Kinship Care as Living Law - an Unwritten Source of Child Protection Law
Kinship Care as Living Law - an Unwritten Source of Child Protection Law

Summary/Abstract: This article explores the legal significance of kinship care as an unwritten source of child protection law across diverse legal and cultural contexts. While modern child welfare systems prioritise written statutes and formal procedures, millions of children globally are raised in informal caregiving arrangements by extended family members - grandparents, aunts, uncles, or siblings - based not on legal documentation but on social norms, customs, and moral obligations. Drawing on Eugen Ehrlich’s concept of living law and John Eekelaar’s analysis of normative family systems, the article conceptualises kinship care as a form of law-in-action, embedded in community practices, yet largely invisible to formal legal order.The study adopts a comparative methodology, focusing on Central and Eastern Europe (with attention to Slovakia and Hungary) and the Global South (specifically Sub-Saharan Africa and Latin America), where kinship care constitutes a primary mode of alternative care. It examines the legal invisibility of children in informal kinship care, assessing both the benefits - such as cultural legitimacy and continuity - and the challenges, including lack of oversight, gendered caregiving burdens, and weak legal protection.The article further critiques the limitations of international children’s rights law, particularly the UN Convention on the Rights of the Child and General Comment No. 14, which recognise the role of extended family but provide little regulatory guidance. The concluding section proposes a model of legal pluralism and child-centred harmonisation that seeks to bridge unwritten caregiving norms with state law. The study calls for greater engagement with unwritten sources of law in order to develop a more just, inclusive, and context-responsive child protection framework.

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