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JULY 1994

Article 24 - Protection of Children

I.   Nondiscrimination

Children in the United States are entitled to 
constitutional and statutory protections against 
discrimination which are described elsewhere in this 
report.  As described in connection with Article 2, 
the Fifth and Fourteenth Amendments to the 
Constitution, together with numerous federal and 
state statutes, ensure that all U.S. citizens are 
protected against discrimination on the basis of 
race, color, sex, language, political or other 
opinion, national, ethnic or social origin, 
property, disability, birth or other status.  In the 
context of equal protection doctrine generally, U.S. 
law provides special measures of protection aimed at 
preventing discrimination against children.

Education.  Principles of nondiscrimination have 
been enforced with special vigor in the field of 
education.  It is notable that the seminal Supreme 
Court decision on equal protection in the United 
States, Brown v. Board of Education, 347 U.S. 483 
(1954), concerned the education rights of children.  
In that case, the Supreme Court ruled that racial 
segregation in public school education was 
unconstitutional under the Equal Protection Clause 
of the Fourteenth Amendment.  Title VI of the Civil 
Rights Act of 1964 prohibits discrimination on the 
basis of race, color, or national origin in programs 
and activities receiving federal financial 
assistance.  42 U.S.C.   2000d.  In the years since 
Brown, courts and legislators have articulated a 
host of other educational protections for children.  
For example, it is now illegal for schools to 
discriminate against children on the basis of their 
status as illegal aliens, Plyer v. Doe, 457 U.S. 202 
(1982); on the basis of sex, Title IX of the 
Education Amendments of 1972, 20 U.S.C.    1681 et 
seq.; on the basis of language status, Lau v. 
Nichols, 414 U.S. 563 (1974); on the basis of 
disability, Section 504 of the Rehabilitation Act of 
1973, 29 U.S.C.   794, Individuals with Disabilities 
Act, 20 U.S.C.    1400 et seq., and the Americans 
with Disabilities Act; or on the basis of 
homelessness, McKinney Homeless Assistance Act, Pub. 
L. No. 100-77 (1987), 101 Stat. 482, as amended, 42 
U.S.C.   11431.

Children Born Outside of Marriage.  The U.S. Supreme 
Court has adopted a standard of heightened scrutiny 
in reviewing instances of discrimination against 
children born outside of marriage.  In the important 
area of child support, the Court has held that a 
state's failure to accord full support rights to 
such children constitutes a violation of equal 
protection.  Gomez v. Perez, 409 U.S. 535 (1978).

More recently, the Court has held that a six-year 
limit on paternity and support actions denied 
illegitimate children equal protection.  Clark v. 
Jeter, 486 U.S. 456 (1988).  Particularly in the 
areas of inheritance and Social Security benefits, 
however, the Court has upheld the state's interest 
in facilitating property succession and 
administering the Social Security program despite 
unequal treatment of illegitimates.  See Lalli v. 
Lalli, 439 U.S. 259 (1978) (upholding a statute 
restricting inheritance by illegitimates from 
father's estate to instances where a court of 
competent jurisdiction, during the father's 
lifetime, had entered an order declaring paternity); 
Mathews v. Lucas, 427 U.S. 495 (1976) (upholding 
Social Security benefits awarded only where 
illegitimate child met one of "presumptions" of 
dependence on deceased parent or where child was 
living with or being supported by parent at parent's 
death).    Noncitizen Children.  Similarly, the 
Supreme Court has applied heightened scrutiny in 
adjudicating the equal protection rights of alien 
children.  The Court has held, for example, that 
alien children have a constitutional right to public 
school education in the United States, whether or 
not they are legally documented aliens.  Plyer v. 
Doe, 457 U.S. 202 (1982).  The Court has also found 
that aliens have a right to equal access to 
educational assistance benefits.  Nyquist v. 
Mauclet, 432 U.S. 1 (1977).

Disabled Children.  Disabled children in the United 
States are protected against discrimination by the 
Americans with Disabilities Act of 1990, which 
expanded the guarantees of the Civil Rights Act of 
1964 to millions of persons with physical and mental 
handicaps.  In particular, disabled children benefit 
from entitlements to access to public 
accommodations, including recreational facilities, 
restaurants, retail facilities and transportation.  
As noted above, children with disabilities are fully 
guaranteed the right to equal educational 
opportunities in the United States.  See 20 U.S.C.   
1400 et seq. (Individuals with Disabilities 
Education Act, IDEA).  Also, disabled children are 
protected by Section 504 of the Rehabilitation Act 
of 1973, which prohibits discrimination in 
federally-funded programs on the basis of disability 
or perceived disability.

II.  Primary Responsibility. 

Parental Responsibility.  Parents bear the primary 
responsibility for the protection and upbringing of 
children in the United States.  As noted above in 
connection with Article 23, U.S. courts have long 
recognized the rights of parents to raise their 
children free from government intervention:  "The 
history and culture of Western civilization reflect 
a strong tradition of parental concern for the 
upbringing of their children.  The primary role of 
the parents in the upbringing of their children is 
now established beyond debate as an enduring 
American tradition."  Wisconsin v. Yoder, 406 U.S. 
205, 232 (1972).  Under U.S. law, parents have both 
the right and the duty to prepare their children for 
adulthood:  "The child is not the mere creature of 
the State; those who nurture him and direct his 
destiny have the right, coupled with the high duty, 
to recognize and prepare him for additional 
obligations."  Pierce v. Society of Sisters, 268 
U.S. 510, 535 (1925).

Child Custody.  As discussed under Article 23, all 
states adhere to the "best interests of the child" 
doctrine in determining the custody of children 
between biological parents.  As a Kansas court 
indicated, "Without question, the paramount concern 
of courts in child custody proceedings is the 
welfare of the child . . . . [W]hen a controversy 
arises as to the custody of a minor child, the 
primary question to be determined by the court is 
what is for the best interest of the child."  
Chapsky v. Wood, 26 Kan. 650 (1881).  Since then, 
the "best interests" doctrine has been articulated 
in the statutes or case law of all the states and in 
the Uniform Child Custody Jurisdiction Act.

Adoption.  Adoption is a legal process which 
establishes a parent-child relationship between 
individuals who are not each other's biological 
parent or child.  In the United States, adoptions 
are regulated primarily by state law.  Although the 
states have yet to adopt uniform guidelines for 
adoptions, there are certain characteristics common 
to all state adoption laws.  First, adoption is 
permitted only after a court has been satisfied that 
the biological parents have given voluntary and 
informed consent, or that there are other 
appropriate grounds for waiver of such consent.  
Second, before an adoption is approved, a court must 
find that the child is being placed with suitable 
adoptive parents and that the proposed adoptive 
relationship is in the best interests of the child.  
Third, adoption in the United States is not a 
bargained-for exchange.  Although parents may pay 
agencies and other professionals for certain 
adoption-related expenses, they are prohibited from 
"purchasing" children for adoption.  Finally, 
adoption constitutes a permanent substitute for the 
prior legal relationship between the child and his 
or her biological parents.  The federal government 
plays a limited role in providing financial support 
for families of adopted children.  For example, 
under the Adoption Assistance and Child Welfare Act, 
42 U.S.C.    670 et seq., the government provides 
reimbursements to states for financial and other 
assistance given to families adopting children with 
"special needs."

At present, a Uniform Adoption Act is being drafted 
which would establish common guidelines for handling 
adoptions among the various states.  In addition, 
the U.S. Government has participated in the effort 
by the Hague Conference on Private International Law 
to develop an international covenant on inter-
country adoptions and is actively considering prompt 

III. Oversight and Support of the Primary Care-giver

Parental Role.  As discussed above, states require 
parents to provide support for their minor children 
to the extent of their financial abilities.  In 
setting out the requirements for child support, 
states are prohibited from discriminating against 
children on the basis of their sex, legitimacy, or 
adoptive status.  The only exception to this rule is 
in the area of inheritance by children born out of 
wedlock, as discussed above.  

Failure of parents to provide adequate support to 
children within their care can lead to civil abuse 
or neglect proceedings and removal of the child from 
parental care.  Mechanisms for enforcement of child 
support obligations by noncustodial parents in case 
of divorce are discussed under Article 23.

Financial Support Programs.  The federal government 
administers a number of social programs designed to 
provide financial support for children whose parents 
cannot afford to bear the full burden of  child 
support.  Aid for Families with Dependent Children 
(AFDC), 42 U.S.C.    601 et seq., is the principal 
support program for poor families.  Poor families 
with children are also eligible for the Earned 
Income Credit (EIC), 26 U.S.C.   32, a federal tax 
credit which offsets social security taxes and 
supplements wages for poor families with children.  
In addition, the Family Support Act of 1988, Pub. L. 
No. 100-485, 102 Stat. 2343 (1988), provides federal 
support for state job training programs for families 
receiving AFDC payments.

Children in the United States also benefit from more 
general social insurance programs.  Each child of a 
retired, disabled or deceased insured wage earner is 
entitled to receive social security benefits through 
the age of 18 (or 19 if the child is still enrolled 
full-time in secondary school).  As of 1987, 2.6 
million minor children were direct beneficiaries of 
social security, and millions more were indirect 
beneficiaries through their parents or guardians.  
In addition, children in the United States benefit 
from other social insurance programs such as 
unemployment insurance and workers compensation.

Foster Care.  The foster care system in the United 
States provides care and financial assistance for 
children whose parents are either unable or 
unwilling to care for them.  The system is 
administered by state and local child welfare 
agencies.  Most foster children are placed in 
individual foster homes or in group homes where they 
are cared for by foster parents or group home staff.  
When homes are unavailable, children may be placed 
in institutions; however, the use of institutional 
child care is limited under both federal and state 
law.  See, e.g., West's Calif. Welf. & Instit. Code 
   206, 207.1, 361.2; 42 U.S.C.   672(c)(2).

Many children in the United States are brought into 
the foster care system through involuntary removal 
from their parents by child protective services 
workers.  Others are placed there voluntarily by 
parents who need assistance in child care.  Those 
children who are permanently separated from their 
parents are cared for through adoption, 
guardianship, or long-term foster care.  In such 
cases, both federal and states laws encourage the 
placement of children in permanent homes as soon as 

Foster care is funded primarily by the states 
through direct grants to care-givers.  The federal 
government provides additional funding through the 
Adoption Assistance and Child Welfare Act, 42 U.S.C. 
   670 et seq.  As a prerequisite to funding, the 
Act sets out minimum requirements for state foster 
care agencies.  These include case plans, regular 
case reviews, minimum standards for foster homes, 
mandated reporting of abuse by out-of-home care-
givers, and procedural protections for parent-child 
visitation and changes in placement.

Child Abuse.  The federal government and the states 
have devoted considerable resources to combatting 
the problem of child abuse in the United States.  
Each state now has a reporting statute which 
requires professionals working with children, such 
as teachers and doctors, to report evidence of child 
abuse and neglect to designated law enforcement or 
child protection authorities.  Most statutes impose 
a minor criminal penalty for failure to report.  
Upon receiving an abuse report, a state enforcement 
agency is required to investigate  to determine 
whether there is a basis for the report.  In extreme 
cases, U.S. law permits state authorities to take 
abused children into emergency protective custody.

Every state has a juvenile or family court with 
jurisdiction over child abuse cases.  Proceedings 
are commenced by a state agency filing a petition 
alleging that a child has been abused and is in need 
of protection.  Upon an affirmative determination of 
abuse or neglect, the court has a range of available 
remedies, including protective orders, supervision 
of parents, awarding temporary custody to foster 
parents or the state, requiring medical or 
psychiatric treatment for either the parents or the 
child, and in extreme cases, termination of parental 

IV.  Other Special Measures of Protection for 

Minority.  The common law in the United States 
traditionally imposed both privileges and 
disabilities on persons under age.  The purpose was 
to protect the child at a time when he or she lacked 
the capacity to exercise good judgment.  This 
purpose underlies most of the legal privileges and 
disabilities imposed on minors, such as the 
privilege to disaffirm contracts or the disability 
to consume alcohol.  Until the 1970 s, the legal age 
of majority in the United States for most purposes 
was 21.  Since then, all but five states have 
reduced the age to 18.  Many of those states which 
have reduced the age of majority still maintain 
restrictions, such as prohibitions on purchasing 
liquor, on persons up to the age of 21.  The Twenty-
Sixth Amendment to the Constitution now ensures that 
all persons 18 years of age have the right to vote 
in the United States.

Ability to Contract.  Minors in the United States, 
while they may enter into contracts and enforce 
them, also have the right to disaffirm their 
contracts, and thereby avoid liability, at any time 
before reaching majority or within a reasonable time 
thereafter.  Several states have modified this 
doctrine to allow children to enter fully binding 
contracts for the purchase of necessaries, which are 
defined as goods and services needed for the child's 
support.  These include food, clothing, housing, 
medical care, legal services, and in some cases an 

Child Labor Laws.  The federal Fair Labor Standards 
Act (FLSA) establishes national minimum wage, 
overtime, record-keeping and child labor standards 
affecting more than 80 million full- and part-time 
workers in both the public and private sectors.  29 
U.S.C.    201 et seq.  It applies to workers engaged 
in interstate commerce, the production of goods for 
interstate commerce or in activities closely related 
and directly essential to such commerce.  The FLSA 
also applies to all employees of certain enterprises 
including business enterprises with more than 
$500,000 in annual volume of business.

The FLSA's child labor provisions are designed to 
protect the educational opportunities of younger 
minors and to prevent employment in jobs and under 
conditions detrimental to the health or well-being 
of all minors.  These provisions include certain 
restrictions on occupations and hours of work for 
youth under 16 years of age in nonagricultural work.  
They also restrict to nonschool hours the working 
hours of children aged 12 through 14 employed in 
agriculture under specific conditions.  In addition, 
the FLSA prohibits employment of minors under age 16 
in farm occupations declared by the Secretary of 
Labor to be hazardous for minors to perform; 
similarly, minors under age 18 in nonagriculture 
work may not be employed in occupations declared 
hazardous by the Secretary.  Violators may be 
charged in the form of administrative civil money 
penalties of up to $10,000 for each violation and, 
in certain circumstances, may be subject to criminal 
penalties.  The Secretary of Labor may also seek 
injunctions against violators in federal district 

In addition to federal child labor statutes, most 
states have child labor laws designed to protect 
young workers.

The U.S. Labor Department's Employment Standards 
Administration, Wage and Hour Division (WH), 
enforces the FLSA child labor provisions.  In fiscal 
year 1993, WH assessed employers over $8.2 million 
in civil money penalty fines and found over 10,000 
minors illegally employed.

Armed Conflict.  Children in the United States are 
not permitted to participate in armed conflict.  The 
only exception to this policy is for persons not 
less than 17 years of age who have obtained written 
parental consent.  In practice, the Department of 
Defense ensures that individuals under the age of 18 
are not stationed in combat situations.  See Regular 
Army and Army Reserve Enlistment Program, Army 
Regulation 601-210, Headquarters, Department of the 
Army, 1 December 1988, Chapter 2.  

Drugs.  The abuse of narcotic and psychotropic drugs 
by children is a serious problem in the United 
States.  The production, sale, and use of such drugs 
is illegal in every state, and several states have 
taken steps to target specifically the sale of drugs 
to children, for example, by increasing the 
penalties for drug sales in the proximity of 
schools.  Education is another key aspect of the war 
on drug abuse by children, and most states now 
require that public school students be exposed to 
drug education curricula at several stages in their 
education.  Perhaps the weakest link in the war on 
drugs is in funding for rehabilitative services.  At 
present, many American children who are already 
addicted to drugs do not have access to meaningful 
support and assistance in curing themselves of their 

Sexual Exploitation of Children.  U.S. federal and 
state law contains comprehensive protections against 
sexual exploitation of children.  Most cases concern 
sexual contacts or molestation, which are criminal 
acts in all states.  Child prostitution is also 
illegal in every state, and in most states, criminal 
liability extends to any person participating in or 
profiting from the acts of a child prostitute.  
Statutory rape laws have also been applied in the 
context of child prostitution.  The problem of 
sexual abuse of children in the home is addressed 
through state child abuse laws.  In addition, the 
Child Abuse Prevention and Treatment and Adoption 
Reform Act of 1978, 42 U.S.C.    5101 et seq., 
requires states receiving federal funding to include 
"sexual exploitation" in their definitions of 
reportable child abuse.  Finally, child pornography 
is now illegal under both federal and state law.  In 
a recent decision, the Supreme Court ruled that the 
government has a compelling interest in the 
protection of victims of child pornography, one 
which overrides the free speech interests of 
pornographers.  Osborne v. Ohio, 495 U.S. 103 

Trafficking in Children.  Trafficking in children is 
illegal under the Thirteenth Amendment to the 
Constitution, which prohibits all forms of slavery 
and involuntary servitude, except as punishment for 
crime.  This constitutional prohibition is 
supplemented by numerous federal and state statutes.  
The Mann Act, for example, prohibits trafficking in 
individuals for purposes of prostitution and imposes 
heightened penalties in the case of children.  See 
18 U.S.C.    2421 et seq.

V.   Education

All children in the United States are entitled, 
through the laws of each state, to universal, 
public, free primary and secondary school education.  
Each state has a compulsory education statute 
requiring children between certain ages (typically 
six through 16 years old) to attend primary and 
secondary school.  In addition, the constitutions of 
all 50 states contain provisions supportive of 
education.  See, e.g., N.Y. Const. Art XI   1.  
Although the federal Constitution does not expressly 
provide for a right to education, the U.S. Supreme 
Court has suggested that children have an implied 
right to "some identifiable quantum of education" 
sufficient to provide the "basic minimum skills" 
needed to enjoy the freedom of speech and to 
participate in the political process.  San Antonio 
Independent School District v. Rodriguez, 411 U.S. 
1, 36 (1973).  The Headstart program, 42 U.S.C.    
9801 et seq., provides special pre-school education 
programs for qualifying children.  The Individuals 
with Disabilities Education Act, 20 U.S.C.    1400 
et seq. guarantees a free appropriate public 
education for children with disabilities.

VI.  Health Care

The federal government administers a number of 
health care programs which are designed to ensure 
that all children in the U.S. receive adequate care, 
free of charge if necessary.  

The primary financing mechanism for publicly-funded 
health care in the United States is the Medicaid 
insurance program, 42 U.S.C.    1396 et seq.  
Operated by the states under broad federal 
guidelines, Medicaid covers most, but not all, low-
income pregnant women, children, and caretaker 
relatives of children.  Medicaid has been a vehicle 
for improving prenatal care and reducing infant 
mortality.  In addition, under the preventive 
component of Medicaid -- the Early and Periodic 
Screening Diagnosis and Treatment (EPSDT) program -- 
federal law requires the states to provide a package 
of preventive, screening, diagnostic and follow-up 
services to children.  The federal government has 
set a target whereby eight out of ten eligible 
children must receive medical screening by 1995.  As 
of 1990, however, only about one half of poor 
children older than six received any Medicaid 
services at all.

There are three principal programs for delivery of 
public medical services in the United States.  The 
Title V Maternal and Child Health Block Grant 
program makes federal funds available to states to 
"provide and assure mothers and children (in 
particular those with low income or with limited 
availability of health services) access to quality 
maternal and child health services."  Most states 
combine these federal grants with state revenue 
funds to deliver services at the local level.  
Although it has suffered from funding constraints, 
Title V represents a commitment on the part of the 
United States to provide primary health care to all 
American children free of charge if necessary.  

The second initiative is the Community and Migrant 
Health Center program, which finances community 
health centers in medically underserved communities.  
Over 2,000 health care sites, run by approximately 
600 public and private nonprofit entities, provide 
comprehensive primary care to the target population 
in all states except Wyoming and in Puerto Rico and 
the District of Columbia.  Of the more than five 
million patients served each year, two-thirds are 
women of childbearing age and children.  

The third principal program is the National Health 
Service Corps, which sends individual physicians to 
areas in need of better health care, primarily inner 
cities and rural areas.  

Another federal health care program is the Title X 
Family Planning program.  Finally, one program that 
contributes significantly to the well-being of women 
and children is the Supplemental Food Program for 
Women Infants and Children (WIC), 42 U.S.C.   1786.  
This latter program provides nutritious foods, 
nutrition education, and semiannual physical exams 
to low-income, high-risk women and children under 5 
years of age.  

Immunization.  One of the most important health 
services provided for children in the United States 
is immunization.  Approximately one-half of 
childhood vaccines administered in the U.S. are 
financed through the private sector.  The other half 
are financed through a combination of state funds 
and federal funds which are paid through the 
Childhood Immunization Program at the Centers for 
Disease Control.  In spite of these funding efforts, 
however, there is need for improvement in the United 
States, as hundreds of thousands of American 
children still do not have adequate immunization.  
At present, largely as a result of inadequate health 
care delivery, only about one-half of preschool-age 
children in the inner city are fully immunized.  In 
1993, Congress enacted a new childhood immunization 
program under Medicaid (Pub. L. No. 103-66, 107 
Stat. 312,   13631).

Services for Disabled Children.  Many of the 
publicly-funded health care programs described above 
provide special services for disabled children.  For 
example, current law now requires that a minimum of 
30 percent of federal Title V funds be used for 
children with special health needs.  With funding 
from Title V, states administer programs for 
Children with Special Health Care Needs, which in 
recent years have broadened in scope to encompass, 
among others, children with AIDS or HIV infection, 
mental retardation and speech-lung-hearing 

Disabled children also benefit from the 1989 
Amendments to the Medicaid EPSDT program.  With full 
implementation of the Amendments, these children 
will be entitled to a full range of rehabilitation 
services including physical, occupational and speech 

Under the Supplemental Security Income (SSI) 
program, low income individuals who are blind or 
disabled are provided with cash income payments from 
the federal government.  Children are eligible if 
they are disabled and if their family income and 
resources falls below a certain level.  As of the 
end of 1993, approximately 750,000 children, most 
with severe disabilities, receive SSI monthly cash 

In the area of education, the Individuals with 
Disabilities Education Act was promulgated to assist 
families in securing free and appropriate public 
education for disabled children.  The Act also 
requires that the government provide disabled 
children with so-called "related services," which 
include education-related therapies and health 
services.  These services are provided free of 
charge.  As of 1990, approximately four million 
children received services from this program.

Disabled children also benefit from the 
nondiscrimination provisions of Section 504 of the 
Rehabilitation Act of 1973 and from the Americans 
with Disabilities Act of 1990, discussed under 
Article 2.

VII. Registration and Identity

The United States does not have a system of national 
identification cards or registration.  Rather, birth 
registration has traditionally been a state and 
local function in the United States.  Every state 
requires the registration of every child born in the 
state.  See e.g., Cal. [Health & Safety] Code   
10100 (1987) ("Each live birth shall be registered 
within 10 days following the date of the event."); 
Ariz. Rev. Stat. Ann.   36-322; Ill. Stats. ch. 111 
1/2, para. 73-12 (Vital Records Act).  Birth 
certificates may be obtained as proof of citizenship 
or birth.

A number of courts have considered the issue of 
naming children.  They have found that "parents have 
a common law right to give their child any name they 
wish, and that the Fourteenth Amendment protects 
this right from arbitrary state action."  Jech v. 
Burch, 466 F. Supp. 714, 719 (D. Haw. 1979).  Courts 
have rejected state arguments for statutes limiting 
acceptable names for children, finding that 
administrative convenience is not a sufficient state 
interest to impair the right to name one's child.  
See Jech, 466 F. Supp. at 720; O'Brien v. Tilson, 
No. 79-463-CIV-5 (E.D.N.C. Oct. 2, 1981) (memorandum 
finding that N.C.G.S.   130-50(e) violated the 
plaintiff's constitutional rights); Sydney v. 
Pingree, No. 8208291-CIV-JAG (S.D. Fla. Dec. 17, 
1982) (order granting plaintiff's motion for summary 

VIII.  Nationality 

Acquisition of U.S. citizenship is governed by the 
U.S. Constitution and by federal statute.  The 
Fourteenth Amendment of the Constitution provides 
that "[a]ll persons born in the United States and 
subject to the jurisdiction thereof, are citizens of 
the United States" regardless of the nationality of 
their parents.  The Immigration and Nationality Act 
further provides that a child born abroad to a U.S. 
citizen parent (or parents) shall acquire U.S. 
citizenship at birth provided the U.S. citizen 
parent (or parents) complied with specified 
requirements for residency or physical presence in 
the U.S. prior to the child's birth.  8 U.S.C.   
1401.  (Previous versions of this statute required 
that, in order to retain U.S. citizenship, the child 
reside or be physically present in the U.S. for a 
certain period of time before a certain age.)  The 
Immigration and Nationality Act also permits and 
establishes requirements and procedures for 
acquisition of U.S. citizenship by naturalization.  
8 U.S.C.    1421 et seq.
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