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Children must be protected. This obligation animates much of United States political landscape. In the name of their protection, policymakers have pursued laws limiting not only children’s access to healthcare and to information, but also adults’ access to healthcare and to information. In this way, children’s protection is often instrumentalized to repress the autonomy of all. In decisions regarding children, courts are guided by a policy of protecting children’s “best interests”; but does this policy unduly interfere with the freedoms of adults? And more importantly: is it effective in protecting children?

Child maltreatment is an ongoing and pervasive problem. Over 1/3 of children experience a child protective services investigation before they turn 18 and an approximated 600,000 children were maltreated in just 2021, a prevalence rate that had not changed much in the prior 7 years. Children are maltreated both at the hands of family members and state-assigned custodians.

Not only harmed by direct mistreatment, children are also structurally disenfranchised. Kicked out of public spaces, facing barriers to transit, suffering from decaying school budgets, and with only a limited legal voice of their own, children as a political group are amongst the most marginalized. The United States especially lags behind other major developed countries in protecting children’s rights. How can policy simultaneously protect the child’s interest in safety and demarginalization and the adult’s interest in freedom and autonomy? In this article, I argue that bolstering children’s rights against the state effectively addresses each of these interests.

 

The Law

Parents have a “fundamental” right to direct the upbringing of their children, which courts have interpreted to mean that parents have a virtually unreviewable decision-making power over their children’s lives. The federal or state governments may only interfere with a parent’s decision when there is a “compelling state interest” to do so – such as protecting the child from harm.

Omnipresent in family law is the “best interests of the child” standard. This doctrine is relevant when the court assumes decision-making power over a child’s life, such as during custody determinations. Otherwise, courts presume that a parent’s decision for their child is in the child’s best interest, only rebutting that presumption through a finding of parental unfitness. When “best interests” doctrine is used, it works within a framework of child welfare, not child rights. Children deemed “mature” gain access to more autonomy and rights but are still largely covered by a child welfare framework. Thus, the doctrine creates a fault-based system that awards control of children to an entity deemed fit.

 

The Problem

“Best interests” doctrine fails to protect the liberty interests of parents or the safety of children because it is a substitution for parental discretion rather than an actual balancing of interests in tension. The doctrine fails to protect parental interests in the sense that it too quickly interferes with a parent’s ability to advocate for their children in the case of undervalued parents. It fails to protect children’s interests by assuming parents effectively advocate for their children; it has no tool for better aligning that advocacy with the child’s wants or needs aside from preventing maltreatment. Conversely, when the doctrine assumes parents cannot or will not advocate for their children, it does not provide a useful alternative – instead reassigning the child a new advocate in the form of the state or a foster custodian.

Even if “best interests” was expanded to review any parental decision outside of a fault-based framework, it would still be ineffective in producing child safety because the doctrine is aimed less at protecting the interests of children and more at protecting the interests the state has in children. For example, community integration is deemed to be in a child’s best interest when the child comes from a Christian or middle-class household, but not if the child comes from a working-class urban community or a family deemed neglectful. Children’s interests do not explain these different outcomes; community integration has the same effect upon the child regardless of how conventionally “good” the community is. The interests of savior-adopters – a more influential interest group than the families from which adoptees hail – do explain the difference, as foster children from “tragic” homes make better adoptees if they are unencumbered by ongoing connections to their past.

 

A Solution

A system based on rights rather than welfare would continue to provide a floor of treatment for children without relying on the assumption of a willing and able advocate existing. By reassigning power from the state to the child to represent the child’s interests, the involvement of third-party interests is diminished in decisions regarding children’s lives while creating a tool to challenge poor parental care outside of a fault-based paradigm. And incidentally, by using a rights-based system, children’s dignity and personhood is affirmed, reducing the risk of adults being stripped of autonomy or dignity through comparison to children.

This solution moves child welfare policy in the right direction, but it alone does not completely resolve the issue of children’s safety and demarginalization. A rights-based system does not necessitate and likely would not take the form of affirmative rights. Without an obligation to intervene at the individual level, cases of severe maltreatment could continue regardless of a rights-based or interest-based system. Furthermore, the issue of competing rights is not yet resolved in US jurisprudence. Where a child’s rights are in direct conflict with their parent’s, a court would likely rule in favor of the parent, limiting the efficacy of the system to challenge non-maltreatment harm. To fully address a child’s interests in wellbeing, broad human rights reform will be needed.

 

Suggested Citation: Alecia Robins, Better Than “Best Interests:” Ensuring Children’s Wellbeing, Cornell J.L. & Pub. Pol’y, The Issue Spotter (November 4, 2023), http://jlpp.org/blogzine/better-than-best-interests-ensuring-childrens-wellbeing/.