How Should Family Be Defined in Law?
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO: CCT 40/01
In the matter between:- D, S First Applicant D A Second Applicant
and THE MINISTER OF WELFARE AND POPULATION DEVELOPMENT First Respondent
THE MINISTER OF JUSTICE Second Respondent
THE COMMISSIONER FOR CHILD WELFARE, PRETORIA Third Respondent
The overriding value that forms the basis of this affidavit is that the best interests of the child should be the paramount consideration in any decisions regarding children. This implies that decisions should be child centred. For the purposes of such decision-making, family membership should be defined in terms of the particular individual’s relationship to the child and their actual or potential contribution to the interests of the child in question.
6. This affidavit is not written to support the interests or rights of any social or political group. The affidavit will therefore deal with the fundamental needs of children and the general characteristics that parent figures would need to possess in order to fulfil those needs.
7. Consequently I make no distinction in this affidavit between custody, foster care or adoption because it is respectfully suggested that all legal decisions made about children should be informed by the same standards and values under a unified law for determining all child care decisions.
8. I deal next with the definition of family as follows:- 8.1 The law needs to protect the rights of children in all circumstances. If laws are made that protect the needs of one interest group they may marginalise, stigmatise or render invisible children in similar circumstances who also need protection but fall outside the definition of the group mentioned in the law. For example if the law deals with same sex unions as a legitimate family form and then defines such a union in specific terms, it may exclude for example a child growing up with two parents who are siblings or child headed households or children who live together with grandparents who might constitute equally legitimate family forms.
8.2 South Africa has such a wide variety of family forms that to privilege or specify one ideal form to act as a model against which all others are to be judged disqualifies probably the vast majority of the population. Historically and cross culturally it does not make sense to privilege one family structure because even in more traditional and largely intact societies family structures show great variation. The white middle class patriarchal picture of the ideal family might hardly exist anywhere in the world, if it ever did, let alone in South Africa.
8.3 The law thus needs to be inclusive enough to protect the actual family structures in which children are raised and not only the one that the dominant culture informing the law chooses to qualify as a legitimate family structure.
8.4 There is a danger of constituting a family form through stereotyping and then this form becoming institutionalised by being upheld in judicial rhetoric. It is interesting to note how the traditional western model of family represented for example in fiction and advertising, which itself was never a universal model, still holds such a grip on the imagination that few people in the dominant western white middle class from where most mental health professionals and judicial officers still hail, have noticed that it hardly exists. Even the Oxford English Dictionary provides a variety of definitions of family and is most surprisingly equivocal on the matter of legitimate family form. In fact the Oxford Dictionary definition would support the definition of family found in this paper and not the so-called traditional definition of family. The word family has many meanings in many different contexts.
8.5 Family forms differ from place to place, context to context and evolve over time with social, economic and medical changes in society impacting on family structures. The most notable examples of the impact of such forces upon family structure in South Africa were apartheid and in recent times the AIDS pandemic.
8.6 It is interesting to note that in South Africa the children of domestic workers living in urban areas were usually brought up away from their mothers and fathers by grandparents or other family members living in rural areas. The children of migrant labourers also did not grow up in traditional two parent homes. While their biological parents brought up few children of domestic workers, ironically domestic workers brought up many white children. In many dysfunctional families it was domestic workers who acted as the invisible force that protected, nurtured and guided children when their biological parents were unable or unwilling to do so. Many white children were psychologically scarred by the sudden loss of domestic workers who left precipitously or were fired and who had in fact been their primary or at a least significant psychological parent throughout their early development.
8.7 The purpose of deconstructing the so-called traditional model of family is not to do away with all norms and standards as some would charge, but rather to allow for the creation of definitions that would protect the rights of children in all types of family structures. An inclusive definition of family that would protect the rights of its members, particularly children, could include factors like people voluntarily defining themselves as family or choosing to live as family, having psychological attachments to each other, engaging in reciprocal need satisfaction and ensuring each other’s long term survival. A definition that would serve the interests of children would be one that directed attention towards, and placed value upon, the particular situational, interactional and psychosocial needs and circumstances of the child.
9. I deal next with the concept of the child as legal object and submit the following:-
9.1 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.
9.2 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.
10. As regards the best interest of the child I submit the following:-
10.1 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 power=knowledge) is most effective when its workings remain concealed because when invisible it cannot be challenged. Therefore, the consequences of applying this standard in practice need to be critically reviewed.
10.2 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. No clear definition has been created however as to what constitutes the best interests of the child. From a pragmatic point of view however, 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.
10.3 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, marginalised, minority community.
10.3 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.
10.4 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.
11. It is my respectful submission that children are rendered invisible as is demonstrated by the following factors:-
11.1 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.
11.2 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. They often do not take into account that the child’s needs and interests are continually evolving.
11.3 Children in many instances have been severely abused or have even died because of the application of “taken for granted” beliefs which are never critically examined or challenged or because of 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.
12. It is my respectful submission that professional language has been reified and I submit that:-
12.1 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 knowledges 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.
12.2 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 believable because it based upon a taken for granted view of the world, or wishful thinking about how people would like the world to appear.
12.3 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.
13. In my submission an examination of the least detrimental alternative must take the following into consideration:
13.1 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 the 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).
13.2 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.
13.3 The search for the least detrimental alternative directs attention 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.
14. I deal next with the needs of the child and state the following:-
14.1 In order to arrive at a useful definition of what constitutes a suitable parent the fundamental needs of children need to be defined. These are probably the generally accepted fundamentals that most people could accept as being the primary and essential needs of children.
14.1.1. Physical and Material Physical health and well being is the primary need of any human being. This need is ensured by access to food, shelter, clothing, medical care and any remedial care that a child requires because of special needs. These factors affect not only the physical development of the child but influence the child’s overall development. When children are vulnerable following divorce or the loss of parent figures, their primary concern becomes that of their own physical security. Fundamental to a determination of parent’s suitability is the parent or prospective parent’s ability to provide such security. This means capability to provide for basic needs or for remediation of special needs, like illness or disability.
14.1.2. Mental and Emotional The crucial psychological factor in determining and ensuring the psychological well-being of the child is the presence and continuity of and quality of their affectional ties and the desirability of maintaining the continuity and stability of these ties. It is the continuity and stability of affectional ties that will more than any other factor help to determine the child’s psychological well being. The early years of a child’s life constitute a critical period where frequent or permanent disruption of attachment bonds could interfere with the child’s short and long term social and emotional development. This phenomenon is well documented in psychological research and literature. Affectional ties are determined by evaluation of the child’s interactions and interrelationships with the significant others in the child’s life including siblings and other people with whom the child shares emotional bonds. Factors like the presence of reciprocal love and affection indicate the presence of an emotional bond. It needs to be kept in mind that the role that a caretaker plays shapes the child’s expectation of that person and consequent behaviour towards that person. The reliance of a child on a person for the fulfilment of particular needs is therefore not an accurate indicator of the depth of the psychological bond that the child has with that person, neither is it an indicator of the absence of a psychological bond with a person upon whom the child makes few demands. The parent who takes care of the child’s day to day physical needs might be the primary psychological parent because such care usually builds mutual closeness and trust. However it is important not to privilege relationships on the basis of the fulfilment of day to day physical needs because the child is not necessarily or automatically closer to the person who fulfils their need for day to day care. The truth of this statement becomes obvious when used in the comparison between a parent and day-mother or child minder who might in fact take care of the majority of the child’s physical needs but not share the same bond with the child as a working parent who cannot be at home with the child. The issue of the child’s perceptions and choice comes into play with determining the significance of affectional ties. Here great caution needs to be exercised because a child’s views will be influenced by their cognitive maturity and ability, and the presence of conscious as well as unconscious forces acting upon them like loyalty, guilt, and the desire for material advantage or the influence of an adult like the other parent upon the child.
14.1.3. Stability and Continuity The question of maintaining security and stability requires an examination of the duration of a child’s adjustment to family, school and community and the permanence of the child’s existing family unit. Following from this evaluation would be one as to the desirability of changing these structures and the ability of the proposed family structure or unit to provide better than what the child presently enjoys. The overriding factor in this regard would be that of maintaining to the greatest extent possible the child’s important affectional ties. It is in this regard that protecting the child’s relationships with people who are not traditionally regarded as family by blood tie or adoption need to be protected. There are many instances where a child could feasibly be separated from someone with whom the child has shared a significant and vital affective bond in favour of someone with whom the child has a far lesser or no bond but is a blood or adoptive relative of the child. This would certainly be a clear violation of the child’s best interests as maintenance of existing emotional ties is a potentially crucial aspect influencing the outcome of the child’s long term psychological adjustment.
14.1.4. Religious and Moral These factors like all others have to be evaluated in respect to how they impact upon the well-being and development of the child. These factors come into play where there is a threat to the physical or psychological welfare of the child. An older child who has grown up in a religion should ideally be kept in that religion. However religion needs to be taken into account within the broader context of the child’s well being and not treated as an isolated or overriding factor in making placement determinations. It is obvious that good parenting is made easier when the values and mores of the parents reflect those of the community or larger society in which the child lives. The role of parents in providing moral, intellectual and spiritual guidance is essential to the well-being and healthy development of the child. With regard to the moral fitness of a parent however there are many immoral practices engaged in by parents that have no impact on the child and this can been seen for instance where parents have been convicted criminals but good parents and the children grow up to be moral citizens. It is dangerous to be deterministic about these issues because it can lead to the stigmatisation for children. The quality of the relationship between the parent and child is still the overriding factor that determines the outcome of a child’s development.
14.1.5. Cultural and Racial Background The parents or prospective parent’s capacity and disposition to educate and raise a child in the child’s original culture have to be measured alongside all the other issues to be considered in assessing the child’s interests. It is important where possible and feasible for a child to identify with and to have access to people who share the same cultural heritage and to be accepted by that community. Cultural and racial background does not have to do with skin colour. The quality of the child’s primary relationships remains the most reliable determinant of the child’s future well-being and sound psychological development. The factors of a child’s identity, sense of history and sense of belonging, which are all considered fundamental rights, would be ensured by the preservation of the factors listed in the above five points.
15. In dealing with parental characteristics that promote best Interests it is important in regard to parental characteristics to separate the reality from the ideal. The ideal is what people would like to see and believe, the reality is what actually exists in the life circumstances of the particular child. The fact that the notion of the child’s best interests is only raised when the child’s best interests have already been violated should reinforce the importance of staying close to the realities of the alternatives facing the child in question, and making practical realistic and not idealistic or moralistic decisions. I submit that the following factors must be examined:-
15.1. Blood-Ties, Gender and Sexual Orientation It is psychologically baseless to discriminate on the basis of gender or sexual orientation when it comes to determine which parent is better for a child. Parental attributes need to be assessed on the basis of who fulfils or is able in the future to fulfil the particular functions necessary for the promotion of the child’s well being. These attributes are neither tied to gender, sexual orientation or shared genetic material and blood ties. A blood bond, sexual orientation or the gender of the parent is neither a determinant of fit parenting or necessary for fit parenting.
15.2. The Parental Relationship The quality of the affective relationship between parent figures bringing up a child is of far more importance to the child’s well being than the definition or structure of that relationship.
15.3. Parental Wishes If a parent who is regarded as fit and responsible and acting in most other ways in the child’s best interests, wants to ensure the security or stability of a child’s relationship with another significant person in the child’s life, the question arises as to why anybody would want to interfere. If the principle is accepted that there exists in society a variety of family forms and that the child’s sense of belonging and security to their family should be protected regardless of what form it takes, then formalising and granting legal protection of the child’s relationship to a family member should not be an issue.
15.4. Fitness of the Parent It is important in determinations under this heading to always have as a reference point the effects of any factor named on the child. Therefore these factors require a case-by-case evaluation and no fixed rules can be made in this regard. Past, current or continuing mental or physical disability or illness, substance abuse and addictions, or inappropriate sexual behaviour are all factors that may influence the fitness of a parent. These factors may or may not have a direct impact on the child. They are often raised as a factor in divorce particularly as an attempt to subtly reintroduce “fault” into the determination.
The issue of suitability as a role model is a difficult and often subjective determination as such determinations may reflect the values and attitudes of the person making the decision rather than the best interests of the child. There is no evidence that a parent’s sexual conduct or orientation has any influence over a child’s development unless it involves exposing the child to inappropriate sexual activity or material and would therefore in any case be considered to be abusive. In issues of role models and morality the child is exposed to many authority figures that also influence the child’s development in this regard. While emotional attachment and the stability of affective ties can only be ensured by family, the cultural mores and values of society are given to the child by many different figures in the child’s environment. In general a key function of parenting is to bring up children that grow up to function effectively in society and become citizens who contribute to the well being of the society.
The character of the parents and the role they play in the society are obviously going to influence how they bring up their children. The irony is that bringing up a psychologically healthy child with a sound sense of identity and feelings of self worth, may better serve the child’s moral development than a circumstance where moral development is privileged in favour of psychological factors. In instances where children have at a young age been removed from people with whom they share affectional ties and placed in contexts where their moral development will be better served they have been more damaged and are less likely to develop into people who show empathy and regard for other peoples needs, as these qualities were never shown to them.
16. In my view all role players involved in making decisions about the best interests of children suffer from the same inability to make long-term predictions. Experts can supplement the information before the court, but expert evidence needs to be weighed together with the factual evidence of the case and never used in isolation or ever relied upon as valid purely as a result of the person’s expertise.
17. It is also my view that the courts should be suspicious of experts who show bias in making one parent or parent figure appear to be almost all bad and the other all good. The parents need to be evaluated in terms of who they are to the child and what they represent for the child. Experts should be expected to show both the strengths and shortcomings each parent and offer solutions that allow the child maintain stable and satisfying relationships with both parents to the extent possible continue to benefit from the strengths and resources of each parent or parent figure.
18. Parents and people fulfilling the role of parents need to be empowered by the system and by experts and not undermined by them. It is in the best interest of children for parents to be empowered by having their actual role in the child’s life recognised and validated and not disqualified by being compared to some abstract ideal or moralistic judgment by a decision maker or expert. It is very suspect when experts speak in terms of one parent being all-good and the other all bad as so often happens in the adversarial environment. The significance and importance of all the people with whom the child shares affective bonds needs to be taken into account in making determinations about the child’s interests. In order to make a sound decision the child’s world needs to be evaluated through the eyes of the child and not filtered or clouded by the motives of people ostensibly acting on behalf of the child.
19. Ideally there should be one law that informs all decisions regarding children so that there is uniformity amongst child care organisations, experts in field and the different tiers of the court system regarding how child care and placement matters are dealt with. This will minimise inconsistencies in the way that the law is applied or that the best interests principle is interpreted, power struggles between professions and the use of one court to undermine or second-guess the decisions of another. It will create a system in which all decisions regarding the interests of children, whether they are about custody, foster care or adoption informed by the same standards and value system. It will also create more accountability and open child-care decisions to scrutiny by all role players, mental health professionals and others.
20. In conclusion I submit that the child and the actual psycho-social and developmental needs and interests of the child should be the reference point upon which all decisions regarding the welfare of children are made. The political and social interests of adult groups should not be allowed to masqueraded as being in the best interests of children. Suitability of a parent should be determined by their actual relationship with the child or in the case of adoption their potential with regard to meeting the child’s fundamental needs.
21. All family forms wherein the fundamental needs of the child for stability and continuity of care, the maintenance of established bonds, identity and a sense of belonging are met should be recognised by law and protected. Family forms should be defined in terms of the member’s relationship to and participation in the care of the child regardless of the member’s gender, sexual orientation of genetic relationship to the child. _________________________________ LEONARD IAN CARR THUS DONE,
29th day of APRIL 2002,