The ‘Best Interests of the Child’ and Parental Separation: on the ‘Civilizing of Parents’
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00527.x |
| Published date | 01 January 2005 |
| Date | 01 January 2005 |
The‘Best Interests of the Child’and Parental Separation:
on the ‘Civilizing of Parents’
Robert van Krieken
n
The concept of the ‘best interests of the child’ is both pivotal in family law and yet essentially
contested.This paper re£ects on the concept’s position within a number of longer-term histories
^ of the jurisprudence surrounding child custody, of the social construction of childhood, and of
the emotional constitution of family life more broadly. The turnto a co -parenting model from
the 1970s onwards and the rise of the concept of the ‘civilized divorce’i s analysed by drawingo n
Norbert Elias’s analysis of ‘processes of civilization’ inWestern social life. The paperargues that
the post-separation co-parenting model is only partially explained as the outcome of political
manoeuvring by particular social and professional groups; it should also be understood as part
of longer-term trends in family life, emotional management, and the socio-legal construction
of childhood, as part of the on-going ‘civilizing of parents’.
It is an irony of the modern world that the couple relationship has become ever
more fragile as a greater and greater weight of expectation has been placed upon it.
But just as we now expect much more of our adult relationships we also expect
much more of our own and others’ parent-child relationships. These two sets of
expectation are pulling in opposite di rectionsa ndthe le ast the lawcan do is to avoid
driving them further apart.
1
The organization oflegal thinking and interventions concerningchildren around
the paramountcy of the ‘best interests of the child’ has become increasingly and
more ¢rmly entrenched in Western family law in recent decades. At the same
time, however, the ‘best interests’standard is also subjected to constant criticism,
including that it is indeterminate, a device for men to (re-) exercise power over
women and children,
2
a vehicle for welfare professionals to dominate the rest of
society,
3
and colonialism by other means,
4
so that Stephen Parker has described
the standard’s current situation as ‘alarming’.
5
Like many other legal concepts, such
as that of company directors’ ¢duciary duties, the ‘best interests of the child’
n
Associate Professorof Sociology,University of Sydney. My thanks to the two anonymous refereesfor
their helpful comments,a ndto Heidru n Blackwood for her assistance with the research forthis paper,
as well as for her commentary and suggestions.
1 B. Hoggett,‘Jointparenting systems: the English experiment’ (1994) 6(1) JournalofChildLaw8,11.
2 C. Smart and S. Sevenhuijsen (eds), Child Custody and the Politics ofGender (London: Routledge,
1989).
3 M. L. Fineman,‘Dominant Discourse, Professional Language, and Legal Change in Child Cus-
tody Decision-Making’ (1988)101HarvardLaw Review 727.
4 M.Kl ine,‘ChildWelfare Law,‘‘Best Interestsof the C hild’’ Ideology,and First Nations’(1992)30(2)
Osgoode Hall Law Journal 375; P. Lynch,‘Keeping them Home:The Best Interests of Indigenous
Children and Communities in Canada and Australia’ (2001) 23(4) SydneyLaw Review 501;see also
S. Burman,‘The best interests of the South African child’ (2003) 17 InternationalJournal of Law,
Policyand the Family 28.
5 S.Parker,‘The Best Interests of the Child ^ Principles and Problems’ (1994) 8 InternationalJournal of
Law, Policya nd the Family26.
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(2005) 68(1) MLR 25^48
appears to function as a‘juristic black hole’,
6
one of the many ¢ctional discursive
‘nodal points’ around which law is organized. Much of the debate has concerned
the legislative and jurisprudentialmoves to transform the ‘custody/access’modelof
post-separation parenting into a ‘residence/contact’ model. These moves in turn
re£ect a shift inWestern family law more broadly away from the general accep-
tance up until the 1970s of a loss of contact with one parent after divorce or separa-
tion, towards a rede¢nition of the ‘best interests of the child’ to include an
emphasis oncontinuity of contactwith both parents after separation. In Australia,
although the Federal Government’s 2003 parl iamentary inquiry into the Family
LawAct rejected the arguments for a rebuttable presumption of equal parenting
time, it nonetheless argued strongly for the notion ofshared parental responsibil-
ity, suggesting that‘[t]o share all the important events in a child’s life with both
mum and dad, even when families are separated, would be an idealoutcome’.
7
In
the United Kingdom, similarly, the Government’s 2004 Green Paper on separa-
tion and children’s needs proposes that it is in children’s interests to have ‘an on-
going relationship with both parents’ and expresses the hope that ‘through
improving the system, more non-residential parents will enjoy meaningful
ongoing relationships with their children’.
8
The aim of this paper is to contribute to our understanding of these develop-
ments in the ‘best interests’ standard by situating it within a number of longer-
term histories ^ of the jurisprudence surrounding child custody, of relations
between men and women, and of understandings of family life and the nature
of childhood. My argument will be that the form taken by the current debate in
England and Australia around the‘best interests of the child’ emerges from apar-
ticular understanding of the ‘causes’ of the turn to a co-pare nting model, one
which focuses primarily on the goals, strategies and projects of particular political
and legal actors, at the expense of an engagement with the ways in which legal
constructionof the ‘bestinterests of the child’is part of a muchbroader and deeper
set of processesof social change. For everyobserverarguing for the signi¢cance of
the law in‘radiati ng messages’ and structuring cognition and behaviour, therewill
be another expressing scepticism about its impact,
9
and there is no clear way to
settle this con£ict of views. A more useful approach to the relationship between
law, family life and the lives of children can be found, I will suggest, in broader
conceptualizations of the reasons lying behind this shift in Western family
law, ones which pay more attention to the longer-term and broader social
6 J.Blanchard,‘Honesty in Corporations’ (1996)14 Companies and Securities LawJournal4, 10.
7 Commonwealth of Australia, Everypicture tellsa story: Report of the inquiryinto child custody arra nge-
ments in theevent of familyseparation. (Canberra: AGPS, 20 03) xii; at http://www.aph.gov.au/house/
committee/fca/childcustody/report.htm (last visited 15 October 2004).
8 Department for Constitutional A¡airs, Parental Separation: Children’s Needsand Parents’Responsibil-
ities.(Lo ndon:HMSO, 2004) 2; at http://www.dfes.gov.uk/childrensneeds/ (last visited 15Octo-
ber 2004).
9 In relationto the USA, Maccobyand Mnookin suggest that the e¡ect of family law is to magnify
existing trends or to exert in£uence o nlyat the margins of family life. Either gender roles are too
‘macro’ for family law to transform independently, or the detail s of co-parenting are too‘micro’
and emotion-laden forthe cr ude instrumentationof the law to regulate e¡ectively. E. E. Maccoby
and R. H. Mnookin, Dividing the Child: Social and Legal Dilemmasof Custody (Cambridge, Mass.:
Harvard UP, 1992)280.
The ‘Best Interests of the Ch ild’
26 rThe Modern LawReview Limited 2005
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