College 1
Artikel: Convention on the Rights of the Child – General comment
No. 14 (2013) on the right of the child to have his or her best
interest taken as primary consideration.
Introduction
The best interests of the Child; a right, a principle and a rule of procedure
1. Article 3, paragraph 1, of the Convention on the Rights of the Child
gives the child the right to have his or her best interests assessed and
taken into account as a primary consideration in all actions or decisions
that concern him or her, both in the public or private sphere.
one of the four general principles of the convention, applying it as a
dynamic concept requiring assessment appropriate to the specific context.
2. The ‘child’s best interest’ is not a new concept as it predates the
Convention.
3. The Convention also refers to the child’s best interest in articles 9, 10,
18, 20, 21, 37c, 40.2b.
4. The child’s best interests is aimed at ensuring both the full and
effective enjoyment of all the rights recognized in the Convention and the
holistic development of the child. “an adults judgement of a childs best
interest cannot override the obligation to respect all the child’s rights
under the Convention” – no hierarchy of rights in the Convention, all rights
are in the childs best interest and no negative interpretation could
compromise it.
6. The child’s best interest is a threefold concept
a) A substantive right; the right of the child to have her best interest taken
as a primary consideration, and a guarantee that this right will be
implemented whenever a decision is made concerning a child.
b) A fundamental, interpretative legal principle; if a legal provision is open
to multiple interpretations, the one which most effectively serves the
childs best interest should be chosen.
c) A rule of procedure; with each decision the process must include the
evaluation of the possible impact it has on the child(ren). The justification
must show that the best interest of the child has been taken into account.
Structure
8. Present general comment only focuses on article 3, paragraph 1. Not
paragraph 2/3.
Objectives
,10. To ensure the application of and respect for the best interests of the
child. This general comment defines the requirements for consideration in
all (judicial and administrative) decisions and actions concerning the child
and all implementations concerning children.
11. To provide a framework for assessing and determining the childs best
interests, which is a dynamic concept that is still continuously evolving.
12. To strengthen the understanding and application of the right of
children to have their best interests assessed and taken as a primary (or
paramount) consideration. To promote real change in attitudes leading to
the full respect of children as right holders.
Nature and scope of the obligations of States parties
13. Respect and implement the right of the child to have his or her best
interests assessed and taken as a primary considerations, and must take
all measures for it’s full implementation.
14. A framework with three different types of obligations for States parties
a) to ensure that a child’s best interests are appropriately integrated and
consistently applied in every action.
b) to ensure that all judicial and administrative decisions etc. Concerning
children demonstrate that the child’s best interests have been primary
consideration.
c) to ensure that the interests of the child have been assessed and taked
as a primary consideration in decisions and actions taken by a private
sector, entity or institution.
15. States should ensure that the best interest of the child are are a
primary consideration in all actions including laws, policies, possibility for
complaints, data collection, training on article 3, paragraph 1, appropriate
understandable language for children and their caregivers,
communication programes involving mass media and social networks.
16. For prioritising the child’s best interests, these parameters should be
borne in mind:
a) The universal, indivisible, interdependent and interrelated nature of
children’s rights; b) Recognition of children as right holders;
c) The global nature and reach of the Convention
d) The obligation of States parties to respect, protect and fulfill all the
rights in the Convention;
e) Short-, medium- and long-term effects of actions related to the
development of the child over time.
Legal analysis and links with general principles of the Convention
A. Legal analysis of article 3, paragraph 1.
,1. “In all actions concerning children”
a) ‘In all actions’ every action (decisions, acts, conduct, proposals,
services, procedures etc.) relating to a child/children has taken into
account their best interests as a primary consideration. Inaction or failure
to take action are also actions.
b) ‘concerning’ all decisions and actions that directly or indirectly
affect children. A lot of actions taken by a State affect children in some
way; only where a decision will have a major impact on a child/children, a
greater level of protection and detailed procedures to consider their best
interests is appropriate.
c) ‘children’ all persons under the age of 18 within the jurisdiction of a
State party have the right to have their best interest taken as a primary
consideration, and the State is under this obligation. Children are not only
individuals, there is also children in general or as a group, their best
interests should also be taken as a primary consideration. It is an
individual and a collective right. But article 3, paragraph 1 implies that the
best interests of a child must be assessed individually.
2. “By public or private social welfare institutions, courts of law,
administrative or legislative bodies”
The obligation of the States to duly consider the child’s best interests
encompasses all public and private social welfare institutions, courts of
law, administrative authorities and legislative bodies involving or
concerning children. Parents’ ‘basic concern’ will be the best interest of
their child.
a) ‘public or private social welfare institutions’
all institutions whose work and decisions impact on children and the
realization of their rights; economic, social and cultural rights, institutions
dealing with civil rights and freedoms.
b) ‘courts of law’
courts refer to all judicial proceedings, in all instances and all relevant
procedures concerning children, without restriction. In criminal cases, the
best interests principle applies to children in conflict or in contact with the
law, as well as children affected by the situation of their parents in conflict
with the law. Repression or retribution must here give way to rehabilitation
and restorative justice objectives. In civil cases, the child may defend
their interests. The child may be affected by the trial (adoption, divorce,
custody, residence, child abuse or neglect proceedings) and the courts
must provide for the best interests of the child to be considered in all such
decisions.
c) ‘administrative authorities’
decisions made by administrative authorities concern education, care,
health, environment, living conditions, protection, asylum, immigration,
, access to nationality etc., and must be taken and guided by the best
interest of the child.
d) ‘legislative bodies’
including children in general; laws, regulations and collective
agreements that are even slightly relevant, so no only explicitly, for
children, should take their best interests as a primary consideration.
3. “The best interests of the child”
The best interests of the child is not fixed; its meaning is determined
case by case, depending on the situation, needs and circumstances. For
broader decisions, legislation or policy, the best interests of children as a
group must be considered. The principle should guide all decisions
affecting children to help conflicts between different rights. States must
pay special attention to vulnerable children when implementing laws and
policies. This flexible concept can adapt to different situations and new
developments, but it is also a risk for misuse. Governments must
systematically evaluate how laws, policies, and budgets affect children
through child rights impact assessments (CRIA), both before decisions and
after implementation.
4. “Shall be a primary consideration”
a strong legal obligation for states to always assess and give significant
weight to the best interests of the child in any decision or action affecting
children. Children are more vulnerable due to their dependency maturity,
and limited ability to defend their own rights. Their ‘high priority’ may
sometimes conflict with the interests or rights of others (parents, other
children, or the public), and authorities must then balance all interests
carefully but the child’s interests must be given greater weight. In certain
situations, such as adoption, the child’s best interests must be the
paramount consideration.
B. The best interests of the child and links with other general principles of
the Convention.
1. The child’s best interests and the right to non-discrimination (art. 2).
the right to non-discrimination, prohibiting all forms of discrimination in
the rights under the Convention, requires appropriate proactive measures
to ensure effective equal opportunities for all children.
2. The child’s best interests and the right to life, survival and development
(art. 6)
States must create an environment that respects human dignity and
ensures the holistic development of every child. The State must ensure
full respect for their inherent right to life, survival and development.
Artikel: Convention on the Rights of the Child – General comment
No. 14 (2013) on the right of the child to have his or her best
interest taken as primary consideration.
Introduction
The best interests of the Child; a right, a principle and a rule of procedure
1. Article 3, paragraph 1, of the Convention on the Rights of the Child
gives the child the right to have his or her best interests assessed and
taken into account as a primary consideration in all actions or decisions
that concern him or her, both in the public or private sphere.
one of the four general principles of the convention, applying it as a
dynamic concept requiring assessment appropriate to the specific context.
2. The ‘child’s best interest’ is not a new concept as it predates the
Convention.
3. The Convention also refers to the child’s best interest in articles 9, 10,
18, 20, 21, 37c, 40.2b.
4. The child’s best interests is aimed at ensuring both the full and
effective enjoyment of all the rights recognized in the Convention and the
holistic development of the child. “an adults judgement of a childs best
interest cannot override the obligation to respect all the child’s rights
under the Convention” – no hierarchy of rights in the Convention, all rights
are in the childs best interest and no negative interpretation could
compromise it.
6. The child’s best interest is a threefold concept
a) A substantive right; the right of the child to have her best interest taken
as a primary consideration, and a guarantee that this right will be
implemented whenever a decision is made concerning a child.
b) A fundamental, interpretative legal principle; if a legal provision is open
to multiple interpretations, the one which most effectively serves the
childs best interest should be chosen.
c) A rule of procedure; with each decision the process must include the
evaluation of the possible impact it has on the child(ren). The justification
must show that the best interest of the child has been taken into account.
Structure
8. Present general comment only focuses on article 3, paragraph 1. Not
paragraph 2/3.
Objectives
,10. To ensure the application of and respect for the best interests of the
child. This general comment defines the requirements for consideration in
all (judicial and administrative) decisions and actions concerning the child
and all implementations concerning children.
11. To provide a framework for assessing and determining the childs best
interests, which is a dynamic concept that is still continuously evolving.
12. To strengthen the understanding and application of the right of
children to have their best interests assessed and taken as a primary (or
paramount) consideration. To promote real change in attitudes leading to
the full respect of children as right holders.
Nature and scope of the obligations of States parties
13. Respect and implement the right of the child to have his or her best
interests assessed and taken as a primary considerations, and must take
all measures for it’s full implementation.
14. A framework with three different types of obligations for States parties
a) to ensure that a child’s best interests are appropriately integrated and
consistently applied in every action.
b) to ensure that all judicial and administrative decisions etc. Concerning
children demonstrate that the child’s best interests have been primary
consideration.
c) to ensure that the interests of the child have been assessed and taked
as a primary consideration in decisions and actions taken by a private
sector, entity or institution.
15. States should ensure that the best interest of the child are are a
primary consideration in all actions including laws, policies, possibility for
complaints, data collection, training on article 3, paragraph 1, appropriate
understandable language for children and their caregivers,
communication programes involving mass media and social networks.
16. For prioritising the child’s best interests, these parameters should be
borne in mind:
a) The universal, indivisible, interdependent and interrelated nature of
children’s rights; b) Recognition of children as right holders;
c) The global nature and reach of the Convention
d) The obligation of States parties to respect, protect and fulfill all the
rights in the Convention;
e) Short-, medium- and long-term effects of actions related to the
development of the child over time.
Legal analysis and links with general principles of the Convention
A. Legal analysis of article 3, paragraph 1.
,1. “In all actions concerning children”
a) ‘In all actions’ every action (decisions, acts, conduct, proposals,
services, procedures etc.) relating to a child/children has taken into
account their best interests as a primary consideration. Inaction or failure
to take action are also actions.
b) ‘concerning’ all decisions and actions that directly or indirectly
affect children. A lot of actions taken by a State affect children in some
way; only where a decision will have a major impact on a child/children, a
greater level of protection and detailed procedures to consider their best
interests is appropriate.
c) ‘children’ all persons under the age of 18 within the jurisdiction of a
State party have the right to have their best interest taken as a primary
consideration, and the State is under this obligation. Children are not only
individuals, there is also children in general or as a group, their best
interests should also be taken as a primary consideration. It is an
individual and a collective right. But article 3, paragraph 1 implies that the
best interests of a child must be assessed individually.
2. “By public or private social welfare institutions, courts of law,
administrative or legislative bodies”
The obligation of the States to duly consider the child’s best interests
encompasses all public and private social welfare institutions, courts of
law, administrative authorities and legislative bodies involving or
concerning children. Parents’ ‘basic concern’ will be the best interest of
their child.
a) ‘public or private social welfare institutions’
all institutions whose work and decisions impact on children and the
realization of their rights; economic, social and cultural rights, institutions
dealing with civil rights and freedoms.
b) ‘courts of law’
courts refer to all judicial proceedings, in all instances and all relevant
procedures concerning children, without restriction. In criminal cases, the
best interests principle applies to children in conflict or in contact with the
law, as well as children affected by the situation of their parents in conflict
with the law. Repression or retribution must here give way to rehabilitation
and restorative justice objectives. In civil cases, the child may defend
their interests. The child may be affected by the trial (adoption, divorce,
custody, residence, child abuse or neglect proceedings) and the courts
must provide for the best interests of the child to be considered in all such
decisions.
c) ‘administrative authorities’
decisions made by administrative authorities concern education, care,
health, environment, living conditions, protection, asylum, immigration,
, access to nationality etc., and must be taken and guided by the best
interest of the child.
d) ‘legislative bodies’
including children in general; laws, regulations and collective
agreements that are even slightly relevant, so no only explicitly, for
children, should take their best interests as a primary consideration.
3. “The best interests of the child”
The best interests of the child is not fixed; its meaning is determined
case by case, depending on the situation, needs and circumstances. For
broader decisions, legislation or policy, the best interests of children as a
group must be considered. The principle should guide all decisions
affecting children to help conflicts between different rights. States must
pay special attention to vulnerable children when implementing laws and
policies. This flexible concept can adapt to different situations and new
developments, but it is also a risk for misuse. Governments must
systematically evaluate how laws, policies, and budgets affect children
through child rights impact assessments (CRIA), both before decisions and
after implementation.
4. “Shall be a primary consideration”
a strong legal obligation for states to always assess and give significant
weight to the best interests of the child in any decision or action affecting
children. Children are more vulnerable due to their dependency maturity,
and limited ability to defend their own rights. Their ‘high priority’ may
sometimes conflict with the interests or rights of others (parents, other
children, or the public), and authorities must then balance all interests
carefully but the child’s interests must be given greater weight. In certain
situations, such as adoption, the child’s best interests must be the
paramount consideration.
B. The best interests of the child and links with other general principles of
the Convention.
1. The child’s best interests and the right to non-discrimination (art. 2).
the right to non-discrimination, prohibiting all forms of discrimination in
the rights under the Convention, requires appropriate proactive measures
to ensure effective equal opportunities for all children.
2. The child’s best interests and the right to life, survival and development
(art. 6)
States must create an environment that respects human dignity and
ensures the holistic development of every child. The State must ensure
full respect for their inherent right to life, survival and development.
