About the Author

Richard Louv is Co-Founder and Chairman Emeritus of the Children & Nature Network, an organization supporting the international movement to connect children, their families and their communities to the natural world. He is the author of eight books, including "Last Child in the Woods: Saving Our Children from Nature-Deficit Disorder" and "The Nature Principle: Reconnecting with Life in a Virtual Age." In 2008, he was awarded the Audubon Medal.

NEEDED: A NATIONAL CONFERENCE ON CHILDREN, NATURE & THE LAW

It’s time for a National Conference on Children, Nature and the Law, organized by the legal profession with a little help from insurance companies, educators, health care folks, policy-makers, C&NN and others. This conference is a fiction, so far. But somebody needs to step to the plate.

As a powerful deterrent to natural play, fear of liability ranks right behind the bogeyman. Parents are afraid to let their kids build a tree house in the backyard. School administrators are afraid to create natural play places (even though they tend to produce fewer injuries than playgrounds with typical play structures). In July 2005, The Fort Lauderdale (Fla.) Sun-Sentinel reported that Broward County schools had erected “no running” signs at 137 elementary schools, as one of several steps to cut down on injuries and lawsuits. Playground merry-go-rounds and swings were already history.

As I wrote in Last Child in the Woods, we’re seeing the virtual criminalization of natural play. In some cities, young people who try to recreate their parents’ childhoods may face misdemeanor charges or see their parents sued.

Most residential communities built in the past three or four decades are controlled by covenants and restrictions, and private governments — community associations — that essentially criminalize natural play. One woman told me her community association banned chalk drawing on the sidewalks. Just try to put up a basketball hoop in some of these neighborhoods, let alone let the kids build a fort or tree house in the field beyond the cul de sac. If it’s like my neighborhood, adult officials will tear down that fort or tree house within days.

Other stringent restrictions on children’s outdoor play spring from our efforts to protect nature from human population pressures. In my city, it is illegal to “injure, destroy, cut or remove any tree … [or] plant … growing in any city-owned park … without written permission from the city manager.” But what exactly constitutes “to injure?” Does a child seriously injure a tree by climbing it? Some think so.

So because of fear of litigation, and pressure from parents themselves, Girl Scouts can no longer climb trees at Girl Scout camp. Kids all over the country are hearing a double message from the adult world: Get off the couch, go outside, but oh, by the way, we don’t really want you doing anything out there. Other than organized sports.

This isn’t an exaggeration. Parents know this. Teachers know it. But our institutions and legal profession haven’t received the memo. That’s why we need a national conference.

The legal profession, including consumer attorneys, would find such a conference to be in their interest. Depending on which study one chooses to believe, in the United States, the public’s urge to sue may be rising, holding steady or even falling. Uncertainty about such statistics is aggravated by the fact that most lawsuits are settled out of court and are poorly tracked. And no one keeps track of the number of threatened lawsuits — which may have more impact on public behavior than judges and juries. In fact, there are consumer attorneys who attribute ulterior motives to some public officials who raise the specter of potential lawsuits, which may be easier and cheaper than investing public funds in, say, new playgrounds or lifeguards. Whatever the truth, perception rules.

“Legal fear has infected the culture,” argues Philip K. Howard, author of “The Death of Common Sense” and “The Collapse of the Common Good.” Howard is founder of Common Good, a bipartisan coalition with advisory board members ranging from conservative to liberal. Howard wants to help restore reliability to law — to come up with ways to determine acceptable or healthy levels of risk. “Polls and focus groups show that educators will do almost anything to avoid the unpleasantness of legal hearings, says Howard. Confronting this perception will require action on several fronts: the introduction of comparative risk as a legal and social standard, new applications of insurance, and the design and legal protection of public play areas.

This approach transcends the current definition of tort reform, which focuses almost entirely on capping the size of awards in lawsuits.

True, some kind of tort reform is needed, but sometimes it takes a huge settlement to change the behavior of a powerful offender. And capping damages or blocking access to the courts does little to reduce the number of lawsuits. Nor does the traditional approach to tort reform serve to educate the public about the nature of risk; some are beneficial — small risks taken early (and the natural world is good place to take those risks) can prepare children to avoid more onerous risks later in life.

Want a real risk? Check out the rise in child obesity. Pediatricians now worry that the current sedentary generation of children will be the first in our history to have a lower life expectancy than their parents’ generation.

So, what might be on the agenda of a national conference?

– Common Good is calling upon judges and legislatures to create clearer standards on who can sue for what. Among other proposed changes, Howard calls for the creation of public risk commissions that would examine areas of our lives that have been radically changed, “such as our enjoyment of outdoors and children’s play.”

– A nationwide review of laws governing private land and recreation, especially involving children. This review should be done with the goal of protecting both the child’s safety and the child’s right to play in natural settings. As part of this conversation, community associations should review their covenants to decide where they stand on the criminalization of nature play. Public governments should do the same. This is not only a question of the letter of the law, but also the spirit.

– A review of legal barriers to nature experience, and equity of access to nature, depending on the economic and ethnic makeup of neighborhoods.

– How to balance legitimate concern about the destruction of nature with the need to develop, through personal experience, a future constituency for conservation. One long-term remedy: rather than lift restrictions on truly endangered habitat, preserve or create more natural places to play—including natural parks, and the vacant lots and ravines and backyards of our own neighborhoods.

– How to support the creation of new kinds of play spaces where experience in nature can be encouraged, with a reasonable amount of risk, and supervised by play supervisors who know how to let kids be kids. (As long as cities continue to overdevelop housing tracts and under-develop parks and other sites for natural play, our regional parks and beaches will be crushed by demand, necessitating ever more stringent enforcement.)

– A survey of legislation or regulation already on the books that can protect natural play. For example, Good Samaritan laws, or laws that in some states provide liability protection for ranchers or farmers when hunters or anglers come on their land. Which of these protections can be replicated or adapted for natural play?

– Can community or environmental organizations offer group insurance policies similar to ones that exist for, say, skateboard parks? Do current homeowner insurance policies typically offer enough coverage? How can schools and parents buy extra liability insurance to give them the peace of mind necessary to allow kids to build that fort or treehouse?

– How are other countries facing this issue? (Great Britain is arguably moving faster toward this goal than the United States, particularly by their approach to comparative risk, an idea that is either muted or nonexistent in our judicial system, where juries tend to perceive all risk as bad. “There is an important question of freedom at stake, said one British magistrate. Does the law require that all trees be cut down, because some youth may climb them and fall?”)

While we wait for legal reform, Bay Area environmental attorney Brian Schmidt has an idea that just might help. To liberate natural play, he suggests the creation of what he calls a Leave No Child Inside Legal Defense Fund, a foundation that would pay the legal defense costs of select institutions and individuals who encourage children to go outdoors, but are then hit with frivolous lawsuits. If nothing else, such a fund would send a public message that natural play is still valued.

Sending that message would be a primary goal of a National Conference on Children, Nature and the Law, as proposed by C&NN. Such a conference would produce policy recommendations, but it should also publish a free online pamphlet for parents, educators, policy-makers and others, offering practical suggestions for how to start making changes now.

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Richard Louv is chairman of the Children and Nature Network. He is the author of Last Child in the Woods: Saving Our Children from Nature-Deficit Disorder.”

On March 5, he gave the keynote address at the 23rd annual conference for the National Association of Environmental Law Societies, hosted by the Loyola University New Orleans College of Law and the Loyola Environmental Law Society.

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Comments (16)

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  1. Jennifer says:

    This isn’t as hard as it sounds. The pump could be primed by a law school w/faculty who study related issues or with student organizations interested in this area of the law. Law schools frequently convene scholarly forums and report on them by publishing the papers in their law journals and other school media outlets. No doubt there have been numerous forums on children and the law, but with a different focus. I think that scholars would jump at this issue b/c it is so meaty and ripe for discussion.

  2. Ryan Link says:

    And don’t forget to include community planners. So many of the neo-traditional developments of today are so stacked with covenants that they result in exactly what you argue. They may be walkable – but are they fun for children to play in, around, on, etc.

  3. Chelsea Schneider says:

    I would expand on what Ryan said and suggest landscape architects and urban designers be a part of the discussion, but I would also would advocate for parks and school facility managers. In my experience, they ultimately make the decision about designed outdoor environments for kids and their decisions are typically framed by maintenance and liability.

  4. Don L. Gadda says:

    The legal forum should be the last place to begin. Legal restrictions on children’s activities are only a reflection of their parents attitudes. In America today that is chiefly one of fear. Fear of injury (of any sort), fear of strangers, fear of the unknown, fear of failure, and fear of a loss of control. I can’t say I know how we got this way but I do believe we need to recognize that the “play” of children is more important than the term connotes. Children need a connection with wild places (as do adults). They do not need “play supervisors” and it must be the child who in the end determines what risk is reasonable. Lastly, covenants are not law and are often difficult to enforce. It is our own fears that are always controlling.

  5. Meg Rosker says:

    What a fantastic idea. What do people have to do to get this off the ground? I am always pushing these points with all the parents I know, but I feel like a lone peddler of a radical idea. It would be wonderful to have a whole bunch of law makers and academics gathered together to discuss this issue. People these days are so unsure about how they stand on an issue they wait for such “leaders” to take a stand for them. Well, let’s do it!!

  6. Richard I couldn’t agree more with you. We are also having thisn problem in Australia and many of us are wrestling with it. We look forward to your impending visit to Melbourne, Australia for the Helathy Parks, Healthy People International Congress and I sincerely hope this will lead to more organised action on this issue here in Australia.

  7. Andrea Ouse says:

    I urge you to put these ideas in front of the proponents of Smart Growth, New Urbanism, and co-housing. These community planners seem willing to include family friendly and creative solutions to suburban sprawl, HOA rules, and urban cement jungles.

  8. Lucy says:

    I think back as a child, all the hours I spent on the sidewalk in front of my house and the houses in my neighborhood. The neighborhood kids made good use of the safe hard surface…hopscotch, trike path, etc. Now sidewalks are nonexistent in neighborhoods…”kids go play in the street”. I am sure parents are not going to make that suggestion. SIDEWALKS…what a radical idea!

  9. Absolutely! In addition to addressing lawmakers, it’s also very important to take a look at what the entertainment industry is doing. Virtually every show out there is frightening the public away from nature. It’s either being depicted as a scary place where evil things happen or it’s being turned into a reality show where thousands of forests are being slaughtered on “Ax Men”.

    I work in the entertainment industry and am very passionate about changing the way nature is depicted. I believe if we want to see change, we need to change what we see. Considering our very lives depend on nature, it seems bizarre that we don’t give it every bit of honor and reverence we can possible muster.

    So yes, working with our lawmakers is very much needed, but I would also ask that we support the filmmakers who are creating films that honor and celebrate the natural world. Television and movies are the two most powerful conveyors of information, attitudes, thoughts, perceptions, etc…. They can and do change people’s perceptions on a mass scale with the flip of a switch.

    Check out a film called “Sacred Earth” by Jan Nickman to see the kinds of films that can inspire us to reconnect with nature and reap all the rewards that come with it. As I like to say, “If you want to see change, change what you see.”

    Thanks so much for all you are doing to raise awareness Richard!

  10. Stephen says:

    I would love to present at this conference. I cannot agree that our legal system really has impacted children. I think that we need to rethink what constitutes “negligence”, and it should not be simply stepping off their home property and has an injury. These things years ago would have been simply a visit to the school nurse and we should go back to that. At the very least we need to rethink the motion that with each child injury the insurance industry requires the activity to be banned or the playground redesigned. Instead, we need the courts to regonize play and deny many of these cases. Also, we need to allow children to do things on their own free time again. We also should restore full size slides, deep ends and diving boards in pools, reduce the number of waivers needed for activities, allow trust in children some again, and allow risk in play to happen.

  11. Stephen says:

    Some other presenters I would recommend:

    * Joan Almon
    * Phillip Howard
    * James Howard Kunstler
    * Paula Kluth
    * Deborah Plotkin

  12. Excellent blog. I have only recently learned how restrictive things have become in urban places and I am horrified. I live on 15 acres in the country where my grandson discovered, for the first time in his life, the joy of climbing trees, making a fort in the bushes, and feasting on wild raspberries (which I showed him how to identify.) And yes, he survived the visit unscathed, except for a few bug bites.

  13. Theodore Harrison says:

    I agree cities and neighborhoods have become to restrictive in childrens growing up. Children need access to nature. The book is an excellent start at a national conversation and revival of outdoors play. Kids should be able to fly kytes, walk trails, go to the beach, build tree houses, and such. Some adults won’t to close the door after they have had all their fun growing up.

  14. M Davis says:

    in the next couple of weeks our conference website will be live. There are six themes. One is Children and Nature.

  15. Dan Leftwich says:

    Rich,
    I am in complete agreement with the need for this conference, allowing cooperative evolution to move us beyond the fear-based system of liability control over Nature to a more natural rhythm of learning through the experience of Nature. If legal rights for Nature are to mean anything, the “uncontrolled” experience of nature must be reimagined (for, as you say, the next generation of nature’s advocates to find their footing). All legal obstacles to this natural process should be reexamined to see if they are truly necessary. If we want to allow an ecosystem to regenerate, sometimes the best course is to first identify all unnatural influences to determine which are limiting nature’s regenerative capacity and which may be needed to aid in that process. As you know, Thomas Berry’s guidance for the legal profession was the following: “To achieve a viable human-earth situation a new jurisprudence must envisage its primary task as that of articulating the conditions for the integral functioning of the Earth process, with special reference to a mutually-enhancing human Earth relationship.” Our work is not just about helping children reconnect with Nature (as worthy as that goal is). It is also about “articulating the conditions for the integral functioning of the Earth process.” When those conditions are allowed to reemerge, children will thrive, along with the rest of Nature. This conference could help us move beyond dominion over Nature, to communion with Nature, and a mutually-enhancing human-Earth relationship. I stand ready to “step up” and serve this process in any way that I can. Thank you for all that you are doing for children, Nature, and the entire Earth Community.

    Dan Leftwich
    MindDrive Legal Services
    Evolutionary Law

  16. Richard Louv says:

    Terrific, Dan, thanks.

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