Trojan Horse

Laws that claim to put children's interests first often are just part of a statist ploy to muscle in on the autonomy of the family
GEORGE JONAS
Freelance

Earlier this month, the U.S. Supreme Court struck a small and cautious blow for the right of parents to raise their children according to their own lights. In a 6-3 decision, the justices knocked out, or at least slapped down, a Washington-state law that would have imposed court-ordered visits on the Wynn family by grandparents Gary and Jenifer Troxel.

The Washington law, the only one affected by the ruling, was particularly broad. It allowed not only grandparents but just about anyone to petition the court to interfere in the decisions of a parent affecting a child.

"So long as a parent adequately cares for his or her children," wrote Justice Sandra Day O'Connor for the majority of the court, "there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of the parent to make the best decisions concerning the rearing of that parent's children."

Canada's legal experts were quick to point out that such a ringing endorsement of family autonomy has no place in Canadian law. Our ideas on the matter are much closer to Washington state's.

Osgoode Hall Law School professor Mary Jane Mossman observed that in Ontario any person may apply for access or custody. Our divorce laws give everybody standing in custody cases, not just mothers and fathers.

"In Canada, the courts sing loud and clear that the issue is about the child. It is not about adult rights," Mossman was quoted as saying.

With great respect to Mossman, I think in Canada and Canadian-type societies the issue isn't about the child. The issue is about the state.

The child is only the Trojan horse through which Big Nurse and her hangers-on seek to muscle in on the autonomy of the family. The state's aim is to break down the sovereignty of individuals in their roles as parents.

The child is only the excuse.

What our courts "sing loud and clear" about isn't the child, but their own authority. What our judges are jealously upholding is the right of the government and its agencies to interfere with everyone and everything

according to the state's own lights and ideas.

If the goal were simply to protect children from harm, such sweeping powers would be unnecessary. It has always been available in law for society to protect children from anyone, including their parents, if it were shown that they needed protection. But until recent times, parents had a measure of autonomy. Unless there was evidence to the contrary, it was assumed that they knew best, and were acting in the best interest of their children.

It was a logical assumption. Most parents do know best, and most parents do act in their children's best interest. This isn't ordained by society but by nature. Species whose nature is different tend not to survive.

There are, of course, individual exceptions, that is, unfit parents.  However, the onus used to be on those who disputed the presumption of fitness on a parent's part to rebut it. Failing this a parent - or a custodial parent, in case of a dispute - couldn't be challenged. If parents were challenged on any grounds, they could have the last word simply by demonstrating their fitness.

Today, fitness is just a factor, not the last word. The last word goes to judges, lawyers, guardians, case-workers and "experts" - in other words, to the manipulators and minions of the state. It goes to every idea that happens to be in vogue socially, politically or psychologically, and to every person who succeeds in manipulating a court in the name of such a social, political or psychological fashion.

This may be a victory for statism, but hardly an improvement for children. Saying "the issue is about the child" is the government's ruse de guerre. In rolls a big wooden horse named "children" - then, to the triumphant drumroll of legal scholars, out jump the fully armed commissars of the state. If it worked in Troy, it can be counted on to work in Toronto and Calgary.

What would persuade our Supreme Court that there's "normally no reason for the state to inject itself into the private realm of the family?" Probably nothing, short of trading justices with the Yanks. I'd start with our Claire

L'Heureux-Dube for their Sandra Day O'Connor. George Jonas is a Toronto-based author and freelance journalist.