The child's best interests … or near enough? A lawyer's perspective

Abstract

The ‘best interests of the child’ is rhetoric often applied and to an obscure legal concept. Nevertheless, it remains one of the most important standards, if not the most important, to be applied when attempting to determine what might be the interests of children at law. But as might be the case with other supposedly fundamental principles, there is much ambiguity in the meaning and uncertainty in the application of this principle and the standard it presumes to impose. Not surprisingly, many questions remain unanswered. Firstly, what exactly is the paramount status of the best interests standard? Secondly, in deciding the best interests of the child, does the ultimate responsibility lie with the judge or does it require some judicial deference to community values, as presumably expressed in the legislation? Lastly, does the standard, as it stands today, run the risk of being so general that its application can easily be distorted? Indeed, given the inherent difficulties in articulation and application of the standard, it might be unrealistic to expect mere legal provisions to ease social and emotional tensions that exist in the realm of child welfare today. As children themselves generally do not make applications to the court, their interests inevitably will be dependent on those of other parties, such as parents and the various professionals who assist them. As long as these principles are sought to be upheld in a system which is philosophically and practically adversarial, our ability to promote, maintain and protect the best interests of children will be inhibited. Is near enough good enough … or is it just the best we can do?