34 Best Interest of Child

Jhuma Sen

1. Introduction

The principle of best interests of the child (hereinafter BIC) is an overarching general principle in the child protection and child rights discourse. It is formally enshrined in the Convention on the Rights of the Child, 1989 (hereinafter CRC) as a “general” principle. BIC applies to all other rights that extend to a child under the CRC and constitutes a binding obligation on states which are party to the CRC. BIC is often considered to be ‘indeterminate’, and ‘vague’ but the discretionary nature of the principle provides Courts and another decision making sufficient authority to espouse child rights in a diverse array of settings, including custody proceedings, asylum and removal proceedings, and other family law issues. This module will introduce you to the nature and scope of the BIC principle, how it is used by different international organizations working in the field of child protection, and child rights. This would focus primarily on the UN High Commissioner for Refugees (UNHCR) and the incorporation of the principle of BIC into domestic legislations, especially in relation to family law matters.

2. Learning Outcomes

The purpose of this chapter is:

• To give the students an overview of the internationally recognized principle of best interests of a child;
• To help the students understand the nature and scope of the best interests of child principle, internationally mandated guidelines which provide for the use of the principle of best interests of a child in various proceedings such as custody resolution, asylum determinations etc.

3. What is ‘Best Interests of Child’?

3.1 Source of the Principle in International Law

The principle of BIC first arose in the context of family law related matters in domestic jurisdictions, primarily in Great Britain and the United States of America, flowing from the parents patriate (parent of the nation/ fatherland) authority of the sovereign state. As rights of the child started becoming an integral part of the international human rights regime; the principle of BIC gained wider acceptance within the international discourse as well.

One of the very first instances where BIC was mentioned in an instrument at the international level was the UN Declaration on the Rights of the Child, 1959 which stated that ‘the best interests of the child shall be the paramount consideration’ in the enactment of laws relating to children, as well as ‘the guiding principle of those responsible for (the child’s) education and guidance’. The principle of BIC is also enshrined in the UN Convention on Elimination of All Forms of Discrimination against Women, 1979, where Article 5, paragraph b and Article 16, paragraph 1(d) stress that the best interests of the child shall be of paramount importance, in decisions pertaining to education and family-related matters.

The principle of BIC became a binding international obligation when it was written into the UN Convention on the Rights of the Child, 1989. From the very initial stages of the negotiation of the CRC, beginning in the late 1970s, the principle of BIC was considered for inclusion in the CRC. Eventually, BIC was included as Article 3 of the CRC and is considered to be a “general principle” of the CRC. Article 3, paragraph 1 of the CRC states that ‘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.’ As a general principle, the principle of BIC extends to all decisions affecting the child, whether such decisions are taken by state authorities, judicial bodies, or even private institutions in the field of education or other services relevant to a child’s welfare.

Other than Article 3 of the CRC, reference to the principle of BIC can also found in other articles of the CRC, such as Article 9 on separation from parents; Article 10 on family reunification; in Article 18 on the responsibility of parents; Article 21 on adoption, and others. In addition to the main text of the CRC, the principle of BIC is also referenced in two Optional Protocols to the CRC—the Optional Protocol on Sale of Children, Child Prostitution and Child Pornography and the Optional Protocol on Communications Procedures. In 2013, during its 62nd session, the Committee on the Rights of the Child (hereinafter the Committee), which administers the CRC, and issues guidance on the CRC; issued General Comment No. 14, which provides an in-depth analysis of Article 3, paragraph 1 of the CRC, and also enumerates the various elements that need to be taken into consideration while determining the best interests of a child. The Committee’s guidelines on BIC will be discussed in section 3.2 below.

Various international instruments on the issue of inter-country adoption and parental responsibility also allude to the principle of BIC. Thus, for example, The Hague Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoption, 1965 states that no adoption will be granted unless it is ‘in the interest of the child.’ Similar provisions are also enshrined in the 1967 European Convention on the Adoption of Children. The Hague Convention on the Protection of Children and Cooperation in Respect of Inter-Country Adoption, 1993 lists protection of the best interests of a child in inter-country adoption as one of its main aims. The Convention recognizes that it is ‘difficult to define the best interests of the child’, but concludes that ‘the child’s interests should always take priority over those of prospective adopters.’ Similarly, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, which covers a variety of child protection measures, provides in its Preamble that ‘the best interests of the child are to be a primary consideration.’

References to the principle of BIC can also be found in various regional instruments. For e.g. the African Charter on the Rights and Welfare of the Child, 1990, sets forth the principle of non-discrimination and BIC in Article 4 paragraph 1 of the Charter, which states that, ‘in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.’ Similar provisions on BIC are enshrined in the European Convention on the Exercise of Children’s Rights, 1996, where the Preamble, and Articles 1, 6 and 10 reference the principle of BIC. Within the Inter-American system, the American Convention on Human Rights, 1969 references BIC in Articles 17(4) and 17(5), which provides for safeguarding of a child’s best interests in case of dissolution of marriage of the child’s parents, and irrespective of whether the child is born in or out of wedlock.

3.2 Meaning and Scope of the Principle

In simple terms, BIC means considering the child and his well-being before making any decision concerning him, or her. The principle of BIC has developed as a tool, which helps institutions responsible for safeguarding the interests of minor children in decision-making process relevant to underage or minor children. In General Comment No. 7, issued in 2005, the Committee stated that, ‘the principle of the best interests applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being, as well as measures to support and assist parents and others who have the day-to-day responsibility for realizing children’s rights…’

The principle of BIC, however, is largely indeterminate. Despite being used extensively in CRC, and other international legal documents as also in domestic legislations; there is no clear or exact definition of the concept. This fact is attested to by the Committee in 2013’s General Comment No. 14, paragraph 11 & 32, where the Committee states as follows

The best interests of the child is a dynamic concept that encompasses various issues which are continuously evolving…The concept of the child’s best interests is complex, and its content must be determined on a case-by-case basis…Accordingly, the concept of the child’s best interests is flexible and adaptable. It should be adjusted and defined on an individual basis, according to the specific situation of the child or children concerned, taking into consideration their personal context, situation and needs. For individual decisions, the child’s best interests must be assessed and determined in light of the specific circumstances of the particular child. For collective decisions – such as by the legislator –, the best interests of children, in general, must be assessed and determined in light of the circumstances of the particular group and/or children in general. In both cases, assessment and determination should be carried out with full respect for the rights contained in the Convention and its Optional Protocols.

This indeterminate nature of the principle of BIC has led to criticism from various quarters. Commentators such as Geraldine Bueren have criticized Article 3, paragraph 1 on the grounds of the language used vis-à-vis the 1959 Declaration on Rights of the Child, as well as the African Charter on the Rights and Welfare of the Child, 1990, which she asserts dilutes the protection of Article 2, paragraph 1 to some extent. The Committee acknowledges in paragraph 34 of the General Comment No. 14, where it observes

The flexibility of the concept of the child’s best interests allows it to be responsive to the situation of individual children and to evolve knowledge about child development. However, it 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.

In order to clarify the elements of the principle of BIC, in General, Comment No. 14, the Committee opined that the principle of BIC is a threefold concept. As per the Committee, the principle of BIC is an

(i) substantive right, (ii) fundamental, interpretative principle and (iii) rule of procedure. In General Comment No. 14, the Committee expounds on this threefold concept in paragraph 6 as below:

(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.

(b) A fundamental, interpretative legal principle: 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.

(c) A rule of procedure: 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.

In Part IV.A (paragraphs 17-40) of General Comment No. 14, the Committee also elaborates on the meaning of various elements of Article 3, paragraph 1, which contains the generic principle of BIC. Thus, as per the Committee, ‘in all actions concerning children’ means that the principle of BIC comes into play, when assessing (i) both acts and omissions, (ii) whether direct or indirect, and (iii) applicable to all children below 18 years of age, whether individually or as part of a group, or generally. As per paragraph 25 of the General Comment No.14, the obligation to use the principle of BIC is an all-encompassing obligation that extends to all public and private social welfare institutions, courts of law, administrative authorities and legislative bodies involving or concerning children, and parents as well, whether in the field of health, education, environment or other civil rights and freedoms.

In paragraph 36 of General Comment No. 14, the Committee opined that the use of ‘shall be’ in Article 3, paragraph 1 (in all actions concerning children… the best interests of the child shall be a primary consideration), places “a strong legal obligation on States…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.” The Committee further states in paragraph 40 of the General Comment No. 14 that, ‘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.’

However, the process of determining what exactly is in the best interests of the child is a particularly delicate and often complex process. The elements to be used in the determination of best interests of a child will vary—and no one case can be determined based on parameters used in another case, or situation. The following section will look at the framework for assessment and determination of best interests of a child, and the use of the principle of BIC in various matters such as Asylum and Removal proceedings, and Custody and Family matters.

4. Implementing Best Interests of Child principle in Practice

4.1 Framework for Assessment and Determination of Best Interests of Child

Traditionally, implementation of BIC is based on two grounds, i.e. (i) Control criterion and (ii) Solution criterion. When the BIC principle is implemented to ensure that all rights and obligations towards a child have been fulfilled, it is known as Control criterion. The Control criterion is often found family law matters involving children, such as custody and divorce proceedings. Under the Solution criterion, the BIC principle assists a decision maker in finding the most appropriate solution for cases involving children. Such solutions must have a positive or the least negative impact on the children under consideration. The Control criterion is often found in immigration and asylum matters involving children, especially when determining the appropriate form of durable solution for unaccompanied or separated children. In General Comment No. 14, the Committee opines that assessment and determination of BIC is a two stage process. In the first stage, elements relevant to the assessment of BIC need to be identified, and relative weight assigned to each element needs to be determined. Subsequently, in the second stage, the elements need to be considered in assessing the best interests of the child, in such manner that it ‘ensures legal guarantees and proper application of the right.’ The Committee also opines (paragraphs 50-51) that when identifying elements relevant to assessing BIC, it is

… useful to draw up 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 to 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…When adding elements to the list, the ultimate purpose of the child’s best interests should be to ensure the full and effective enjoyment of the rights recognized in the Convention and the holistic development of the child. Consequently, elements that are contrary to the rights enshrined in the Convention or that would have an effect contrary to the rights under the Convention cannot be considered as valid in assessing what is best for a child or children.

In General Comment No. 14, the Committee identifies the child’s view, his identity, preservation of family environment, child’s situation of vulnerability, child’s care, protection and safety etc., as elements that need to be taken into consideration while assessing and determining a child’s best interests. It also recommends that in order to procedurally safeguard the rights of a child during the assessment of BIC, qualified personnel should be used, and legal representation should be made available for children, where necessary.

Australian jurisprudence, since the early 1980s has stressed on the primacy of the principle of BIC in determinations relating to children. Thus in 1997, in the case of B and B: Family Law Reform Act 1995, the Family Court held that the best interests of the child are the ‘paramount or pre-eminent consideration’; and also the ‘final determinant’ of the Court’s orders. The Court also held that freedom of movement is a general right recognized by Australian law; it would not prevail over the best interests of the child in any case.

4.2 Best Interests of Child in Asylum and Removal Proceedings

In the context of asylum and immigration proceedings, the principle of BIC is used extensively in cases where decisions have to be made regarding unaccompanied minors, and separated children, or where removal/ deportation proceedings are initiated against parents of a child, who enjoys the legal right to residence in the host country. In all such circumstances, determining whether a child should be repatriated to his country of origin, or be allowed to live in the host country, is a complex and delicate matter. Such determinations, often involve complex assessments under immigration and asylum law, specifically concerning regularization of residency for the child’s parents, if the parents are present illegally in the host country.

In May 2008, the UN High Commissioner for Refugees (UNHCR) issued the UNHCR Guidelines on Determining the Best Interests of the Child. These guidelines make it necessary for UNHCR to abide by the CRC, and the principle of BIC for all children below the age of 18 years, who fall within UNHCR’s mandate, whether they are refugee or asylum seeker. The Guidelines mandate that in three situations, the Best Interest Determination (BID) is mandatory. These include (i) when deciding on the appropriate form of durable solutions for the unaccompanied, or separated children, (ii) temporary care for unaccompanied, or separated children, and (iii) when there is a possibility of the child’s separation from his parents against their will. In all other circumstances, the best interest assessment (BIA) is sufficient. The Guidelines then go on to provide procedural rules for conducting a UNHCR mandated BID.

In the United States of America, the Courts have held that the best interests of the child, especially the child’s right to enjoy family life are an important consideration in deportation, or removal proceedings against the child’s parents, especially where the issue might be of future susceptibility of sexual and gender based violence. Thus, in the 2009 case of Benjamin v. Holder, the 9th Circuit Court determined that in arriving at a determination in a case involving grant of asylum, or removal proceedings; it was incumbent upon the Board of Immigration Appeals to consider not only the likely threat of future persecution that a child may face (in his, or her country of origin) but also the hardship that may be caused due to the deportation of the parents. In the 2002 case of Nwakolo v. INS, the 7th Circuit ruled that the age of the children was a relatively important factor in determining whether a child’s parents should be removed from United States territory or not. In this case, the Petitioner, Philomena Nwaokolo had two daughters who were both citizens of the United States (by virtue of their birth). In its determination, the Court held that the Petitioner’s younger daughter, ‘will presumably have no choice but to depart with Ms. Nwaokolo to Nigeria… and… would have to live with the threat of FGM for many years before she could choose to return to the United States…if the INS effectively compels … involuntarily relocate to Nigeria despite their United States citizenship.’

In June 2013, the European Court of Human Rights ruled in the case of MA & Others v. UK that the principle of BIC is a primary consideration for all decisions concerning a child, which are taken under the Dublin II Regulation. The Dublin II Regulation is a European Union law that prescribes the procedure to determine which European Union Member States is responsible for examining an application for grant of refugee status under international law. The European Court’s decision confirms that as children, especially unaccompanied and/or separated children from ‘a category of particularly vulnerable persons and prompt access to an asylum procedure and the prevention of unnecessary delays in the Dublin procedure are central to their best interests.’ Accordingly, the Court held that any unaccompanied and/or separated children who claim asylum in one particular European Union Member State cannot be transferred to another Member State pursuant to Dublin II Regulation.

4.3 Best Interests of Child in Family Law Matters

In family law related matters, the principle of BIC is applicable in a variety of proceedings, such as divorce, custody, visitation, adoption, the death of a parent, illegitimacy proceedings, abuse proceedings, neglect proceedings, and all forms of child protective services. In the United States, almost all states have legislations that require a child’s best interests to be taken into consideration when decisions regarding custody, protective placement, or other such critical matters are made. Some factors which must be taken into consideration when determining BIC in the United States include (i) importance of family integrity and removal of child from his, or her home (ii) health, safety and protection of the child (iii) presence of domestic violence in the child’s home (iv) capacity of parents to provide for the child’s needs, including food, clothes, medicines and a safe home (iv) bonding between the child and his family members, parents and siblings etc. Similar grounds have been identified and outlined by Courts in the African context as well. For example, in the 1994 case of Fletcher v. Fletcher from South Africa, the Court held that ‘In determining the best interests of the child, the Court must decide which of the parent is better able to promote and ensure his physical, moral, emotional and spiritual welfare.’ The Court then identified criteria such as (i) love, affection, emotional ties and parental compatibility with child (ii) character and temperament of the parent and impact thereto on the child (iii) capacity and disposition of the parent to give guidance that the child requires (iv) ability of the parent to provide for basic physical necessities of the child and other needs (v) fitness of the parents (vi) stability of the family and (vii) child’s preference as relevant factors which must be taken into consideration when assessing and determining a child’s best interests.

One of the earliest cases in United States jurisprudence on the issue of BIC is the case of Powel v. Cleaver from 1789. In this case, the child’s father had left him in care of a third party individual. When this third party individual died, he left an inheritance to the child and the child’s father reappeared to take custody of the child, as well as a lay claim to the inheritance. In order to make a determination best suited to the child’s interest, the Court assessed the conflicting interests of the child and his father and ruled that given the circumstances, absolute parental control would be detrimental to the child’s best interests. Powel v. Cleaver thus underlines that in the determination of BIC, distinctions will often have to be made between what the parents think is the child’s best interest and what the child’s best interest actually is—and a decision must always be based on the latter, and not on the former.

The use of the principle of BIC as a ‘legal standard’ (see paragraph 3.2, BIC as a three-fold concept as elucidated by the Committee) was first observed in the 1815 case of Commonwealth v. Addicks. In this case, the custody of two minor, female children were accorded to the mother, based on their young age, and the detrimental impact of separation from their mother. Three years after the initial custody judgment was granted, the girls’ father re-approached the court for a re-examination of the custody agreement. The father argued that it was in the best interests of the girls to stay with him and not their mother, as that would enrich their “moral fibre” by exposing them to the truth about their mother’s “adulterous” nature. While the Court accepted that the mother’s nature, and behavior were worthy of censure; it eventually decided to pursue the change in custody arrangement only gradually, and only after the girls had reached a certain age; recommending that there should be no abrupt removal from their mother so as to ‘avoid a violent shock either to them or their mother.’ Moreover, the Court stated that in no circumstance should the siblings be separated from each other, ruling that, ‘…it is important that the sisters should not be separated; when we decide for one, therefore, we must decide for both.’

5. Conclusion

Thus, we have seen how the principle of best interests of the child has been codified in international legal documents as well as domestic legislation. The fact that all major international, regional and domestic legislations have adopted the use of the principle of best interests of child attests to its importance in matters related to children. However, care needs to be taken in implementation of the principle to ensure that all factors relevant to the welfare of the child are taken into consideration whilst taking any decision concerning him, or her.

Reference

• http://www.ipjj.org/fileadmin/data/documents/treaty_bodies/CRC_GeneralComment14BestI nterests_2013_EN.pdf
• http://www.unicef.org.au/Upload/UNICEF/Media/Documents/Submissions/UA-submission-re-AustralianCitizenship-Amendment-Bill-2015.pdf
• http://ork.lu/files/Geneva/n14.pdf
• https://www.loc.gov/law/help/child-rights/international-law.php
• https://www.cry.org/resources/pdf/NCRRF/Aruna_&_Pratibha_2007_Report.pdf
• http://www.hrln.org/hrln/child-rights/pils-a-cases/1685-landmark-judgment-pronounced-by-sc-dealing-with-guardianship-a-custodial-and-visitation-rights-to-parents-and-children-stuck-in-matrimonial-disputes.html