assumptions about children's best interests

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Assumptions aboutchildren's best interestsChristine PiperPublished online: 12 Dec 2010.

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Journal of Social Welfare and Family Law 22(3) 2000: 261–276

Assumptions about children’sbest interests1

Christine PiperLaw Department of Law, Brunel University

Abstract: The family justice system operates with a set of presumptions andassumptions about the welfare of the child which are assumed to be based on‘scienti� c’ knowledge and which, therefore, are further assumed to carry theauthority of both science and law. In practice, the result is that those workingwithin the family justice system use powerful ‘legal’notions whose provenanceis often taken for granted and whose authority is unchallenged.

Drawing on the different sets of assumptions operating in the family justicesystem and the youth justice system, this article explains, however, that lawresponds to messages originating in external discourses, notably science andpolitics, only in so far as its functions require and only in ways which ‘� t’ intolegal communications. Viewed in this light, the presumptions are seen asworking guidelines which should only be used with great care when dealing withthe lives of children and young people. Whilst acknowledging that a fullinvestigation of all children’s cases would not be feasible, this article thereforeargues for greater attention to the applicability and validity of prevailingpresumptions.

Keywords: family law, the welfare of the child, youth justice, socio-legaltheory.

Introduction

Assumptions are those ideas, events and principles which are taken for granted as being true. They are no longer – or may never have been – subject tocritical scrutiny, either because they appear self-evident or because it is assumedthey have been proved to be ‘true’. Spelling them out, thinking about theirprovenance and querying their validity is therefore not necessary. Indeed, theexistence of a strong and widely held assumption may preclude the possibilityof individuals thinking about the basis of that assumption: it simply does notcross their minds to do so because they do not recognize the existence of analternative way of thinking.

I think we may have reached that stage in the family justice system in recentyears. In relation to establishing the best interests of children, there have

Journal of Social Welfare and Family LawISSN 0141-8033 print ISSN 1469-9621 online ’ 2000 Taylor & Francis Ltd

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emerged strong general presumptions which constrain the process of workingout what is best for individual children in the situation in which they findthemselves. There are signs, however, that we might be at the beginning of a transition beyond that stage: assumptions about the welfare of the child arebeing challenged by professionals within the family justice system as well asby academic researchers. Hale LJ, for example, has asked for an examinationof assumptions in several areas of family justice decision-making (Hale, 1999);Wall J is chairing the committee that has issued the Consultation Paper onparental contact in cases where there is domestic violence (Advisory Board onFamily Law, 1999); Davis and Pearce (1999a, b) have critiqued the welfareprinciple on the basis of research into section 8 applications; Rodgers and Pryor(1998) have challenged assumptions about the harm done to children by parentaldivorce; and in social work, there is a call for more ‘evidence-based’ practice.In some quarters, therefore, the unthinkable is being thought by those able toin� uence law and practice. This article aims to encourage that transition.

The risks in making assumptions about harm to children

In the family justice system, despite past judicial protestations that there are no ‘rules of thumb’and that each case is decided on its merits (see, for example,Pountney and Morris [1984] 4 FLR 381; see also Hayes and Williams, 1999:264–7), there operate judicial ideas about what is generally believed to be good and bad for children. Family law lecturers have produced, discussed andamended lists of such ‘non-rules’ over the years, explaining to undergraduatesthe ‘principles’on which courts apparently make decisions about the residenceand upbringing of children. These ‘considerations’ (see Bromley and Lowe,1992: 384-94), whether relating to maternal preference, the status quo, parent-child contact, blood ties (see Weyland, 1997), have similarities (assumed or made explicit) with the findings of social and medical research and, in that sense, have been based on what might loosely be termed ‘child welfarescience’ (King and Piper, 1995: ch. 3). The resulting generalizations, made byprofessionals working in the family justice system, are theoretically rebuttablein individual cases because they are only generalizations about what is best forchildren.

In relation to private proceedings in the family justice system, the mostin� uential assumptions can be grouped into two clusters: the � rst set coalescearound the idea that children need, above all, two parents who cooperate witheach other and who both keep in contact with their children. The second setconcerns the vulnerability of children in the context of decision-making withinthe legal system. The last few years have seen the production of a growing bodyof converging social science research results showing how these assumptionsoperate in practice and the potentially deleterious effects if applied inappro-priately.

Journal of Social Welfare and Family Law 22(3) 2000262

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Assumptions about children’s best interests

Children need parents to be reasonable Several empirical research projects in the mid-1990s focused on the practice offamily law solicitors. Solicitors interviewed believed that ‘getting parents toact sensibly’ was their main aim: ‘It’s a question of working out what’s reason-able and sensible’ and getting over to parents how important it is for ‘children[to] continue to have a relationship with both parents and [to] see that, as far asthey’re concerned, the parents can communicate and talk about them’ (King,1999b: 261; see also Neale and Smart, 1997). The assumptions underpinningthis approach are that parental conflict (and particularly conflict played out in court) is very bad for children and that contact with both (biological) parents should be ensured. As Kaganas (1999) has pointed out, these pro-contactand cooperation assumptions have become stronger since the early 1980s, andjudges and the Law Commission have referred, generally and specifically,to empirical research. So in� uential are such assumptions now, that solicitorsacting for ‘opposing’ clients may at times appear to be ‘acting in concert in theface of one (or two) dif� cult parents’ (Bailey Harris et al., 1998: 29). Indeed,solicitors must ensure they do cause parents to act sensibly if they themselvesare to be deemed sensible by judges (Bailey Harris et al., 1998: 29) and ‘good’lawyers by their colleagues (Neale and Smart, 1997: 337–8).

If family justice professionals start with the strong assumption that contactis bene� cial then, very easily, parental opposition to what is perceived so clearlyas a ‘good’is ‘explained’away as implacable (unreasonable) hostility. Similarly,a child’s reluctance to stay overnight with a non-residential father ‘must’be theresult of deliberate alienation by the other parent. Davis and Pearce, for example,note a particular instance where a ‘district judge lambasted a resident motherwho had dared to assert, in the course of a directions appointment, that herdaughter (aged � ve) did not want to see her father’ (Davis and Pearce, 1999b:238; see also Sanders, 1999). The professional pressure to deliver a parentallyagreed outcome may inhibit the questioning of parents in case issues emergewhich would work against that outcome. Some practitioners have expressedviews almost akin to the adage that one should let sleeping dogs lie in order notto jeopardize parental cooperation or contact (Hester et al., 1997: 17, 40). Whilstsubsequent initiatives in guidance and training may have altered practicesubstantially, as recently as 1995 court welfare of� cers and mediators expressedviews against screening for domestic violence on the basis that it mightencourage allegations, as did speakers in the parliamentary debates on theFamily Law Bill (Kaganas and Piper, 1999: 185, 196). Humphreys has referredto a ‘judicial alienation syndrome’ to describe a similar judicial blindness aboutthe domestic violence context in contact disputes (1999), though there are nowexceptions, notably the approach of Hale J (now LJ) in Re D (Contact: Reasonsfor Refusal), where she stated that ‘“implacably hostile” should not be used todescribe mothers whose fears “are genuine and rationally held”’ (Hale, LJ[1997] 2 FLR 48 at 53; see also In Re L (a child) (Contact: Domestic Violence)and others, CA, The Times 21 June, 2000.)

Furthermore, if parents do not agree about contact they are perceived as notacting sensibly and are deemed to have nothing to say which is ‘sensible’.

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Cantwell et al. (1999: 230) found parents who felt ‘disempowered, disrespectedand defeated’ and, who faced ‘an uphill battle to get their view of their son’sneeds heard’. Davies and Pearce (1999b: 239) similarly report instances ofjudges making ‘condemnatory’ and ‘dismissive’ remarks to such parents, whooften ‘faced an additional dif� culty in that their own solicitor might be advisingthem that resistance was pointless’.

Without these corollaries, practitioners and judges might more often hearabout and respond appropriately to domestic abuse. There are still professionalswho believe abused partners will always tell them about abuse (Piper andKaganas, 1997) and who may, therefore, refer parents to joint meetings whichpose a risk to their safety – a concern currently being expressed in relation toparent education classes in the USA (Fuhrmann et al., 1999). Furthermore,professionals might discover that the father has insufficient parenting skills to look after and play with a child, or has no suitable accommodation in which to care for a child, or that contact might be so disruptive to the care-giver thatthe quality of care for the child is affected (Cantwell et al., 1999: 227–30).Looking at the situation of the family concerned (or listening to those involved)might make more visible those factors, relating to the individuals concerned but,also, to socio-economic inequalities, which ought to be fed into the developmentof family-related policies.

Courts and answering questions are harmful Another strong assumption in the family justice system is that children areharmed by the ‘burden’ of saying what they want (Cantwell and Scott, 1995)and, particularly harmed if they take part in court proceedings. Professionalsmay consequently encourage agreement by portraying the law as ‘a very heavyhanded thing’ for family matters and by commenting to parents that, ‘the realanswer to it is that those issues are dealt with by the responsible parents and not by the courts’ (Piper, 1993: 147, 146). Professionals, perceiving children asvulnerable victims of circumstance and of their parents, may also be reluctantto question children – directly or indirectly – about the outcome they wouldprefer (Fortin, 1998: 168–72). Judges similarly take a protective stance inrelation to children being made parties to proceedings and to their presence incourt (Fortin, 1998: 173–82).

There is, however, growing evidence that some children are not helped bytheir lack of involvement. For instance, ongoing research (the KIDS Project)with 8- to 14-year-old children (of recently divorced parents) shows that someof that age group are concerned that the court welfare of� cer did not report theirviews and feelings accurately (Perry and Scanlon, 1999). Another study, usingquestionnaires completed by 14- to 21-year-olds, shows that a majority of themthought there should be an information or consultation service speci� cally forchildren and young people whose parents are separating, with individualrespondents expressing the distress they had felt at not being heard (Lyons etal., 1998: 49, 197):

My brother and I needed help . . . but there didn’t seem to be anyone to help us outin telling what we wanted and things just became awful.


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I tried to work everything out so it would be fair to everyone . . . But no one listenedto me and everything afterwards was just such a mess.

The power of assumptions

The widely accepted reading of what occurs in the family justice system is thatparents, local authorities and others bring to the courts disputes and concernsabout the upbringing of particular children and that courts, governed by theparamountcy principle in relation to the welfare of the child, seek to discoverthe best interests of the children before them. Where the evidence presented bythe parties does not make that suf� ciently clear, the court welfare of� cer is askedto see the parties and their children and prepare a report for the court, providingfactual material about the family and outlining what outcome would most likelypromote the child’s best interests. The assumption that this apparently objectiveand empirically based assessment will occur where there are contested viewsabout the child’s best interests has been challenged by recent developments.The settlement culture (Neale and Smart, 1997; Bailey-Harris et al., 1998; King,1999), the use of mediation (Home Of� ce, 1994a: ch. 3), the practice of non-privileged discussions with the parties at and before directions appointments(Home Office, 1994a: ch. 2) and, the development of methods other thantraditional investigative interviews of parents separately for preparing reports(Home Of� ce, 1994a: para. 4.12) have modi� ed the extent and nature of suchassessment (James, 1995; Trinder, 1997; Davis and Pearce, 1999b: 240).

Furthermore, the legal precedents incorporating assumptions about children’swelfare, as Davis and Pearce (1999b: 238) point out, carry more weight whenused – in the vast majority of cases successfully – to motivate agreement andto avoid adjudication than they do during judicial adjudication. The point atwhich the assumptions may receive scrutiny – in court proceedings – is, then,the point which is rarely reached because unchallenged assumptions promoteda parentally agreed settlement.

It is probable that assumptions carry less weight in public law proceedingswhere the individualized assessment of the child plays a greater part (see, forexample, Hunt and Macleod, 1998; Brophy and Bates, 1999) but the empiricalresearch on the family justice system discussed above would suggest thatassumptions have become increasingly influential in the daily operation of the family justice system in relation to private proceedings, which are the focus of this article. The research also suggests that strong assumptions can result in discussion about the best interests of the child who is the focus of disputebecoming dominated by talk about an ‘abstract’child and solicitors and judgesin particular may respond to increased pressures on their time by referring to assumptions about the best interests of the abstract child as a substitute forfurther inquiry about the wishes and needs of the child in question (Neale andSmart, 1997; Bailey Harris et al., 1998; Piper, 1999a). The professionalimperative to see what a particular child is like is, thereby, considerably reduced,and parental views about the welfare of that child may struggle to be heard ifthey con� ict with assumptions, as indeed may the views of those professionals

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who wish to challenge assumptions. This is not to deny that particularpresumptions about the welfare of children generally may be supported by theconclusions of research studies but, rather, that evidence as to whether theyapply to the particular child whose upbringing is in question may not be sought.

That abstract assumptions should hold such sway over individuals workingwithin the family justice system is clearly a product of our so-called scienti� cage. The academic critique of ‘science’, from within science and from thesociology of science (for an early text see Knorr et al., 1981), has underminedthe uniqueness and authority of the scientific method itself but has not yetaffected ‘popular’conceptions of science and medicine: presumptions assumedto be based on scienti� c research are, for most of us, ‘true’– they become facts.In contrast, religious ‘truths’ about reincarnation or resurrection, for example,are no longer generally held to be true as they were in previous centuries.

Despite a popular and professional belief in the utility and authority of child welfare science, however, once ideas based on scienti� c research havebeen transferred to the discursive context of law, they become largely immuneto scienti� c ‘testing’. Those of us who have listened to our children complainingthat their experiment at school or university has ‘gone wrong’, that it has notproved what it was ‘supposed’ to prove, might see an analogy here. The validityof the rule itself is not tested or challenged: the process and ingredients are. Forthe student scientist this may be a sensible course but, its bene� ts in relation toascertaining the child’s best interests are not so obvious because strongly heldassumptions can preclude a search for explanations other than those which ‘� t’the presumptions made. Alan Bennett’s comments about his mother in a hotellobby describe a not so dissimilar process

‘You see that women over there? I think she’s the owner of the hotel, and thatfellow with her must be her nephew’. And when the woman came in next day byherself she’d say, ‘Oh I see the owner’s here. She must have quarrelled with hernephew’, forgetting it was all invention in the � rst place (Bennett, 1997: 48–9).

Of course, assumptions – rules of thumb – are needed to make professionallife ‘workable’: reductionist tendencies are apparent in any pressured andcomplex area of activity. Moody and Tombs (1982: ch. 3) for example, showedhow such working rules of thumb emerge in practice in the context of the workof the Scottish Procurator Fiscal. Given current � nancial constraints and theacceptance by child welfare specialists that, whatever the form of the enquiry,there can be no surety of a ‘right’ answer, it would be pointless to argue for a full-scale investigation in all child cases. Furthermore, assumptions do notalways preclude investigation – they may, rather, trigger an investigation usingsection 37 of the Children Act 1989 (as revealed, for example in the case of ReM (Of� cial Solicitor’s Role)[1998] 2 FLR 815 CA). Nevertheless, an awarenessof how and why particular sets of assumptions have become so powerful is ofmore than academic interest: professional practice is affected by assumptionsabout the strength and provenance of assumptions. A clear indicator of the factthat the body of assumptions used within the legal system does not equate tounproblematic simpli� cations of the whole range of knowledge about children


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can be found by focusing on the assumptions which are powerful within thatpart of the system which deals with children who offend.

Assumptions in the youth justice system

The assumptions about what should and should not happen to children andyoung people are very different in the youth justice system. Where it is deemedthat the seriousness of the offending warrants it, children aged 10- to 13-yearsand young people aged 14- to 17-years are prosecuted (see Code for CrownProsecutors, 1995; Home Of� ce, 1994b) and there is little concern about havingminors in court. Indeed, No More Excuses proposes training for magistrates sothat they can talk directly to children (Home Of� ce, 1997: para. 9.6). Childrenmust be there – and in certain circumstances can be named (Dodd, 1999) – andthey must take responsibility for their wishes and actions, a responsibility whichunderpins the provisions in the Youth Justice and Criminal Evidence Act 1999.This provides (s. 1–3) that, on a young offender’s � rst appearance at a youthcourt, a referral order will normally be made on a � nding of guilt. The youngperson, referred to a youth offender panel (s. 6 and 7) established by one of thelocal authority youth offending teams set up under section 39 of the Crime andDisorder Act 1998, will then be involved in negotiating a contract (s. 8 and 9)about the activities in which he will engage in the referral period and about theexpectations of outcome. These contacts may have serious consequences if theagreement is not kept by the offender (Schedule 1). Well developed abilities tonegotiate with adults, to act responsibly and to be held accountable for actionswill be expected of the child or young person.

Similar assumptions about capability and maturity are evident in recentprovisions for reprimands and warnings (Crime and Disorder Act 1998, s. 65and 66). The latter – the second ‘caution’– will also be accompanied by referralto a youth offender team which will negotiate with the offending child or young person a preventative activity – a process that already occurs in the areaswhich have similar ‘cautioning plus’ schemes (see Audit Commission, 1996).In relation to all these new provisions, there are no assumptions made about thepotential harm to the child of putting on him or her the burden of being involvedin decision-making and being at least partly responsible for outcomes which willaffect his or her life.

These recent provisions are a culmination of policy trends apparent in theearly 1990s. Whilst they evidence a changed balance in regards to prosecutionand diversion – apparent in the different wording of the two most recent Codesfor Crown Prosecutors in relation to young offenders (Crown ProsecutionService, 1988: 64–5, 1994: paras 6.1–6.9) – and a greater stress on theresponsibility of the child or young person, they are not in essence out of linewith earlier juvenile justice policies. Throughout the twentieth century, therewere tensions between welfare and justice approaches, and policy neverunambiguously enshrined an idea of the child as a vulnerable victim (Fionda,1999). This different assumption in youth justice about the ability of childrento be held responsible is not explained by non-law knowledge about the children

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who come into contact with the youth justice system. The research evidenceabout the abusive and con� ictive family background of a large proportion ofchildren who offend, particularly persistent offenders (Hagell and Newburn,1994: ch. 7), those sentenced under section 53 of the Children and YoungPersons Act 1933 for murder or grave crimes (Boswell, 1991) and, those 12- to14-year-old offenders eligible for secure training orders (Crowley, 1998),suggests that children who offend are not a watertight category, distinct in theircharacteristics from those dealt with in private or public law family proceedings.It might also suggest that intra-familial conflict is a relevant factor in manycriminal as well as family proceedings. In addition, research about theeducational level and general background of adult prisoners, for example, wouldsuggest that those who commit (or continue to commit) offences are less, ratherthan more, likely to be capable of coping with the intellectual and psychologicalrequirements of a criminal process (Morgan, 1994: 910-12).

‘Scientifically’, then, there is little basis to sustain the existence of two very different sets of assumptions within the one legal system – about the vulner-ability and needs of children who come to the attention of the family justicesystem and, the capacity for rational wrongdoing of those who � nd themselvesin the youth justice system. If that is so, it brings into question the authority ofthe assumptions which so in� uence professional practice.

How has this come about?

King has argued that, ‘What distinguishes modern society from past eras is. . . the dependence for its stability upon the constant readjustment of highlydifferentiated systems for observing and making sense of the world’ (1999a: 8).Law is one such system in this ‘multi-authority society’ (King, 1997: 15) whichmust continually adjust to changing ideas emerging from other systems in itsenvironment. As a self-referential system (King, 1997: 26–28), however, lawcan only organize a readjustment within its own procedures, so that whatemerges are new or revised legal communications. It is, then, legitimate to viewlaw as ‘enslaving’ messages from child welfare science and, at the same time,to acknowledge law’s dependent status. For, if law does not reconstruct authori-tative external knowledge and could not, therefore, ‘know’ it or ‘think’ about it,its functional role of regulating issues and disputes arising in other socialsystems would be diminished. In that sense, the authority of law is ‘challenged’when the external world produces reality constructions that are dif� cult for lawto reconstruct and, thereby, absorb into its ‘thinking’. Law has faced suchdif� culties in relation to dealing with family disputes and juvenile offending.What has resulted are two different selections of reconstructed externalknowledge stemming from the requirements of the speci� c legal operations andsocial functions of these two sub-systems of law.


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Law’s capacity to regulate the family Much of child welfare science has presented no dif� culty for law. It could, forexample, reconstruct attachment theory and ‘know’it as a ‘maternal preference’principle in case law. It could also use the legal notion of expert evidence to introduce and reconstruct other medical and psychological knowledge (see King, 1991; King and Kaganas, 1998). Law’s functioning could have been undermined by one particular ‘truth’ generated by several scienti� c disci-plines – that the legal process itself is bad for children in so far as conflict,dispute and the generation of polarized positions are intrinsic to it (King and Piper, 1995: 83–87). Instead, law’s response to this, and to those political andscienti� c communications upholding the importance of the father’s involvement(Kaganas, 1999), was the individualized, simpli� ed and selective reconstructioninto legal communications of non-legal ideas about contact and parental cooper-ation which could then be used to encourage private settlement and mediationand, to discourage applications to court and hearings in court.

Particular scienti� c notions have thus become ‘legal’ principles and prece-dents, assumed as ‘true’ and quoted as ‘law’ by divorce court welfare of� cersand by judges (Davis and Pearce, 1999a). The ‘being said’ of these principleswithin legal communications is what matters (Davis and Pearce, 1999a: 146):what no longer matters – once science has become law – is empirical assessmentof the consequences of legal decisions made. Such an assessment may then be made by, for example, psychological research. Those findings will bedisseminated generally (Kaltenborn and Lempp, 1998) and may, potentially,be reconstructed by law again but will not affect a decision already made. Law’sauthority is intact and law no longer engages with a particular scienti� c notionexcept as its own legal communication.

Law’s capacity to deal with offending childrenIn the 1970s and 1980s, the development, within the sociology of deviance,of theories which explained a career of offending as a product of the ‘labelling’by justice agencies of someone as an offender, also constructed involvementwith the law as bad for children. Other criminological studies, revealing struc-tural, rather than personal, explanations for offending, produced constructionsof reality which law could not easily ‘know’, given its central function ofdelineating culpability. Those working with these knowledges external to laworganized diversionary processes and institutions – with their roots in socialwork, criminology and child welfare science. In Scotland, courts gave way tochildren’s hearings. The scope of law’s authority and workload in relation to decisions about such children and young people was apparently diminished.However, this meant that, in England and Wales at least, law’s communicationsremained largely unreconstructed in relation to those children with whom thecriminal law continued to deal – those convicted of the most serious offending.In addition, those very diversionary institutions that were the response to non-legal knowledge about offending subsequently developed law-like offence-focused criteria for decision-making and used a ‘tariff’ approach to outcome(King and Piper, 1995: ch. 6). Recent initiatives in restorative justice, such as

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reparation and restorative cautioning, provide further examples of the (potential)reconstruction within law of ideas whose origins are external to law (Dignan,1999: 53–9) to fit other objectives (Goldson, 1999) and to operate as legalcommunications.

The result of these two separate sets of responses by law was the consoli-dation of very different images of children – ‘semantic artefacts’ in autopoietictheory – in family and criminal law. That occurred, not so much because of thenew knowledge ‘out there’but because of the different functions of law in thesetwo areas. Criminal law adjudicates on culpability and punishes in relation to the weight of that culpability: the accused child is potentially culpable andresponsible and must be present in court to face his accusers. The requirementson children in the youth justice system are essentially the same as those onadults and the only other available response to knowledge about the capacitiesof children has come in the form of setting age limits for particular forms of legal process and outcome, notably in setting a minimum age where the childis presumed to be criminally liable. These rigid age boundaries (even more rigidnow that the rebuttable presumption that the child of 10- to 13-years is doliincapax has been removed by section 34 of the Crime and Disorder Act 1998)are themselves a reconstruction of scientific knowledge (by politics as well as law) and are, for example, contrary to developmental theories (Brannen,1999: 145–7).

The use of reconstructions of child welfare science by the youth justicesystem has, therefore, been largely peripheral to the central function of thecriminal law. Science incorporated via the provision of pre-sentence reports bysocial workers or probation of� cers affects the choice of outcome but does notin� uence the fundamental legal decision on culpability.

Furthermore, criminal law can function without ‘knowing’ very much of the external knowledge about children because Parliament imposed a lesserwelfare test than the paramountcy test for use in the youth criminal jurisdiction(England and Wales): ‘have regard to’ the welfare of the child. The child’s bestinterests are not the focus of criminal law’s role and, consequently, the youthjustice system does not have to make decisions about the child on the basis of‘non-legal’ knowledge. Legal rules of thumb which are reconstitutions of childwelfare science are not therefore central to the adjudicatory task of the criminalcourt. By contrast, without reconstructed external knowledge, the family justicesystem could rarely function to delineate norms and adjudicate ‘best’outcomesfor families and children, given the statutory framework with which it mustoperate. Furthermore, as the selection and reconstitution of ideas in both systemsis determined by the needs of the system, it cannot therefore, be taken for grantedthat prevailing assumptions incorporate current and comprehensive non-lawperspectives on childhood.

Political messages

It is not, however, suf� cient to conclude that the assumptions which constrainpractice in the family justice system are simply inadequate and distorted


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representations of the range and complexity of scienti� c and medical knowledgeabout children and families. Such a conclusion ignores the fact that theassumptions may also be reconstructed political communications, notablycommunications about individual and parental responsibility. The specialistfamily lawyer is ‘on message’ if he or she conveys the values promoted ingovernment policy documents about the responsibility of parents (Eekelaar,1999; Piper, 1999a). Magistrates, social and youth justice workers involved inputting into operation the new parenting orders will similarly be conveying the political importance of parents taking responsibility for their children’soffending. This is not surprising: a piece of legislation, though written to � t into existing substantive law and practice, is a document which incorpo-rates policy which law must reconstitute. Furthermore, where legislation is internally inconsistent, law cannot avoid a role in a political project whereby law is used ‘to give the appearance of having created shared values’ (Dewar,1998: 484).

The currently important political message that individuals must take respon-sibility for their lives, their children and their actions is not a novel message:the giving of priority to the exercise of parental responsibility, if necessary overother aspects of the child’s well-being, has a very long history (Piper, 1999b).What has a much shorter history is the development of a social and politicalwillingness to blame parents for a variety of family and social ills, the turningpoint in this development being the passage of the ‘Cruelty Act’ (Act for thePrevention of Cruelty to and Better Protection of Children 1889). However,both law and politics have since reconstructed science to give priority toparticular notions of parental harm which support functional objectives. As wehave seen, law has reconstructed the message that harm is imposed on childrenby parents separating and being in con� ict to encourage the two parents to maketheir own arrangements, to agree and to be cooperative, so aiding settlement and avoiding adjudication. Politics has also reconstructed that notion, based on the premise that ‘how families behave affects us all’ (Home Of� ce, 1998: 5;see also Lord Chancellor’s Department, 1993: 16). The resulting political normcurrently functions to reduce expenditure on social welfare and on legal aid, andto secure social stability though stable families and healthy, well-behavedchildren. Within law, we can see such ideas reconstructed as the goals of disputeminimization and enhancement of parental authority and control.

Conclusion: the importance of theory

Law, then, responds to legislation that is, inter alia, an incorporation of politicalobjectives and operates with case law which is, inter alia, a selective recon-struction of child welfare science. This theoretical approach to analysing why particular assumptions about children’s best interests have such authorityand in� uence within the family justice system allows us to make a distinctionbetween the people who work within that system and law as a system ofcommunications. This is useful because, in practice, there has been a fudgingof the lines between professional activities and boundaries in line with

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a professional discourse that stresses the benefits of inter-disciplinarity andmulti-disciplinary working (Piper and Day Sclater, 1999). These oftenunde� ned terms either re� ect an idea that bene� ts automatically ensue whenprofessionals gain an understanding of how other disciplines and professionsapproach and solve problems (Murch and Hooper, 1992; Wall, 1997) or theyappear to envisage the creation of a new hybrid: ‘a multi-faceted discipline’(Wall, 1995: 52).

Whatever the focus, I would argue that multi-disciplinary working is notbeneficial without some theoretical understanding of what multi- or inter-disciplinarity means. The current, untheorized approach to ‘systemic’ familyjustice has led to an uncritical over-reliance on assumptions about the child’sbest interests, not just by legal professionals but also by ‘welfare’ professionalsoperating within the family and youth justice systems. It has also obscured the fact that once a legal principle is formulated from external knowledge itremains law – whatever the developments in non-legal disciplines – until lawcan and does readjust to signi� cant changes in its environment (King 1997: 20).Furthermore, professional confusion has ensued: it is not surprising that lawyersmight sometimes re� ect that what they are saying to clients may not really be‘true’ (Piper, 1999a: 105, 108). Criticism of the unquestioning use of particularassumptions is now occurring but, without a clearer understanding of the natureof how different systems can and cannot operate alongside each other there isa danger that ‘ruling’ assumptions will simply be replaced by their converse orby similarly over-simpli� ed notions, newly reconstituted from scienti� c andpolitical ideas. In that case confusion and frustration amongst the providers andthe customers of family justice will continue.

Notes

1. This article arose out of papers given at a conference organized by the National Council for Family Proceedings, entitled Assumptions and Presumptions in Family Justice Thinking (The Tavistock Centre,9 December 1998), and a seminar entitled Children, Parents and the FamilyJustice System at Leeds University (22 April 1999). I am grateful to MichaelKing for his constructive comments on an earlier version of this article and,also, to the anonymous referees whose comments, in their different ways,were challenging and helpful.

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assumptions about children's best interests

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