MISS SHAY was a 22-year-old woman whose neighbors viewed her as a "hippie." Shortly after she gave birth to a baby, the neighbors complained to public authorities that Miss Shay was acting "peculiar." She was breastfeeding the baby of leaning over the crib and copping with the child's toilet needs by putting a pan under a hole through the mattress. A pulbic social worker visited Miss Shay and "convinced" her that her baby needed to be hospitalized for observation. Soon afterwards, despite the fact that a doctor and public health nurse found the baby well nourished and behaving normally, the social worker's agency removed the child from the mother indefinitely, claiming under a vague statute, that the child had been "denied proper care and attention."
Consider also Kevin, a 15-year-old boy, who suffered from neurofibromatosis, the "Elephant-Man" disease. His face was deformed by a "grotesque and repulsive" growth of facial tissue. Despite his appearance, Kevin and his mother decided against a series of corrective operations. The state went to court, and the court ordered surgery, despite the fact that Kevin had a healthy personality and a strong, loving relationship with his mother, despite the fact that the surgery was "very risky" and offered only temporary relief, and despite the fact that doctors were agreed that waiting until Kevin was an adult would decrease the risks. The court decided that it, not the mother, was the proper entity to decide what was best and that Kevin's development would be warped by waiting any longer.
Perhaps Miss Shay was a bit odd. Perhaps Kevin is happier today than he would have been without surgery. Nevertheless, in their new book, Before the Best Interests of the Child, Jospeh Goldstein, Anna Freud and Albert J. Solnit, all three deeply committed to the needs of children, argue forcefully that the state should stay out of the lives of families except in the most extreme circumstances. Cases like those of Kevin and Miss Shay -- especially that of Miss Shay -- are far too common. Every year thousands of American children are taken from parents whose conduct a caseworker considers unacceptable without any demonstration that the children have been or are likely to be harmed. The full costs of these intrusions may be apparent to most of us. The authors believe that children suffer irremediable trauma from disruptions in ties with their parents, even parents of whom most of us disapprove. Moreover, they tell us that children removed from parents "temporarily" often shuttle around for years from foster home to foster home, prevented from establishing the sort of warm and permanent tie to a nurturing parent-figure that every child needs and deserves.
No more distinguished group of authors could have banded together to deliver these messages. Goldstein is a professor of law at Yale and a psychologist. Freud, director of the Hempstead Child Therapy Clinic in England, is one of the world's most celebrated psychiatrists specializing in children. And Solnit is a professor of pediatrics and psychiatry at Yale and a past president of the American Academy of Child Psychiatry. An earlier book by the same three, Beyond the Best Interests of the Child is almost certainly the most discussed book on law and family ever published in this country.
Like the first book, their new effort is brief and blunt, confidently starting bold positions and illustrating them with real case histories that carve vivid images in the mind. The book defines, with commendable precision, the few occasions when the authors believe that the state should substitute its judgment for the judgments of parents with regards to a child. In so doing, the authors point to cases when governments today sometimes fail to intervene as forcefully as they should, particularly in cases of badly beaten children imprudently returned home. But their primary message is: Stay out, leave the child where she or he is, hands off. The consequences of intervention are likely to be more damaging to the child than the parental conduct complained of.
Their message is important and needs to be heard everywhere. Unfortunately, this book will fail to deliver its message to those who need to hear it most -- the judges and social agencies who often intrude where they do not belong. It will fail because the authors take extreme postitions far beyond anything their audience will ever accept -- or at least accept without a form of patient logical persuasion that the authors fail to provide.
Perhaps their most unpalatable position comes in the central chapter on parental neglect and abuse. There they argue that there are only three forms of "gross failure of parental care" that justify state intervention: when the parent "disappears" without providing a new caretaker; when the parent inflicts, attempts to inflict, or repeatedly fails to prevent "serious" bodily injury to the child; and finally when the parent has been found in a criminal court to have committed a sexual offense against the child.
The authors contend that no form of "emotional abuse," no matter how brutal or damaging, should be a basis for intervention. In their view, the notion of emotional harm is simply too imprecise in its definition and too speculative in terms of cause, treatment and consequences. They illustrate their position with the case of Miss Shay, and with the case of Richard, a white child removed from his mother solely because she was living with a black man in a black neighborhood. Most readers will probably agree that although Miss Shay might profit from some child care advice, the state should not have removed her child. Richard's case is an outrage.
What readers will resist accepting is that the state should also stay out of some much more painful cases that would also be swept out by the author's rule. At another point in the book, they tell of 4-year-old Melisha, whose sadistic parents forced her to march around their house for three days and then beat her badly. The authors advocate intervention in Melisha's case because of the beating. But, if their position on emotional abuse is taken seriously, the same parents could have marched their child every day for hours on end, reveling in her unhappiness, and the state could not intervene to rescue her so long as the child did not suffer serious physical injury. They would presumably take the same position in the case of a 7-year-old punished by being locked for weeks in a basement or attic and brought out only for meals, or that of a 1-year-old left alone each evening for four to six hours while her mother went out to drink.
By using examples only of shockingly inappropriate removals such as Richard's, the authors may delude some readers into accepting their position, but judges and social workers will have no difficulty remembering much harder cases when a child seemed clearly harmed or severely endangered but had no broken bones to show for it. The authors reject too facilely the possibilities for framing standards that reach such cases and exclude most cases of children not actually at risk of serious harm.
The real tragedy of the book lies not, however, in their advocacy of leaving alone the child suffering serious emotional harm. Our legislatures will not abandon the children locked in attics. The real tragedy lies in the missed opportunities of discussing some of the much more common cases that are more alarming than Miss Shay's but that fall far short of torture -- cases involving children of erratic alcoholics or children raised in filth-encrusted homes. They could have led us carefully through the persuasive arguments for staying out. As it is, the authors' approach may produce the worst result of all: readers will reject their exclusion of non-physical injuries and then incorrectly conclude that the only cases inappropriate for intervention are trivial ones involving parents like Miss Shay.
Seven years ago the same authors published Beyond the Best Interests of the Child -- now reissued in paperback with a new epilogue. In their earlier book they made a powerful case that children should be left in the custody of persons to whom they become strongly attached as their "psychological parents," whether or not these persons are the child's biological parents. They then argued -- without providing any persuasive evidence -- that, after a divorce, courts should have no power to grant visitaion "rights" to the noncustodial parent. Decisions about visitation should, they said, be left entirely up to the custodial parent. That position, tossed out and defeated in two swift paragraphs, generated dozens of negative reponses. To many readers, the position on visitation came like the 13th chime of the clock, casting doubt on all the valid points made earlier.
The epilogue is largely devoted to replying to critics of their earlier position on visitation. In it, they make more clear their view of the child's need for a single, consistent source authority, but sad to say, the epilogue remains as unsatisfactory as the original book by failing to respond to some persuasive criticisms of their position. These include whether a ban on court-ordered visits would greatly increase the incidence of custody disputes since future divorcing parents would fear that losing custody of a child would mean that they would never again see the child. Here and elsewhere in both books, the authors fail to discuss the probable consequences of their rigid rules in the real world.
Furthermore, in their epilogue, the authors reject in a single paragraph the notion of joint custody as a form of enforced visitation in disguise. Wise or foolish, joint custody is this decade's pet. One quick paragraph is far less than it deserves. To be sure, thoughtful debates about custody and visitation are needed.
Even more clear is the need for debate about statutory standards for neglect and abuse. The author's clear goal, in Before the Best Interests of the Child however, is not merely to kindle debate but to inspire new behavior on the part of judges and legislators. Those judges and legislator who want simple answers from distinguished authorities may respond as the authors hope. Those who want to understand the "whys," the "on the other hands," and the strength of the empirical support for the authors' claims will have to wait for the sorts of extended reasoned responses that the book is bound to inspire.