Samenvatting Philosophy, law and the family (Houlgate). Hoofdstukken: 7, 10, 11, 12
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In The Best Interest Of The Child
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Rijksuniversiteit Groningen (RuG)
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Philosophy, Law and the Family
Deze samenvatting gaat over het boek: Philosophy, law and the family. A new introduction of the philosophy of law van Houlgate. De samenvatting bevat de hoofdstukken: 7, 10, 11 en 12. Deze samenvatting is geschreven voor het vak In the best interest of the child van de master orthopedagogiek van de...
Samenvatting Philosophy, law and the family (Houlgate)
7. Child abuse and Neglect
Protecting the child: The Family Court Option
There are three categories of court cases that result from child abuse and child neglect:
- Criminal case. The alleged perpetrator of child maltreatment is charged with a crime.
- Tort case (onrechtmatige daad) and family. The victim, or a representative of the victim, may be
able to sue the perpetrator in a civil action for damages.
- Juvenile court. In the family (or juvenile) court has jurisdiction, then it must decide what
protective disposition it should make. The court’s judgement is sometimes called a dispositional
order. A number of options are available: leave the child with the current parent/caregiver under
supervision, place the child in foster care or in an institution, begin proceedings to terminate the
parental rights of the parent so the child can be adopted. A family court judge will usually ask for
the recommendation of Child Protective Services (CPS).
Child abuse involves harmful acts of commission, specifically serious physical, emotional or sexual
mistreatment of a child that is not the result of accident or circumstances beyond the control of the
parent or guardian. Child neglect involves harmful omissions, specifically the failure of a parent or
guardian to provide the basic needs of a child, including physical needs (food, shelter), emotional
needs, medical needs, and educational needs.
The standard of ‘best interests of the child’
The phrase: the best interests of the child, implies that the judge is to regard as secondary whatever
interests the parents or legal guardians of the child might have, unless the satisfaction of their
interests can be shown to promote the interests of the child. But the terms ‘best’ and ‘interests’ are
vague. In deciding what disposition is in the best interests of the child the judge must not only decide
what counts as a child’s interests but also which of the many possible interests is best. The question
is whether there are objective criteria?
A list of interests will serve as a precedent and therefore immune to the charge of arbitrariness on
the part of the court. One interest is the family integrity and preference for avoiding removal of the
child from his home. A second interest is the health, safety and/or protection of the child. Another is
emotional ties and relationships between the child and his or her parents, siblings and household
members or caregivers. And the capacity of the parent to provide a safe home and adequate food,
clothing and medical care. And the mental and physical health needs of the child. And the mental
and physical health of the parents. And protection from domestic violence in the home.
What is an interest? Feinberg’s definition of an interest is something which a person has a stake in
because the person stands to gain or lose depending on what happens to it. A interest is not a
preference. The child makes it known to her parents what she prefers, but her parents reasonably
claim to know what she needs. Feinberg concludes that harm is best defined as a setback to an
interest, that is a setback to something in which one has a stake.
If we are to call some interests ‘best’ in the sense of being better than others, we need to rank
interests. In addition to the interests above (family integrity, emotional ties, safe home, security,
adequate food, clothing and shelter), other interests of the child might include stability (in living
arrangements, schooling, access to relatives and friends), availability of a parent to spend time with
the child, equal access to educational opportunities, being raised in a religious or moral environment,
not being exposed to incidents of domestic violence. In order to rank these interests, we might look
to Hart’s minimum content theory of natural law. Humans are vulnerable creatures, and human
children are especially vulnerable to physical and emotional harm. This natural fact plus the fact that
some parents lack either the will, knowledge or intelligence to respond adequately to childhood
suffering explains why a just legal system must not only contain rules prohibiting child abuse and
,neglect, but the standards governing the court ordered disposition of an abused child must have
content specifying a physically and emotional safe environment for the child, protecting from
accidental injury, and adequate provision of food, clothing and medical care. Hence physical and
emotional health should count as fundamental (or best) interests of a child.
Using family models to determine the best interests of a child
In the individualistic model of the family the central concepts are the individual and the rights of the
individual family member. The family is viewed in much the same way as a business partnership.
They use the partnership to fulfil their individual needs and desires, and the partnership is at most a
useful instrument for the satisfaction of the needs and desires, to be abandoned whenever it fails to
achieve this end. According to this model, a family is a coming together/creation of independent
individuals, each of whom has his own interests, desires, plans and standards of judgement. The
family combines the efforts of its members, but it does not merge the members into a single entity,
and the purpose of the family is to see that the interests, needs and desires of each family member
are advanced.
In the organic model the central concepts are the family and the autonomy of the family. This model
of the family is called organic because the family is literally compared to a living organism. In an
organism, the parts exist for the whole. In an organism we speak of a proper subordination of the
parts, not equality and we do not speak of the separate interests, plans or purposes of the parts.
Parents and children take their existence and their purpose from their participation in the family. In
the patriarchal organic model, the father gives the orders that the subordinate family members obey.
Yet all family member submit to the interests of the unified whole that is the family. The
fundamental duty of the family is that of taking care of the needs of the family, and far less the
satisfying simply of one’s own needs. The type of good for children stressed by those who promote
the organic conception of the family are the inherently social goods, goods whose very enjoyment
directly involves relationships with others (goods of love, friendship, trust, devotion, community and
participation in the life of the family). In general, relationships involving intimacy are goods the
pursuit of which are central to the organic conception of the family.
Implication of these models for disposition decisions regarding abused or endangered children:
- If the child protection team (CPT) advising the family court judge assumes an individualistic
model of the family as the ideal to be followed, then disposition decisions will be largely based
on the notion of rights. This is because the idea of a contract is essential to the model. All family
members, as parties to the contract, have rights. Since the child is viewed as an individual whose
good is something that can be attained independently of his participation in the family and since
the contract guarantees the child a right to the enjoyment of this good, then the team will not
hesitate to intrude into the child-family relationship when necessary to aid the child in the
pursuance of this good. The CPT will aggressively intervene when necessary to secure the child’s
right to physical and psychological health.
- Dispositional decisions employing an organic of the family will be based on a consideration of the
interests of the entire family when it uses the best interest standard. This is because the child’s
good or interest is believed to be primarily social. The child’s best interests cannot be separated
from the interests of the family. Hence, it is important for the CPT to respect the integrity of the
family in making treatment decisions. The parents are presumed to know what is best for the
child, since the child’s good cannot be separated from that of the family and only the parent can
know the latter good. However, this presumption can be overridden if it is believed that the harm
suffered by an abused or neglected child is not something that the parents or other caregivers
can control.
, The tension between organic and individualist models of the family can be seen in policies
recommended by child welfare organisation and paediatricians for the disposition of abused and
neglected children. There are two sets of polies:
1. Family Preservation vs Child Protection
Family preservation (or family integrity) has been used to describe a variety of social welfare
programs that are intended to provide services to children and families experiencing serious
problems that may eventually lead to the placement of children in foster care. These programs
focuses on family strengths, involving families in determining their case plan goals, serving the
entire family, and treating family members with respect. The family preservation approach
attempts to change the way in which the family functions as a whole.
The child protection (or child removal) dispositions emphasize the health and safety of the
abused or neglected child. This approach gets its impetus (impuls) from a number of family
preservation attempts which have led to more abuse, and in some cases the death of a child. One
of the early critics of family preservation was Gelles. His criticism is utilitarian and empirical. It is
utilitarian in that he bases his rejection on the consequences of using family preservation as a
dispositional policy. Family preservation should always be seen as a means to an end, not an end
in itself. The end should be the health and safety of the abused or neglected. His criticism is
empirical in that the facts do not support family preservation policy as a means to this end.
Instead Gelles claims it has frequently had the opposite effect of continued abuse and neglect.
2. Compassion vs Control
To take the compassionate approach is to try to form a helpful professional-parent relationship
in order to understand and to improve the functioning of the abusing family. The control
approach to child abuse cases refers to the aggressive uses of intervention to limit, and if
necessary to punish deviant behaviour. It assumes that an individual must take full responsibility
for his action and the State will hold him accountable.
The control approach is consistent with the child protection policy. Both would make protection
of the child their first priority and both appear to assume a version of the individualistic model of
family relationships.
The policy of family preservation, based on an organic conception of family relationships, would
take a compassionate approach in recommending a disposition in cases of child abuse and
neglect. The organic model implies that treatment decisions regarding children are based on a
consideration of the interests of the entire family.
If we assume the organic model of the family, when a parent abuses a child the parent’s conduct
is to be regarded as a symptom that the whole family is disturbed. Such divergent behaviour is
viewed as a manifestation of family disease.
There is an analogy of child abuse to symptoms of a disease. First there is something abnormal in
both the case of parental abuse of children and a symptom of an organic disease. Second, there
are causes for this abnormality such that once we know of them we can explain the abnormality
as we can explain the symptoms of many organic diseases. Parental abuse of their children is
looked upon as a happening with a causal explanation rather than an action for which the
abusing parent had reasons. Thera are a variety of cause: stresses produced by the child
(handicapped, retarded, hyperactive), stresses produced by the parent (low self-esteem,
depression, abused as a child, alcoholism, drug addiction, psychiatric illness), and social
situational stresses (poverty, unemployment, excess or unwanted children). Underlying these
causes are the social and cultural factors that guide individual behaviour.
If we conceive of parental abuse of children as a symptom of family disease, then the child
protection team and the court is to respond to the cause of abuse, not with the approach of
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