By Mr. Leonard Carr (appeared in The Times (South Africa), Wednesday, August 19, 2009)
“What is in the interest of the child?” is the question that must be asked in all situations in which legal decisions have to be made about the welfare of children.
But the answer is indeterminate and indeterminable.
While sounding noble, in practice this 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 in one context about what is in the best interests of a child would differ from person to person, place-to-place, culture to culture and generation to generation.
What was considered to be in the best interest of a child in Victorian times is very different from what is considered in the best interest of a child today.
It would make more sense to probe least detrimental options.
The perspective about what is in the best interest of a child held by a white, male , conservative judge could be different to the perspective held by someone in an impoverished, marginalized, minority community.
It is for this reason that so often children 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 party.
Rather than use their new-found equal rights over children as an opportunity to share responsibility for them, 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 paradoxical because it is invoked only when the best interests of the child have already been violated.
Any reasonable person would surely agree that it is better to have a child stay with a less adequate parent while enjoying access to both parents and their extended families and to have the respective families respect and co-operate with each other rather than being forced to split their loyalty and feel guilty about loving one of their parents and/or their side of the family. It would make more sense to investigate what would be the least detrimental alternatives for children.
This standard implies, first, that there are alternatives and second, 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 and choose the least damaging.
What is truly in the best interest of any child is to have comfortable access, be allowed to love freely and hold in high regard those who are important in the child’s life.