The 'best interests of the child' thesis: Some thoughts from Australia

In the 36 years since the 1973 publication of ‘Beyond the Best Interests of the Child’ by Goldstein, Freud and Solnit, the phase ‘the best interests of the child’ has achieved biblical standing and is now embedded in childcare and protection legislation worldwide. It also resonates through clinical reports and other materials that form the basis for proceedings in Children's Courts and in Family Law Courts. Such is the power of the phrase that it is to be found in Article 18 of the Convention on the Rights of Children that was adopted by the United Nations in September 1989. In 1996, Goldstein, Solnit and Goldstein, with Freud, indicated a preference for the phrase ‘least detrimental alternative’ rather than ‘the best interests of the child’. For this reason, and because the world in 2009 is a far different place from that which existed 36 years ago, we think it is time to re-examine this classic phrase both in terms of its underlying thesis and how it is used in present-day childcare and protection proceedings and practice.