Best Interests of the Child

Topics: Human rights, Convention on the Rights of the Child, Children's rights Pages: 39 (13187 words) Published: November 14, 2012
The Best Interests of the Child
Literal Analysis, Function and Implementation

Working Report 2010

The Best Interests of the Child
Literal Analysis, Function and Implementation

Jean Zermatten

Plan of the presentation
1. Introduction: the child as a subject of rights

2. The general principles of the Convention on the Rights of the Child

3. The best interests of the child (Article 3) a) The concept and a literal analysis      Concept Literal analysis Paragraph 1 Paragraphs 2 and 3 “Best interest” and other articles of the CRC

b) Functions and characteristics c) Objectification of the principles: the example of the UNHCR d) Art. 3 and 12 of the CRC: opposition or complementarity?

4. The best interests’ principle: general measures of implementation 5. Conclusion 1

Copyright jz, nov. 09




The Convention on the Rights of the Child (hereinafter CRC) is not a neutral text simply enumerating a list of rights. Without doubt, the Convention is the enumeration of those rights to whic the child is entitled, but it is also much more than this. The CRC creates a new democratic dynamic. In the past, the child, as described by the Geneva Declaration (1924) and the Declaration on the Rights of the Child (1959) was seen as an object in need of attention and protection. Since the promulgation of the CRC in 1989, however, the child has been understood to be a subject of rights. The near-universal ratification of this human rights instrument lends significant force to the new status of the child. This latter statement is not a rhetorical declaration. Through different principles and articles, the CRC has established this concept of the child as a subject of rights. The foundation of this new juridical position lies, in my opinion, in two interdependent articles; Article 3 (the best interests of the child) and Article 12 (the views of the child), which together recognize the right of the individual child to express her/his opinions in all matters affecting her/him. These two articles are considered to be two of the four general principles of the Convention, but are, first and foremost, distinct individual rights:  The right to have her/his best interests evaluated; and  The right to be heard and to have her/his opinion taken into account. These rights are not only available to every single child, but are also extended to children as a group of human beings defined according to their age (under the age of 18 as provided by the Convention on the Rights of the Child). Articles 3 and 12 are the “clé de voûte” of this challenging posture. 20 years after the United Nations promulgated the Convention, many questions remain unanswered regarding the actual impact of this newly recognized status of the child at the national level, in relevant legislation and in various other settings. The purpose of this presentation is to concentrate on the first of these two articles – Article 3 (the best interests of the child). Our objective is to analyze the content and functions of Article 3 and to highlight the linkages with Article 12 in order to answer this difficult question: Are Articles 3 and 12 in diametric opposition or are they complementary provisions? In fact, the UN Committee on the Rights of the Child faces a difficult task under its monitoring mandate: how to resolve the tension raised by Article 3 (which could be interpreted as a “welfare” article and is based on an idea of dependency and vulnerability of the child/children and the necessity of protective measures) and Article 12 (a participative article that is based on the idea of the capacities and competencies of the child and the importance of her/him having the opportunity to influence relevant decisions related to her/his life). The answer is most likely to be found in the “rights-based approach,” or in giving effect to the obligations deriving from the position of the child/children as effective and substantive rights-holders....

Links: UNHCR Guidelines on Determining the Best Interests of the Child, May 2008. UNHCR, op. cit.. 9. See General Comment No. 12 (2009), The right of the child to be heard, (CRC/C/GC/12).
Van Bueren, op. cit. p. 35. See also Hokkanen vs Finland (1993) 19 EHRR 139, para. 61.
Idem, para. 45. Idem, para. 46. General Comment No. 7 (2005), Implementing child rights in early childhood (CRC/C/GC/7/Rev.1),
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