The imperative to make decisions and actions concerning children in their best interests is clear. What is not so clear is how this is best done.
SA’s Children’s Protection Act 1993 and the UN Convention on the Rights of the Child, among many other such Acts and Agreements, say that the best interests of the child should be the primary consideration in decision-making about children and these decisions are guided by explicit principles. However, decisions are necessarily individualised.
Determining a child’s best interests is a judgement. What is good for one child may not be right for another. The process of making decisions in their best interests has to take into account many things, such as family ties, cultural background, safety, special circumstances, education, health, wellbeing, the child’s sense of time, the child’s views, the family’s views, anticipation of immediate and long term consequences and what is known from research about child development and wellbeing.
For those who are charged with deciding a child’s best interests the decision can be influenced or clouded by other adults’ views, prevailing theories, organisational policies and budget, and anticipated public exposure and reaction.
In family separation and child protection the best interests of a child are invariably contested. As Senior Advocate Amanda Shaw said,
All the adults believe they are representing what is in the child’s best interests, but when there is disagreement, the decision-maker has to be able to distinguish between the adults’ interests and the child’s. Of course, in many ways, this is a false distinction because of the relationships between child and adult. However, it has to be attempted and it has to be informed.
Prevailing theories of child development and interventions to remedy the impact of abuse or neglect will also influence arguments and decisions about the best interests of children. So too will the theory and evidence about the adverse impact of separating Aboriginal children from their communities. It is incumbent on decision-makers to inform themselves and keep in touch with debates and developments so that their decision incorporates this knowledge. Where there are sometimes conflicting theories, such as that between good development through early attachment to a few adult carers and good development through strong connection to the child’s cultural community, it is necessary to be open to it all and critically examine one’s own views for blindness to this child’s long term interests.
Governments and organisations will provide and change policy direction, trying to achieve better outcomes for children as a group. Recent examples are the shift in emphasis to family reunification and support, and the emerging debate about the place of adoption in child welfare. This guidance or instruction must be taken into account but does not itself decide best interests for every child.
Perhaps the most common pit-fall for decision makers is conflating the child’s interests with what we know is available. It is dishonest to constrain the options by starting with what is available or pragmatic. The decision maker must first consider a full range of options from ideal to least ideal, and only then decide what is possible, what is not and why. This maintains the integrity of the decision-making and makes visible the extent of unmet need.
As tedious as it is, good written recording of all the ‘evidence’ and views serves as both a tool for rational decision-making and for accountability. If someone questions why a decision was made to move a child or change schools or not seek a care and protection order, the record of discussion and decision will explain the circumstances at the time. Without a written record which demonstrates consideration of all of the important factors, especially the child’s views, decision-making can look arbitrary and self-interested.
The principle of ‘best interests of the child’ is imprecise, but so are many other principles such as ‘child’s wellbeing’, ‘preserving relationships’ or ‘enhancing identity’. It is the process of reaching these decisions which needs to be precise.