# A contentious argument or familiar theme about the best interests of children



## grahamg (Dec 10, 2020)

*
Reconceptualising the ‘paramountcy principle’: Beyond the individualistic construction of the best interests of the child*

https://www.ahrlj.up.ac.za/images/ahrlj/2012/ahrlj_vol12_no1_2012_admark_moyo.pdf

Admark Moyo* Lecturer in Law, Midlands State University, Gweru, Zimbabwe; PhD Candidate, University of Cape Town, South Africa

Abstract
This article laments the individualistic construction of the best interests of the child principle. Decision making in a family context goes beyond a mere trumpeting of the interests of the individual child and involves balancing various competing interests. Decisions often claimed to be made in the interests of children are not just about children – they are an attempt to balance the competing interests of family members. A child’s best interests are often limited by the broad interests of the community (especially in communitarian societies) and the rights of others, particularly the rights and interests of parents, siblings, caregivers and other persons exercising parental responsibilities. Consequently, decisions made in a family context usually seek to balance different family members’ rights and interests. Drawing inspiration from literature on the subject, the article advocates the adoption of a holistic approach to the welfare principle. It is shown, towards the end of the article, that the South African courts and legislature have rightly endorsed the notion that the fact that the best interests of the child are ‘paramount’ does not mean that it is not limitable. Much depends on the competing interests at stake, the factors that must be weighed in the process of making a value judgment and the weight to be accorded to each factor in light of the facts of each case.

Introduction

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.

A child’s best interests are of paramount importance in every matter concerning the child.

In all actions concerning the care, protection and well-being of a child the standard that the best interest of the child is of paramount importance, must be applied.

Generally, the provisions referred to above reflect the seriousness with which the law treats children’s interests.

The term ‘paramountcy principle’ is used loosely to refer to what is commonly known as the best interests of the child. Therefore, the terms ‘paramountcy principle’ and the best interests of the child are used interchangeably in the article. The article argues, firstly, that the ‘paramountcy principle’ casts such an individualistic and ‘bossy’ image of the child as to suggest that when decisions affecting children are made, nothing except the best interests of the child matters.

Narrowly constructed, the ‘paramountcy principle’ requires decision makers to religiously follow what the child needs or wants without reference to other competing interests. Secondly, it is shown that the paramountcy principle may be of limited relevance to communitarian societies. These societies are built on the importance of group solidarity and collective interests. Thirdly, parental rights and interests are very important in family relationships and it is argued by the author that parents and other holders of parental responsibilities have a wide discretion when making decisions affecting children.

Break

The ‘paramountcy’ principle is unduly individualistic

It may be argued that the paramountcy principle casts such an individualistic and ‘bossy’ image of the child as to suppose that nothing matters except that child’s best interests. First, the paramountcy principle (if not its interpretation) is unduly narrowly individualistic and fails to reconcile the rights of children and those of parents. Those who argue for children’s liberation tend to construe human rights protection as a zero-sum game in which children’s gains are adults’ losses, rather than as a uniform enterprise in which children’s rights add value to the existing body of parental rights.

Lord Nicholl remarks that ‘the principle must not be permitted to become a loose cannon destroying all else around it’.8 Interpreted strictly, the paramountcy principle requires decision makers to do what is best for the child, no matter how marginal the benefit or the interests of others. It requires that only the interests of the child be considered, nothing more, nothing less. The African Charter on the Rights and Welfare of the Child (African Children’s Charter) heightens this individualism by boldly claiming that the best interests of the child are ‘the’ primary consideration in all actions concerning the child undertaken by any person or authority


----------



## grahamg (Dec 12, 2020)

Can those in Western countries who choose to assert "everything should be about the best interests of the child" in family law, put up some kind of defence to the criticisms of your overly "individualistic" approach laid out above, or are you incapable of doing so?


----------



## Phoenix (Dec 13, 2020)

Yes, kids need to be safe, educated, loved and have a good home.  They are part of a community and need to be taught it does not all revolve around them.  They need to learn manners, honor and integrity as well.  Otherwise they can turn into brats who can't function cooperatively at all.


----------



## grahamg (Dec 13, 2020)

Phoenix said:


> Yes, kids need to be safe, educated, loved and have a good home.  They are part of a community and need to be taught it does not all revolve around them.  They need to learn manners, honor and integrity as well.  Otherwise they can turn into brats who can't function cooperatively at all.


Very well said indeed, thanks for posting those comments!


----------



## Phoenix (Dec 14, 2020)

grahamg said:


> Very well said indeed, thanks for posting those comments!


I have noticed for a long time that everyone often says how perfect their kids are to them.  Then I watch and see how their children disrespect, use and or abuse them.  It's so obvious to others.  I used to go to people's houses and all the visit would consist of was to watch the kids act up and the parents did nothing about it.  When the paradigm shifted from spare the rod, spoil the child to taking a psychological approach to guiding children, it did not improve things.  Now, beating kids is the wrong approach, but the psychological approach often allows the kids to be jerks.  They grow into adults that are jerks.  I honestly don't know what works.  But I do know what doesn't.


----------



## grahamg (Dec 14, 2020)

Phoenix said:


> I have noticed for a long time that everyone often says how perfect their kids are to them.  Then I watch and see how their children disrespect, use and or abuse them.  It's so obvious to others.  I used to go to people's houses and all the visit would consist of was to watch the kids act up and the parents did nothing about it.  When the paradigm shifted from spare the rod, spoil the child to taking a psychological approach to guiding children, it did not improve things.  Now, beating kids is the wrong approach, but the psychological approach often allows the kids to be jerks.  They grow into adults that are jerks.  I honestly don't know what works.  But I do know what doesn't.


Maybe we're lucky if our kids are not jerks as you say, and I do agree when children appear to be only interested in getting the better of their parents, especially when they're adults, (or using them), it is a very unpleasant sight, making you wonder what on earth they did wrong to deserve this outcome(?).


----------



## Phoenix (Dec 14, 2020)

My grand aunt born in 1903 told me that kids are a direct result of putting two things together.  One can never be sure ahead of time how it will turn out.  The way to avoid that is retroactive birth control   or to make sure one does not get pregnant in the first place.


----------



## grahamg (Dec 14, 2020)

Phoenix said:


> My grand aunt born in 1903 told me that kids are a direct result of putting two things together.  One can never be sure ahead of time how it will turn out.  The way to avoid that is retroactive birth control   or to make sure one does not get pregnant in the first place.


If you are lucky everything is worth it, (as I sort of indicated before), and you do get some of the greatest feelings on earth being a dad (or mom I guess), and as a friend once told me, "a child/baby brings their love with them!"  .


----------



## Aunt Marg (Dec 14, 2020)

Phoenix said:


> I have noticed for a long time that everyone often says how perfect their kids are to them.  Then I watch and see how their children disrespect, use and or abuse them.  It's so obvious to others.  I used to go to people's houses and all the visit would consist of was to watch the kids act up and the parents did nothing about it.  *When the paradigm shifted from spare the rod, spoil the child to taking a psychological approach to guiding children, it did not improve things.  Now, beating kids is the wrong approach, but the psychological approach often allows the kids to be jerks*.  They grow into adults that are jerks.  I honestly don't know what works.  But I do know what doesn't.


Never did agree with... "_spare the rod - spoil the child_" (loathe the saying), and as far as beating a child goes... , however, as a mother of 6, my kids got a swat on the behind when needed, and when a good old-fashioned proper spanking was due, I wasn't afraid to administer one.

Some kids respond to a swat on the bottom, other kids are largely unaffected by it, and for those like a lifelong friend of mine who grew up in an extremely strict home, she rebelled as soon as she hit the double digits in age, and to this day she still rebels every chance she get's.

As far as I'm concerned there is no magical solution.


----------



## Phoenix (Dec 14, 2020)

I'm not a kid person.  I have no experience disciplining children.  I have no right to talk about it really.  I just see the results.


----------



## Aunt Marg (Dec 14, 2020)

Phoenix said:


> I'm not a kid person.  I have no experience disciplining children.  I have no right to talk about it really.  I just see the results.


I have personally seen results both ways, where some kids that never seen a paddling in their life were outstanding in every way, and at the very opposite end of the spectrum, kids who got spanked regularly who were absolute brats.

The important thing to remember, what works for one child doesn't work for all.


----------



## Phoenix (Dec 14, 2020)

Aunt Marg said:


> I have personally seen results both ways, where some kids that never seen a paddling in their life were outstanding in every way, and at the very opposite end of the spectrum, kids who got spanked regularly who were absolute brats.
> 
> The important thing to remember, what works for one child doesn't work for all.


Once upon a time I worked as a counselor for Children's Services.  We saw many abused children at all stages of abuse.  It was sad for everyone involved.


----------



## grahamg (Dec 15, 2020)

Phoenix said:


> I'm not a kid person.  I have no experience disciplining children.  I have no right to talk about it really.  I just see the results.


I think you have many good insights, so I'd say you are a "kid person" in that sense.    .


----------



## Rosemarie (Dec 15, 2020)

On another thread, I asked what differences there were between children who were educated in boarding schools and those educated at day school and living with parents. There wasn't much response but I would still be interested to know whether having a common discipline is better than having the influence of individual parents.
In Israel, where children were raised in  a  kibbutz and cared for by groups rather than individuals, did it result in disciplined, broad minded children? I'd like to know if there were any benefits.


----------



## grahamg (Dec 15, 2020)

Rosemarie said:


> On another thread, I asked what differences there were between children who were educated in boarding schools and those educated at day school and living with parents. There wasn't much response but I would still be interested to know whether having a common discipline is better than having the influence of individual parents.
> In Israel, where children were raised in  a  kibbutz and cared for by groups rather than individuals, did it result in disciplined, broad minded children? I'd like to know if there were any benefits.


I went to a very good local school south of Manchester, UK, and it had many private, or paying students, (all fee paying under eleven year old, but no boarders), so any knowledge I have of them is anecdotal, plus I think it a fair guess they were told they were the elite, just as we were at our selective school.
The scally wag presenter of "The word", a live show on Channel 4, and a very hip programme before Michael Grade took it off air back in the 1990s, used to say those who went to private schools were very prone to ingratiating themselves to whoever they though were further up the social scale, (he used cruder words of course, sorry his name escapes me right now?).
This guy isn't seen so often on the TV nowadays, and I did go to our local town to hear him live on stage a couple of years ago. I sat on the front row, and when the section for asking him questions arose I asked him whether he remembered an interview he did of one of the very posh Redgrave daughters, who I guess had gone to a private boarding school, whilst he went to Burnage Grammar school in Manchester. You'd suspect she'd not met many "bits of rough" like him, (it was a fun interview though, and she seemed to enjoy being brought down to his level and yet still showing her class!).
Anyway, the point of this anecdote is those who do attend boarding school are probably prepared well for life, if they prove themselves tough enough to stand being away from their parents, and I'd guess they have high ambitions when they leave.


----------



## Kathleen’s Place (Dec 15, 2020)

When I was growing up swats and spankings were the norm. It was far far from what I consider abuse. And I did the same with my kids. Not often, but when it was needed, it got their attention. The grands, however, were born in the time out era, and now that they are pretty much adults, I don’t see much difference in the way they turned out. Our sons turned into wonderful men that the earth is a better place because of. And by all indications our grands are following suit.


----------



## LindaB (Dec 15, 2020)

Don't get me wrong here, I love my daughter BUT if I knew when I was younger what I now know about having and raising children I would have chosen to remain childless. According to some people that certainly will be regarded as selfish, I'm sure.


----------



## Kathleen’s Place (Dec 15, 2020)

LindaB said:


> Don't get me wrong here, I love my daughter BUT if I knew when I was younger what I now know about having and raising children I would have chosen to remain childless. According to some people that certainly will be regarded as selfish, I'm sure.


Now that I lived through raising them, I’m happy I have them. If you had asked 40-50 years ago the answer would probably been questionable.  And you’ve got to have kids to get grandkids which I think are God’s gift to us for surviving parenthood


----------



## grahamg (Dec 15, 2020)

Brief interlude, (this is the guy mentoined above, and presenter of "The word" a live and cult tv show starting in 1992):

Terence Christian is an English broadcaster, journalist and author. He has presented several national television series in the UK including Channel 4's late night entertainment show The Word and six series of ITV1 moral issues talk show It's My Life. Wikipedia
Born 8 May 1960 (age 60 years) Stretford
Educated at St Bedes College, University of Greenwich, London, and Manchester Metropolitan University

Here talking about "football", (or soccer if you prefer!):


----------



## Aunt Marg (Dec 15, 2020)

LindaB said:


> Don't get me wrong here, I love my daughter BUT if I knew when I was younger what I now know about having and raising children I would have chosen to remain childless. According to some people that certainly will be regarded as selfish, I'm sure.


I don't see it as being selfish at all.

We live and learn as we age and grow, and while there has always been a sort of unwritten rule as to how all should unfold once we are out of our childhood home and on our own... i.e., settle down, get married, have children, live happily ever after.

Such is not reality, and such does not apply to all.


----------



## Kathleen’s Place (Dec 15, 2020)

Aunt Marg said:


> I don't see it as being selfish at all.
> 
> We live and learn as we age and grow, and while there has always been a sort of unwritten rule as to how all should unfold once we are out of our childhood home and on our own... i.e., settle down, get married, have children, live happily ever after.
> 
> Such is not reality, and such does not apply to all.


Aunt Marg, you always give the kindest, most caring responses.  Thank you fo that


----------



## Aunt Marg (Dec 15, 2020)

Kathleen’s Place said:


> Aunt Marg, you always give the kindest, most caring responses.  Thank you fo that


Awww... thanks to your kind and warm words, Kathleen, my day has been doubly made! 

Hugs to you!


----------



## Kathleen’s Place (Dec 15, 2020)

grahamg said:


> Brief interlude, (this is the guy mentoined above, and presenter of "The word" a live and cult tv show starting in 1992):
> 
> Terence Christian is an English broadcaster, journalist and author. He has presented several national television series in the UK including Channel 4's late night entertainment show The Word and six series of ITV1 moral issues talk show It's My Life. Wikipedia
> Born 8 May 1960 (age 60 years) Stretford
> ...


You know...and absolutely NO offense to our neighbors across the sea...but I can barely understand one word of it. When I watch a British show on TV, like The Midwives for example, I have to have the dialog showing or I miss 98%of it...and I adore that show. I’m sure it’s my hearing (or lack thereof) as different dialects never used to be a problem for me.  Anyway, what was the gist of what he was saying???


----------



## grahamg (Dec 15, 2020)

Kathleen’s Place said:


> You know...and absolutely NO offense to our neighbors across the sea...but I can barely understand one word of it. When I watch a British show on TV, like The Midwives for example, I have to have the dialog showing or I miss 98%of it...and I adore that show. I’m sure it’s my hearing (or lack thereof) as different dialects never used to be a problem for me.  Anyway, what was the gist of what he was saying???


Terry Christian has a very strong accent, and it is probably something he plays upon to emphasise his working class roots.

Jose Mourinho, who he was speaking about, is a very famous football manager over here, and learnt his trade working under Sir Bobby Robson when he was manager of Barcelona, twenty plus years ago, (one of the greatest teams in world football). He is considered pretty controversial, loves to play up the media or wind up the opposition, but he's currently doing okay, top of the league with his latest team in London, (you dont need to know its name I'd guess?).  

My own accent is pretty thick too, depending a bit on the company I'm keeping, but hopefully a bit easier to understand than Terry's.   .


----------



## Kathleen’s Place (Dec 15, 2020)

grahamg said:


> Terry Christian has a very strong accent, and it is probably something he plays upon to emphasise his working class roots.
> 
> Jose Mourinho, who he was speaking about, is a very famous football manager over here, and learnt his trade working under Sir Bobby Robson when he was manager of Barcelona, twenty plus years ago, (one of the greatest teams in world football). He is considered pretty controversial, loves to play up the media or wind up the opposition, but he's currently doing okay, top of the league with his latest team in London, (you dont need to know its name I'd guess?).
> 
> My own accent is pretty thick too, depending a bit on the company I'm keeping, but hopefully a bit easier to understand than Terry's.   .


Thank you for understanding . I had always wanted to marry me a man directly from Ireland. I now know why God didn’t fulfill that wish as I wouldn’t have understood one word he said!  I have a hard enough time with the West Virginia hillbilly (his description, not mine) that I DID marry


----------



## Rosemarie (Dec 16, 2020)

Kathleen’s Place said:


> When I was growing up swats and spankings were the norm. It was far far from what I consider abuse. And I did the same with my kids. Not often, but when it was needed, it got their attention. The grands, however, were born in the time out era, and now that they are pretty much adults, I don’t see much difference in the way they turned out. Our sons turned into wonderful men that the earth is a better place because of. And by all indications our grands are following suit.


That would seem to indicate that the parents are good, decent people who were a good example to their children.
In this sort of discussion, I don't really like to bring in personal experiences but in this case, I will.
I have three children who were raised on a rough council estate on very little money. They were never in any trouble and all have gone to university and got degrees. I hope this is because their father and I were decent people who were good parents. The majority of the other children on the estate were always causing trouble, and I didn't hold out much hope for their futures.


----------



## grahamg (Dec 16, 2020)

Rosemarie said:


> That would seem to indicate that the parents are good, decent people who were a good example to their children. In this sort of discussion, I don't really like to bring in personal experiences but in this case, I will. I have three children who were raised on a rough council estate on very little money. They were never in any trouble and all have gone to university and got degrees. I hope this is because their father and I were decent people who were good parents. The majority of the other children on the estate were always causing trouble, and I didn't hold out much hope for their futures.


Rough diamonds perhaps, (well done with your own children though!)?


----------



## grahamg (Dec 21, 2020)

I think I might get away with posting these comments on this thread, as they sort of fit somehow, I hope so anyway.  

The issue at the heart of any litigation, is or should be at any rate, who is telling the truth as best as they know it. It could be both sides believe what they are saying is true sometimes, but usually, in order for a judge to make a decision, there has to a a proportion in favour of one side doesn't there(?). 

However, knowing what might be true in family law, and having a willingness to tell the truth, or feel free to tell the truth, can be very different matters, I think most people would acknowledge. If we are living in a "post truth world" as some contend, what does this mean so far as any justice we might seek to obtain from our courts, because all will be assumed to be lying in their own interests wont they(?)

I dont pretend I can live up to the ideals of yesteryear where "my word is my bond" is supposed to have been the way s gentleman might behave, (I hope I'm not miles from it however!). When my daughters word was believed above mine over the quality of contact I maintained with her, and instead of being sent a copy of my daughters school report, and the teacher insisted my daughter's permission must be sought before it could be released to me, it should give you some idea how much of a second class citizen I had become in the eyes of those in responsible positions, and whose reports informed the courts. The law may be framed in a completely neutral way, not favouring either parent in principle, but "assumptions" mean a great deal in law I believe, and if they assume I'm an irrelevance, or other parents/fathers are equally to be treated this way, "our truth", even if 100% accurate, can count for absolutely nothing, and the lesson such a system gives to our children, is indeed we live in a post truth era, where the word of those misleading or even lying may matter more than anything else.


----------

