Key elements of a Children's Rights Based Approach to legislative reform

Contents

Best interests of the child

Background

According to article 3(1) CRC, the best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.

The concept of the child's best interests is aimed at ensuring the full and effective enjoyment of all CRC rights and the holistic development of the child (CRC GC 14, para. 4).

The best interests of the child should, according to the CRC Committee, be seen as a threefold concept (CRC GC 14, para. 6):

A substantive right: Article 3(1) CRC creates an intrinsic obligation for States Parties, which should be protected under national law, through legislation among other means.
A fundamental interpretative principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves children’s best interests should be chosen.
A rule of procedure: The decision-making process of decisions affecting a specific child, a group of children or children in general must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Each decision must explicitly clarify how the best interests of the child have been taken into account and how that has affected the decision.

The best interests of the child principle is ‘a benchmark for the review of all proceedings in which decisions are taken regarding children’ (Sloth-Nielsen and Oliel 2019, p. 13). This includes children’s rights legislative reform.

Best interests assessments and determination

When making a decision on matters affecting a child, two steps should be followed:

Best interests assessment:

This requires evaluating and balancing all the elements necessary to make a decision in a specific situation for a specific individual child or group of children. It is carried out by the decision-making authority – if possible, a multidisciplinary team – and requires the child’s participation.

Best interests determination:

This is a formal process with strict procedural safeguards designed to determine the child's best interests on the basis of the best-interests assessment (CRC GC 14, para. 47).

The CRC Committee maintains that the following elements need to be taken into account when assessing and determining the child’s best interests:

The child’s views, in line with article 12 CRC. This includes very young children and children in vulnerable situations (CRC GC 14, paras. 53-54).
The child’s identity, such as sex, sexual orientation, national origin, religion and beliefs, cultural identity and personality (CRC GC 14, paras. 55-57).
Preservation of the family environment and maintaining relations (CRC GC 14, paras. 58-70).
The child’s care, protection and safety (CRC GC 14, paras. 71-74).
The child’s situation of vulnerability. The best interests of a child in a specific situation of vulnerability will not be the same as those of all children in the same vulnerable situation (CRC GC 14, paras. 75-76).
The child’s right to health (article 24 CRC): if multiple treatments are possible for a health condition or if the outcome of the treatment is uncertain, the advantages of all possible treatments must be weighed against the rights and side effects, and the child’s views must be given due weight in accordance with their age and maturity (CRC GC 14, paras. 77-78).
The child’s right to education (articles 28 and 29 CRC): access to quality and free-of-charge education, including early childhood education, non-formal or informal education and related activities, is in the child’s best interests (CRC GC 14 para. 79).

Child-friendly procedural safeguards must also be established to guarantee the implementation of the child’s best interests (best interests as a rule of procedure). States Parties should pay particular attention to the following (CRC GC 14, paras. 85-98):

Right of the child to express their own views (article 12 CRC).
Establishment of facts by well trained professionals to draw up all necessary elements.
Time perception, as time is perceived differently by adults and children. As a result, delays or prolonged decision-making processes may have particularly adverse effects on children.
Qualified professionals for the best interests assessment.
Legal representation for children when their best interests are being formally assessed and determined by courts or equivalent bodies.
Legal reasoning behind any decision concerning children.
Establishment of mechanisms to review or revise decisions.

The CoE Guidelines on child-friendly justice provide that, when assessing children’s best interests, States should:

give due weight to the concerned children’s views and opinions;
respect all other children’s rights at all times;
ensure that all relevant authorities adopt a comprehensive approach, in order to take due account of all interests at stake (e.g. psychological and physical well-being, or legal, social and economic interests).

Further guidance can be found in the CRC Committee’s general comments.

The best interests of the child have been referred to as the guiding principle concerning children in regional and domestic case law around the world, in family law matters, child protection cases, juvenile justice proceedings, migration- related cases and so forth.

For further guidance, see for example: FRA, 2022, European Handbook on the rights of child; UNHCR, 2021, best interests procedures guidelines)

Implications for legislative reform

In the legislative reform process

When undertaking a children’s rights legislative reform process, the best interests of the child should be regarded as a primary consideration during the review and reform of legislation.
A best interests assessment and a best interests determination should be part of the reform process.
The inclusion of the views of children themselves should be considered an essential element of children’s rights legislative reform process, in which the best interests of the child play a pivotal role.

For information on how this right should be implemented in practice to support children in participating in the legislative reform process:

In the substance of legislation

Legislation should be reviewed and amended where necessary to explicitly incorporate the principle of article 3(1) CRC.

States Parties must ensure that the right is reflected in all legislation, policies and practices of institutions providing services to or impacting children, as well as judicial and administrative proceedings.

E.g.: Child Rights Code Georgia.

Article 5 – Giving priority to the best interests of the child

1. When making any decision related to the child, the child shall be entitled to have his/her best interests respected and this right shall be determined in respect of an individual child in accordance with this Code, the Constitution of Georgia, the Convention on the Rights of the Child, its supplementary protocols and other treaties of Georgia.

2. In determining the best interests of the child, the right of the personal development of the child in the family environment, the social and cultural characteristics of the child, the opportunity of the child to exercise rights and freedoms individually, and the opinions of the child, shall be taken into account.

3. It shall be a binding obligation for the legislative and executive authorities, the judiciary, and the public institutions and natural and legal persons of Georgia, to give priority to the best interests of the child when making decisions and/or taking any action in relation to the child.

4. When interpreting a legal provision, it shall be interpreted with a view to the best interests of the child in accordance with this Code, the Constitution of Georgia, the Convention on the Rights of the Child, its supplementary protocols and other treaties of Georgia.

5. The State shall take all necessary measures in order to ensure that legislative and executive authorities, the judiciary, and the natural and legal persons of Georgia, determine the best interests of the child and make any mandatory assessment in accordance with the following fundamental criteria:

a) understanding the opinion of the child and considering the child's opinion in a proper manner;

b) protecting all other rights of the child, among them ensuring the protection of dignity, free development, education, healthcare and social security, and protection against all forms of violence, and ensuring the equal treatment of the child;

c) assessing and taking account of the psychological and physical well-being, and the legal, social and economic interests, of the child, through a multidisciplinary approach with specialists.

6. Decisions affecting the rights of the child shall be made, and actions shall be carried out, on the basis of the assessment of the best interests of the child.

7. The programs for protecting and supporting the rights of the child provided for by this Code shall be carried out in accordance with the principle of giving priority to the best interests of the child.

E.g.: Zambia The Children’s Code Act, 2022

3. (1) A child’s best interest is the primary consideration in a matter or action concerning the child, whether undertaken by a public or private body.

(2) A court, an administrative institution or an authorised officer shall in determining the best interests of a child have regard to -

(a) the ascertainable feelings and wishes of the child concerned, having regard to the age and understanding of the child;

(b) the child’s physical, emotional and educational needs and in particular, where the child has a disability, the ability of a person or institution to provide the special care or medical attention that may be required for the child;

(d) the child’s age, sex, religious persuasion, cultural background and any characteristics of a child which the court or an authorised officer considers necessary;

(e) any harm which the child has suffered or is at risk of suffering;

(f) the ability of a parent or a person having parental responsibility for the child to meet the child’s needs;

(g) the strength of the relationship between a child and the child’s parent or a person having parental responsibility for the child;

(h) where a child’s parents have joint custody, the willingness of the parents to cooperate and co-parent;

(i) the customs and practices of the community to which the child belongs except where the customs and practices are repugnant to justice and morality;

(j) the child’s exposure to, or use of, drugs or precursor chemicals and, in particular, whether the child is addicted to drugs or precursor chemicals, and the ability of a person or institution to provide special care or medical attention that may be required for the child; and

(k) other matters that the court, an administrative institution or an authorised officer considers necessary.

(3) A court, an administrative institution, an authorised officer or a person acting in the name of an administrative institution, exercising a power conferred by this Act or any other written law in relation to a child, shall treat the best interests of the child as the first and paramount consideration to the extent that the—

(a) best interests of the child safeguards and promotes the rights of the child;

(b) best interests of the child conserves and promotes the welfare of the child; and

(c) court, an administrative institution, an authorised officer or a person acting in the name of an administrative institution secures for the child guidance and correction as is necessary for the welfare of the child and in the public interest.

The incorporation of the principle of the best interests of the child as a constitutional right should be considered.

E.g.: The Constitution of the Kingdom of Norway recognises the best interests principle similarly to CRC Art.3(1), stating that “the best interests of the child shall be a fundamental consideration” in all “actions and decisions that affect children”.

E.g.: As amended in 2011, the Political Constitution of the United Mexican States provides that: “The State, in all decisions it makes and all actions it carried out, will safeguard and comply with the principle of doing what is in the best interest of children, thus entirely guaranteeing their rights” (article 4).

States Parties can also go further than article 3(1) CRC, and provide additional protection to children’s best interests that extends beyond the Convention.

Section 28(2) of the Constitution of the Republic of South Africa provides that “A child’s best interests are of paramount importance in every matter concerning them”. This provision goes beyond the CRC standard in article 3.1, by requiring that children’s best interests are regarded as being of “paramount importance” rather than “a primary consideration”.