The Child’s Best Interest: Article 3 of the Convention on the Rights of the Child
“In all decisions concerning children that are made by public or private social protection institutions, courts, administrative authorities or legislative branches, the child’s best interest must be a vital consideration“. (International Convention of the Rights of the Child, Article 3.1)
Birth of a Concept
The concept of a “child’s best interest” was born out of the evolution of the Western World’s perception of children.
In the Middle Ages, adults were, for the most part, indifferent toward children. Children did not receive any real attention before the 16th century, when educational places started to be reserved for them. Progressively, society became more interested in children’s future, and protective laws and scholarly obligations appeared in industrialized countries.
In 1902, the Hague Conference placed “the child’s best interest” in the foreground.
In 1924, the Geneva Declaration highlighted the idea that the role of adults is to protect children. This declaration gives children a protection status.
With the 1959 Declaration of the Rights of the Child, children are recognized as having rights although they are unable to exercise them. However, the notion of “best interest” is clearly evoked in Principle 2 of this declaration.
The use of this concept expanded in 1989 during the creation of the Convention on the Rights of the Child whose vision of children is less reductive than the preceding declarations.
“The Child’s Best Interest”: A not-so-precise definition
Although the Convention on the Rights of the Child does not give a strict definition of this idea, it tends to emphasize the idea of a child’s protection. Therefore, during the decision making concerning a minor, it allows the preservation of a child’s well-being and his right to grow in an environment which is favorable to his mental and physical health.
This concept emphasizes the idea of a child as having rights, but it doesn’t give a single case of decisional power to the child.
“The Child’s Best Interest” and the Convention on the Rights of the Child
The Convention on the Rights of the Child is considered to be a collected work. Article 3, which mentions “the child’s best interest”, is one of four imperative principles in the application of the rights of the convention as a whole. But the Committee on the Rights of the Child has not proposed criteria for judging what is in the best interests of the child.
However, the four fundamental articles are equally tied to them. Consequently, Article 2 on the right to nondiscrimination and Article 6 relating to the right to survival and growth must be taken into consideration to determine what constitutes as the child’s interest in a given situation. In addition taking into account the child’s opinion (as mentioned in Article 12) allows for support to the decider in establishing the child’s best interest.
The judicial or administrative authorities of the States that ratified the Convention are obligated to take into consideration “the child’s best interest” during all official decision-making processes pertaining to children.
The use of this concept essentially appealed to the subjectivity of the decision maker. In practice, the decision-making agent renders a decision according to what he or she perceives as being in the child’s interest at the present moment and in the prospective future.
The principle of “the child’s best interest” corresponds to the spirit of the convention. For example, according to Article 9 a child has the right to live with his or her parents. However, he or she can be separated from them under judicial decision as long as the decision takes into account the child’s best interest. This is the case when a child is a victim within his own family (mistreatment, neglect…).
This notion is necessary during measures relating to the loss of freedom and in procedures regarding placement, separation, divorce or adoption.
Between Benefit and Risk
The lack of definition or precise criteria to determine a child’s best interest allows a case- by-case interpretation. Indeed, the use of this idea is based on the interpretation of the decision maker, which makes it adaptable to different situations.
Beyond this positive characteristic, the concept can leave such ample room for maneuver to the decision-makers that they can impose their own idea of this principle at the child’s expense.
Written by: Mélanie Chatenoud
Translated by: Shazznic BECK
Review by: Sophie Narayan
- UN Convention on the Rights of the Child/Articles
- Committee on the Rights of the Child
- Geneva Declaration
- Declaration of the Rights of the Child, 1959
- Signatory States and parties to the Convention
- Focus: Abuse
[stextbox id=”custom” caption =”.” collapsed=”true” color=”333333″ ccolor=”ffffff” bcolor=”ff9a64″ bgcolor=”ffffff” cbgcolor=”ff9a64″ image=”https://www.humanium.org/en/wp-content/uploads/portail-fr/References.jpg” mbottom=”30″]
- International Institute of the Rights of the Child. The Best Interest of the Child : From the Literal Analysis to the Philosophical Impact), 2003
- Defense for Children International. The Child’s Best Interest in Question. Illusion or Lever in the Service of their Rights? (2010) (IN FRENCH)
- CAIRN,Info. Child’s Interest : A Revival (IN FRENCH)
[stextbox id=”custom” caption=”.” collapsed=”true” color=”333333″ ccolor=”5c2f0d” bcolor=”a3cb82″ bgcolor=”ffffff” cbgcolor=”a3cb82″ image=”https://www.humanium.org/en/wp-content/uploads/portail-fr/Read-More.jpg”]