfare Act of 1978.

During the early 1900s, American states sometimes took children from poor families and placed them in orphanages. Although this practice ended in the 1920s and 1930s, poverty continued to be used as a reason to take children away from Native American and African American families.

In the 1930s, during the Great Depression, California and Texas officials forced between 500,000 and 1 million Mexican immigrants and Mexican Americans to leave the US. Many families were forced to separate from their children, who were US citizens.

In more recent times, the Trump administration's "zero-tolerance" policy led to the separation of Central American families at the US-Mexico border. This policy resulted in the separation of nearly 2,800 children from their parents, with at least 26% of them being under the age of five.

While the specific practice of separating migrant children from their parents at the border has received widespread criticism and outrage, it is important to recognize that family separation has a long and tragic history in the US, rooted in systemic oppression and racism.

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