Abstract

In this chapter of the book’s First Edition, we sought to answer the question: how do we, as a diverse society, define what parenting arrangements are in a child’s ‘best interests’ (or perhaps more realistically in practice, are the ‘least detrimental alternative’) ¹ if the child’s parents separate? How can that vision be fulfilled in practice and how will we know when we have achieved it? Unsurprisingly, six years later these continue to be key challenges for policy regarding parenting after separation. They remain complex challenges given the emotionally and politically charged context in which they arise, ‘producing strongly held views, many based on personal experience’. ² Of course, ensuring that law operates in children’s ‘best interests’ should continue to be at the heart of policy in this area, but the personal impacts of family law and post-separation parenting policy create ongoing difficulty in clarifying beyond that general principle. Unsurprisingly, the ‘best interests’ principle has long been criticized for its indeterminacy and malleability, with key issues being a lack of clear cut consensus in society about the values to be used when making a determination (including ongoing debate about how much weight should be given to parents’ interests or human rights) and the impossibility in most cases of making predictions about the future. ³ Yet as a concept, the ‘best interests’ principle has the fundamental benefit of re-focusing attention on children, at least in theory, in a context where adult interests can – and often do – so readily prevail. The perennial challenge is to formulate a better alternative.