There was an interesting discussion earlier this week on Clive Anderson’s Radio 4 series Unreliable Evidence in the first episode entitled The Law and Parenthood. It is worth listening to the whole programme, but the bit I am interested in was at the start.
A recording was played in which Helen Reece, Associate Professor at the LSE, criticised the best interests of the child principle which dominates family law. She said,
The child’s welfare is the only welfare that counts, so we have a situation where one participant is valued and the other participants are, basically, ignored. That is fundamentally unfair, in my view, and it leads on occasions to injustices in results; but on top of that, even when the right results are reached, there’s a lack of transparency about the process by which those decisions are made.
Her fellow guests immediately condemned her view; barrister Alan Jenkins said he was “quite happy with the idea that the welfare principle rules”, former President Sir Mark Potter contemptuously dismissed Reece’s view as “a piece of polemic which doesn’t bear examination”, Jonathan Herring, professor of law at the University of Oxford, was more conciliatory and said that the interests of the child cannot be separated out from those of the parents.
Anderson countered that Reece’s views would “bear some examination in this programme”, but regrettably nothing further was discussed on the matter.
Reece is well-known for her unconventional views on the best interests principle and I have quoted her before in this blog; she said it was a covert way of “amplifying the title rights of mothers” and giving them equal authority to fathers by subordinating both of their interests to those of their children under the pretence that it was all being done in the best interests of the child. Fiercer criticism has come from solicitor Oliver Cyriax, who said that the best interests standard—
is no more than a label affixed to the case retrospectively, irrespective of current research, irrespective of best opinion, irrespective of the facts of the case, irrespective of governing principles, irrespective of the merits of the case and irrespective of the outcome. This is an inevitability; all decisions (whatever they are) must by definition be in the best interests of the child since otherwise they would contravene the law. The definition of ‘the best interests of the child’ is whatever decision the Court reached.
I myself described the principle as—
a legal device which enables the courts – and agencies of the state who have the courts’ sanction, such as social workers – to make decisions regarding a child which formerly would have been made by the child’s parents. Thus it undermines the authority of parents and ultimately thereby the institution of the family itself.
Whatever one’s views, there is a debate to be had here, and the BBC could have made a much more interesting, controversial, programme had it chosen to air that debate, rather than construct, as it did, a programme around the predictable views of a former President and a CAFCASS employee. Once again, the BBC appears to have adopted a position on an important issue of public interest.