Best interests of the child?

Almost everyone agrees that when decisions about a child are being made, those decisions should be made in the child’s best interests. That’s the easy part. The hard part is deciding which decision, from a whole range of options, would best serve the child in a given case. For example, parents frequently disagree with one another as to the best course of action for their children.

For this reason, courts have traditionally been extremely reluctant to become involved in disputes between parents over what exactly in a child’s best interests. They leave it to the parents unless there is clear evidence of abuse or neglect in which case they rightly intervene.

In addition, there is no particular reason to believe that a judge’s view as to a child’s best interests will be in any way superior to that of a parent, and there is plenty of reason to believe it will be inferior in that the judge will barely know the child.

Yet in recent years there has been an extremely worrying trend in various jurisdictions that has seen courts take upon themselves the right to decide what is in a child’s best interests over the heads of parents in instances that don’t even remotely have to do with abuse or neglect.

The concept of a child’s ‘best interests’ is extremely malleable and subjective. A court can always argue, that action A is in a child’s best interests rather than action B and impose action A even though action A is simply the subjective preference of the judge.

For example, in Sweden a judge has just upheld a decision by social workers to remove a child from his parents because the parents are home-schooling the child and therefore the child is ‘socially isolated’ and had not been fully vaccinated. But the child in question was being neither neglected nor abused. The parents, who are Christians, decided it was best for the child that they home-school him. This was a judgement call and they had a right to make it.

Social services, backed by this judge, overruled them. If parents can be overruled for such a thing, then they can be overruled for almost anything. This gives the State enormous power to interfere in family life.

The child at the centre of this case has been ripped from his parents who only have very limited access to him. It is extremely hard to see how so drastic an action is even remotely in his best interests, but the social workers and the judge decided that it is. This only demonstrates why we should be extremely reluctant to grant such power to third parties like social services and the courts.

Meanwhile a Vermont court has ordered that a child being raised by her lesbian mother be taken from her and given to the mother’s ex-partner because the mother violated their access agreement. Again, no abuse or neglect was taking place but still the Vermont court was able to cite the child’s ‘best interests’ in order to justify its decision.

This is simply another example of how a court can use this concept to justify almost anything.