Best interests

”What is in the best interests of the child?” is the question that must be asked in all situations where legal decisions have to be made about the welfare of children. This however proves to be both indeterminate and indeterminable. While sounding noble, in practice the concept is nothing more than a blank screen upon which decision makers, mental health professionals, welfare workers, lawyers, religious leaders and politicians are invited to project their own beliefs and values. A decision or belief that is regarded in one context as being in the best interests of a child would be viewed differently from person to person, place-to-place, culture-to-culture and generation-to-generation.  What was considered the best interest of a child in Victorian times is very different from what is considered the best interest of a child today.  The best interests of a child in the eyes of a white male conservative judge could be different from the perspective of someone in an impoverished, marginalized, minority community. It is for this reason that children so often rather than being protected in legal matters, become prisoners of war in the hands of parents and their lawyers who use them as bargaining chips or emotional bludgeons to get the better of the other parent. As parents have acquired more equal rights when it comes to control over the children, rather than use the change in law as an opportunity to share responsibility for the child, many use it as an opening to escalate their claim for total control over the children so as to be able to destroy the other parent or keep the children for themselves. The question of best interests proves to be paradoxical because it is invoked only when the best inters of the child have already been violated. Any reasonable person would surely agree that it is better to have children staying with a less adequate parent while enjoying access to both parents and their extended families, and to see the respective families respecting and co-operating with each other than being forced to split loyalties and feel guilty about loving one of their parents and that side of the family. It would make more sense to investigate what would be least detrimental alternatives for children. This standard implies firstly that there are alternatives’ and secondly that all the alternatives are likely to be problematic and detrimental to the child in some way. With this yardstick one has to focus on the practical implications for the child’s and choose the least damaging. What is truly in the best interest of any child is to have comfortable access, be allowed to freely love and have high regard for those who are important in the child’s life.

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