Judging the Child’s Best Interests

Abstract

Using a sociological theory of rational argumentation as its point of departure, this article discusses the ‘best interests of the child’ as a guiding principle when decisions are made. Application of this principle has been criticized for weakening the legal protection of children and parents and resulting in arbitrary and subjective decisions. The criteria for rational decision-making are outlined and three cases of enforced adoption are analysed in an effort to understand how the Norwegian highest appellate court comes to a decision in the best interests of the child. The findings show that two of the three decisions do not meet the standards of rational argumentation, suggesting that decisions are instead based on the judges’ subjective preferences. This finding is problematic from a democratic point of view and indicates that decisions and interventions are neither rational nor legitimate.

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