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29 July 2013 | 08:09

Finally, a Definition of “the best interests of the child”

 

The “best interests” of the child is a notion which is almost always invoked in the promotion and protection of children’s rights. However, until now, this notion has not been clearly defined in international texts, a fact which has sometimes hindered its application. Nevertheless, the Committee on the Rights of the Child has just provided its interpretation.

In its General comment No. 14 titled “On the right of the child to have his or her best interests taken as a primary consideration,” the Committee on the Rights of the Child first emphasizes that the child’s best interests are defined in conjunction with the other general principles of the Convention on the Rights of the Child (CRC), such as nondiscrimination, the right to life, survival and development, as well as the right of the child to be heard.

The Committee experts assessed that multiple factors had to be taken into account when determining the “best interests” of the child:

  • the factual context of the particular situation,
  • the elements pertinent to evaluation of the child’s best interests,
  • the balancing of each interest against others.

Thereafter, one must follow a procedure which assures legal safeguards and an adequate application of the law.

According to General comment No. 14, the evaluation and determination of the child’s best interests are two steps to take before making any decision. “The evaluation of best interests” consists of evaluating and finding the balance between all the necessary factors which must be taken into account when making a decision in a specific situation, for a particular child or group of children.

The Committee considers the opinions of the child, his or her identity, the preservation of the family environment and the maintenance of relationships, the care, the protection and the security of the child, his or her position of vulnerability, and his or her right to health and to education to be fundamental factors in the evaluation and determination of the best interests of the child. It is possible that these factors are not pertinent in all cases and that there will be variations from one child to another and from one situation to another, but the requirement of an objective balance in the evaluation of the best interests of the child remains an intangible element.

Moreover, in the procedural safeguards aimed at assuring the primary consideration of the child’s best interests, the Committee underscores the necessary respect of the following elements:

  • the right of the child to express his or her opinions,
  • the establishment of facts by trained professionals with the required expertise in an environment and circumstances adapted for children,
  • the perception of time,
  • legal aid,
  • the motivation, the justification, and the legal explication of all decisions,
  • the mechanism of review and revision of these decisions, and
  • the evaluation of the impact of the decision on the use of the child of his or her rights.

BICE is very pleased with this interpretation and invites its network of members and all persons concerned with the defense of children’s rights to share in spreading the news.

To read General comment No. 14 in its entirety (in English).