Adult Rights as the Achilles’ Heel of the Best Interests Standard: Lessons in Family Law from Across the Pond
Indiana University Robert H. McKinney School of Law
April 28, 2009
Notre Dame Law Review, Vol. 82, No. 4, 2007
Family law litigants have long searched for permutations of constitutional principles that gain access to federal courts. Typically, such litigants have been most successful with due process and equal protection arguments—even at the expense of the venerable “best interests of the child” standard in child-related cases. One legal system currently wrestling with this familiar clash between the interests of children and adults is that of England—where adults are armed with the rights granted by the Human Rights Act 1998, while children’s interests are given preference in an earlier act, the Children Act 1989. England’s strategy in dealing with this conflict offers several important lessons to the United States that are examined in this work. First, federal courts should be wary of granting and expanding constitutional relief for adults in child-related cases. Such expansion not only compromises the best interests standard, but also risks significant resistance from the states. Second, federal courts should be cautious in relying on the Constitution to protect children’s interests, which is not as effective as the best interests standard. These lessons emerge from this work’s analysis of England’s experience, providing insight into the tension between children’s interests and adults’ rights in the United States.
Number of Pages in PDF File: 30
Keywords: family law, comparative law, comparative family law, English law, Human Rights Act 1998, Children Act 1989, equal protection, due process, Fourteenth Amendment, children's best interests, adult rights, constitutional rightsAccepted Paper Series
Date posted: May 4, 2009 ; Last revised: June 5, 2012
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