It is an accepted principle of domestic and international law and policy that the welfare or best interests of the child must be the primary or paramount consideration in any decision made with regard to that child's upbringing. While this ‘best interests standard’ has become a core principle of welfare law, what might constitute a child or young person's best interests is given very little formal shape or content. This has provoked sustained criticism from practitioners, academics and the judiciary. In response, this paper argues that the capabilities approach can give best interests assessments much needed normative content, thereby addressing many of the criticisms directed towards the standard. The approach provides a theoretically nuanced framework for theorising about basic social justice and for evaluation, deliberation, and policy development across social welfare sectors. In arguing for a capabilities approach to best interests assessments, the paper sets out an agenda for change. It addresses the conceptual and methodological justifications for this change, and explores the empirical work that would be required. It identifies the steps and underlying principles necessary for a best interests process aligned with the capabilities approach, providing the necessary foundations for a radical reconceptualisation of best interests processes.

Over the past seven years, in my role with Anglicare WA, I have had the privilege of listening to many separated parents share their concerns about their children's safety when spending time with the other parent who has been violent towards them. These concerns include, but are not limited to, trying to prove to the court that their children have been victims of family violence and that this risk will continue and possibly escalate during contact visits. The protective parent often reports that the children continue to be sent on contact visits even when the children experience a significant degree of trauma over their time in the care of the offending parent. In some cases the offending parent has a new partner who is also a victim of family violence and the children are exposed to this violence while on contact visits. Despite disclosures from the children, and efforts to keep them safe by reporting to the statutory agencies, I find that many of these children continue to be sent on contact visits. I am frequently told by the protective parent that when they are in court they are informed that a) there is insufficient evidence to warrant the court preventing the child from spending time with the other (violent) parent; and b) the father has the right to a meaningful relationship with his child and therefore contact will be ordered. It seems that priority is given to the parent's right to spend time with the child at the expense of the child's need, and right, to be safe.

Background: The Mental Capacity Act 2005 (MCA) was fully implemented in October 2007 in England and Wales. The experience of clinicians working in Old Age Psychiatry, who are likely to have greater experience in the use of MCA, in the early implementation of the MCA was examined.

Methods: Case-notes of 37 patients in seven different Old Age Psychiatry services in two mental health trusts in west London, who had received at least one assessment of decision-making capacity (DMC) for a specific issue, were examined. A qualitative thematic analysis pertaining to the criteria used for the assessment of DMC, determination of best interests, least restrictive option and unwise decision was used for data analysis.

Results: The main findings were: the criteria used for the assessment of DMC and the determination of best interests were those described in the MCA and the accompanying Code of Practice; and clinicians were developing the concepts of least restrictive option and unwise decision with face validity despite the absence of their definitions in the MCA.

Conclusion: Caution should be exercised in extrapolating the findings of this study, which is confined to two Mental Health Trusts in one geographical area and the speciality of Old Age Psychiatry, to other localities and other specialties. Nevertheless, there was evidence that clinicians were following the basic principles of the MCA correctly.