In ‘The Best Interests of the Child’: Critical Reflections on an Overused Construct

Abstract

The construct ‘the best interest of the child’ is embedded in child protection legislation in all Australian states and territories. This phrase or construct in its modern iteration that dates from 1973 is constantly evoked when decisions are being made about a child's future following the substantiation of a case of child abuse and neglect. The use of the best interests of the child as a standard for decision-making, even though there is no consensus in law or social science as to what the construct means, needs to be questioned. What often follows from reliance on the best interests of the child is the placement of a child in foster care or kinship care in the hope that this will produce a better outcome for the child than if they remained in parental care. No doubt this is true for some children. Recent outcomes studies of foster care point to less than promising results for many children. As a result it can be argued that placing a child in foster care is a gamble with the child's future life.