The principle of the best interests of the child is one of the four general guiding principles on children’s rights (right to non-discrimination, best interests, right to life, survival and development, right to participation or right to express opinions that are considered). It is closely related to Article 3(1) of the Convention on the Rights of the Child (CRC) and Article 24(1) of the Charter of Fundamental Rights of the European Union.
Both instruments give children the right to have their best interests assessed and taken into account in all actions or decisions affecting them, whether undertaken by public or private social welfare institutions, courts, administrative authorities or legislative bodies (Child Welfare Information Gateway, 2021).
What does the best interest of the child imply?
The best interest of the child is a threefold concept that includes a substantive right, a fundamental and interpretive legal principle, and a rule of procedure that aims to ensure the full and effective enjoyment of all the rights recognized in the United Nations Convention on the Rights of the Child (CRC) and whose primary consideration is to ensure the holistic development of the child (EMN – European Migration Network, 2021).
Holistic child development refers to the well-being of the child in a broad sense, which includes basic material, physical, educational and emotional needs as well as the need for affection and security (EMN, 2021). The child’s interest assessment is a simple and continuous procedure that should be undertaken in individual cases where decisions need to be made for an individual child, in light of the specific circumstances of each child or group of children, and should evaluate and balance all the elements necessary to make a decision in a specific situation for a particular child or group of children (UNHCR, 2006).
Article 3 of the Convention on the Rights of the Child (CRC) enshrines the principle of the best interests of the child, i.e., it stipulates that in every law, public or private initiative, and in every problematic situation, the best interests of the child must be given preeminent consideration. More specifically, Article 3 of the CRC expressly states: “In 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.” (Unicef, 2019).
The best interest of the child determination, therefore, describes a formal process with strict procedural safeguards designed to determine their best interest for particularly important decisions affecting the child. It should facilitate the appropriate participation of children without discrimination, involve decision-makers with relevant areas of expertise, and balance all relevant factors in order to evaluate the best option (European Commission, 2022).
The principle of the best interest of the child as applied in European courts
Within a few years of its solemn introduction, the principle of the best interest of the child has been incorporated within numerous conventions and documents protecting children, both internationally and within individual states, and its use has begun to characterize the decisions of courts at every latitude (Unicef, 2019).
The context in which the best interest of the child has found greater acceptance and has begun to take on less indeterminate connotations is undoubtedly that relating to the jurisprudence of the European Court of Human Rights. However, in the face of an increasingly frequent recourse to the stereotypical formula “best interest of the child”, there have been over the years a number of judicial decisions with very conflicting effects (Council of Europe Portal, 2021).
With the aim of finding the substantive content of this concept, within the different subject areas and in different geographic locations, it can be seen that the issues that have emerged differ considerably according to the context.
In Europe, it has been noted that the principle has developed mainly in relation to cases concerning Article 8 (a norm that protects the right to private and family life), in at least four different contexts and, more specifically, in relation to the right of the child in cases of adoption or foster care, to the right of the child to know their origins, to the right of the foreign child, and finally to the right of the child in cases of international abduction (Council of Europe Portal, 2021). However, it is interesting to note that within the European context, the best interest of the child has been declined in different ways depending on the case under examination.
The most iconic example in the jurisprudence of the European Union is represented by the Zarraga case, concerning a divorce petition before the Spanish courts, in which both parents sought sole custody of the child. The custody was granted to the father who lived in Spain, with the possibility to visit the mother in Germany. After a vacation in Germany, the child had not returned to Spain; the mother claimed that the best interest of the child, namely their right to be heard, had been violated, and requested on these bases that the child be heard to reevaluate the custody issue.
With regards to the alleged violation of Article 24 of the Charter of Fundamental Rights of the EU, which provides for the right of the child to be heard, the Court of Luxembourg noted that it is up to the judge who must rule on the return of a minor to assess whether or not it is appropriate to conduct such a hearing.
Therefore, although it takes the form of a right of the minor, the hearing cannot be considered an absolute obligation but must be the subject of careful evaluation by the judge. The judge decided that the best interest of the child is best protected in the form of the child’s habitual residence, in this case Spain, and, for this reason, the abducted child should return there.
The best interest of the child in the context of Latin America
In the Latin American context, however, the principle of the best interests of the child undergoes considerable development only following the introduction of Opinión Consultiva OC-17/02 on “Condición Juridica y Derechos Humanos del Niño,” rendered by the Court of San José in 2002.
The judges of the Inter-American Court, therefore, begin to make use of the criterion of the “interés superiór del niño” with respect to cases of enforced disappearances and mass murders, in relation to the phenomenon of institutionalized practices of violence against certain social groups and, only more recently, with reference to requests for adoptions by homosexual or single persons (Unicef , 2019).
In Latin America, the best interest is also frequently used with regard to health issues. In this context, it is important to note a pronouncement, case “N.N. o D., v. s/ protección y guarda de personas” of 2012, in which the judges of the Court analyzed the profile of the child’s right to health with regard to a parent’s refusal to bring their child to the ritual medical vaccinations in accordance with the state mandatory vaccination plan.
The judges of the Court, argued that when faced with a parent’s refusal to have their child access the vaccination plan, it is possible and necessary to act in a compulsory manner, and affirmed that the exercise of parental responsibility is not absolute, since this meets as a limit precisely the best interest of the child.
Having clarified this aspect, the judges of the Court also pointed out that, in some cases, the family’s right to privacy may be limited by the intervention of the state placed in defense of the best interest of the child, as a vulnerable subject in need of protection, protected by a regime, whose major characteristic, consists in letting their interest prevail over all the interests involved.
Therefore, in both the European and Latin American contexts, it could be observed how the best interest of the child is declined in different manners with the aim to better protect the child and more flexibly assess the needs of the concrete situation.
What more can be done to ensure the best interest of the child?
The best interest of the child represents an outstanding evolution in child protection’s jurisprudence. However, much still needs to be done in order to uniform the legislation worldwide. it is necessary to make every effort to begin to develop or further strengthen the system of cooperation between domestic and international jurisdictions since the credibility and the effectiveness of systems that protect human rights rest precisely on the protection of the most vulnerable among us all.
In fact, to make the principle of the best interest of the child truly “effective”, it would be necessary for the States to guarantee satisfaction to the victims of violations, remedy domestic irregularities and implement the reforms necessary to bring national order in line with the international order.
Furthermore, the United Nations, NGOs, and civil society can contribute to the elaboration of guidelines for Courts to be followed in proceedings. These guidelines must be flexible and take into consideration the balancing of diverging interests. Indeed, the real challenge is to establish a hierarchy among the different rights, and this task can finally be performed only by the courts, the sole arbiter witnessing the concrete case.
Humanium is proudly committed to contributing to the work towards a world where the best interest of the child is effectively prioritized. Humanium as an organization is actively working on field projects developed in light of the best interest of the child. Moreover, through its advocacy work, Humanium has actively participated in several working groups where the best interest of the child was the primary concern in issues such as child labor and human trafficking, environmental rights, education, armed conflicts, etc.
If you too would like to contribute to the fulfilment of children’s rights around the world, consider making a donation, becoming a Humanium member or joining the Humanium community by becoming a volunteer.
Written by Federica Versea
For more information:
Case C-491/10 PPU, Zarraga, 22 December 2010, available at http://curia.europa.eu.
Child Welfare Information Gateway. (2021). Determining the Best Interests of the Child. Taken from https://www.childwelfare.gov/pubpdfs/best_interest.pdf, accessed on January 18, 2023.
Council of Europe Portal. (2021). Newsroom on Children’s Rights New study on the protection of the best interests of the child in situations of parental separation. Taken from Council of Europe Portal : https://www.coe.int/en/web/children/-/new-study-on-the-protection-of-the-best-interests-of-the-child-in-situations-of-parental-separation, accessed on January 19, 2023.
EMN – European Migration Network. (2021). Superiore interesse del minore. Taken from Superiore interesse del minore: https://www.emnitalyncp.it/definizione/superiore-interesse-del-minore/#:~:text=Il%20principio%20dell%27interesse%20superiore,che%20vengano%20prese%20in%20considerazione, accessed on January 18, 2023.
European Commission. (2022). Best interests of the child (BIC). Taken from Migration and Home Affairs: https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/best-interests-child-bic_en, accessed on January 17, 2023.
UNHCR. (2006). UNHCR Guidelines on Formal Determination of the Best Interests of the Child . Taken from UNHCR: https://www.unhcr.org/en-my/4ba09bb59.pdf, accessed on January 18, 2023.
Unicef. (2019). Latin America and the Caribbean – 30 years after the adoption of the Convention on the Rights of the Child. Taken from Unicef: https://www.unicef-irc.org/publications/117-child-rights-in-latin-america-from-irregular-situation-to-full-protection.html, accessed on January 19, 2023.