any action regarding children the “best interest of the child” shall prevail
Family Law Act requires that when considering any action regarding children the “best interest of the child” shall prevail. By the “best interest of the child” what is meant is that the course of action which protects the child from physical and psychological harm shall be upheld. Particularly, the child shall not be subjected to or exposed to abuse, neglect or family violence (Parenting Cases, n.d.).
After World War II until the 1970s, single unmarried women who found themselves pregnant and unable to care for their child were threatened, duped and pressured to give up their babies for adoption (McGuirk, 2013). An estimated 250,000 women gave up their babies as soon as these were born -- giving up the newborn babies for adoption by childless married couples were promoted by the state as in the “best interests of the child”. The Catholic Church in Australia also adapted the same measures, pressuring unwed mothers to give up their babies for adoption. The Catholic Church has since apologized for its part in perpetrating those forcible adoptions (McGuirk, 2013).
The rationale behind the forcible adoptions was that the unwed women were unable to financially provide for their babies. Moreover, having been born out of wedlock, the child would be socially stigmatized. More importantly, the prevailing attitude of those years was that the unwed mothers were “immoral” or sexually promiscuous and thus, they would not provide their babies the moral grounding necessary to raise them (Arndt, 2013). Recently, Prime Minister Julia Gillard apologized for these ‘forced adoption” policies. Women who were forced to give up their babies for adoption consequent to these state policies felt vindicated.
There is however, a criticism of the apology for those forced adoptions. The government policies of the 1940s, 1950s, 1960s and the 1970s reflected what were prevailing beliefs, attitudes and knowledge of that era. Those forced adoptions were thought of as the right thing to do to promote the “best interests of the child”. Unwed teenage mothers admitted that because of their youth, lack of family support, inadequate finances and their lack of preparedness for parenthood, the option of giving up their babies seemed as the best thing to do (Arndt, 2013). What most of these mothers decry was that they were pressured to give up their babies and they were not allowed to be part of their babies’ lives. These policies seem flawed now that new knowledge and new attitudes have brought a shift in thinking and in policies.
The standard of the “best interests of the child” is not a hard and fast rule, etched in stone. It is malleable as it can be shaped under the factual circumstances of each particular case where custody and responsibility for a child is the issue. The standard is also fluid as it takes the shape of the prevailing beliefs and attitudes in society.
Arndt, B. (2013). Today’s policies are tomorrow’s apologies. The AGE Comment [online].
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.