Student ID : 192256103EShanghai University of Political cience and Law
Article Supervisor: Ezra Wasserman Mitchell
Keywords : best interests, international law, United Nations Convention, Article 3, analysis, criticism, rights of the child
Abstract
The notion of the best interests of the child as it is understood today is quite different from what it was in the past. Its evolution has been exponential, from the interest to the child to the interest of the child. It is the result of a long reflection, marked by the evolution of the forms and foundations of the family, of the conception of the child, of knowledge about childhood, and of the place that the child occupies in the family and society.It is under the impulse of Janusz Korczak that the reflection started at the international level. Indeed, at the beginning of the 20th century, this Polish pediatrician wrote a book on the right of children to respect and on the way they should be loved1. It is from his ideas that the United Nations based their work on the rights of minors. In 1959, the United Nations issued a declaration on the rights of the child. This impulse towards children and their consideration was explained by the reaction of nations to the horrors of the genocides perpetrated during the last century. As a result, it was Poland, Korczak's homeland, that asked the United Nations to transform the 1959 declaration into the International Convention on the Rights of the Child.
While the 1959 Declaration considered the child more as an object of law, the International Convention on the Rights of the Child sees him as a subject of law. Indeed, while the child needs protection and education, he or she is capable of thinking and expressing an opinion on his or her interests. Thus, for the first time, a legal norm of international law recognizes the subjective rights of the child, that is to say, "prerogatives attributed to an inpidual in his interest allowing him to enjoy a thing, a value or to require from others a performance".
As Ms. Guillemette Meunier rightly points out, "since its entry into force, it is the most widely accepted human rights convention in the United Nations system. It has been ratified by all but two of 193 States: Somalia and the United States, which have signed the instrument but have not yet become parties to the Convention. No other human rights treaty has enjoyed such worldwide acceptance. This near-unanimity is indicative of the unprecedented reach of the convention. It also shows the extent to which the human rights dynamic that drives the Convention has transcended the State parties to ensure its optimal implementation.
Introduction
From birth, a baby is in a process of extremely rapid growth and development. As the child grows, it develops cognitive, physical, social, emotional, and moral faculties, the acquisition of which influences communication, decision-making, the exercise of judgment, the recording and evaluation of information, empathy, consciousness, in short, all the faculties and capacities necessary for a human being. This period of life is called childhood.
According to the United Nations Children's Fund (UNICEF) Innocenti Centre, childhood is viewed in extremely perse ways around the world. It is impossible to find a universal consensus on what children need for optimal development, what environments are best suited to meet those needs, and what form and level of protection is appropriate for a specific age. Indeed, there is not even agreement on the nature of childhood, the transition from childhood to adulthood, or the hopes that families have for their children. However, in the face of this persity, the Convention on the Rights of the Child, which has now been ratified by almost every country in the world, has established universal principles and a normative framework for all children. "Reforming the world implies reforming the methods of education of tomorrow," wrote Janusz Korczak. But our children are to be respected today, without further delay, he also emphasized. The right of the child "to respect" is one of the recurring themes of his writings. "It is as if there were two lives," he said. "One, which is taken seriously and respected, and the other, which is tolerated with some indulgence, to which less interest is given. We are talking about the future adults, the future workers, the future citizens that the children will be and that we will only take seriously or start to take seriously later on. What was he asking for? Neither charity nor favor, but the recognition of the child's right to more respect for his or her interests. Do not children symbolize the durability of the family, the group, the nation, even humanity? Beyond words, we must ask ourselves, as Janusz Korczak did, if the idea is translated into reality.
The purpose of this article is to review the best interests of the child principle while examining the reasons why it has attracted so much criticism to shed light on its purpose and use.
International legal framework of the best interests of the child
The United Nations Convention on the Rights of the Child (in its abridged form CRC or UNCRC) is an international treaty adopted by the General Assembly of the Organization of United Nations on November 20, 1989, to recognize and protect the specific rights of children. It introduces the concept of the best interests of the child (BIC), a general principle of legal interpretation under international law, and enshrines the transition of the child from the object of law to the subject of law. Best interests or best interests of the child is a child rights principle, enshrined in Article 3 of the UN Convention on the Rights of the Child. It 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". Assessing the best interests of a child means to evaluate and balance "all the elements necessary to decide in a specific situation for a specific inpidual child or group of children".
The Convention on the Rights of the Child does not give a strict definition of this notion. According to a written statement from United Nations High Commissioner for Refugees (UNHCR), although the term 'best interests' generally describes the well-being of the child, it is not possible to give an exhaustive definition of what the best interests of the child include, as this depends on a multiplicity of inpidual circumstances, such as the age and degree of maturity of the child, the presence or absence of parents, the child's environment, etc. However, it tends to reinforce the protection of the child. Therefore, when making decisions concerning a minor, it allows for the preservation of his or her well-being and right to develop in an environment conducive to his or her mental and physical health. This concept reinforces the status of the child as a subject of rights but in no way gives the child decision-making power.
The Convention on the right of the child
Although children's rights are contained in several international legal instruments, the Convention on the Rights of the Child (CRC) is the authoritative international legal instrument for the protection of human rights relating to children. Almost universally endorsed, the CRC recognizes the inherent human dignity of all children, the urgent need to ensure their protection, well-being, survival, and development, and draws attention to the concept of the child as a holder of human rights. It is to be considered as a whole. Article 3 on the "best interests of the child" is one of the four overarching principles for implementing the full range of rights in the Convention. However, the Committee on the Rights of the Child has not proposed criteria for judging what is in the best interests of the child.
The four core articles are all related to each other. Accordingly, Article 2 relates to the right to non-discrimination, and Article 6 relates to the right to survival and development, and they must be taken into account in determining what constitutes the best interests of the child in a given situation. In addition, taking into account the views of the child (Article 12) supports the decision-maker in determining the best interests of the child. Apart from Article 3, the three other general principles recognized by the Convention are the following :
Article 2: States parties shall respect and ensure the rights outlined in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national,ethnic or social origin, property, disability, birth, or other status.States parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment based on the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
According to Jean Zermatten (Swiss jurist, former Chairman of the UN Committee on the Rights of the Child from 2011-2013) in his article ''The best interests of the child'', these provisions are like pivots around which all the rights set out in the other articles of the text are articulated. He believes, and in my opinion rightly so, that any right in the Convention can only be considered if all children, regardless of race, color, sex, language, religion, political opinion, etc., can enjoy it, and that there is no other way of finding out the child's opinion than to hear him or her in person, as soon as he or she is capable of discernment. It is therefore clear that without these pivotal provisions, the Convention would be ineffective, and would only offer an empty enumeration of rights, like a list of claims, without providing the means for enforcement. In addition to these four principles, the CRC ensures several fundamental rights which include, among others, the need to protect children from abuse, exploitation, and neglect, and the importance of the child's physical and intellectual development. It also pays particular attention to the role of the family in caring for the child, as well as to the special protection of children seeking asylum or refugee status.
The other important aspect of the Convention is that it does not consider the child as an isolated inpidual. On the contrary, it gives him or her the status of a member of a family and a community and recognizes their need for support to develop and prosper. Actions to realize the rights of the child can therefore be considered within and through relationships between the State, parents (and/or guardians), and children.
Analysis of Article 3 on the best interests of the child
The third article which enshrines the principle of the best interests of the child is the one that is the subject of this article, and it is essential to analyze it to better understand it. As stated earlier, the article itself, if analyzed, does not give any particular explanation of how to apply it, nor does it set out any particular duties or rules. It just states a principle: "the best interests of the child shall be a primary consideration." Let's try to see a bit more clearly, by analyzing the elements of this article.
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies", Jean Zermatten considers that it is a very general concept that defines all interventions made concerning children. We note here the use of the terms "public or private social welfare institutions", "courts of law", "administrative authorities" etc which has the merit of clarifying the scope of the intervention: it must come from an authority (judicial, administrative, legislative) and not from a private authority (parents). Does article 3, therefore, intend not to interfere in the parental sphere (family decisions) through the obligation to apply the principle of the best interests of the child ?
It is legitimate to ask whether this wording is appropriate because it seems from his point of view and mine that in family interventions, the same principle should intervene as a means of measuring the decision. In our opinion, the legislator, out of respect for the principle established in article 5 (States Parties shall respect the responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians, or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. ) of the Convention, did not want to enter the family sphere, which explains this choice of words.
But this does not in any way exclude the application of the principle of the best interests of the child in domestic situations; that should be self-evident. It would be difficult to understand why only the authorities should be bound by the principle, while families are not obliged to be so. The answer to this question is certainly to be found in article 18, which imposes as a "guide" for the upbringing of the child and for ensuring his or her harmonious development, the principle of the best interests of the child. It is clear, however, that the private sector does not fall under the legal obligation, since the State in principle does not interfere with what happens within the strict family framework and there are no possibilities, except for special application provisions provided for by the national legislation. Another essential point of this formulation is that, compared to 1981, the term "legislative bodies" has been added in the draft text. This small addition is of great importance: it means that, when making a law, the State must verify that children are taken into account and that their best interests are safeguarded.The best interests of the child take on a new function: to serve to establish, in a legislative program, what is good for the child and what is not. The use of the word "children" in the plural in the first line should also be taken into account. The Committee on the Rights of the Child has interpreted the use of the plural to mean that the article applies to both inpidual children and groups of children, thereby increasing its relevance in terms of policy direction and action.
"whether undertaken by public or private social welfare institutions": this means that the legislator wants to subject the whole sector of intervention (whether public or private) in favor of children to the obligation to respect this principle. We are aware of the services rendered by countless associations, foundations, and NGOs in the care of children (nutrition, schooling, care, reintegration); but we also know that certain people profess sectarian ideologies and use children for purposes that are prejudicial to their rights and interests. It, therefore, seems necessary to subject this entire sector to the principle of the best interests of the child.
"best interests": should the qualifier "best" be given special weight? Some critics have built on the use of this superlative, arguing that "best interests" meant that in all circumstances, the child's interests should take precedence, as "better" than any other interest. Such a literal interpretation would make the child an exceptional being who, from the moment he or she interfered with other non-children or other social bodies, would necessarily have to be right. According to the author, this position is untenable, because if we put article 3 (paragraph 1) in relation to article 5, for example, we understand that the child is not a person inpidualized to the extreme, but remains a member of his family and member of the community. It is by no means a question of idealizing him or of always giving him priority. For him, "interest" and "superior" put together simply mean that what must be aimed at is the "well-being" of the child, as defined several times in the Convention, notably in the preamble.
"shall be a primary consideration": this means that the general concept of best interests is not sufficient on its own; it must still be imposed, affirmed as a rule of application. This is the purpose of this phrase: to make the best interests of the child a primary consideration. If we make a literal analysis, we realize that the legislation speaks about "a primary consideration" and not "the primary consideration". It is all in the nuance! This nuance means that in the situation where the authority (judicial, administrative, political) intends to make a decision, it must give special importance to the best interest of the child, but this interest will not systematically prevail over all other interests (of the parents, of the other children, of the adults, of the State).
Does this article "one" used instead of "the" weaken the principle? The question of whether to write "a" or "the" primary consideration was hotly debated. In the end, it was agreed that, given the broad scope of Article 3, situations would inevitably arise in which other conflicting but legitimate interests could not be ignored. Hence the choice of the indefinite article "a" for a less categorical wording "a primary consideration". The best interests of the child are therefore not, in principle, the "only" consideration, but they must be one of the first elements to be taken into account and given weight in all decisions concerning children.As to whether this choice of word weakens the principle, according to Jean Zarmatten, and in my opinion, it does not, but it gives it its rightful place, since it establishes the obligation to consider in all official decisions the best interests of the child. It is a balancing act to not systematically rule in favor of the child. It would not be desirable for the child's interest to be superior to any other interest and to systematically prevail. This would be the basis of a republic of children, not in the sense that Korczak meant it, but in the sense that the child would be put on a pedestal, or pampered too much. Such a position would run counter to the protection due to children and would cause the disappearance of the rights of the child.
What is meant by "best interests of the child"?
Governments or adults sometimes improperly invoke the principle of the best interests of the child to justify measures that infringe on children's rights. Some have defended corporal punishment, for example, on the grounds that it teaches children what limits they should not cross and is therefore done for their long-term "good". Others have taken indigenous children away from their families and forced them into boarding schools to "civilize" them, again in the name of their best interests. These actions are not good for the children and are not in their best interests. They are not based on a genuine concern for the best interests of the child, but extreme condescension. There is nothing in the Convention on the Rights of the Child to validate them. The principle of the best interests of the child cannot be invoked to justify a violation of his or her rights. This is not the purpose of the Convention.However, the best interests of the child cannot always be clearly and precisely defined. This has led to heated debates about the interpretation of Article 3 and the best interests principle, which has been criticized as being too vague and too general. It has been argued that what is in the best interests of the child varies from time to time and depends in any case on the resources, level of development, and culture of the country in which the child lives.
The set of standards set out in the Convention provides a good basis for determining what is in the best interests of the child. For example, it is in the best interests of the child to be educated (art. 28), to have family relations (art. 8), and to know and be cared for by his or her parents (art. 7). Similarly, the Convention sets out what is not in the best interests of the child, namely, to be exposed to any form of violence (art. 19), to be unduly separated from his or her parents (art. 9), to be subjected to traditional practices prejudicial to his or her health (art. 24), to perform work that is likely to be hazardous or harmful to him or her (art. 32), or to be otherwise exploited or abused (arts. 33-36).
The existence of cultural differences, however, may justify different approaches and strategies for information and education to children's rights. In addition, different family structures, different levels of education, and different living conditions are factors that cannot be ignored. It is essential to take these differences into account when developing a strategy for implementing the Convention. The Convention itself is universal. Indeed, its strength is that it defines rights that transcend cultural, religious, and other boundaries.
1.3- Criticisms of the best interests of the child principle
Concerns were raised about the enshrinement of an excessively inpidualizing ideology of the child, erasing the notion of parental authority, making parents or those responsible for the child mere spectators, optional educators with equal rights and duties with the child, and whose function would be subordinated to the child's interest. The absence of a strict definition, the risk of parental erasure and abuse of authority by the judicial and administrative authorities are denounced.
1.3.1- The risks involved in the ambivalence of the notion of the best interests of the child
According to the author Julie Pascal in "Les Perspectives d'évolution du droit de la filiation en considération de l'intéret supérieur de l'enfant" (Prospects for the evolution of the law of filiation in consideration of the best interests of the child), two diametrically opposed observations can be made: on the one hand, in a positive sense, this vagueness makes it possible to distance oneself from an overly mechanical and theoretical application of the law to arrive at humanized solutions, thus reminding those who may have forgotten that the law is part of the human sciences; on the other hand, this time in its more negative sense, the absence of a definition of the best interests of the child appears to be open to criticism, since each person can understand it in his or her way, according to his or her convictions and personality.
Indeed, the subjectivity of each judge is then highlighted and may lead to as many different answers as judges are having to give a ruling. If each judge can reach a different decision from that of a peer, there is a great danger of arbitrariness and, in turn, legal uncertainty for the children affected by the decision.This fear is not new: the risk has long been denounced by eminent jurists. Among them, we should mention first and foremost Jean Carbonnier, who wrote as early as 1960: "This is the magic notion. Nothing is more likely to encourage judicial arbitrariness"; or "the interest of the child is in the law, but what is not there is the abuse that is made of it today." We also owe him the assertion that the interest of the child is a notion with "variable content".
1.3.2- Lack of objective definition leads to deep-rooted fears
Jean Carbonnier was not the only one to take a highly critical view of the notion of the best interests of the child. For example, we can quote, in a non-exhaustive manner, Mrs. Gobert, Professor Emeritus at the University of Paris II Panthéon-Assas, who described the best interests of the child as being "conducive to judicial arbitrariness" or as "opening the door to all kinds of interpretations", with each judge risking making his or her decision based on his or her personality and not on the real interests of the child.
Professor Rubellin-Devichi also wrote that "giving the judge the right to decide on the basis of the child's interest is giving him the right not to apply the law". Mrs. Dekeuwer-Défossez indicates that the interest of the child is similar to a "box where each one puts what he wishes to find", without forgetting Mrs. Théry who qualified in 1985 the notion of "elusive, changeable". We can also quote Mr. Bill Hilton, the very first American specialist of the Hague Convention, who notes that "the interest of the child is a piece of rubber; the judge pulls on it to give it the shape he wants". According to Julie Pascal, it is necessary to keep in mind that it is impossible to give an objective definition of the best interests of the child: this would mean considering that the interest is identical for all children, even though each child is unique and lives in a family and social context that is specific to him or her. To give an objective definition of this interest would therefore be to create a sort of catalog of preconceived answers, identical whatever the concrete situation, which is inconceivable in practice given the multitude of situations encountered by judges. In the absence of an objective definition, which would be irrelevant, judges must therefore apply themselves to seeking the child's interests. This may result from a questioning of the child's situation, concretely, but also ethically.
She believes, and in my opinion rightly so, that the obligation for judges to give reasons for their decisions is a procedural element whose respect is crucial to the proper functioning of justice. It is certain that without sufficient motivation, doubt would be allowed as to the real reasons that led the judge to decide in one way or the other. But today, it is the procedural obligations that are the safeguards against possible abuses. Judges have the duty to seriously and serenely question themselves concerning each situation to be dealt with, while constantly bearing in mind the obligation to provide a real and clear justification for the reasons that determined their choice.
Conclusion
For thousands of years, the child has been considered as an object of rights by adults. For an evolution to begin, it was necessary to wait for the adoption of the Geneva Declaration in 1924, a historic text that affirmed for the first time the existence of specific rights for children. However, its lack of binding force for the signatory States has had no real impact on the daily life of children.
It indeed took a long time to finally see the child become a subject of law. It has been done since the advent of the 1989 International Convention on the Rights of the Child, whose worldwide success has been particularly acclaimed. What would have happened if the New York Convention had not existed? According to Julie Pascal, it is easy to imagine that the intense reflection that took place around the status of the child, his protection, and his best interests, would have been extremely slow, or even non-existent. This would have led to stagnation in the evolution of juvenile law. However, the existence of this International Convention on the Rights of the Child and its will to make the best interests of the child prevail in any situation is the best thing that could happen for the functioning of the justice of the States, and I rely entirely on this observation.
Jean Zermatten, for his part, considers the best interests of the child to be an inescapable concept, it has many faults, but it also has enormous qualities: its flexibility, its adaptability, its richness in respecting completely different legal, cultural and socio-economic contexts. It cannot be detached from the context of the Convention on the Rights of the Child and it must be linked to other rights, in particular to that of art. 2 (non-discrimination) and the voice of the child (art. 12) and his or her participation (arts. 14, 15, 16).
Finally, it can be explained by the development of ideas from Antiquity to the present day, contemporary ideas which have consecrated the advent of the child as a person in his own right. It has therefore become the legal instrument necessary to enforce this modern status. Despite all the criticisms, the criterion of the best interests of the child has only gained in importance, that is to say, if it were eliminated for its weaknesses, there would be no substitute.
List of references
UNHCR-Directives du HCR sur la Détermination Formelle de l’Intérêt Supérieur de l’Enfant Communiqué Provisoire, mai 2006
Jean Zermatten : L'INTÉRÊT SUPERIEUR DE L'ENFANT
Bureau de recherche de l’UNICEF : Défendre les droits de l’enfant Rapport de synthèse de l’étude mondiale sur les institutions indépendantes de défense des droits de l’enfant
Principes directeurs du HCR relatifs à la détermination de l’intérêt supérieur de l’enfant
Thomas Hammarberg : LE PRINCIPE DE L'INTÉRÊT SUPÉRIEUR DE L'ENFANT : CE QU'IL SIGNIFIE ET CE QU'IL IMPLIQUE POUR LES ADULTES, Article disponible en ligne à l'adresse : https://www.cairn.info/revue-journal-du-droit-des-jeunes-2011-3-page-10.htm
Julie PASCAL : Les PERSPECTIVES D’ÉVOLUTION DU DROIT DE LA FILIATION EN CONSIDÉRATION DE L’INTÉRÊT SUPÉRIEUR DE L’ENFANT
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