The case of Alfie Evans and the best-interests-of-the-child standard

British law gives more of a share in decision-making about children’s lives to the state, and less to the parents, than is typical in American law. I like American law better. [Damian Thompson, The Spectator]

A reader recommends this piece by barrister Matthew Scott in Quillette defending the British authorities’ actions. While it fills in much useful detail, I’m not at all persuaded on the central issue of whether it was proper for British law in 1989 to oust parental rights from areas in which they had been long respected, all in the name of the best interests of the child as discerned by courts, experts, and the state. In my first book, The Litigation Explosion, I argued against the specious attractions of a best-interest-of-the-child standard in the child custody modification context, pointing out that to upset an existing decree of custody it should be needful to allege something stronger than that the child would be marginally better off with a switch, or that the case for a switch was supported by marginally better expert avowals than the case for leaving custody where it was. Instead, presumptions of stability and family integrity should be respected, to be overcome only by a strong showing of likely substantial harm from not switching. Likewise, the presumption that parents are the ones to direct their infant children’s medical care should be a strong one, rebuttable to be sure in some cases of wretched or misguided parental errancy, but not simply by rhetorical flourishes, even when embodied in law, about how the best interests of the child must conquer all and we determine what those are.

For examples of the narrower scope of parental rights in the United Kingdom and its subdivisions, see this 2015 story (parents warned they may be reported for neglect if they allow under-18s to play adult-themed videogames such as Call of Duty and Grand Theft Auto); this from 2009 (seven children seized from obese couple in Scotland; but note American trends too); and the Scottish Named Persons scheme. More on expertise and best-interests-of-the-child standards: Megan McArdle, Jim Geraghty.


  • There was a case, years ago, which shocked me to my core. An infant was kidnapped in Philadelphia by a distant relative. The kidnapper covered her tracks by committing arson. The poor mother was told, but did not believe, that the child died in the fire. Fast forward 6 years–the woman sees a girl at a family gathering and thinks that the girl is her long-lost daughter–she gets a DNA sample (hair) and lo and behold, she was right.

    Did she get immediate custody of her daughter? No. The state came up with some transition plan etc.

    This shocked me–the woman, as mother, had the right to direct the upbringing of her child without interference from the state, absent a showing of unfitness. What was even more shocking–I discussed the case at a law firm for which I worked, and all of the lawyers there said that the best interests of the child standard gave the state the right to interfere with the mother’s custody. That couldn’t be more wrong.

    In a perfect world, the state workers acting in this manner should have been severely disciplined. (I won’t say criminally prosecuted because it seems that they were just trying to do what they thought was best.)

    • Presumably she was asking for state intervention to obtain custody of a child who was a stranger to her. Under those circumstances, I don’t believe it is unreasonable for the state to require a transition plan to change custody of a child from her emotional parents to a stranger. Obviously, I don’t know the details of the case you reference or what was required, or how old the child was, but dealing with custody of a stolen child is not the same as dealing with custody of a stolen ring.

      • Statist reasoning. First of all, her right to custody, of course, was not obviated by the criminal acts of a third party (given her lack of responsibility for them). Second, you misapprehend the nature of the right to direct the upbringing of one’s child—she had that right, irrespective of whether she sought the state’s assistance in enforcing said rights. (It cannot be that Americans with rights are presented with the choice of self-help or conditioning their rights on whatever the state wishes if they avail themselves of the police power to enforce their rights..)

        The reference to “reasonable” is laughable. We are a nation in which the right to direct the upbringing of one’s child is a constitutional right. That right can be modified in certain circumstances (divorce, neglect), but not without such a cause–so it doesn’t matter whether the state is being “reasonable”–the fact is that it violated her rights.

        We have rights for a reason, and they do not exist at the whim of some bureaucrat who thinks that he or she can make decisions in loco parentis without cause.

        • That may be an unresolvable conflict between us. I do not believe that a parent has an absolute right to harm another simply because of a biological connection, and believe that one of the appopriate roles of government is to intercede when significant harm is being done.

          • The pivot won’t work. You originally posited that the government’s actions in the kidnapping case were “reasonable”–as if that somehow addressed the axiomatic nature of the parent’s right to direct the upbringing of her child. When pressed, you move to the smug self-righteousness of a generalized statement that no parent has the absolute right to harm his child, as if that somehow was my position.

            In sooth, there isn’t a whole lot of daylight between your position and the child-snatching done by totalitarian regimes. I am sure, in some respects, yanking kids from their dissident parents was “good” for the kids.

            And to finish my thought, you seem to think that somehow some government bureaucrat has the absolute right to harm a child given your tolerance of generally unfettered power. I am not crazy about parents smoking marijuana–but I am less crazy about two-year olds being yanked out of a home and killed at a foster parent’s home (that happened in Austin, Texas).

            Your views, as evidenced by your post, are thoroughly statist–that you choose to wrap them up in self-righteousness says a lot about the will to power writ large. Personally, I do not know what I would do if my young child were kidnapped and then found six years later. I certainly wouldn’t tolerate the government, backed up by the opinions of statists like you, telling me how to deal with the situation on the pain of not getting her back.

        • In response to your comment below, I was not using “reasonable” as a legal standard. I stated I didn’t know the facts of the case you referenced, and so would have no basis for applying such a standard. However, I do believe that under the circumstances you describe there could have been sufficient evidence that pulling the child from the parents she knows and placing her with strangers could cause sufficient harm, and that the parents were unable or unwilling to appreciate and take steps to ameliorate that harm, that it might reach the level of appropriate intervention to prevent significant harm to the child. I could certainly see a parent so traumatized by the loss and reunification that he is unable to realistically consider the significant mental health needs of a particular child. If so, requiring a transition plan to ameliorate that harm could be an appropriate exercise of state authority.

          I doubt that you believe a parent should be able to visit whatever harm he likes on his child–which would mean you accept that parental rights to direct the upbringing of their children may be interfered with. However, I don’t see how to get to a point where the law permits interference in some cases without recognizing that evidence may show that a parent’s actions are or will be sufficiently harmful that state action is required, and identifying an individual or group other than the parent to make that determination. I certainly prefer that interference with parental rights involve some legal proceeding which provides a forum for the presentation and consideration of relevant evidence. Otherwise, how is that permissible interference in the exercise of parental rights to be determined?

          • Try as you might, you cannot wriggle off the hook of your statism. The idea that a parent, who has done nothing wrong, would have to submit to the state’s idea of a transition plan (of course, with a third party) is chilling. A necessary predicate to your idea is that the parent would have to submit to some sort of mental health examination–last I checked we don’t live in a society where the government gets to do that.

            And this isn’t getting into, you know, any disagreements between parents and the government in the case where the government has decided to intervene.

            Your defense of your position assumes good faith on the part of the government and competence–two things which, sadly, often lack. And as for the parents caught up in the maw, well, you know what they say–the process is the punishment.

        • If by statism you mean that I believe that government is essential, then I am comfortable with that label. However, you haven’t responded to the dilemma. If intervention is permitted at some point, how do you see the decision to intervene and how to do so being made if not through some governmental process?

          • “statism” isn’t a believe that government is essential–and it cannot be–because just about anyone (other than true anarchists) would fit that label.

            I look at “statism” as a “you know it when you see it” question–but with respect to the views you’ve stated here, you seem to believe in expansive government power with a concomitant shrinkage of individual rights if somehow the exercise of those rights is, in the judgment of some government official, harmful. (I use the term judgment loosely.)

            Intervention has to have two predicates–substantive and procedural, with due regard for the fact that government power can be abused. You seem to think that parental rights are subject to the government’s right to impose a “Mother, May I” requirement.

            As for your “you haven’t addressed my argument”quip–sorry–I didn’t think that it was necessary to state that there are some instances where government intervention into the custodial relationship that are justified. (That was the clear import of my “absent a showing of unfitness”) So, I think your response fails on its own terms.

            But never mind that—you posited that the state had the right to interfere with a fit parent’s right to direct the upbringing of her child–and, of course, the clear import of THAT is a will to totalitarianism. So instead of dealing with that, you try to nibble around the edges.

          • I did not posit that the state had the right to interfere with a fit parent’s right to direct the upbringing of her child, thus your argument fails. Nor did I indicate I believe in “expansive government.” I believe that there are facts which can render a parent unfit to direct the upbringing of a child–either in whole or as to specific aspects–and that some governmental process to determine whether the threshold for such a determination has been met is necessary. If that threshold has been met, then there must be some process for determining what intervention is necessary.

            I have not expressed any conclusions as to the particular situations you have referenced, as I admittedly have insufficient information to form any beyond the bare conclusion that those circumstances may be present in a situation in which there is also sufficient evidence to justify a finding that the parent is unfit to direct the upbringing of the child, in whole or in part.

          • Richard, now you’re dissembling.

            You spoke in terms of the transition plan being “reasonable” and implied that the availment of the coercive power of government to enforce one’s rights gives the government say-so.

            Both of those positions show, in my view, a completely warped view of how things should roll.

            You can walk all that back, but saying I was incorrect to call you out is just plain silly.

            Reading between the lines, it seems to me that in the kidnapping case, you think that the government got to have some sort of say-so in how the custodial parent, presumed, of course, to be fit handled the transition. That is 100% wrong (at least in our right-based society) and smacks of totalitarianism. And your ring vs. child comparison is tough to wriggle out of.

            Let’s say such a situation were to happen to me–in your view, the state could dig into my family life, force me to prove up my fitness, provide coercive “suggestions” on how to handle the transition etc. Because after all, it’s not my wife’s wedding ring that is being returned. And of course, if I showed any bit of resistance, that would be a reason for the trolls to interfere more.

            You can hide all you want behind seemingly anodyne protestations that fit parents get to make decisions absent interference, but anyone who reads your posts can see the statism and the collectivist impulse that, by the way, isn’t hidden all that well.

            I pray that you do not have a government job in which you have power over members of the public.

          • We are nearing, if not already over, the civility line. “Calling out” other commenters and speculating about their personal jobs seldom is the best way to advance an understanding of issues. Nor is this a call-to-action forum in which methods of resistance to bad laws or officials are on the agenda.

        • SPO: You seem to be asserting that the parent _owns_ the child. Can you articulate a limit to the parent’s right to control the child? Would the parent have the right to deny the child an education, or to put him to work at five? (That was a real thing in the 19th century – children fit better into a coal mine or to tend textile machinery, and chimney sweeps would buy a small child, strap a chimney brush to him, and send him crawling through the chimneys.)

          OTOH, Richard’s assumption of competence and good will from a government agency is quite naive. At least in the USA, the least intelligent people to barely squeak through college (as shown by SAT scores going in, and GRE scores near the end of a 4-year program) are mostly in three majors: social work, school administration, and teaching. These programs combine specific job training in paperwork and “managing” children with a heavy dose of socialist indoctrination, further compromising their ability to think in the real world. Then even for the more intelligent graduates, when they’ve been in a job long enough, they learn to seek the organization’s internal goals – keeping their jobs, expanding the organization’s budget and power – above the ostensible reasons the organization was created in the first place.

          It’s quite true that taking a child from the only parent(s) he knows and handing him to a stranger is psychologically traumatic. In the case of this child who was stolen when too young to remember his mother, it really is better to have a gradual transition from one family to another, assuming that the child-stealing family will neither take off with the child, nor hurt him in rage over losing him. But I can’t see any possible evidence that would ever convince me there wasn’t a big risk in leaving the kid with the child-thieves, let alone how a social worker with 30 or more IQ points less than me could make that determination.

          But CPS does not worry about that psychological trauma when they think that it might possibly be dangerous to leave a child with it’s parent(s). They’ll tear a kid away from his family and hand him over to foster parents with no transition plan at all – and often that’s based on a cursory investigation by someone far too stupid to be playing detective. And worse, what will really bring down their wrath is knowing more about how to care for children than they do.

          • I don’t believe that I am coming anywhere close to asserting that parents “own” children–I am saying that, in America, parents have the constitutional right to direct the upbringing of their children and have the right to custody without government interference in the absence of cause (and mandated transition plans like the one I mentioned violate such rights). And times change, of course, we don’t have 5 year olds in textile mills, and no, I don’t support parents doing that to their kids, and there are laws against it.

            “it really is better to have a gradual transition from one family to another, assuming that the child-stealing family will neither take off with the child, nor hurt him in rage over losing him.”

            Sez who? (And putting aside that the child-thieves will be prosecuted) And even if we assume you’re right (in a vacuum), you have human beings actually carrying this sort of thing out–who’s to say that works? And in the real case, the transition was through foster parents.

            And then you have the indignity of a person being forced to play “Mother may I?” to get his or her kid back. Not acceptable in a free society–even if you assume that, theoretically, this transition plan is better,

  • Because the government always knows best… Examples include butter, eggs, shaken babies, etc…

  • If the NHS decides treatment cannot succeed, then they can wash their hands of it but have no right to stop parents from taking the child home or to Italy if it is no cost to them. The problem with their path can be seen in the Netherlands where their euthanasia law has been used to off people with dementia. “quality of life” is none of their business.

    • At any point can the state step in and stop a parent from subjecting his child to torture in the name of medical treatment? If so, then quality of life is their business and lines must be drawn as to when such interference will be permitted. I don’t think the UK necessarily has the balance right, but I don’t think eliminating any involvement where there is a claim of medical treatment would be right, either.

      • Once again, you miss the point. Yes, treatment can be “torture” (at least in terms of agony), but the real issue is “who decides”? Government has its own motivations and agendas–who can forget Obama;s “don’t get a hip replacement”? And once the government gets involved (particularly if involvement is routine) issues inevitably arise. DCFS bureaucracies are notoriously bad and often take actions that are demonstrably counterproductive. And they tend to have an arrogance that is truly mind-boggling.

        In Pennsylvania, a DCFS entity determined that, on the basis of a bogus drug test result, that a mother had ingested opiouds and yanked the kid. (N/B., all drug tests have minimum concentrations to exclude innocent people, like those who eat poppy seed bagels.) After the kid was away from the family for a month or so, DCFS conceded error. Did that get the kid back–nope–DCFS inforned the family that reunification had to await a court order. Um, no.

        That may seem a small thing to you richard, but it is profoundly problematic in a rights-based society. Once the condition for removal from custody was shown, the power of the government to keep the child for one second evaporated. And what does it say about the people who, after having admitted error, refuse to hand over the kid because they wanted to ensure that they didn’t run afoul of a court order. I don’t want people like that making such choices on a routine basis.

        You might think that too harsh a judgment–but why should they get to inflict more agony on the family? When looked at it from that perspective (which, of course, is the only perspective that matters), the decision isn’t defensible.

  • There is no “Quality of Life” when the state is actively trying to kill you