View/Open - Scholarly Commons Home

Critique of the best interest test in North America
Researchers have examined the use of the best interest test as a mechanism for making
decisions on behalf of others in different legal contexts. Research from North America
provides a number of salient observations which resonate with the use of the principle
on behalf of adults who lack capacity in England and New Zealand.
Mnookin has given considerable attention to the principle as the mechanism for making
child welfare and custody decisions in the United States (1975; 1985). As a result of his
research, Mnookin argued that “deciding what is best for a child poses a question no
less ultimate than the purposes and values of life itself” (1975, p. 260). Mnookin’s
ultimate goal was to expose the indeterminacy of the principle (1975, p. 255).
Mnookin found that a decision about what is best or least detrimental for a child was
usually indeterminate and speculative. The flexibility and discretion required did
nothing to require the courts to face up to hard questions about child welfare in a
systematic way (p. 277). For example, should the judge be primarily concerned with the
child’s happiness, spiritual and religious training, or their potential economic
productivity? (1975, p. 260). Because of the indeterminacy, Mnookin argued that the
same cases presented to different judges could result in different decisions. The scope
of judicial discretion created a risk that decisions may be made on the basis of values
not widely shared among society, even among judges (1975, p. 263). Mnookin
concluded that “while the indeterminate best interests standard may not be good, there
is no available alternative which is plainly less detrimental” (1975, p. 282).
Artis researched the use of the best interest principle in child custody determinations in
the U.S. and found that the wide judicial discretion required by the best interest
principle introduced value judgments. Applying a feminist lens, Artis demonstrated that
societal ideas about gender roles in families are both reflected and reproduced by the
legal system (1999, p. 239).
Mercer (1997) was concerned by the judicial discretion inherent in employing the best
interests standard and also examined child custody determinations in the U.S. From her
10