In the Best Interest of the Child: More Questions than Answers

This article is an excerpt from Julie Rosicky’s keynote speech at the Joint Council on International Children’s Services National Conference.

In the best interest of the child: More questions than answers….

Julie Gilbert Rosicky, Executive Director ISS-USA

Recently, at the Joint Council on International Children’s Services National conference, I examined the process by which we answer the question, “What is in the best interest of a child, locally, globally and in between?”  I used a chapter from Norval Morris’ The Brothel Boy and Other Parables of the Law entitled, Best interest of the Child as anallegorical model.

A Junior Magistrate sent from London to Burma in 1926 must decide the fate of Ji Han, an 8 year old child of Burmese-European descent.   The Cunningham’s are a well-off, British, couple soon to be relocating from Burma to Kenya.  Ji-Han’s mother is the Cunningham’s maid.  The Cunningham’s have been raising Ji Han as their own child since his birth (although he is not biologically related to either of them). The magistrate must decide between two good but very different outcomes.

If Ji Han is to leave Burma for Kenya with the Cunningham’s he will have access to the best education and career opportunities. He will likely never see his mother or extended family again.

If Ji Han is to remain in Burma with his mother, as she desires, he will live in a prosperous (by Burmese standards) fishing village, become an expert fisherman, and likely become a leader in his village. He will probably never see the Cunningham’s again.

How will the young magistrate decide? I have listed eight key questions that are as apropos to today’s permanency decisions as they were in the last century.

1)     What legal guidance and legal precedent exists? Burma was colony of England.  Three sets of laws needed to be considered; English, Indian and Burmese.  English adoption law, in its infancy in 1926, provided little guidance other than to say the determination should be made in the best interest of the child balanced against the rights of the natural parents.  Indian law was limited to the adoption of boys to pray for their fathers after their father’s death. Burmese customary law pertained to adoption for property rights, and required consent of the parent and child (depending on age of the child).  However, it was unclear whether this was an adoption or custody case. The Cunningham’s were not specifically asking to adopt Ji Han. They wanted to take custody of him and move to Kenya, with an implied adoption later. We must consider the following questions: What are the local laws and practices of both countries? Are there any international conventions to which both countries are party? Do such conventions provide guidance on how to respond, or which country’s laws to follow? Are there immigration laws that must be considered? Do these interact, or conflict, with child welfare laws? Is there legal precedent?

2)     What do other experts have to say? In the story, the magistrate consults with the family doctor.  In the U.S. family court judges rely on feedback from social workers, child advocates, guardians ad litem, and attorneys representing each party.  Sometimes a child is in a situation where there are no social workers, lawyers, or even a legal framework to guide the case. In the absence of a formal system, panels of experts can be enlisted to contribute to decision making in crisis situations. http://www.unicef.org/violencestudy/pdf/BID%20Guidelines%20-%20provisional%20realease%20May%2006.pdf.   Model courts in the U.S. utilize alternative dispute resolution practices to shift the decision making from one person, the Judge, to the concerned parties themselves.  Permanency mediation and family group decision-making are used to empower those concerned about the child to generate their own solution in the best interest of the child.

3)     Is there such a thing as cultural neutrality? The decision to place the child with the Cunninghams or with his mother required consideration of two very different lifestyles- British expatriate versus small town Burmese fishing village.  Can we evaluate one culture over another? How does our own cultural lens affect our ability to be neutral or objective? These questions are not easily answered, but MUST be considered in every case.  It is very difficult for us to conceptualize what life could be like living in a place unfamiliar to us.  We are also susceptible to stereotypes about other countries that may, or may not, have any bearing on the child’s future.

4)     How do you consider the desires and wishes of the parents? First, do both families love the child? Is it possible to determine who might love the child more and why? It’s important to understand what motivates parents to want to have children.  In the case of the Cunninghams, we learn they had a child who died just after birth, and were never able to have more.  Could Ji-Han be their surrogate child? We also learn that Ji Han’s mother will have a better status in her village if she has a son. As he grows older will support his family with fishing income.  Having children in rural villages is insurance in old age.  While these wishes should not dictate the final outcome, they are important to understand.  Adoptive parents are always screened for “why they want to adopt” and while there are no right or wrong answers, there are certainly some responses that might cause an adoption agency to turn down an application.

5)     How do you consider the desires and wishes of the child? While there are many things to consider in these cases (please see the UK model below), we often overlook what the child wants? Children don’t always want what’s best for them, but they do have thoughts and opinions.  What children think and feel can inform decision- making.  In every case, children should be consulted, to understand how they view what is happening in heir lives.  Ji-Han wanted to remain with both families by having his mother come to Kenya.

6)     What constitutes a happy life? Does a happy life involve sustaining oneself, and one’s family, and one’s community?  Or is a happy life discovering and developing your talents, learning to reach or exceed your potential?  Are the two paths mutually exclusive?  Based on our own experiences in life, are we predisposed, to view one lifestyle as more ideal than the other?

7)     The role of politics? Does it matter where we live? Are some countries better than others in which to raise children?  Do decisions get made based on  relations between countries? Are child welfare professionals ever compelled by cases not because of the case itself, but because of the exposure it will bring them? If you are in doubt Google Elian Gonzalez.  Good or bad, politics weighs in often more than we realize in matters that concern children “between” countries.  We must understand the political forces at work, how they might affect the outcome, and remind all parties to remember to focus on what’s best for the child, NOT what’s best for a country.

What’s best for a child in any adoption, custody, immigration or other situation involves a complex decision making process.  If key questions are NOT asked we are not fulfilling our duty to protect the best interest of children.  In the parable, Ji-Han was sent with the Cunningham’s, who adopted him. Ironically he died an early death, a world war II hero, at the age of 25.  Lawyers and social workers would see this outcome very differently, but the key is that we must continue to discuss each and every child’s case from all angles, every child’s life depends on it.