JOURNAL
ISSUE 4
2001/2002
Protecting
the Best Interests of the Child; Some Issues and Solutions
Pedro
Rankin
With a topic like
this it is most fitting to start with the following quote
by Mark L Duke (2000: 2)
What distinguishes
child welfare from other fields of social work is that child
welfare is based upon the central philosophical premise
that the needs and interests of the child are paramount.
In any conflict between a child and an adult, parent, or
other the worker automatically becomes the child's advocate
and defends the child's interest and welfare against the
interest of any adult.
By nature of their
role, the mission of social workers in the child welfare field
should be to promote and protect the interests of children.
Flowing from this, it is the duty of especially child welfare
social workers to identify situations where the interests
of children are compromised or threatened to be compromised,
and to act upon their assessment of the situation. In many
such situations, it is necessary to take decisions about the
future of the child, to decide what will be in the "best
interests of the child". To this end various mechanisms
and provisions by which the interests of the child can be
protected and promoted, are at the disposal of the social
worker. They are not all perfect, but they provide tools and
standards that the social worker can use to protect the welfare
of the child.
The purpose of
this paper is to explore the concept "best interests"
in order to identify the issues around it, and to suggest
some possible solutions. The author is humble enough however
to envisage that the views expressed in the paper will only
add to the debate on the topic rather than come up with some
conclusive answers. It is possible to identify many situations
where the interests of the child are threatened or compromised,
but this paper will focus more specifically on child custody
situations, child abuse and neglect, and the various mechanisms
and arrangements in use, especially in South Africa, by which
the children and young people are protected.
The author realises
that other professional groups like psychologists, teachers,
and medical doctors also maintain certain views on the best
interests of the child, and these are respected, because social
workers often co-operate with members of other professional
groups in an effort to do what is best for the child. This
paper will however essentially reflect a social work, and
to some extent a South African perspective because that is
the system I am the most familiar with. In view of social
worker's close co-operation with people from the legal professions
it is inevitable that legal aspect will also be touched upon
in the paper.
THE VULNERABILITY
OF CHILDREN
This topic needs to be touched upon as an introduction because
concern about the interests or welfare of children gets significance
in the light of the vulnerability of children. Any actions
to protect or promote the interests of children are prompted
by the general vulnerability of children or their vulnerability
in particular situations. Protective measures should also
be assessed in relation to the nature of their vulnerability,
which should furthermore be seen in relation to the position
of adults in the world of the child, and in relation to the
circumstances the child has to cope with.
Children are handicapped
in their capacity to face the environmental demands they become
exposed to over the course of their childhood, because of
their physique, age and stage of development. Goldstein et
al. (1973:3) contrasts the adult with the child by stating
that adults are presumed to be responsible for themselves
and capable of deciding what is in their own interests. Children,
on the other hand, are presumed to be incomplete human beings
who are not fully competent to determine and safeguard their
own interests. The adults who are personally committed to
assume such responsibility see them as dependent and in need
of direct, intimate and continuous care. This is similar to
the views of Archard (1993:30) who describes childhood as
a stage or state of incompetence relative to adulthood..."that
which lacks the capacities, skills and powers of adulthood".
Ironically, it is often those adults responsible for the care
of children, which, through their behaviour becomes a threat
to the child's future and jeopardises the child's chances
to have a trouble-free childhood.
The separate and
unique nature of childhood has not always been realised. Historically,
the child was regarded as the property of the parents, and
without significant rights. Children occupied a rightless
state within the family and no special position within society.
According to Hegar (1989:108) they had no recourse against
parental decisions and actions affecting their welfare and
no protected legal interests in their custody, treatment or
property. In contrast with this, the following statement by
John Locke quoted by Shelton (1995), reflects the contemporary
views about children:
Children are
not their parent's property, but God's property, destined
to take their place in the moral and social order as individuals,
not merely elements in the smaller unit of the family. Children
are not born in a full state of Equality, though they are
born to it.
The degree of
the vulnerability of children is to a large extent determined
by the quality and nature of protection and care they receive.
Parents are the natural protectors of children, and it is
also one of their main duties and responsibilities. For various
reasons, however, they do not always succeed in doing so,
and they often fail in this responsibility, because they are
also exposed to the kind of adversarial circumstances making
it impossible or difficult to fulfil this function. Families
become victims of poverty, unemployment, unstable social conditions
and a host of other social problems. What happens in the social
environment, also affects the family's internal functioning
which results in a family environment not conducive to the
proper care of children. Rebecca Hegar (1989:107) echoes this
in the following statement:
In many parts
of the world, the human rights of children are endangered,
often because their families are at risk for genocide, political
persecution, or extreme poverty. The human rights of children
are also threatened when their society discriminates on
the basis of circumstances of birth, gender or other characteristics.
Commenting on
the need to protect children, Bosman & Van Zyl (1997:49)
makes it clear that it can no longer be assumed that the family
constitutes a safe haven for children, and that the need for
the law to protect children from any form of abuse - even
from their own parents - has increased. If the family cannot
care for its children, somebody must step in to protect the
interests of the child. This responsibility belongs to the
state that has the power and authority to implement the necessary
mechanisms to protect children whose interests are threatened.
This is normally done by means of legislation prescribing
the measures to be taken to protect children and defining
the circumstances under which those measures are to be taken.
This represents what Hegar (1989:109) calls the protective
view of children with the state having a regulatory role as
far as the rights of the child are concerned. The assumption
is that the state has a duty towards children to ensure that
children's interests are not permanently and adversely affected
until they can accept responsibility for themselves.
THE CONCEPT "THE
BEST INTERESTS OF THE CHILD"
Banach (1998:334) defines "the best interests" as
follows:
The best interests
of the child is a standard that aims at facilitating the
circumstances under which a child can be allowed to develop
physically, intellectually, and emotionally into a well-adjusted
adult.
The importance
of the best interests of the child is given prominence in
Article 3.1 of the United Nations Convention on the Rights
of the Child in the following statement:
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.
As far as "the
best interests" as a standard for decision-making about
the lives of children are concerned, much credit is due to
Goldstein, Freud and Solnit (1973,1979, 1986) whose views
are regularly quoted in writings on this topic. Although some
scepticism has been expressed about their views (Kadushin,
1974; Walton, 1976), their contribution cannot be ignored.
According to them the best interests of the child is defined
by the traditional goals of physical protection of children
and their psychological well being. The latter, according
to Walton (1976:309) represents the core agreement as far
as the "best interests" are concerned. It should
not be overlooked that Goldstein, Freud and Solnit (1973)
introduced "the least detrimental available alternative
for safeguarding the child's growth and development"
after reconsidering "the best interests of the child"
as a standard, thereby acknowledging that the best interests
of the child may perhaps not always be obtainable. The equivalent
preferred in South Africa at the moment is "the least
restrictive and most empowering environment" Mary Banach
(1998:331) sees the main difficulty with the concept as the
fact that it means different things to different people in
spite of its common usage in court. The problem, according
to her, is the different beliefs held about what is best for
children within both the social service and legal community
with the resultant lack of agreement about the factors to
consider in decisions based on the best interests standard.
Miller (1990:23) comes to a similar conclusion by drawing
the attention to the difference between the views of psychiatry,
psychology, and allied mental health professions on the one
hand and the law on the other hand. She points out that the
law always consider non-psychological values in determining
"the best interests" standard, while the focus in
the psychological realm is on interpersonal relationships.
In the opinion of Wall and Amadio (1990:45) the best interests
of the child are derived principally from psychoanalytic and
cognitive development theories with a major psychoanalytic
concept relating to the significance that continuous relationships
with primary figures are necessary for the development of
children's sense of self and identity. Stahl (1994:24) came
to the conclusion that state laws define the best interests
of the child around parameters such as nurturing, guidance,
religious and economic issues, emotional attachments, stability,
the maintenance of a healthy relationship with both parents
and so on.
In a critical
analysis Walton (1976: 307 - 312) expresses much scepticism
about the ways in which the term 'best interests' is used.
He suggests that a distinction be made between the objective
of the child's best interests and the means of achieving it,
as well as between the 'best interests' of all children in
a particular community, that of deprived, maladjusted children,
and that of a particular child. He points out that new issues
arises when considering the best interests of children in
each of these categories, making it an even more complicating
situation. He suggests that on the level of the best interests
of children in general, there is agreement about physical
health and the general desirability of stable, loving care,
preferably by the parents. After this, there is however many
different interpretations and other concerns are introduced
into debates about best interests. Working mothers, nursery
education, family allowances, economic support for single
parent families, patterns of educational provision between
home and school are then introduced into debates. Regarding
the best interests of deprived, maladjusted and delinquent
children, the standards of the best interests for all children
is used as general guidelines as well as arguments about the
best forms of substitute care, preventive, supportive and
rehabilitative measures. On the level of the single child,
all the above factors are considered plus the needs and interests
of this particular child. Three crucial issues according to
him that needs to be considered are the degree of parental
authority in decision-making, the rights of the child to have
a voice in his or her own future, and the authority of professionals
to weigh and balance all the factors.
In any discussion
about the rights and interests of the child, the rights and
interests of the parent comes into the picture as well. Surely
parents have the right to care for their own children. The
question now arises about the conditions under which the rights
of the parents can be curtailed. A guiding principle in this
regard is that rights are to be balanced with responsibilities.
A person (parents) can only claim their rights if they fulfil
their responsibilities as parents. Walton (1976:309) feels
that the legal interpretation of the child's welfare gave
excessive weight to the parental rights. This might affect
a court decision about the future of the child.
From the above
it is clear that it will not be easy to draw conclusive answers
about the meaning of the "best interests of the child",
and that it is a very complicated concept to define and operationalise.
The most complicated issue is the standards to be used to
determine the 'best interests of the child'.
THE RIGHTS AND
STATUS OF CHILDREN
Two aspects the author feels are closely related to the best
interests of the child are the rights and status of children.
The rights of the child will determine his status, and together
they inform the 'best interests' and establish its foundation,
providing a set of guidelines by which decisions about children
can be taken.
It is in the interest
of the child that a set of rights of the child be endorsed
by the state and acknowledged by the community. In this regard,
the Convention on the Rights of the Child (CRC) developed
by the United Nations, deserves mentioning. The CRC has been
ratified by most countries in the world, and by doing so,
they have committed themselves to protecting and ensuring
children's rights, and they have agreed to hold themselves
accountable for this commitment before the international community.
Children's rights are protected by this Convention by setting
standards in health care, and education, and legal, civil
and social services. At the same time it provides a standard
against which any country can measure its progress and child
welfare policies.
Commenting on
the rights and status of children, Hegar (1989:108 - 114)
distinguish between three major approaches to children's rights
that has influenced social policy in western Europe, Great
Britain and North America. He states that each approach has
had periods of dominance in various countries, but all continues
to influence thinking about the rights of juveniles. The traditional
view emerged first, and it is characterised by children not
having any rights in the family and no special provision in
society. They had no recourse against parental decisions and
actions affecting their welfare and no protected legal interests
in their custody, treatment or property. From this evolved
the presumption that parents are the natural protectors of
children and act in their interests.
According to the
protective view, the state has a regulatory role as far as
the rights of the child are concerned. The assumption is that
the state has a duty towards children to ensure that children's
interests are not permanently and adversely affected until
they can accept responsibility for themselves.
The liberationist
view suggests that children be best served by independent
legal rights, rather than by relying on parents, or the state
to act in their interests.
Section 28(1)
of the Constitution of the Republic of South Africa Act (Schäfer
& Schäfer, 1997:73)) list a number of fundamental
rights that every child is deemed to have, namely:
Every child has
the right -
(a) to a name
and a nationality from birth;
(b) to family
care or parental care, or to appropriate alternative care
when removed from the family environment;
(c) to basic
nutrition, shelter, basic health care services and social
services;
(d) to be protected
from maltreatment, neglect, abuse or degradation;
(e) to be protected
from exploitative labour practices;
(f) not to be
required or permitted to perform work or provide services
that-
(i) are inappropriate
of that child's age; or
(ii) place
at risk the child's well-being, education, physical or
mental health or spiritual, moral or social development;
(g) not to be
detained except as a measure of last resort, in which case,
in addition to the rights a child enjoys under sections
12 and 35, the child may be detained only for the shortest
appropriate period of time, and has the right to be-
(i) kept separately
from detained persons over the age of 18 years; and
(ii) treated
in a manner, and kept in conditions, that take account
of the child's age
(h) to have
a legal practitioner assigned to the child by the state,
and at state expense, in civil proceedings affecting the
child, if substantial injustices would otherwise result;
and
(i) not to be
used directly in armed conflict, and to be protected in
times of armed conflict.
There are thus
guidelines available as far as the rights of the child is
concerned, and it is every country's own choice to decide
how and in what way effect will be given to the Convention
for the Rights of the Child. This treaty regarding the Rights
of the Child is a reflection of what Hegar (1989:111) describes
as the liberationist view of the child, suggesting that children
are the best served by independent legal right, rather than
relying on the parents or the state, to act in their own interests.
CHILD PLACEMENT
DECISIONS
The "best interests" standard should be implemented
everytime decisions about the placement of children and young
people are made. Alternatively, "the least detrimental
available alternative" or "the least restrictive
and most empowering" principle can be used if the "best
interests" standard seems unobtainable. It is often the
experience of social worker that the available option is often
not the best but the best from what is available.
As said in the
beginning, the paper will focus on decisions in child custody
cases, and cases of child neglect and abuse where the best
interests of the child will be burning issues. In cases of
child custody, decisions about which parent will be the best
custodian will have to be taken. In this respect the social
worker provides valuable input. In cases of child neglect
and abuse, several questions must be answered. The first crucial
question will be whether it will be in the child's best interests
to be removed from his parental home, and if so to which of
the several options available. Gerry O' Hara (1992:25) so
aptly describes this situation as follows:
Few situations
pose such agonising choices as the placement of children
who cannot stay at home. For social work agencies and their
staff, legal advisers and other helpers and professionals,
the choice involves a bewildering range of issues.
It requires from
the social worker a wide range of knowledge of the different
placement possibilities, the requirements thereof, and the
needs fulfilled by each type of placement situation. Quite
a number of issues need to be considered in order to decide
what will in fact be the best for the child. In research done
by Banach (1998) decision-making factors in the best interests
of the child fell into three categories namely precipitating
events, guiding principles and case variables. Precipitating
events are the driving forces which necessitated decision
like government regulations, family court proceedings and
a change in the circumstances of the child. Guiding principles
are general concepts considered by the professionals when
they were making a decision and fell into four categories
e.g. time in care, prevention of future problems, family preservation
and cultural identity. Time in care refers to the desire to
have the child return to the biological family as soon as
possible, but at the same time considering the time that the
child has been in the care of an alternative caretaker. The
second principle relates to safety concerns and concerns about
psychological well being. The third guiding principle is the
desire to select an alternative that would preserve the family
unit, and cultural identity refers to the desire to maintain
or enhance the child's connection with the culture of his
or her birth parents. Case variables included parental functioning,
child-related factors, characteristics of the substitute caretaker
and systemic variables. Parental functioning dealt with the
history of the parent with the child, the degree of change
refers to the changes the parents had made to change conditions
which lead to the child's removal, willingness to sacrifice,
parenting capability, relationship with the partner, social
support and the home environment. Child-related factors included
behaviour problems, degree/target of attachment and the wishes
of the child. Variables related to the substitute caretaker
included availability and the desires for the child. Systemic
factors refer to the knowledge of the case, validation of
observation and services needed/provided.
In the following
section, the four "basic" placement situations will
be discussed in an effort to explore the variables affecting
the interests and welfare of the child.
CHILDREN AND DIVORCE
Children are particularly vulnerable at the time of divorce,
and they then need special support. Courts often call upon
social workers to make recommendations regarding the custody
of children. This provides the social worker with an opportunity
to protect and promote the interests of children, and is it
of paramount importance that the best interests of children
be considered. This cannot be done without the use of certain
criteria or standards, and even so it is a very complicated
decision. Glenn Miller (1990:22) distinguishes between the
legal and psychological or psychiatric best interests standards
and explains that the law always considers non-psychological
values in determining best interests, and that it relies on
a behavioural science notion of what is best for the child.
Banach (1998:331) is in agreement with the latter when she
expresses the view that legal frameworks surrounding the standard
of the best interests of the child are based on psychological
theories and research.
Robinson (1997:59)
explains that once the needs of the child has been established
by the court, the parents are assessed in order to establish
which parent would be the most suitable custodian having regard
to their individual personalities and qualities. He suggests
that this can be assessed by using the following list of criteria:
(a) the love,
affection, and other emotional ties which exist between
parent and child, and the parent's compatibility with the
child;
(b) the capabilities,
character and temperament of the parent, and the impact
thereof on the child's needs and wishes;
(c) the ability
of the parent to communicate with the child and the parent's
insight into, understanding of and sensitivity to the child's
feelings;
(d) the capacity
and disposition of the parent to give the child the guidance
he requires;
(e) the ability
of the parent to provide for the basic physical needs of
their child, the so-called 'creature comforts', such as
food, clothing, housing, and other material needs such as
the provision of economic security;
(f) the ability
of the parent to provide for the education, well-being and
security of the child, both religious and secular;
(g) the ability
of the parent to provide for the child's emotional, psychological,
cultural and environmental development;
(h) the mental
and physical health and moral fitness of the parent;
(i) the stability
or otherwise of the child's existing environment, having
regard to the desirability of maintaining the status quo;
(j) the desirability,
or otherwise, of keeping siblings together;
(k) the child's
preference, if the court is satisfied that in the particular
circumstances the child's preferences should be taken into
consideration;
(l) the desirability,
or otherwise, of applying the doctrine of same sex matching
(whether a boy should be placed in the custody of his father
and a girl in the custody of his mother); and
(m) any other
factor which is relevant to the particular case with which
the court is concerned.
This list is very
comprehensive and incorporates both the psychological and
non-psychological standards, and is an example of how the
psychological and legal standards of the best interests of
the child can be integrated.
Goldstein et al.
(1973) suggests that placement decisions
- should safeguard
the child's need for continuity of relationships,
- should reflect
the child's sense of time,
- must take into
account the law's incapacity to supervise interpersonal
relationships and the limits of knowledge to make long-range
predictions.
Goldstein et al.
(1973:31) stresses the importance of continuity of relationships
for the child, and point out that disruption of continuity
have different consequences for different ages. This means
that the age of the child in crucial in considering the effects
of a change in environment for the child. They suggest that
the implication of this is that all child placements should
be permanent. Experienced social workers will know that although
they would agree with this principle, it is often not feasible.
This has the implication that foster care for instance may
not always be in the best interests of the child, and that
in some cases a children's' home may be a better option.
The absence of
the parent will become significant to the child after a while.
This will depend on their duration, frequency, and the developmental
period during which they occur (Goldstein, et al., 1973:42)
The implication of this is that decisions about child placements
should never exceed the time that the child that must be
placed can endure loss and uncertainty.
Goldstein et al.
(1973:50 - 51) refers to the inability of the law to
compel human relationships to develop and feels that these
limitations should be kept in mind. A court thus cannot order
a parent to love his child, neither does it have the ability
to predict what is going to happen in future.
Goldstein and
colleagues (1973) have also introduced the important concept
of psychological parenthood. According to the interpretation
of Banach (1998:322) psychological parenthood proposes that
"the person who provides nurturance and love for a child
becomes the person to whom a child attaches feelings of love,
identity and security". A person with whom the child
is placed away from the biological parent, and who cares for
the child both physically and emotionally becomes the psychological
parent of the child. The implication of this, incorporated
in the best interests of the child, is whether there is another
person likely to become the psychological parent of the child
if it is not the biological parent.
Stahl (1994:25)
lists the following fundamental needs that the feels are required
to meet the best interests of the child in custody evaluations:
- the best parenting
is achieved with two parents;
- children should
see that their parents can develop a post-divorce relationship
that is free of hostility and in which the relationship
with the other parent is promoted to the child;
- the children
must share time with each parent in a way that has fewer
rather than more transitions over a period of time and that
the transitions flow naturally in the child's life;
- parenting plans
must make sense developmentally, according to the age and
abilities of the child;
- when there
is serious conflict between parents, or between a parent
and a particular child, the mechanisms by which conflict
can be managed and reduced, exists;
- if one of the
parents is dysfunctional or abusive, or is engaged in as
relationship that is physically destructive or emotionally
toxic to the child,, the child's need for safety must always
come first.
Stahl (1994:4)
also feels that the developmental needs of the child need
to be taken into consideration when deciding about custody.
This implies that each parent should have the ability to understand
and respond to the developmental needs of the child and that
custody will be determined by the parent who understand it
the best, and who are the best equipped to respond to what
the child needs.
SUBSTITUTE CARE
Many children spend part of their lives, for longer or shorter,
in some form of substitute care. Placements away from home
is the result of a decision taken which may have far-reaching
consequences for the child if not considered thoroughly. However,
resources which can take over the care of the child if the
parental home fails must be available, whether they are being
maintained by the state or NPO's.
Kadushin (1988:218)
correctly refers to services of this nature as supplementary
services. It refers to a range of services which come into
operation if it becomes necessary to support the functions
of the parental home, or to remove the child if necessary.
The statutory definition of maltreatment according to Kadushin
(1988:226) includes a wide variety of situations, which he
lists as follows:
(1) Physical
abuse.
(2) Malnourishment;
poor clothing; lack of proper shelter, sleeping arrangements,
attendance or supervision.
(3) Denial of
essential medical care.
(4) Failure
to ensure that the child attend school regularly.
(5) Exploitation,
overwork.
(6) Exposure
to unwholesome or demoralising circumstances.
(7) Sexual abuse.
(8) Emotional
abuse and neglect, involving denial of the normal experiences
that permit a child to feel loved, wanted, secure and worthy.
The definitions
of maltreatment will not necessarily be the same in all countries,
but it can be assumed that there will be similarities. South
Africa defines the conditions under which a child can be found
"in need of care" (Child Care Act) which are as
follows:
- the child must
be abandoned or without visible means of support,
- must display
behaviour which cannot be controlled by his or her parents
or the person in whose custody he or she is,
- lives in circumstances
likely to cause or conduce to his or her seduction, abduction
or sexual exploitation,
- lives in or
is exposed to circumstances which may seriously harm the
physical, mental or social well-being of the child,
- is in a state
of physical or mental neglect,
- has been physically,
mentally or sexually abused or ill-treated by his or her
parents or guardian or the person in whose custody he or
she is.
In general it
corresponds with Kadushin's list above, but it is defined
in more general terms with the social workers and the court
given some leeway for interpretation.
If the above situations
are indicative of the parents' inability or unwillingness
to care for the child, the state has the duty to step in and
defend the rights of the child against those of the parents.
It is normally the social worker who has to investigate allegations
or suspicions about child maltreatment, and make a recommendation
to the court about the future of the child. The question,
which now arises, is what is in the best interests of the
child - the parental home or some alternative form of care.
If it is an alternative form of care, what kind. The two main
alternatives are foster care or substitute care. In order
to make the decision, the social worker need to have intimate
knowledge about what each has to offer. When the possibility
of substitute care is indicated, the social worker has to
take a series of decisions in order to consider the best interests
of the child. The first step is to decide whether it is possible
to keep the child in the parental home. If that is possible,
it must then be decided what kind of services are to be rendered.
If the child is to be removed, choices have to be made between
the various forms of substitute care. The conventional two
options are foster placement and institutional care. If it
is foster placement, it has to be established what kind of
foster home will meet the child's needs. If it is institutional
care, the particular kind of institution is to be selected.
It is a complicated process, and has to be based on objective,
valid criteria which is perhaps one of the serious problems
regarding placements.
Meddin (1984:368)
draws the attention to the fact that a decision to place a
child also has serious consequences for society as well. It
may result in permanent separation if it is continued over
a long period of time, and it is a costly arrangement, which
may divert resources that could be used to strengthen families.
This statement underlines the importance of caution with all
forms of substitute care.
FOSTER CARE
Foster care is when another family which may or may not be
related to the family of the child concerned, takes responsibility
for the care of the child for a certain period of time. The
arrangement may be formal or informal, although a formal arrangement
seems to yield better result because of a more formal structure.
Before foster care can be considered, it should be carefully
assessed whether the parents of the child will not benefit
from supportive services in the application of the family
preservation principle. Kinney, et al. (1991:1) confirms this
when they state that many placements would not be necessary
if families had access to intensive services. They list the
following reasons why unnecessary placements often occurs:
- caseloads are
so high that workers do not have the time to identify and
weigh carefully all the issues bearing on a case,
- tradition strongly
supports the notion that placement is the option of choice
for troubled families, and
- knowledge about
the capacities of families to change has not been widely
disseminated so that many caseworkers are unaware of possible
alternatives to placement.
They (Kinney et
al.1991:7) compare the advantages and disadvantages of home
care and placement of the child. Their basic assumption is
that the safest, most nurturing environment available to a
child is a family, which does not have to be a father and
mother, but also a 'constellation of committed individuals
who will provide continuity, stability and guidance throughout
his or her childhood.' According to this view, the best interests
of the child are at home. They suggest the parental home offer
the following advantages:
- they provide
a nurturing setting for the development of self-esteem and
self-discovery,
- they teach
children how to solve problems, how to co-operate in small
groups, and how to behave in culturally acceptable ways,
- parents model
and support commitment, love and attachment, and
- families provide
children with the advantage in respectability, credibility
and acceptability throughout their lives.
They list the
following disadvantages of children staying at home:
- families are
given a wide range of freedom and privacy in deciding how
children should be raised
- parents are
not screened or trained for the job, and many parents have
few skills and make poor decisions,
- family planning
is not widely practised and many pregnancies are unplanned,
- in family situations,
children can be damaged emotionally and physically and even
killed.
Research done
by Meddin (1984) revealed that a fairly consistent set of
criteria could be used by child welfare workers to make placement
decisions. The following five variables were identified by
her: risk to the child of further abuse and/or neglect, the
severity of the current incident, functioning and co-operation
of the prime caretaker, and the age of the child.
If a child has
to be placed in foster care, it is the social worker's most
important task to make a careful assessment of potential foster
families to make certain that the requirements for the best
interests of the child are met. In this regard, Meddin (1984:368)
remark that child welfare agencies - and it is assumed that
it is also valid for other agencies doing placements - have
been slow to create, empirically validate, and systematically
apply decision-making criteria. She quotes several authors
pointing out various problems encountered with foster placements
in view of a lack of objective criteria and points out that
"lack of explicit criteria may contribute in part to
differences in placement rates from jurisdiction to jurisdiction,
and from worker to worker. Kadushin (1988:367) also stresses
that importance of the 'grave responsibility' of the agency
of finding the best possible substitute home for the child
needing care. Several frameworks and models for assessing
foster parents can be found in the literature (Meddin, 1984;
Kadushin, 1988; Hegar, 1993; Triseliotis, 1995).
A good foster
placement requires that firstly the needs of the child be
assessed correctly, and secondly the qualities of the foster
parents to care for the child be established thoroughly. Hegar
(1993:367) suggests that in making placement, choices among
homes that offer good care, attachment, permanence and kinship
should be weighed to determine to what extent each placement
provides an acceptable balance of the three. She emphasises
that it is rare for all three to be maximised. It is her view
that sound placement decisions can be made based on careful
individualised evaluation of how a particular home meets the
child's needs for these three desirable factors. Kadushin
(1988:367) alleges that it is the socioemotional factors thought
to be desirable in a foster home that is the most difficult
to assess. These are factors related to the quality of the
relationships in the foster home, and their attitude towards
a foster child. Meddin (1984:368) points out that idiosyncratic
decisions in child care would be unavoidable unless systematic,
consensually based criteria are used. Triseliotis et al. (1995:
68) suggests a broad range of issues to be looked at when
assessing foster parents. Their focus to a large extent is
on the attitude of the foster parents to the child, to the
parents of the child and to the relationship with the agency.
They also mention the importance of the knowledge of the foster
parents about the implications of foster placement.
Triseliotis et
al. (1995:) came to the conclusion, after reviewing research
being done on foster care, that short-term foster care seems
to have the highest success rate. From the studies reviewed,
they tentatively formulated child related negative predictive
factors, foster home related and social work related positive
predictive factors, which represents a welcome contribution
to assessment criteria. There are also other studies that
were done on predicting successful foster placements (Cautley
& Alridge, 1975; Stone & Stone, 1983), but there is
a need for more studies of this nature. Kadushin (1998:369)
summarises his impression from research on the topic of good
foster parents as follows:
In general,
the research supports the sensible suppositions that it
is good to select people who have familiarity with children
and who have developed parenting skills, who can empathise
with, understand, accept, and individualize the child, who
has tolerance for child behavior that is different from
the behavior the parents are familiar with, and who have
a family life with sufficient stability and internal strength
to withstand the burden that the foster child imposes, particularly
at the beginning of the placement.
ADOPTION
Schäfer & Schäfer (Robinson, 1997:77) defines
adoption as a "process whereby a parental relationship
enjoying full legal recognition is created between a person
and a child who is not his or her legitimate child."
Gerry O'Hara (1991:24)
observes the belief about adoption that the best interests
of the child is at home by supporting the principle that there
should be maximum support for parents to care for their own
children, and if that is not possible, opportunities for children
to have permanence and security through adoption should be
available. The beginning point of reference thus remains the
home of the child, regardless of whether the alternative choices
are foster care, adoption or institutional care.
Adoption differs
from either foster or institutional placement in the sense
that it is intended to be a permanency arrangement. It calls
for even more responsibility and care than foster placement
or referral to an institution. If adoption fails, the adoption
order cannot really be reversed and uncomfortable complications
may arise in the process. It thus requires an even more careful
consideration of the needs of the child, and the needs and
motivations of the adoptive parents. Adoption in many cases
is the result of foster placement, which is an advantage because
the adoptive family will be familiar with the child, and it
would have been clear that adoption have been in the best
interests of the child.
The South African
Child Care Act 74 of 1983 makes provision for the adoption
of children, and section 18(4) (c) states that the children's'
court should consider whether the adoption will serve the
interests and be conducive to the welfare of the child. The
decision will thus have to be taken whether an adoption will
be in the best interest of the child. In this regard, the
social worker has the 'grave' responsibility to screen applicants
for adoption to establish their needs and motivation for adoption.
Some of the assessment
criteria for adoptive parents will be similar to those of
foster parents, but the uniqueness of the adoptive situation
requires other factors to be considered as well. Requirements
will vary, according to the kind of adoption that occurs.
Kadushin (1989:546) makes it clear that requirements for parents
seeking to adopt an infant is expected to be much more stringent
than for adoption of children with special needs. The question
here again is what kind of requirements should adoptive parents
meet to meet the standards of the best interests of the child.
Provision must
also be made for children with special needs like older children,
abused and neglected children, handicapped children, children
with AIDS and AIDS orphans. Another special group is single
parents who want to adopt a child. In the case of each of
these groups, different standards will apply and adoptive
parents will have to be screened differently. Children from
each of these groups will have special needs, and parents
who wants to adopt children from these groups are expected
to have different and special qualities compared to parents
who want to adopt "normal" infants.
A particular problem
in South Africa at the moment, as in other African countries
as well, is the care of AIDS orphans, and children infected
with AIDS who were left behind by parents who died of AIDS.
The numbers are increasing and the conventional forms of substitute
care are not adequate to accommodate the swelling numbers
of AIDS orphans. A possible solution to this problem will
be to recruit more foster and adoption parents to take over
the care of these children. This is perhaps not such a big
problem in Western countries, judging from the statistics
available on the internet, but it is a problem for which a
solution eventually will have to be found, possibly by adjusting
the traditional substitute care paradigms (Harber, 1999).
INSTITUTIONAL
CARE
The choice between foster care and institutional care can
only be made after the needs of the child have been assessed.
However, it often happens that institutional placements are
done as a result of breakdowns in a foster home placement,
or after several unsuccessful foster placements. This is then
regarded as a last resort. Once again, certain conditions
or circumstance must prevail before it can be regarded as
"in the best interests" of the child to be sent
to an institution. Perhaps it is a case of the least detrimental
alternative available. As Kadushin (1989:681) puts it: "
the utilization of institutional care is based on the worker's
decision that the child cannot be treated effectively in his
or her own home and that neither foster home care nor adoption
are appropriate alternatives".
The children's
institution provides temporary substitute care in a group
setting and is defined by Kadushin (1989:669) as a "twenty-four-hours
residential facility in which a group of unrelated children
live together in the care of a group of unrelated adults".
In South Africa the three types of institutions meeting the
requirements of this definition are children's homes, schools
of industry and reform schools, with the latter two special
schools providing residential facilities. Three types of children's'
homes can be distinquised namely the dormitory type, the cottage
system and the community home. The cottage system and community
home corresponds with the American concept of group homes.
A requirement
for institutional placement of the child is that the social
worker effecting the placement must be convinced of the value
of the option. Kadushin (1989:668) lists three advantages
of institutional care.
- The staffing
patterns of the institution offer opportunities for a diluted
emotional relationship and provide the child with a greater
variety of potential parenting figures. The child had s
to share houseparents with many other children, permitting
him to maintain a certain safe psychological distance from
parenting figures.
- The unique
programmatic and structural elements of the institution
help create a treatment environment that is particularly
powerful in its impact on children. The rules, regulations
and routine of institutional living may be an advantage
to many children who need this type of structure in order
to reinforce their own efforts at self- control
- The fact that
the child lives his or her daily life as a member of a peer
group means that the group has power to control behaviour.
Group pressure can be applied to motivate the child to become
more conforming and less deviant.
Kadushin (1989:681)
also outlines the situations in which institutional care is
the appropriate resource.
- Children referred
to institutions are more likely to have been removed from
their home as a result of their own inadequacy in implementing
their roles, primarily because of emotional, physical, or
mental handicaps. They have difficult relationships with
adults, including their parents and teachers. Some children
in institutions have experienced multiple foster placements
that have ended in failure.
- Children are
placed in institutional care when their parents, because
of their own personal circumstances or problems, are unable
to provide the type of support that is needed, or when parents,
overwhelmed by the child's own special needs and disabilities,
can no longer cope.
- The child of
the parent who will be greatly threatened by the loss of
a child's affection to foster parents will be less of a
source of anxiety if referred to an institution, because
his parents will be more able to accept an institutional
placement.
Kadushin (1989:684)
also describes the contra-indications for institutional care.
Institutional care is normally contraindicated for infants
and very young children. He quotes Bryce as suggesting that
children with disabilities in only one area of their lives
should benefit by help from the community. The same applies
to children requiring help in developing more satisfying peer
group relationships. Children requiring special education
should receive it in their own community. Children who may
be too seriously disabled to function in the relatively open
environment of the residential setting do not belong there.
Kinney et al.
(1991:8) stress that foster families, group homes and psychiatric
hospitals are often a save haven for children, removing them
from dangerous and unsupportive settings, and providing love,
guidance and help in resolving serious long-term problems.
On the other hand, however, they also point out that placements
may have many weaknesses and potential disadvantages. Staff
may not always be selected, trained and monitored properly.
Children can be emotionally and physically abused in placement
just as they can be in families. Children who are placed,
may feel rejected, inadequate and alone. The may miss their
families and envy the siblings who remain at home, and they
miss out on important parts of family history, making it difficult
for them to have a sense of belonging and continuity.
SOUTH AFRICAN
MEASURES OF PROTECTING AND PROMOTING THE INTERESTS OF THE
CHILD
South Africa has several measures and arrangements in place
to protect and promote the interests of the child. Many of
the South African policies and practice of this nature will
be similar to those of other countries, but there will also
be arrangements unique to the country. A brief description
of each of them will be given below.
THE CONVENTION
ON THE RIGHTS OF THE CHILD
South Africa ratified the United Nations Convention on the
Rights of the Child (Bosman & Van Zyl, 1997:51) with a
number of fundamental rights of the child listed in section
28(1) of the Constitution. Eiselen (Robinson. 1997:233) stresses
the fact that many of the provisions of the Convention are
already covered and enforced in South African common law,
statutory law, and administrative practices.
THE FAMILY ADVOCATE
The office of the family advocate has been created by the
Mediation in Certain Divorce Matters Act, 24 of 1987 (Bosman
& Van Zyl, 1997:64). The Act makes provision for an enquiry
by the family advocate into the interests of a minor or dependent
child, and aims at taking the children out of the area of
conflict in cases of divorce as soon as possible. This ensures
that their best interests are served at all times and prevents
the parents using them as pawns.
The family advocate
monitors all divorce and post-divorce pleadings issued in
the High Court pertaining to children to ensure that the arrangements
in the pleadings is in the best interests of children (Bosman
& Van Zyl, 1997:65). The aim is primarily to reach an
agreement with the parents about the future care of the children,
and if that does not work, to evaluate the situation to formulate
a recommendation to the High Court. To fulfil this function,
the family advocate makes use of family counsellors, which
in practice is an experienced social worker. Other professionals
like psychologists and psychiatrists may also be used.
THE CHILD CARE
ACT
The Child Care Act is one of the most important mechanisms
for protecting and promoting the interests of the child in
South Africa. It has been amended on several occassions, and
makes provision for a variety of measures to protect the welfare
of children. The Act provides for places of safety, children's
homes, places of care, foster care, schools of industries,
shelters and institutions (Schäfer & Schäfer:
86). It also provides for Children's Courts whose main function
is to decide which children needs to be removed to appropriate
alternative care (Zaal, 1997:95).
DIVERSION PROCEDURES
Diversion is a method of dealing with offenders that allows
cases to be referred away from the criminal justice system
as well as for the young person to make amends for his or
her offending behaviour through some other process such as
attendance at a course, unpaid work in the community, or restitution
to the victims of the crime (Skelton, 1997:170). Diversion
are not implemented in terms of any legislation, but it is
implemented in terms of article 40 of the Convention on the
Rights of the Child stating that it is better to deal with
children outside of court where possible.
- The following
diversion programmes, run by an NPO, are examples of the
schemes young people can be referred to:
- The Youth Empowerment
Scheme which is a life-skills training programme involving
young people and their parents or guardians
- The Pre-trail
Community Service where the person performs community service
in lieu of prosecution.
- Victim Offender
Mediation where victims and offenders are brought together
in an attempt to address the needs of both parties.
- Family Group
Conferencing that is similar to victim offender mediation,
but involves the family and friends of the young person
in a process that aims to restore the harm done and prevent
further re-offending.
- The Journey
that is an intensive and long term programme that involves
an out-door experience for young people.
THE DOMESTIC VIOLENCE
ACT 16 OF 1998
The aim of this Act is to protect a family member who is the
victim of domestic violence. Certain procedures are prescribed
in the act according to which a person can get assistance
in cases of domestic violence. Section 7(6) of the act determines
that if the court is satisfied that it is in the best interests
of the child it may (a) refuse a respondent contact with such
a child and (b) order contact with such a child on such conditions
as it may consider appropriate.
PROTECTION FOR
THE CHILD WITNESS APPEARING BEFORE A CRIMINAL COURT
Provisions exist (Skelton, 1997:179) that a child may give
evidence in court through a mediator if appearance in the
open court will be a traumatic experience to the child. It
mostly happens in cases of child sexual abuse. The child gives
evidence from a separate room as the courtroom through closed
circuit television, which makes it unnecessary for the child
to face the perpetrator.
THE CORRECTIONAL
SERVICES AMENDMENT ACT 14 OF 1996
In terms of this Act children under 14 years who have committed
an offence cannot be detained in prison or a police cell for
longer than 24 hours, after which they must be released into
the care of the parent or guardian or other suitable person,
or referred to a place of safety (Skelton, 1997:163). Children
over 14 but younger than 18 charged with certain serious offences
may be held in prison to await trial if the magistrate has
reason to believe that his or her detention is necessary for
the administration of justice and the safety of the community
and there is no secure place of safety within reasonable distance
from the court.
THE CRIMINAL PROCEDURES
ACT 51 OF 1977
The Criminal Procedures Act provides for a number of ways
in which the young person may be released from custody after
arrest. Section 71 of the Act determines that an accused person
under the age of 18 years who is in custody for any offence
for which he or she could be released on police bail may be
placed in a place of safety, or be placed under the supervision
of a probation officer or a correctional official. Section
72(1)(b) makes provision for the placing of an accused person
under the age of 18 years into the care of the person whose
custody he or she is, and the warning to such a person to
bring the accused or cause him to be brought to a specified
court at a specified time and place. Section 72(1)(b) also
empowers the court to release any accused person under the
age of 18 years into the care of the person in whose custody
he is, and the magistrate can do this in respect of any offence.
Conditions may also be linked to this arrangement, and it
is the person in whose care the accused is released to se
to it that these conditions are complied with (Skelton, 1997:165)
PROBATION OFFICER'S
REPORT
The court may request a probation officer's pre-sentence report
to guide sentencing, for which there are special provisions
for children and young people. The probation officer's report
should be based on thorough assessment of all the important
issues, including family circumstances, childhood development,
behavioural patterns and the maturity of the child (Skelton,
1997:173).
A number of sentences
are available and suitable for young persons convicted of
offences in South African courts. The following sentences
are provided for:
(i) Caution
and discharge which is regarded as a suitable option for
less serious offences and first offenders.
(ii) Postponement
of passing of sentence, which may be conditional or unconditional.
If it is unconditional, no sentence is passed, but the offender
is warned that he may have to appear again before the court
within the period of postponement if called upon to do so.
If it is an conditional postponement, the court may set
one or more of the following conditions laid down by the
Act: compensation, rendering of some benefit or service
to the aggrieved person, performance of community service,
submission to instruction or treatment, submission to supervision,
compulsory attendance at a centre for a specified purpose,
good conduct and any other matter.
(iii) A suspended
prison sentence that can also be linked to condition like
the ones listed above.
(iv) A fine
which is not regarded as very useful in the case of young
people because their parents often pay the fine.
(v) Placement
under supervision of a probation officer, correctional officer,
or any other suitable person designated by the court.
(vi) The young
person can be sent to a reform school.
(vii) Correctional
supervision, which takes the form of house arrest, combined
with a set period of community service and attendance at
a specially designed course.
(viii) Imprisonment,
which, according to the Constitution of the republic of
South Africa, should only be used as a measure of last resort.
STATUTORY PROTECTION
FOR CHILD WITNESSES APPEARING BEFORE THE CRIMINAL COURTS
The court in
camera
The Criminal Procedures Act (Skelton. 1997:179) determines
that where a witness in criminal proceedings is under18 years
of age, the court may be held in camera which means that no
other person except the guardian or the person in loco parentis,
should be present. It protects the child or young person who
may feel afraid of, or embarrassed by testifying in an open
court.
Use of intermediaries
The court may, when it appears that testifying would expose
witness under the age of 18 years to undue mental stress and
suffering, appoint an intermediary through whom all examinations,
cross-examination and re-examination shall take place. Registered
medical practitioners specialised in paediatrics or psychiatry,
family counsellors from a welfare or educational background,
child care workers who have four years experience, and a qualification
in child care, registered social workers who have 2 years
experience, and registered psychologists may act as intermediaries.
The witness and
intermediary can sit in a different room, and can be seen
by persons in the courtroom by means of a closed-circuit television
set. Another method is to let the person sit in a room adjacent
to the courtroom, visible through one-way glass, with an audio
system to relay questions and answers (Skelton. 1997:180).
This brings to
a close the section on arrangements in South Africa to protect
and promote the of children and young person, and also this
paper.
CONCLUSION
The best interests of the child are most adequately served
at home, because of the qualities of the parental home. It
is however not always possible for the child to remain at
home, because of his vulnerability on the one hand, and on
the other hand, the inadequate functioning of the home of
the child.
When the welfare
of the child and young person are being threatened or compromised,
the best interests of the child as a standard is a useful
norm to decide on the kind of alternative arrangements to
be made for the child. Other concepts that can be applied
if the best interests seem to be unachievable are the "least
detrimental available alternative" or the "least
restrictive and most empowering environment". The latter
two are perhaps more indicative of the reality that the best
alternative is often not available. These standards do not
only refer to quality levels of care for the child, but also
to goals to pursue in the field child welfare.
It is difficult,
if not impossible, to determine what exactly the meaning in
practice are of the standards related to the best possible
caring situation for the child. It is furthermore important
to distinguish between 'the best interests' as a goal and
the means of achieving this goal - there should be a link
between the two. It implies a focus on process and outcome.
Several frameworks and standards to measure care situations
of the child have been developed and tested, but more research
needs to be done in this area in order to establish an empirical
base for judgement.
The Rights of
the Child, as formulated by the United Nations, serves as
a good standard to be used in measuring standards of child
welfare, provide that effect to the document is given in the
form of legislation, policies and administrative arrangements.
The social worker
is a key professional in situations where decisions about
the future of children are to be taken, and should be an expert
in this regard. In this process, however, a close co-operative
relationship exists with other professionals, notably the
legal profession. Each of the profession's views on the best
interests of the child that the social worker is in close
collaboration with, should be respected. It is possible that
different views on the matter could be incorporated into one
set of standards.
A wide variety
of situations where decisions about the welfare of children
have to be taken, arise in practice, with specific standards
applicable to each situation which to a large extent is determined
by the needs of the people involved, and the resources available
to compensate for the inadequacies of the situation.
The welfare of
children globally can only be promoted if all nations view
children not as a small adult or the property of adults, but
as individuals in their own right, but dependent on responsible
and responsive carers who understand the needs of children,
and who are dedicated to provide them with the kind of opportunities
that will allow them to become all that they can be.
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