Losing the Child in Child-Centred Legal Processes

Abstract

This chapter suggests that social biases influencing the application of the best interests test can produce decisions that miss the relevance of key factors in children’s lives. The authors undertake the problem of assessing just how the “best interests of the child” doctrine is operationalized, first in relation to the highly gendered history of child custody law, then in relation to two new fields involving so-called alternative parenting: lesbian parenting and parenting through the use of reproductive technologies. The authors ask how the best interests principle is interpreted in these scenarios and highlight the central role of familial ideology in mediating the application of the principle. The authors argue that in order to prioritize children’s interests, a child’s bio-genetic ties should be de-emphasized in favour of their actual relationships.

Keywords: Family law, Best interests of the child doctrine, child custody law