Children at the Centre of the Storm
When family, legal or policy decisions relating to the interests of children have to be made by more than one party with differing views, the children in question become “the centre of the storm”. That is, they become the focal point around which power relationships are arranged. Power in this paper is used in the sense of power being exercised through competing knowledge’s based upon claims to superior expertise or more legitimate knowledge’s, as in the work of Michel Foucault.
The Child as Legal Object
When decisions have to be made regarding their interests, children of tender years in particular tend to be treated as legal objects rather than legal subjects, in that they are not directly or explicitly involved in decisions made about their lives. Adults participating in the playing out of conflict between different interests and knowledge’s or belief systems make decisions on the behalf of children based upon the claim that they are acting in the best interests of the children in question.
This phenomenon is evident for example, where professionals from one cultural group or knowledge base, impose their ideas on families or communities with different cultural knowledge. Here a claim to objectivity or expertise acts as concealment of the power operations being played out by persons from of the dominant knowledge or culture.
The Best Interests of the Child
The standard that has more than any other factor paved the way for this circumstance is the standard of the best interests of the child. This statement might appear to be an attack on a phrase that has become almost iconic. Fundamental to this whole discussion however, is the notion that power (in the Foucaultian sense of knowledge=power) is most effective when its workings remain concealed because it cannot be challenged. Therefore, the consequences of applying this standard in practice needs to be critically reviewed.
The best interest of the child is a noble and valuable ideal, which should be the overriding ideal upon which all decisions regarding children are based. However this standard has never been defined in practical terms. From a pragmatic point of view therefore, it proves to be both an indeterminate and indeterminable standard often becoming an un-examinable discretion in the hands of those in power. Herein lies the essential problem. In practice when the best interests standard is invoked all it serves to do is to create 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 as they compete for the power to define and determine how this standard gets to be applied in practice.
While sounding like a good principle upon which to base decisions, “the best interests of the child” is in fact merely an abstract ideal or expression of purpose and if not defined in pragmatic terms often becomes a meaningless platitude that helps to conceal more than it reveals. 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.
In a society which is both multi-cultural and in flux, as is the South African context, the field is wide open for power struggles over who is going to make decisions about and control the lives of the vulnerable and less powerful members of our society. Children being at the centre of the storm among all those fighting over this issue, bear directly or indirectly the brunt of the resultant competing tensions.
Often the beliefs and values of decision makers are quite utopian and out of touch with the everyday realities facing the particular family and child in question. The system based upon the ideal of the best interests thus runs the risk of rendering the recipients of this wisdom, most particularly the child invisible rather than protected.
Children Rendered Invisible
When decisions regarding the lives of children are made without the direct or indirect participation of the children, those decisions mostly reflect the beliefs of the particular adults who have power over the child’s life at that point in time, and consequently often serve to render the child invisible. For example, children in children’s homes are often extremely resentful and angry about the interventions made regarding their lives and ostensibly on their behalf without them being given any choice or even a voice. The issue of access for a child who is reluctant to spend time with a parent is probably the most common arena where professionals acting on the child’s behalf render the child voiceless and invisible. Very often children have to be coerced to comply with access rules from a court order purely to avert court applications being brought by unreasonable non-custodial parents and the custodial parent fearing the consequences of appearing before an indifferent or biased court. Well-meaning adults exercising power based on their claim to knowledge or “the truth” of what the best interests of the child are in the above examples make interventions that from the child’s frame of reference explicitly violate the child’s interests and actual needs which are in any case constantly evolving.
Children in many instances have been severely abused or have even died because of the application of taken for granted beliefs or professional knowledge’s embodied in concepts like “family reconstruction”. Examples would be for instance where Child Welfare have removed children from a formal or even informal foster home and returned them to parents who, in the short term, might have appeared adequate but are in the long term a danger to the child; and children who are placed with families at birth and then removed and placed in later childhood with biological parents who are relative strangers, or actual strangers to the child without any consideration being given to the real effects that such a move may have on the child.
Fundamental to this discussion is also the fact that experts and decision makers are very limited in their ability to make long-term predictions. It is a challenge to make decisions that take into account the dynamic nature and fluidity of life.
Reification in Proffessional Language
Many concepts in professional language used to reach or justify decisions regarding children, for example “bonding” or “maternal deprivation”, have become reified and consequently form part of our “taken for granted” belief systems that inform consequent perceptions of “reality”. All ideas used in professional contexts need to be deconstructed and understood in terms of the contexts in which they arose or else they serve as carriers of invisible power by being used to support claims to expert knowledge’s and thus “objective” truth. Invoking such concepts limits options for decision-making and detracts attention from the realities of the particular child, again rendering the child invisible through a claim to be representing the child’s interests and needs which in reality might not even have been properly canvassed let alone addressed.
This phenomenon is evident in most people’s idea of what structure constitutes a normal or average family structure. Even when the family forms in a particular society show so much variation that no standard or average structure can be identified, the typical margarine advert depiction of a white middle-class husband and wife with a boy and a girl child, adorable dog and a white picket fence in the suburbs still seems to inform many decision makers view of a family. In South Africa even the open door and picket fence hardly exist anywhere in reality and yet this characterization remains accepted because it based upon a taken for granted view of the world or fanciful thinking about how people would like the world to appear. For example the average woman in South Africa is black and single contrary to what the media portray.
Some standards, like the ideal of family reconstruction, are taken for granted as being synonymous with the best interests of the child. In practice however and given the peculiarities of a specific case the two ideals may prove to be mutually exclusive and irreconcilable.
The Least Detrimental Alternative
The standard of the best interests thus needs to be operationalised in a way that brings the focus of attention squarely on the interests of the child in a pragmatic and unbiased way. The very use of the term conceals the fact that it is only invoked after and because the best interests of the child have already been violated. As soon as this term is invoked, it suggests the need for damage control and not utopian ideals. For this purpose of operationalising the best interests of the child idea, a valuable test would be what is “the least detrimental alternative” (Goldstein, Solnit, Goldstein & Freud 1996).
When the idea of the least detrimental alternative is employed as the operationalisation of the best interests of the child ideal, necessary attention is drawn firstly to the fact that alternatives exist and secondly that all alternatives are likely to be problematic and detrimental to the child in some way. Believing that one is acting purely in the best interests of the child may blind a decision maker to the fact that even the best solution can contain many problems and aspects which are detrimental to the child.
The search for the least detrimental alternative directs attention away from idealistic theorising to the pragmatics and real consequences for the child of each alternative rather than trying to fulfil an ideal such as the best interests, which makes the reference point for the decision an abstraction, rather than addressing the practical realities of the case in question.
Discolsure of Values and Knowlege
Professionals and decision makers including judges should disclose as a matter of course the values and belief systems that inform their knowledge’s and opinions. Prejudice, ignorance and power issues are often legitimised and conferred the status of objective knowledge or opinion through being concealed behind the guise of professional expertise. Belief in one objective truth or claims to objectivity in decision-making is often in reality a concealment of the practice of power made by an agent acting from the viewpoint of the dominant knowledge in a particular society.
An expert report for example should take the reader of the report or the Court through the thinking of the author in a transparent manner. The role of an expert should be to empower the decision maker with a perspective that would be unavailable for example to the Court without that expert evaluation. The values and biases implicit in that expert opinion should be disclosed in an explicit manner and thus be rendered open to rebuttal. Experts should not be allowed to conceal their biases or intentions behind their claim to specialized knowledge or reliance upon their status as a professional or expert.
Experts or decision makers should be obliged to satisfy the Court that the positive and negative effects of all options have been thoroughly considered from the point of view of the child and the realities of the life of the that particular child. The protection of adults’ rights, like the rights of fathers or the rights of people prejudiced against same sex couples for example, can often be seen operating in a covert manner in that they can be masqueraded as children’s rights. An example of how two seemingly child friendly and compatible ideas can clash in this way is when the notion of family reconstruction suits the adults but may not in the particular case be in the best interests of the child.
The claim to victim-hood or disempowerment can be an extremely powerful use of power especially in a society that has become ultra-sensitive to abuses of power. In many fathers rights cases for example this claim is used as a ruse to conceal power and increase the father’s power by mobilizing the force of the legal system to assist him in his claimed plight.
Many fights for parental rights are concealed behind definitions of the best interest of the children. Like Eleanor Roosevelt who said “I believe that everyone is entitled to my opinion” many parents operate on the assumption that it is in my child’s best interests for the parents will to prevail.
PAS as a Power Dynamic
The best example and most disturbingly vivid symptom of power relationships being played out through children is the practice of parental alienation. In this scenario, children are recruited directly into the power play between the parents and are manipulated by a programming parent to betray their own experience, loyalties, needs, feelings and beliefs by betraying their other parent in order to retain the love and protection of the programming parent. Often the targeted parent responds to the children’s alienation by attempting to counteract what the other parent has done with counter alienation. This sets up a cycle of abuse in which the children become the psychological hostages of their parent’s war.
A double-bind dynamic exists around this issue. Ironically, although understandable, with standardized rules like the maternal preference rule, the power balance is fixed and outcomes are predictable if not always resulting in justice or best interests of either children or parents being served. People who become disqualified through the application of preference rules inevitably resign themselves to their plight and take what they could get from their limited involvement in the lives of their children. As institutionalised power relations are replaced in favour of a more egalitarian framework, people have to create new ways of obtaining power. This opens up the new front, outside the reach or influence of the court, upon which the parents do battle. The resulting crossfire and fall-out of this battle becomes located around the child. The fight ceases to be about what is best for the child and becomes a fight about who can control the heart and mind of the child. From the law previously having had a too rigid and deterministic a role in determining custody outcomes the battle is now shifting to an arena into which the law has difficulty even entering let alone controlling.
One has to strongly question the bona fides of a parent who attempts to undermine or damage what is most dear to their child next to themselves and that is the other parent. The principle extends to grand parents and other important people. However they try to justify their motives, hurting the other parent is hurting the child, and trying to destroy the parent child relationship is tantamount to destroying part of the child. No matter how bad the other parent is in someone’s judgment it has to be remembered who that person is to the child. Even if the parent has done bad, there are ways of explaining to a child issues that allow them tot keep their image of their parent intact or at least make room for the benefit of doubt.
Power (as used in the context of this paper) can operate most effectively and thrive if its workings remain concealed. Without explicating the power relations implicit not only in the decision making processes with regard to the interests of children as well as in the practices and ideas relating to intervention, the problem of power will never be adequately addressed. Without addressing the power issues, one merely focuses on solutions that are “more of the same” or amplifications of the ineffective interventions tried in the past.
The Voice of the Child
It is interesting to consider what effect would it have on the divorce process or child care decisions for example if more attention were paid to what effect that the whole process and the playing out of the various power relationships was having upon the child? What would happen if children could give testimony on just that aspect for their parents or the decision makers and the court to hear, not for the purpose of making a determination but just bring the child’s voice into the feedback loop so as assist in guiding the process in a way that protects the child’s interests.
The difficulty with presenting a report to the court in verbal form is that the expert cannot show the observations that informed the conclusions and recommendations of the assessment. It is impossible to portray verbally the subtle tender and poignant moments between a child and parent witnessed by the expert, which may have been as telling as they were fleeting.
Some Possible Solutions
There are two ways of using experts that could help them avoid becoming involved in the power play between litigating parties. The one would be for experts to be appointed by the Court after being jointly selected by the parties. The court would determine who would be responsible for the expert’s fees.
The second option would be for experts to be employed as assessors to assist the Court in matters relating to their field of expertise, even if or especially if the parties are using experts too give evidence. The assessor could bring an inquisitorial element into the proceedings that would bring forth new knowledge and alternative perspectives that are screened out through the adversarial process.
Another way to serve the interests of the child is for a curator representing the child to be appointed. This applies especially to child-care cases where it is not clear who in the system represents the child’s interests. The role of this person would be to consult immediate family, extended family members, care-givers, stake-holders and possibly members of the culture in which the child lives or representatives community (whichever of these is applicable and relevant) of which the child is part in order to represent the child’s interests in a holistic sense. This protects the child as well as the structures and values of the community, as well as keeping responsibility for child-care within the community. It also creates a context in which the wisdom of the community can be harnessed to help solve problems and invite alternative voices into the process of seeking solutions.
Children continue to have little say in what is determined as being for their good. They are ostensibly legal subjects but in practice objects around which power relationships are arranged.
New and radical thinking is called for, which would begin a new culture with new underlying principles and methods that will create new traditions to inform the decision making about children. In the present tradition one sees concepts that have been so well used that one has become habituated to the point where they are taken for granted and never questioned. They develop a mantra-like quality and people employing them seldom really think deeply about the implications.
Solomon’s wisdom is still the wisest standard in determining who represents the best interests of the child. The true parent might not be the one who makes the best impression. The best parent is the one who shows that they truly have the child’s well being at heart to the extent that they will give up their needs to safeguard the well being of the child. This sometimes even means bowing out over the risk of tearing the child in half. The best decision maker is the one who can examine their own interests and assumptions mindfully, honestly, taking all the voices and knowledge’s involved in the process into account and applying their mind to the real effects of what they are suggesting or ordering to the lived reality of the particular child. Such decision-making will make the child a true subject of the law and fulfil the ideal of acting in the best interests of the child.
Goldstein, J , Solnit A,J, Goldstein, S & the late Freud, A. “The Best Interests of the Child: The Least Detrimental Alternative.” The Free Press. (1996)