The best interests of the child E-Book

Collective

• Herausgeber: Council of Europe
• Kategorie: Geisteswissenschaft
• Sprache: Englisch
• Veröffentlichungsjahr: 2016

Seitenzahl: 321

Beschreibung

What does the concept of the best interests of the child mean in practice? How should it be interpreted and applied? This publication sheds lights on different aspects of this concept. The concept of the best interests of child, as stated in Article 3.1 of the United Nations Convention on the Rights of the Child, has caused many controversies and debates amongst policy makers, experts and practitioners. Although central to a child’s full enjoyment of his or her rights, the meaning of the concept in practice and how it should be interpreted and applied, is still part of today’s debate. The Belgian Authorities and the Council of Europe organised on 9 and 10 December 2014 a conference on “The best interests of the child - A dialogue between theory and practice” to provide an opportunity for actors involved in decisions that have an impact on children’s lives to share knowledge and enhance the understanding of the concept of the child’s best interest. Featuring in this publication are the 21 different viewpoints presented during the conference on the concept of the best interests of the child. They are divided into four chapters namely those presenting general reflections of the concept; assessing, determining and monitoring best interests; using the concept in different environments; and understanding the concept in family affairs. All viewpoints agree on the fact that there is no comprehensive definition of the concept, and that its vagueness has resulted in practical difficulties for those trying to apply it. Some suggest that the best interest should therefore only be used when necessary, appropriate and feasible for advancing children’s rights, whereas others see the flexibility of the concept as its strong point. Through their different interpretations and analysis, this publication offers a solid contribution to the overall understanding of the concept of the best interests of child, necessary to improving and safeguarding children’s rights overall.

Leseprobe

 

The best interests

of the child – A dialogue

between theory and practice

 

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Contents

Click here to see the whole table of contents, or go on the « Table of contents » option of your eReader.

Introduction

Everyone has heard about it, but we do not actually know what it means – or do we? The concept of the best interests of the child is essential, yet vague and indeterminate. It has existed for a long time, but its importance grew when it was included in the United Nations Convention on the Rights of the Child (UNCRC).1 Article 3.1 of the UNCRC states that:

[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

What does this mean in practice? How should the concept be interpreted and applied?

The Belgian authorities and the Council of Europe wished to emphasise the role of the best interests of the child and further develop the normative provisions concerning this concept, specifically the deontological, ethical and procedural rules related to it. The European Conference on the Best Interests of the Child, “a dialogue between theory and practice”, was thus organised within the framework of the Belgian Chairmanship of the Committee of Ministers of the Council of Europe in collaboration with the Council of Europe Children’s Rights Division in Brussels on 9 and 10 December 2014, linking the 25th anniversary of the UNCRC with the Human Rights Day.

The conference was one of the priorities set by the Belgian Chairmanship under the topic “Promotion and realisation of human rights”. The aim of the conference was to shed light on a vague, indeterminate, yet very central concept whose importance for children’s rights is unquestionable. By organising the conference, we wanted to initiate and encourage discussion in order to spread knowledge and enhance understanding of the concept of the child’s best interests.

Clarifying the concept of the best interests of the child and its implementation in practice is important for children’s human rights in general. One of the main challenges related to the best interests of the child is to mobilise decision makers around the concept so that it is genuinely seen as a primary consideration in their daily work. Judges, medical professionals, psychosocial workers, psychologists, educators and other professionals who work with children and youth must have the necessary tools at their disposal to assess and determine the child’s interests. They must also understand the concept of the child’s best interests in order to make good decisions that respect their human rights.

The conference explored the challenges decision makers face when working to implement the best interests of the child. The target group of the conference included experts, policy makers and practitioners involved in decisions that have an impact on children’s lives, as well as representatives of the major European institutions and non-governmental organisations protecting the rights of the child. Each member state of the Council of Europe was invited to send a delegation of two participants to the conference. For Belgium, as well as for the Council of Europe, it was essential that all partners, experts, decision makers and practitioners, but also children, had the chance to express their views and contribute to the discussion. Organising the conference was a way to bring together a diverse range of actors and combine theory and practice in an effective way.

This publication reflects the main ideas discussed in the conference and sheds light on different aspects of the concept of the best interests of the child. In so doing, it presents 21 texts that all offer their own viewpoint on the concept. Together, these texts provide a comprehensive view of the best interests of the child, wherein the different dimensions of the concept are articulated.

This publication is structured into four chapters discussing the best interest of the child from different points of view.

The first chapter introduces general reflections on the best interests of the child that will help in understanding the regulatory framework surrounding the concept and its application. Jorge Cardona Llorens, member of the UN Committee on the Rights of the Child, discusses the strengths and limitations of the committee’s General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration. Nigel Cantwell offers a critical point of view and discusses whether the concept offers added value to children’s human rights. Olga Khazova, also a member of the UNCommittee on the Rights of the Child, discusses questions related to the legal framework where the concept applies. Gerison Lansdown analyses the connection between the best interests of the child and participation, and Jacques Fierens introduces an idea of the best interests of the child as a guiding light, rather like the North Star. A study by the Children’s Rights Knowledge Centre (KeKi) on children’s best interests is also presented by Eveline van Hooijdonk.

The second chapter focuses on the process of assessing, determining and monitoring the best interests of the child. What tools can we use to evaluate, determine and apply the concept of the best interests of the child? How can we involve the child in the process in order to fully respect the requirements of the UNCRC? Urszula Markowska-Manista discusses marginalised children and the legacy of Janusz Korczak. Margrite Kalverboer introduces a model for the best interests of the child as a tool that can be helpful in practical situations, and Carla van Os discusses that model in the context of recently arrived refugee children. Hanne Op de Beeck asks whether systems developed for return decisions could serve as an inspiration when developing other monitoring systems.

The third chapter sheds light on the workability of such an indeterminate concept as the best interests of the child, in practice, in different environments. Regína Jensdóttir, Head of the Children’s Rights Division of the Council of Europe discusses the concept of the best interests from the perspective of the Council of Europe. The European Commission Coordinator for the rights of the child, Margaret Tuite, discusses the role of this concept in the work of the European Union, and Tam Baillie, Scotland’s Commissioner for Children and Young People, presents the perspective of an ombudsperson. Johanna Nyman, President of the European Youth Forum, analyses the concept from the perspective of young people and their rights. Bernard De Vos, Ombudsman for Children’s Rights of the Federation Wallonia-Brussels, Belgium, discusses conditions for decision making that respects the rights of the child, as well as his past experiences as an ombudsman. Jana Hainsworth, Secretary General of Eurochild, discusses the child’s best interests and challenges to its implementation from the point of view of civil society.

The fourth chapter focuses on the best interests of the child in family affairs, a central theme of the conference. Aida Grgić, lawyer at the European Court of Human Rights, analyses the best interests of the child in the case law of the European Court of Human Rights related to family affairs. Cristina Martins, President of International Federation of Social Workers Europe (IFSW), discusses best interests in the context of social work, and Valeriu Ghilețchi, Chair of the Social Affairs Committee of the Parliamentary Assembly of the Council of Europe, presents problems that arise when separating children from their families. Astrid Hirschelmann presents research on children whose parents are in prison, and Géraldine Mathieu discusses best interests in the context of the right to know one’s origins.

Finally, the Appendices in this publication offer the full text of the speeches given by three Belgian ministers and the Head of the Council of Europe Liaison Officer to the European Union, followed by the conclusions of the conference, and the Executive summaries of the contributions to the conference.

History has shown that periods of economic, financial, social and environmental crisis do not favour children and youth, or the defence and promotion of their rights. Yet, it is in these times more than any other that children must remain at the heart of decision makers’concerns. Whether we admit it or not, the concept of the best interests of the child is one of the most central in the field of children’s rights. Whether we like the concept or not, it is an essential provision in a binding international convention and has to be taken into account. If we want to understand children’s rights, we cannot neglect to give particular attention to the concept of the best interests of the child.

We hope you find this publication interesting and that it succeeds in continuing the dialogue between theory and practice that shaped the conference in such a fruitful way.

Belgium

Council of Europe

1 

The UN Convention on the Rights of the Child was adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989. It entered into force 2 September 1990, in accordance with Article 49.

Chapter 1The concept of the best interests of the child: general reflections

Presentation of General Comment No. 14: strengths and limitations, points of consensus and dissent emerging in its drafting

JorgeCardona Llorens

Professor of Public International Law, University of Valencia, Member of the Committee on the Rights of the Child1

Writing about the child’s best interests is a comparatively easy task for me because I have already made presentations in numerous conferences pertaining to General Comment No. 14 of the UN Committee on the Rights of the Child. But this time, the challenge is quite different; the purpose of this text is to present current questions and concerns relating to the concept of the child’s best interests and its interpretation by the Committee on the Rights of the Child in General Comment No. 14. In this article, I try to identify the strengths and weaknesses of the General Comment, the points of consensus and dissent which emerged in its drafting, and the difficulties of tangibly fulfilling the child’s best interests in the decision-making process.

This is not an easy task, because I must uphold the confidentiality of the deliberations in the Committee, and because what I normally try to do is to emphasise the strong points of the General Comment and the benefits of its implementation, not the weak points.

I have decided to concentrate on four questions: firstly the child’s best interests as an indeterminate but not discretionary legal concept, secondly the problems of assessing and determining children’s best interests in the adoption of general measures, thirdly the relationship between the child’s best interests and the other legitimate interests involved and lastly the consequences of maintaining the threefold legal nature of the child’s best interests as a right, a legal principle and a procedural rule.

The child’s best interests as an indeterminate but not discretionary legal concept

Firstly I shall concentrate on the child’s best interests as an indeterminate but not discretionary legal concept. When I joined the Committee in 2011, the chairperson asked me to choose the working groups to which I wished to belong. I chose three: the working group on the child’s best interests, the working group on state obligations regarding the impact of the business sector on children’s rights and the group on reform of the Committee’s working methods. In principle, the last two were to begin their work in 2011 and the first, on best interests, was in the process of finishing its work.

The chairperson gave me the text which the Committee had already drawn up and asked me my frank opinion. After a first reading, and because frankness had been requested of me, I said that I disliked the text. “Why?” the chairperson enquired. “Because on reading the document I find no criteria for assessing and determining a child’s interest in a given situation,” was my reply. Having heard my answer, the chairperson said to me, “Very well, Jorge. Your opinion coincides with several which we have received in the last few weeks. Since you are the newcomer to the working group, you’ll be the rapporteur for revising the text so that it answers the question you have raised.”

What is the basic question? True, the concept of a child’s best interests is adaptable to the situation of each child and to the evolution of knowledge about the child’s development. But, as was emphasised in the General Comment, this flexibility:

may also leave room for manipulation; the concept of the child’s best interests has been abused by Governments and other State authorities to justify racist policies, for example; by parents to defend their own interests in custody disputes; by professionals who could not be bothered, and who dismiss the assessment of the child’s best interests as irrelevant or unimportant.2

So this was my first besetting concern: the idea of a child’s best interests is indeed an adaptable concept embracing various, constantly evolving questions, an indeterminate legal concept to be determined case by case. However, it should be clearly established that it is on no account a discretionary concept.

The sentence which I wrote at the top of my blackboard in my office was the following: For the same decision, the assessment and determination of the best interests of five different children should prompt us to make five different determinations (given that no two children are alike in the same circumstances and in the same situation). But the assessment and determination of one child’s best interests made by five adults individually in the adoption of a decision should arrive at the same result.

In other words, although the child’s best interests are an indeterminate legal concept, their assessment and determination should be founded on objective criteria. The concept is intended to ensure both the full and effective realisation of all rights secured by the United Nations Convention on the Rights of the Child (UNCRC), and the child’s overall development. Accordingly, the child’s best interests are not what I consider best for a child but what, objectively, secures for the child both the full and effective realisation of all the rights secured in the convention, and his or her overall development. This reasoning explains Part V of the General Comment entitled “Implementation: assessing and determining the child’s best interests”. The Committee was not content just to say that assessment of the child’s best interests should always be a single operation to be performed in each specific case having regard to the circumstances specific to each child, but also tried to show the proper path for this.

That is where the problems begin! What circumstances must be taken into account? Which elements should be considered in assessing them? Which procedural safety nets should be provided for assessing and determining the child’s best interests when decisions concerning him or her are taken?

The General Comment lists the circumstances, elements and safeguards which the Committee has decided to propose to states in every case. But, as explicitly stated in the General Comment, it is a:

non-exhaustive and non-hierarchical list of elements that could be included in a best-interests assessment by any decision maker having to determine a child’s best interests. The non-exhaustive nature of the elements in the list implies that it is possible to go beyond those and consider other factors relevant in the specific circumstances of the individual child or group of children. All the elements of the list must be taken into consideration and balanced in light of each situation. The list should provide concrete guidance, yet flexibility.3

Among the elements to be taken into account are the child’s views; the child’s identity; preservation of the family environment and maintaining family relations; the child’s care, protection and safety; situations of vulnerability; the child’s right to health or the child’s right to education. In the Committee’s opinion:

the basic best-interests assessment is a general assessment of all relevant elements of the child’s best interests, the weight of each element depending on the others.… The content of each element will necessarily vary from child to child and from case to case, depending on the type of decision and the concrete circumstances, as will the importance of each element in the overall assessment.4

Concerning balance between these different elements, the Committee has identified three situations to take into account:

a) Firstly, where the various elements taken into consideration for assessing best interests in a given case conflict with the circumstances peculiar to it (for example, concern to preserve the family environment conflicts with the imperative of protecting the child from the risk of violence or abuse by parents). That is, balance between the elements, circumstances and factors to be taken into account.

b) Secondly, the problems which arise when factors linked with concern to protect the child (possibly involving limitation or restriction of rights) need to be assessed in relation to measures of “empowerment” (which implies full exercise of rights without restriction). That is, balance between the child’s protection and empowerment.

c) Thirdly, the connected question of the evolving character of the child’s capacities and the need for decision makers to envisage measures which can be reviewed or adjusted accordingly rather than take final, irreversible decisions. And simultaneously, the need to assess the continuity and stability of the child’s present and future situation. That is, striking a balance between the child as an evolving subject and the need for the child to enjoy stability.

Balance firstly in selecting the relevant circumstances, elements and safeguards. Balance secondly between protection and empowerment. Balance thirdly in weighing up all the elements taken into consideration.

But I acknowledge that here we might find weak points: has the Committee actually struck these balances? Are the stated criteria sufficient?

Assessing and determining children’s best interests when general measures are adopted

The second question I wish to address is the relationship between the child’s best interests and children’s best interests (individual and collective best interests): how do we assess and determine the child’s best interests when adopting general measures.

The reader will have appreciated that on each occasion I have spoken of assessing and determining a child’s best interests in connection with an individual decision. But Article 3.1 of the convention does not only speak of individual decisions. It sets out to ensure that the right in question is guaranteed in all decisions and actions which concern children. This means that in every decision concerning a child or children, the child’s best interests must be an overriding consideration. The term “decision” is not construed purely as individual decisions but also as all acts, conduct, proposals, services, procedures and other measures. That is why there is question not only of the decisions of administrative bodies or courts, but also of legislative bodies.

But if we have said that no two children are alike, that one child’s best interests differ from another’s, how is it possible to assess and determine children’s best interests generally? Moreover, concerning general implementing measures, what should be the procedure for ensuring that the child’s best interests are a primary consideration in legislation and in the framing and execution of policies at all tiers of public authorities? Clearly we cannot use the same procedure as for an individual decision.

The Committee’s final agreement in the matter was that it:

demands a continuous process of child-rights impact assessment (CRIA) to predict the impact of any proposed law, policy or budgetary allocation on children and the enjoyment of their rights, and child-rights impact evaluation to evaluate the actual impact of implementation.5

The child-rights impact assessment (CRIA) can predict the impact of any proposed policy, legislation, regulation, budget or other administrative decision which affect children and the enjoyment of their rights and should complement ongoing monitoring and evaluation of the impact of measures on children’s rights. CRIA needs to be built into Government processes at all levels and as early as possible in the development of policy and other general measures in order to ensure good governance for children’s rights.6

Naturally, the assertion that respect for the child’s best interests in collective decisions requires states to make studies of the impact of all their decisions is not readily acceptable for states. However, and this is the second important point, is there another way? And at all events, does the impact study suffice to assess and determine children’s best interests before the adoption of a general measure?

The relationship between the child’s best interests and the other legitimate interests involved

The third question that I wish to emphasise is the relationship between the child’s best interests and the other legitimate interests involved. There is a danger of conflict between children’s best interests and the public interests, or the interests of other players. What criteria are to be applied in these situations? Here we come to a question which raised considerable debate in the drafting of the General Comment: the collision of the child’s best interests with other interests.

Firstly it is important to ask whether the child’s best interests should be “a” primary consideration or “the” primary consideration. I do not think it violates the confidentiality of the Committee’s proceedings to say that this question was one of the most extensively discussed. Finally, as the General Comment says:

the Committee recognizes the need for a degree of flexibility in its application. The best interests of the child – once assessed and determined – might conflict with other interests or rights (e.g. of other children, the public, parents, etc.). Potential conflicts between the best interests of a child, considered individually, and those of a group of children or children in general have to be resolved on a case-by-case basis, carefully balancing the interests of all parties and finding a suitable compromise. The same must be done if the rights of other persons are in conflict with the child’s best interests. If harmonization is not possible, authorities and decision-makers will have to analyse and weigh the rights of all those concerned, bearing in mind that the right of the child to have his or her best interests taken as a primary consideration means that the child’s interests have high priority and are not just one of several considerations. Therefore, a larger weight must be attached to what serves the child best.7

Of course these are fine words. But having read them, is it now clear how to resolve a conflict between the interest of the child and another interest?

Plainly, some situations are easier than others. For example, in matters of adoption (Article 21), the principle of the child’s best interests is further strengthened; it is not to be simply “a primary consideration”, but “the paramount consideration”. The child’s best interests must indeed be the decisive factor in decisions on adoption, but also in other areas. This is true of Article 9 − separation from parents; Article 10 – family reunification; Article 37.c − separation from adults in detention; and paragraph 2.b.iii of Article 40 – procedural guarantees, notably the parents’ presence at hearings in criminal cases involving children in conflict with the law. In all these cases, the convention gives the child’s best interests greater weight than other interests.

But there is a large number of other situations not provided for. The Committee has tried to propose certain reflections to settle the conflicts. Allow me to emphasise three of them:

a) Firstly, the child’s best interests must be assessed in all circumstances. As indicated in the General Comment:

The words “shall be” place a strong legal obligation on States and mean that States may not exercise discretion as to whether children’s best interests are to be assessed and ascribed the proper weight as a primary consideration in any action undertaken.8

b) Secondly:

The expression ‘primary consideration’ means that the child’s best interests may not be considered on the same level as all other considerations. This strong position is justified by the special situation of the child: dependency, maturity, legal status and, often, voicelessness. Children have less possibility than adults to make a strong case for their own interests and those involved in decisions affecting them must be explicitly aware of their interests. If the interests of children are not highlighted, they tend to be overlooked.9

c) Thirdly:

Viewing the best interests of the child as ‘primary’ requires a consciousness about the place that children’s interests must occupy in all actions and a willingness to give priority to those interests in all circumstances, but especially when an action has an undeniable impact on the children concerned.10

In conclusion, where the child’s best interests and other interests involved come into collision, the decision maker must carefully balance the interests of all parties by finding an acceptable compromise. If harmonisation is impossible, the authorities and persons responsible will need to analyse and weigh up the rights of all parties concerned, bearing in mind that the child’s right to have his best interests treated as a primary consideration means that the child’s interests rank high in priority and are not one consideration among others. In spite of everything, I must admit that, regarding this third question, the Committee does not give very exact criteria for adopting the decision. And the question which arises is whether it this even possible.

The consequences of maintaining the threefold legal nature of the child’s best interests as a right, a legal principle and a procedural rule

My fourth and last question concerns the legal nature of the child’s best interests. This question is discussed at the beginning of the General Comment which begins by saying that the child’s best interests are a right, a principle and a rule of procedure. This definition is most important. The child’s best interests have traditionally been seen as an interpretative legal principle: if a legal provision lends itself to several interpretations, the one most effectively serving the child’s best interest should be chosen.

But the child’s best interests are not only a legal principle, they are fundamentally a subjective right. The child has the right to have his or her best interests assessed and made a primary consideration when various different interests are examined in order to reach a decision on the question at issue. This right will be applied in all decision making concerning a child, a specified or unspecified group of children or children in general. It is a self-executing right too, so it may be invoked before a court. This question accounts for the last-minute change of title for the General Comment. The title for the General Comment is not “the principle of the child’s best interests”, but “the right of the child to have his or her interests taken as a primary consideration”.

However, to be able to demand respect for this right, the holder of the right (or his or her representative) must know what were the factors, elements and circumstances assessed by the decision maker. This logically brings us to the third attribute of the concept of the child’s best interests, as a procedural rule:

Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.11

As a procedural rule, states are required to establish formal processes with stringent procedural safeguards, intended to assess and determine the child’s best interests in the taking of decisions which concern him or her, including mechanisms for evaluating the results. States are bound to develop transparent and objective processes for all decisions made by legislators, judges or administrative authorities, especially in areas which directly affect children.

Accordingly, the Committee invites states and all persons who are in a position to assess and determine the child’s best interests to pay special attention to certain safeguards and guarantees, such as the right of the child to express his or her own views; establishment of facts; time perception; participation of qualified professionals; adequate legal representation for the child; that any decision concerning a child or children be motivated, justified and explained; the existence of mechanisms allowing a decision concerning a child to be challenged or reviewed if it does not appear to have been taken in accordance with the appropriate procedure for assessing and determining the child’s best interests.

This threefold nature (right, principle and procedural rule) is the key for understanding the Committee’s perception of the child’s best interests. In my opinion, this perception is one of the chief contributions made by the General Comment, and its implications will eventually allow a change to be achieved in the paradigm concerning the child contained in the convention – namely that the child should cease to be regarded by the legal system as an object of protection and be regarded as a subject of law in his or her own right, with all the attendant implications.

1 

This text expresses the author’s opinion and not necessarily the opinion of the United Nations Committee on the Rights of the Child.

2 

Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3.1), paragraph 34.

3 

General Comment No. 14 (2013), paragraph 50.

4 

General Comment No. 14 (2013), paragraph 80.

5 

General Comment No. 14 (2013), paragraph 35.

6 

General Comment No. 14 (2013), paragraph 99.

7 

General Comment No. 14 (2013), paragraph 39.

8 

General Comment No. 14 (2013), paragraph 36.

9 

General Comment No. 14 (2013), paragraph 37.

10 

General Comment No. 14 (2013), paragraph 40.

11 

General Comment No. 14 (2013), paragraph 6.c.

The concept of the best interests of the child: what does it add to children’s human rights?

NigelCantwell

International consultant on child protection policy

The notion of “the best interests of the child” was developed well before the time when children were explicitly granted human rights. Indeed, reference to “best interests” was essentially designed to constitute a standard – albeit a somewhat imprecise one – for decision making on initiatives to be taken in regard to children in the absence of such rights.

Best interests have consequently been invoked in the past in order to justify a wide range of actions. Some of these have been positive, such as Dr Barnardo’s move to replace residential placements by foster care, in late 19th century England already.1 Too many, however, have involved measures that would now be qualified as gross violations of human rights: forced adoptions and forced migration, for example, during several decades in the mid-20th century.2 At the same time, courts of law in many countries have for many years validly relied on “best interests” considerations notably when determining custody and access conditions in situations of parental divorce.

This article contends, however, that the prominent role now assigned to “best interests of the child” is mistaken and even dangerous in a context where children have human rights. It argues that the implications of applying the concept in the way foreseen by the United Nations Convention on the Rights of the Child (UNCRC) were not thought through and, notwithstanding General Comment No. 14 of the Committee on the Rights of the Child (hereinafter “the Committee”), have not since been addressed in a sufficiently critical manner. As a result, we are now unwarrantedly duty-bound to take systematic account of a basically paternalistic and charitable notion in the implementation of the human rights of children.

Best interests in international law

It is first necessary to emphasise the fact that children are the only rights-holders for whom international law foresees consideration of best interests as being essential to realising those rights. The few references to (best) interests in human rights treaties only concern children and relate to very specific issues – and this includes the Convention on the Rights of Persons with Disabilities, adopted in 2006 and thus well after the UNCRC, where the notion is studiously avoided save in regard to children. Likewise, the only private international law conventions that mention best interests are those that deal with children’s questions. As for international humanitarian and refugee law, the notion of best interests is quite simply absent from all treaties in these domains.

It is therefore perhaps surprising that so little reflection has been undertaken as to why and how it has been considered unnecessary to ensure that the best interests of rights-holders underpin decision making in regard to the implementation of the human rights of everyone bar children – including particularly vulnerable adults, for example.

Best interests in the UNCRC

The prominent role given to best interests in the UNCRC is, in equal measure, undeniable and thoroughly intriguing. Objectively, it is in fact quite difficult to explain how Article 3.1 of the UNCRC became phrased in such an all-encompassing manner.

To begin with, it is worth noting that the mother of all international texts on children – the 1924 Declaration of the Rights of the Child (Declaration of Geneva) – contains no reference at all to “best interests”.

While the committee’s General comment No. 14 opines that the subsequent 1959 Declaration on the Rights of the Child “enshrined” the concept,3 the text of that declaration in fact mentions it only in two very specific and quite limited contexts. First, best interests of the child are to be “the paramount consideration” in the “enactment of laws” enabling the child “to develop physically, mentally, morally, spiritually and socially” (Principle 2). Second, parents and others responsible for the child’s upbringing are enjoined to take his or her best interests as “the guiding principle” (Principle 7). Since the 1959 Declaration constituted the basis for Poland’s initial proposal for a convention in 1978, this was also the rather restricted perspective (limited to lawmakers and primary caretakers) originally envisaged for the UNCRC.

This proposed draft was, however, rejected as a basis for developing the treaty, and Poland submitted a substantially revised version the following year. It was here that, suddenly and without explanation, the scene was set for best interests to take on a vastly enhanced scope in the UNCRC, henceforth encompassing “all actions concerning children, whether undertaken by their parents, guardians, social or state institutions, and in particular by courts of law and administrative authorities” and retaining the status of “the paramount consideration”.4

While this formulation was amended somewhat during the drafting – with, notably, reference to parents and guardians being moved elsewhere, legislators reinstated in the list of actors, and “the paramount” downgraded to “a primary” – the desirability and implications of this major shift in mindset were never discussed. Probably the nearest the drafters got to doing so was in reaction to a last-minute and unsuccessful bid by the Venezuelan delegate to provide clearer guidance for interpreting the notion in practice. Hence the all-embracing scope of Article 3.1 with which we are confronted today.

While best interests are, exceptionally, to be “the paramount consideration” in relation to adoption decisions – an issue examined later in this text – this should not mask the fact that they are also similarly the determining criterion in four instances where derogations from specific rights can be envisaged: removing a child from parental care, denying contact with parents, envisaging deprivation of liberty with adults and excluding the presence of parents during judicial proceedings. This special role of best interests as an explicitly foreseen reason for not applying a given right is significant and is taken up again later in this article.

Best interests and the Committee on the Rights of the Child

Once the UNCRC had come into effect in September 1990, the Committee on the Rights of the Child was established and elected, with one of its very first tasks being to draw up the list of issues to be addressed by states parties in their initial reports on implementation. The Committee decided to ask states parties, in the overall context of these reports, to describe their compliance in four spheres that it saw as fundamental, over-arching requirements for implementation: non-discrimination; the right to life, survival and development; the right to be heard; and guarantees that best interests will be a primary consideration in decision making.

The Committee decided to designate these four spheres as being, in its view, “General Principles” of the UNCRC, and thus retaining them as the bedrock of states’subsequent periodic reports. This designation thus stems from the debates of 10 persons whose focus was on developing a questionnaire for states parties, and who unilaterally decided to elevate “best interests of the child” to that special status.

It can be noted that no other treaty body has ever sought to give such prominence to specific provisions of an international instrument. Despite this, best interests have since been, to all intents and purposes, universally and unquestioningly accepted as a general principle, without adherence to which the treaty’s implementation would be severely compromised or even impossible.

Given in particular its history of misuse and the legacy thereof, the deliberate flexibility of the concept, its unique pertinence to children’s issues in a human rights framework, and the singular importance attached to it by the Committee, it is unfortunate and paradoxical – even though in many ways understandable because of the complexity of the issue – that more than 20 years went by before an interpretive General Comment on the implications of applying the “best interests” principle was issued.

However, the Committee’s valiant efforts to settle the conceptual and operational quandaries through its General Comment are uncritical, and faithfully reflect the now sacrosanct stance that best interests are a “fundamental value” of the UNCRC, comprising “a right, a principle and a rule of procedure” to be operationalised on all levels and in all circumstances.

That stance needs to be subjected to in-depth scrutiny, more especially to determine precisely what, and when, the notion of best interests actually contributes significantly to safeguarding the human rights of children. Thus, the Committee’s list of issues to be taken into account when determining the best interests of an individual child is essentially nothing more than a review of the rights implications of various options; indeed, its proposed procedure to ensure that the child’s best interests are a primary consideration in the development of laws and policies is tellingly called a “Child-Rights Impact Assessment”. This surely begs the question as to whether best interests really have to be invoked to justify processes designed to evaluate whether or not human rights are being respected and, if that is by chance the case, why for children alone?

The big test: intercountry adoption

One of the most glaring demonstrations of how the application of best interests is still woefully lacking in guidance – and this to the extent that it can anyway be justified – lies in examination of it being “the paramount consideration” for decisions on adoption, and more especially of its intercountry form. While this may constitute an extreme example of the problem, it is instructive since the various facets involved are by no means unique, in some degree at least, to this particular issue.

When intercountry adoption began in earnest, in the early 1950s, it did so in a legal void – procedurally as well as in terms of substantive standards and human rights – and was solely the result of private initiatives. In that context of an absence of norms, it was invariably justified by those private actors as a humanitarian act responding to the best interests of the children concerned.

Despite successive attempts to regulate the practice, the key role of the private sector in the sphere of intercountry adoption has rarely been contested as such, even though it is unusually significant in terms of the provision of a child protection measure and indeed might itself be open to questioning on best interests grounds. Likewise, and of particular note here, the original reliance on best interests as the most important factor justifying intercountry adoption has simply been reaffirmed without question in all subsequent international texts, including those that establish or take inspiration from the human rights framework.

As a result, we have the intriguing situation – although some might argue that the Committee’s General Comment has adequately responded to this – where international human rights standards require “the paramount consideration” (that is, the determining factor) in decisions on the adoption of children to be the deliberately vague notion of best interests on which there is no international consensus, rather than demonstrable respect for the rights involved.

Flexibility: a challenge for consensus

The lack of international consensus remains remarkable and preoccupying. While, as noted previously, little has been written on the raison d’être of best interests considerations in a human rights context, many commentators have in contrast analysed and defended the need for the notion to be flexible in order, notably, to take account of the different socio-cultural contexts in which it is to be applied (although strangely, this barely finds reflection in the General Comment).5