Abstract
A familiar public response to intrafamily harm is child protection. It is a response that occurs when cases of child abuse or neglect are given over to a family or juvenile court. The court orders a disposition primarily aimed at protecting the child from further harm. The disposition may consist of court ordered home services for the family, temporary transfer of the child to a foster family, or permanent severance of the parent-child relationship. In creating the disposition, a judge will first attempt to determine what is in the child’s best interest. This is where philosophical questions arise. What is an interest? How does an interest relate to the concept of a harm? What should count as a child’s interests? What interests are best or better than other interests? The answer to these questions often depends on one’s conception of the relationship of a child to the family. We look at a distinction between different models or ideals of the family, each of which generates different answers. These answers are closely related to a debate between social welfare professionals over whether it is more important to protect the child or to preserve the family, and to a related debate between those who want to criminalize abusive conduct and those who want to take a therapeutic approach to domestic violence by searching for and correcting its underlying causes.
“It is time to abandon the myth that ‘the best foster family is not as good as a marginal biological family.’ The ability to make a baby does not ensure that a couple have, or ever will have, the ability to be adequate parents.” Richard Gelles (1996)
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Notes
- 1.
“Children are suffering from a hidden epidemic of child abuse and neglect. Last year 3.6 million reports of child abuse and neglect were reported to state and local agencies in the United States involving 6.6 million children (reports can include multiple children). The United States has one of the worst records among industrialized nations – losing more than four children on average every day to child abuse and neglect” (American Society for the Positive Care of Children 2016). The overwhelming number of children who die from abuse or neglect are under the age of four; roughly half are less than a year old. Across the U.S. “about one in three children who die from maltreatment belongs to a family that had previously drawn attention from the attention of child-protective services” (Lepore 2016). See also fn. 22 at 5.3.3.
- 2.
The Revised Code of the State of Ohio attempts to clarify the meaning of “best interests of the child” as follows: (1) In determining the best interest of a child …the court shall consider all relevant factors, including, but not limited to, the following: (a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; (b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child; (c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state; (d) The child’s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; (e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child. For the purposes of division (D)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home. (2) If all of the following apply, permanent custody is in the best interest of the child, and the court shall commit the child to the permanent custody of a public children services agency or private child placing agency: (a) The court determines by clear and convincing evidence that one or more of the factors in division (E) of this section exist and the child cannot be placed with one of the child’s parents within a reasonable time or should not be placed with either parent. (b) The child has been in an agency’s custody for two years or longer, and no longer qualifies for temporary custody pursuant to division (D) of section 2151.415 of the Revised Code. (c) The child does not meet the requirements for a planned permanent living arrangement pursuant to division (A)(5) of section 2151.353 of the Revised Code. (d) Prior to the dispositional hearing, no relative or other interested person as filed, or has been identified in, a motion for legal custody of the child (section 2151.414)
- 3.
All of the data in this paragraph about how the best interest’s standard is interpreted by the states is taken from this source.
- 4.
For example, the right of a child not to be abused or neglected is a claim against society that it intervene to protect it against those who would commit these acts or omissions. The three parties are: the child, the state, and those who would injure the child.
- 5.
Lepore discusses a continuing cycle of scandal and reform in state child welfare departments. The result is a “policy pendulum” between “family preservation (keeping kids with their family of origin) and removal (removing kids from their homes and severing parental rights so that the kids can be adopted). If a child dies while under the watch of the child welfare department, the pendulum will swing toward removal. If the number of deaths goes down as the result of this policy, then complaints are made about the department “breaking up the family” and the pendulum will swing back to a policy of family preservation-- until there is another child death (Lepore, 49).
- 6.
(1) Under the Texas Family Code, “abuse” includes the following acts or omissions by a person: (A) mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action by another person that results in physical injury or that results in substantial harm to the child; (E) sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of a young child or children, indecency with a child, sexual assault, or aggravated sexual assault; (F) failure to make a reasonable effort to prevent sexual conduct harmful to a child; (G) compelling or encouraging the child to engage in sexual conduct, including compelling or encouraging the child in a manner that constitutes an offense of trafficking of persons, prostitution, or compelling prostitution; (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene, or pornographic.
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Houlgate, L.D. (2017). Child Abuse and Neglect. In: Philosophy, Law and the Family. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-51121-4_7
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