The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of Children?

The writings of Goldstein, Freud and Solnit, particularly someof the concepts they developed, have exercised a profound influenceon our thinking about children. A new, revamped, final, authoritativeedition presents the opportunity for critical re-assessment.The author finds a partial analytical framework, a dated imageof children, a narrow concept of children's rights, triggersfor intervention which leave children dangerously exposed and,above all, a sense diat events have moved on leaving the mostinfluential text of this generation firmly rooted in the ideas,problems and concepts of the last. The publication in one revised volume of the landmark trilogyof Beyond, Before and In¹ provides an excuse, if one were needed,to assess the impact and re-evaluate the arguments containedwithin the three monographs and now compressed and updated.Whether or not one agrees with all, or even any, of the ideascontained within Best Interests (as I shall now call the collection),and I shall criticize both applications and implications, theconcepts have impressed themselves, perhaps indelibly, on ourthinking about children. Like it or not, anyone thinking aboutchild law or policy, the relation between parents and children,the state and family, has to grapple with concepts like ‘leastdetrimental alternative’, the ‘psychological parent’,a child's sense of time and others of the rich ideas which permeateBest Interests.²     

论子女最佳利益原则

子女最佳利益原则已发展成为各国家庭法在处理父母离婚后子女监护案件时的最高准则。虽然该原则其概念本身含有不确定性 ,具有多种可以不同明确表达的空间 ,但采用该原则的世界各国仍致力于列出若干决定子女最佳利益的具体准则。本文作者主张我国婚姻法应引进“子女最佳利益”原则作为处理子女监护问题时的最高指导原则 ,摒弃父母权利本位思想     

In the Best Interests of an Indian Child: The Indian Child Welfare Act

Before passage of the Indian Child Welfare Act in 1978, state, private, and federal agencies systematically removed Indian children from their families and tribal communities, placing them with non‐Indian families with little appreciation for the detrimental impact that cultural deprivation would have on these children. State courts often ignored the sovereign authority of tribal courts with regard to their children, and were, more often than not, unwilling to acknowledge the importance of the perspective of the child's tribe and/or extended family members. With passage of the Indian Child Welfare Act in 1978, Congress imposed upon state child welfare practices substantive and procedural requirements to which state courts must adhere, most notably the mandate that state courts must now give primary consideration to the placement of Indian children within their extended families and tribal communities. In addition, federal law requires state courts to recognize tribal court authority and jurisdiction over tribal children. This article reviews the history of federal, state, and private practices that propelled Congress to pass the ICWA, the changes that have resulted from this vital legislation, and the challenges that face courts in ensuring that state courts meet these requirements.     

Getting Tough With Juvenile Offenders: Ignoring the Best Interests of the Child

Abstract Despite a declining delinquency rate, legislatures and courts are getting tough with juveniles. Such policies are antithetical to the “best interest of the child” philosophy and counter-productive to treatment. Protecting the child's rights to due process and individualized treatment must be enhanced, not subverted. The laws which govern the behavior of citizens, companies, institutions, and various other elements in our society are man-made. “Public policy is whatever governments choose to do or not to do.”¹ However, these decisions are not made in a vacuum. They are ultimately made by the confluence of the Executive, Legislative, and Judicial branches of the government that are, and of necessity must be, at least tangentially responsive to perceived public needs. “Courts respond … to societal pressures; they are moved by the same tides of public opinion as are legislatures and executives.”² The resultant public policies and the programs created to administer them reflect these societal needs and respond to them accordingly. The evolution of the Children's Code in America, its eventual adoption into law and its subsequent changes over the years mark these shifts in society's view of its children. Throughout this slow and sometimes grudging process, the legal status of children has made numerous gains. Today, children hold a special place in our culture and until recently, the Children's Code was utilized to assist them in maintaining and enhancing that status. However, within the last few years this tide of evolutionary gains has turned into a flood of erosion of due process rights. Yet:     

The Best Interests of the Child and the Sentencing of Offenders with Parental Responsibilities

There is a growing body of empirical research demonstrating that sentencing and other criminal justice decisions often have a detrimental, even traumatic impact upon an offender’s dependent children. Judges must balance numerous factors when making sentencing decisions, generally encompassing the protection of the public, the seriousness of the offence, and the personal circumstances of the offender. Should the probable impact of a sentence on an offender’s dependents be a significant factor to be weighed with these other factors in the process of sentencing? More specifically, when a court is sentencing an offender with parental responsibilities, does it have a duty to inquire about the potential impact of the sanction on the offender’s dependent child or children? Must it consider the principle of the best interests of the child or a child’s right to family life as a separate legal consideration in constructing a sentence? International human rights standards suggest that it does. After reviewing existing evidence on the potential hardship of sentencing decisions for an offender’s dependent children, the authors examine the experience of six countries in interpreting and applying these standards in their domestic laws, policies, and practices. They discuss some options for sentencing reforms in the broader context of efforts to reduce high rates of imprisonment in many countries and the need to address the differential impacts of criminal sanctions for primary caregivers and their children.     

利益平衡论：知识产权法的理论基础

知识产权法可以被看成是在知识产权人的垄断利益与社会公共利益之间的一种利益分配、法律选择和整合。知识产权法本身是作为平衡知识产权人的垄断利益与社会公共利益而做出的制度设计,旨在激励知识创造和对知识产品需求的社会利益之间实现理想的平衡。知识产权人的私权利益与公共利益之间的利益平衡,是知识产权法律制度的基石。这种利益平衡机制在知识产权法上具有充分的理论依据。     

Science in the Courtroom: Vital to Best Interests and Reasonable Efforts

This essay was adapted from a speech presented by the author on February 12, 2008 at a Colloquium entitled “What's Best for Children? How Judges Use Neuroscience to Break the Cycle of Child Maltreatment.” The colloquium was sponsored by the Harvard Center on the Developing Child and held at Harvard Law School. It focuses on the wealth of knowledge that has been discovered about infant and child development and the importance of incorporating that knowledge into judicial decision making in child maltreatment cases.     

家事诉讼与儿童利益保护

儿童利益是一种身份利益,具有显著的公益性,国家与社会必须给予特殊保护。涉及儿童的家事审判要遵循儿童利益最大化、儿童参与以及儿童优先保护等原则。从我国家事审判立法看,涉及儿童利益保护的规定散见于诸多的法律、司法解释以及政策性文件中,这些规定尽管为家事司法提供了基本的依据,但缺憾亦非常明显,表现为没有上位法的原则性规定,没有形成体系完整、结构合理的专门制度,部分立法规范前后矛盾,缺乏科学性和严谨性,缺乏实现儿童利益最大化的具体程序和相关配套机制。为此,有必要在基本法和部门法层面确立儿童利益最大化的法律原则;保障儿童表达意见权利和诉讼参与权;从司法层面看,确认儿童的诉讼主体地位,确立涉儿童家事案件职权探知、职权调查原则,建立专业化的家事审判机构。通过上述多重举措,真正实现家事审判对儿童利益的充分保障。     

The Best Interests of Children in the South African Constitution

The welfare principle in cases involving children has been incorporatedin the Bill of Rights of the 1996 South African Constitution,while also remaining a principle of common law. This articleinvestigates the effects of including the best interests principlein the Constitution. It examines, first, whether the best interestsprinciple is a constitutional right, a value, an interpretativetool or a rule of law and argues that, although courts describeit as a right, it is not treated as such. In fact, courts oftenuse the best interests principle to avoid dealing with otherconstitutional rights of children and family members. The secondpart examines the role of the constitutional welfare principlein the development of common law rules of family law and findsa great disparity between different courts, some of which ignorethe existence of the principle in the Constitution, others assumingthat it has the same meaning in the Constitution as in commonlaw and yet others using it to justify drastic changes to commonlaw. The article suggests that the inclusion of the welfareprinciple in the Constitution should have concrete effects,chiefly to direct courts to conduct a proper examination ofthe other constitutional rights of children and other familymembers.     

Creating the Reasonable Child: Risk,Responsibility, and the Attractive Nuisance Doctrine

In common law, trespassers could not sue for injuries. In the early 1870s, however, courts exempted child trespassers injured by industrial machinery from this rule. The development of the hotly contested “attractive nuisance” doctrine illustrates turn‐of‐the‐twentieth‐century debates about how to allocate the risk of injury from industrial accidents, which linked responsibility to the capacity to understand danger and to exert self‐control. Although at first courts in attractive nuisance cases perceived children as innocent, irrational “butterflies,” they gradually reconceived child plaintiffs to be rational, risk‐bearing individuals, a change reflected and accelerated by the Safety First campaign launched by railroad corporations. This reframing of children's ability to bear risk created the standard of the “reasonable child,” which transferred responsibility for industrial accidents to children themselves. Although by the 1930s the attractive nuisance doctrine had been widely accepted, in practice the “reasonable child” standard posed a difficult hurdle for child plaintiffs to overcome.     

Treatment Decisions for Critically Ill Infants: The Abrogation of the Best Interests Standard

The issue of withholding or withdrawing medical treatment from seriously ill newborns first gained the attention of the American public in 1982 when Baby Doe was allowed to die without surgery. Since that time, the predominant ethical, medical, and legal approach has been one that allows informed parents to make a reasonable medical treatment decision in the best interests of their infant with the concurrence of the health care providers. There has always been a minority that believes every infant should receive full medical treatment without regard to pain and suffering, until that infant dies a natural death. This viewpoint is reflected in recent judicial and legislative proceedings that have either already drastically changed the prevailing standard of care or threaten do so. This article reviews the significance of these changes.     

Seeking Sperm: Accounts of Lesbian Couples' Reproductive Decision-Making and Understandings of the Needs of the Child

Same-sex couples and their children have been the subject ofsignificant international attention over recent years, includingdebates about planned parenthood in the context of same-sexrelationships (Donovan, 2000; Dempsey, 2004; Luttichau, 2004;Vonk, 2004; Ryan-Flood, 2005). Drawing on a qualitative studyof lesbian parent families in the UK, this article contributesfurther to these debates through a discussion of respondents’accounts of their reproductive decision-making. I discuss thesocio-legal discourses around the legitimacy of the lesbianparent family created by donor insemination and examine howrespondents react to these discourses. I identify an overarchingpreoccupation within these accounts which is concerned withaddressing the needs of children. The dominant notions of howbest to meet children’s needs established in contemporaryUK family policy pose considerable tensions for the lesbianparent family. In seeking to resolve these tensions, parentsin my study reinterpret and develop different understandingsof how best to meet these needs. Their accounts reveal the complexityof the considerable efforts of families raising children infamily forms that fall outside the normative order to addressthe needs of the child, and the disjunctions between everydayunderstandings of children’s needs and those constructedthrough policy and family law.     

Best Interest of the Child and Parental Alienation: A Survey of State Statutes

State statutes regarding the best interests of the child (BIC) in deciding disputed custody were reviewed and independently coded with respect to three issues (i) the child's preference and any limits (ii) parental alienation and (iii) psychological maltreatment. Results revealed that many states allowed for the child's preferences to be considered and none qualified that preference when undue influence has occurred; parental alienation as a term was not found in any state statutes but 70% of the states included at least one BIC factor relevant to its core construct of the parent supporting the child's relationship to the other parent; and many states included a history of domestic violence or child abuse but only three states explicitly mentioned psychological maltreatment. These findings highlight yet another way in which the BICS factors lack specificity in ways that could negatively impact children caught in their parents’ conflict.