Parental Rights vs Presumed Best Interests of the Child
A couple of current news stories deserve comment.
Firstly, this story tells of a Family Court judge who decided it was in the best interests of the child to order in favour of mummy’s preference to send a 5-year-old daughter to a school closer to mummy’s place even though her siblings all went to a different school closer to the father’s place and where he wanted her to attend.
For good measure the judge also reduced the time the girl was to spend staying with the father. The father appealed to the High Court (good on him, though most fathers lack the means to do this). The High Court judge decided that the Family Court judge had erred in assessing the “welfare and best interests” of the child and that the Family Court decision was based on conjecture. The High Court ordered that the girl attend the father’s preferred school with her sisters and reinstated the previous 50:50 care arrangement in an alternating 2:2:3 pattern.
What this case highlights is the silly idea that judges can determine the best interests of children. This will usually be based on conjecture. The criterion is most often simply a convenient way for a judge to rule according to subjective preference, much more often in favour of female litigants given cultural and biological tendencies to feel compassionate towards females and want to protect them. So we see numerous cases where a mother’s wish is granted, for example, to move the children far away from the father’s residence and work, the mother’s claimed better mental state in her new place being seen to be in the best interests of the children while the resulting damage to the father-child relationships is shrugged off.
Sure, in extreme cases such as where one parent is alcoholic/junkie/insane/criminal abuser or the like and the other a stable homemaker, any fool could see that the best interests of the child would be to spend more time with the latter and for time with the former to be supervised until evidenced changes provide safety. Most Family Court cases are not like that but instead involve two caring, ok functioning parents disagreeing about child arrangements. Most Family Court cases involve one parent wanting to assert control, usually the mother believing she is wiser and more entitled to decide about the children and/or using the children as a weapon of revenge, jealousy or envy.
It’s time that the facade of ‘the best interests of the child’ is discontinued. A better test would be of the rationality and evidence base of the litigants’ respective arguments in a framework defining and emphasizing parental and granparental rights. Compromizes somewhat fair to both parents would then become more common providing each with some of what (s)he wants. In many cases the parties would come to realize that doesn’t work well and will come up with better plans.
The other story of significance is about Tom Phillips and his three children who have disappeared. He previously took them bush for several weeks without informing their mother or others where and for how long etc, leaving his vehicle on a beach below the high tide line with the possible intention of making it look like they had all drowned (though there are other possible explanations). He eventually returned home with the children where he was charged with ‘wasting police resources’, whereupon he took off again with the children and none have been seen (by anyone who’s saying) for almost a year. There were no Court orders preventing him from taking the children away on either occasion.
While family-law secrecy means we don’t know much about the machinations of this saga, one can speculate that Tom Phillips was asserting what he saw as his parental rights and that his preferences (e.g. that the children learn bush skills and survival) were not being respected. He may have been using his parental role to make a statement, e.g. “If you think you unilaterally can decide how the children are raised well then so will I”. Almost certainly he was not experiencing what he saw as fair treatment as a father, his wish to stay overnight with the children in the bush was probably being denied, and he will have been aware that he couldn’t expect fair consideration in Family Court. When he returned the first time with the children his attitude appeared to be ‘What’s the big deal? I did some father stuff with the children. If police take it on themselves to go looking for a suitably experienced father doing bush survival with his children then that’s their call”. Police couldn’t charge him with anything substantial but still wanted to punish him (and remind him that fathers shouldn’t be allowed to make decisions for their children) so charged him with wasting their time even though he never asked them to spend that time. His response has resulted in the current sad situation.
We do not condone Tom Phillips’ actions on either of the occasions he ‘went missing’ with the children. His behaviour is irresponsible and unacceptable in a civilized society. The anguish of their mother and loved ones will be terrible. The children’s needs and acceptable safety are clearly not being provided for and there may already have been a tragic outcome.
However, it’s important to consider the possible contribution of social attitudes and laws to this case. If this father’s wishes regarding the upbringing of the children were respected and accommodated it may well have enabled him to take the children bush for one night at first then for longer periods over time in a cooperative manner with their mother and others. If parental rights were prioritized in law then mothers would realize they cannot rule the roost over their children’s upbringing. We wouldn’t have so many separated mothers believing they can dictate how their children’s father raises them (within the law), what friends the father can have around when the children are with him and what activities he is allowed to do with them.