The principle of “the best interest of the child”

The principle of “the best interest of the child” is implemented in Article 3 (1) Convention on the Rights of the Child (CRC), which provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Origin

Previous human and children´s rights instruments, such as the 1959 Declaration of the Child, the 1979 Convention on the Elimination of All Forms of Discrimination against Women and other instruments such as the 2006 Convention on the Rights of Persons with Disabilities, define the principle as “the paramount” (Principle 2 of the 1959 Declaration of the Rights of the Child), “the primordial” (Article 5(b) 1979 Convention on the Elimination of All Forms of Discrimination against Women) and “the primary” (Article 7 of the UN Convention on the Rights of Persons with Disabilities) consideration, which highlights the significance of the principle. Similarly, regional children´s rights instruments like the African Charter on the Rights and Welfare of the Child elevate the weight of the principle to be “the primary consideration” (Kilkelly et al, 2019). 

Central terms

For a better understanding of this article, central terms need clarification and definition:

“In all actions”

The term “In all actions” includes all decisions, acts, conducts, proposals, services, procedures and other measures including inaction and omissions (Committee on the Rights of the Child, 2013). This term indicates that in situations that involve or concern children no limitations to the application of the principle exist (Tobin, 2019).

“Concerning”

“Concerning” refers to the forms of actions that directly and indirectly affect children. Furthermore, “concerning” has to be interpreted inclusively as relevant to, with an impact on children or affecting children (Committee on the Rights of the Child, 2012).  

“Shall be”

 The Committee on the Rights of the Child (CRC Committee) clarified that the term “shall be” implies strong legal obligations on the state parties and therefore, does not grant any discretion and flexibility as to whether “the best interests of the child” principle has to be assessed (Committee on the Rights of the Child, 2013).

“A primary consideration”

Article 3 (1) states that “the best interests of the child” principle shall be “a primary consideration”, which provides for special protection of children in any context and acknowledges their unique vulnerability (Kilkelly et al, 2019). The principle is of non-derogable nature, which means it does not allow for limitations even in times of emergencies (Committee on the Rights of the Child, 1992).  

The drafting parties and the CRC Committee intended to allocate priority and higher importance in the balance with an interest of other individuals, groups and entities, without annulling the flexible and adaptable nature by including the principle as “a” primary consideration (UN Economic and Social Council, 1981). This intention resulted in the principle being the determining factor in a case of the balance of interest without attaining the level of a per se overriding interest (Tobin, 2019).

The CRC Committee highlights the objective to find a harmonized balance between the interests at stake with an explicit awareness and weight of the interest of the child in that particular situation (Committee on the Rights of the Child, 2013). Therefore, the assessment has to be before the balancing of the interests at stake to consider the vulnerability of the child as an individual adequately.

For example, in the case ZH (Tanzania) (FC) v Secretary of State for the Home Department (ZH (Tanzania) (FC) v Secretary of State for the Home Department, 2011), the UK Supreme Court specified that “the best interests of the child” has to be considered first and in a case that no compromise can be found, it can only be outweighed by “the cumulative effect of other considerations” as the principle is “inherently more significant” than other interests (ZH (Tanzania) (FC) v Secretary of State for the Home Department, 2011).  

The principle in practice

In practice, the principle has to be applied as a threefold concept- a substantive rights, a fundamental, interpretative legal principle and a rule of procedure (Committee on the Rights of the Child, 2013). 

The principle as a substantive right obliges states to consider the best interest of a child, take it as a primary consideration when different interests are considered and that the right is implemented whenever a decision is affecting a child (Committee on the Rights of the Child, 2013).  This creates an intrinsic obligation for states. A substantive right is directly applicable and can be invoked before a court (Committee on the Rights of the Child, 2013). 

The principle as a fundamental, interpretative legal principle requires that “if a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation” (Committee on the Rights of the Child, 2013). 

“Assessing and determining the best interests of the child require procedural guarantees” (Committee on the Rights of the Child, 2013). This requires that the possible impact (positive and negative) of a decision has to be evaluated. States can be held accountable as they are obliged to substantiate and prove the explicit consideration of “the best interests of the child” and how it has been respected in any decision concerning children (Committee on the Rights of the Child, 2013). 

In the assessment of “the best interest of the child” the child´s view, identity, situation of vulnerability, right to health, right to education, the preservation of the family environment and maintaining of relations have to be considered. This is a non-exhaustive list of considerations as the principle is   flexible by nature and requires states to assess the necessary considerations on a case-by-case basis (Tobin, 2019).  

Written by Alexander Weihrauch

Last updated on 2 March 2021

Bibliography:

1959 Declaration of the Rights of the Child.

Kilkelly, U. & Liefaard, T. (2019), “International Human Rights of Children”, International Human Rights, 2019, p. 138.  

2007 UN Convention on the Rights of Persons with Disabilities.

1979 Convention on the Elimination of All Forms of Discrimination against Women.

Committee on the Rights of the Child, Report on the second session, September/October 1992, CRC/C/10, para. 67. 

Committee on the Rights of the Children (5 October 2012), “Concluding Observations Albania”, CRC/C/ALB/CO/2-4, para 30(a). 

Tobin, John (28 March 2019), The UN Convention on the Rights of the Child: A Commentary”, Oxford Commentaries on International Law, Chapter 4, 7 and 13, Oxford Scholarly Authorities on International Law (OSAIL)

Committee on the Rights of the Children (29 May 2013), General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), CRC/C/GC/14.  

UKSC, ZH (Tanzania) (FC) v Secretary of State for the Home Department (1 February 2011), Judgement, UKSC 4, On appeal from: [2009] EWCA Civ 691, available at the UK Supreme Court.

UN Economic and Social Council and Commission on Human Rights (17 February 1981), Report of the Working Group on a Draft Convention on the Rights of the Child, E/CN.4/L.1575, p. 23 and 24.