JOURNAL ISSUE 4
2001/2002

table of contents | abstracts

 

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.

 

BIBLIOGRAPHY
ARCHARD, D. 1993. Children: rights and childhood. London : Routledge.

BANACH, M. 1998. The best interests of the child: decision-making factors. Families in Society. 79(3): 331 - 340.

BOSMAN, F. J. & VAN ZYL, G. J. 1997. Children, young persons and their parents. In. Robinson, J, A. (Managing editor) The law of children and young persons in South Africa. Durban:Butterworths.

CAUTLEY P. W. & ALRIDGE, M. J. 1975. Predicitng success for new foster placements. Social Work. 20(1): 48 - 53.

DUKE, M. L. 2000. THE POLITICS OF ADOPTION IN New Zealand: achieving thre best interests of the child? New Zealand Adoption Council. (http://members.networld.com/mkdconsulting/Fullarticle.htm)

EISELEN, G. T. S. Children and young persons in private international law. In. Robinson, J, A. (Managing editor) The law of children and young persons in South Africa. Durban:Butterworths.

GOLDSTEIN, J., FREUD, A. & SOLNIT, A..J. 1973. Beyond the best interest of the child. New York:The Free Press.

GOLDSTEIN, J., FREUD, A. & SOLNIT, A..J. 1979. Before the best interests of the child. London:The Free Press.

GOLDSTEIN, J., FREUD, A. & SOLNIT, A..J. 1986. In the best interests of the child. New York:The Free Press.

HARBER, M. 1999. Transforming adoption in the 'new' South Africa in response to the HIV/AIDS epidemic. Adoption and Fostering, 23(1): 6 - 15.

HEGAR, R. L. 1989. The rights and status of children: international concerns for social work. International Social Work, 32:107 - 116.

KADUSHIN, A. 1974. Beyond the best interests of the child: An essay review. Social Service Review (48): 508 -516.

KADUSHIN, A. 1988. Child welfare services. New York: MacMillan22.

KINNEY, J ., HAPAALA, D. & BOOTH, C. 1991. Keeping families together: the homebuilders model. New York; Aldine de Gruyter.

MEDDIN, B, J. 1984. Criteria for placement decisions in protectve services. Child Welfare, 63(4): 367 - 373.

MILLER, G. 1990. The psychological best interests of the child. Journal of Divorce and Remarriage, 19(1/2): 21 - 36.

O' HARA, G. 1991. Placing children with special needs - outcomes and implications for practice. Adoption and Fostering, 15(4): 24 - 30.

ROBINSON, J. A. 1997. (Managing ed.). The law of children and young persons in South Africa. Durban: Butterworths.

SCHäFER, I, D., & SCHäFER, L. 1997. Children, young persons and the Child Care act, In. Robinson, J. A. (Managing editor) The law of children and young persons in South Africa. Durban:Butterworths.

SHELTON, H. 1995. Section 30(3) of the constitution - the best interests of the child: is this merely an empty cliché. (Http//www.law.wits.ac.za/students/wuslr/1995/child.html)

SKELTON, A. 1997. Children, young people and criminal procedure. In. Robinson, J. A. (Managing editor) The law of children and young persons in South Africa. Durban:Butterworths.

STAHL, P. M., 1994. Conducting child custody evaluations: a comprehensive guide. California; Sage Publications.

STONE, N, M., & STONE, S, F. 1983. The prediction of successful foster placements. Social Casework. 64(1): 11 - 17.

TRISELIOTIS, J., SELLICK, C. & SHORT, R. 1995. Foster care: theory and practice. London: B T Batsford.

SOUTH AFRICA. The Child Care Amendment Act, No 96 of 1996.

SOUTH AFRICA. The Domestic Violence Act. No 16 of 1989.

WALL, J. C. & AMADIO, C. 1994. An integrate approach to child custody evaluations; utilizing the "best interests" of the child and family systems frameworks. Journal of Divorce and Remarriage, 21(3/4): 39 - 57.

WALTON, R. 1976. The best interests of the child. British Journal of Social Work. 6(3): 307 - 313.

ZAAL, F, N. 1997. Children's courts: an underrated resource in a new constitutional era. In. Robinson, J. A. (Managing editor) The law of children and young persons in South Africa. Durban:Butterworths.

Back to Top

Copyright for the I.U.C. Journal of Social Work Theory and Practice is owned by the Social Work Program, Department of Social Relations and Services, Bemidji State University, Bemidji, Minnesota, USA. One copy may be made (printed) for personal use; teachers may make multiple copies for student use if the copies are made available to students without charge. Permission must be secured from the editors for sale of any copies of articles or for any commercial use of the material published in the Journal.

2001 Copyright BSU/IUC Journal of Social Work Theory & Practice