Best interests


Best interests or best interests of the child is a child rights principle, which derives from Article 3 of the UN Convention on the Rights of the Child, which says 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 make a decision in a specific situation for a specific individual child or group of children".

Definition

According to the UN Convention on the Rights of the Child, assessing the best interests of a child means to evaluate and balance "all the elements necessary to make a decision in a specific situation for a specific individual child or group of children". Due to the diversity of factors to consider, usually more than one profession or institution is involved in the assessment process, bringing together various perspectives and areas of expertise from the country of origin and destination and, in particular, the perspective of the child.
The following aspects are relevant for the best interests of the child:
  • The child's views and aspirations;
  • The identity of the child, including age and gender, personal history and background;
  • The care, protection and safety of the child;
  • The child's well-being;
  • The family environment, family relations and contact;
  • Social contacts of the child with peers and adults;
  • Situations of vulnerability, i.e. the risks that the child is facing and the sources of protection, resiliency and empowerment;
  • The child's skills and evolving capacities;
  • The rights and needs with regard to health and education;
  • The development of the child and her or his gradual transition into adulthood and an independent life;
  • Any other specific needs of the child.

    Assessments

Best interests' assessments can be conducted informally and ad hoc or as formalised processes. Assessments look at everyday matters and decisions with more or less severe implications for the child. The best interests of a child may change significantly over time as children grow and their situations and capacities evolve, so their best interests may need to be reassessed periodically.

Determinations

Best interests determinations are formal processes conducted with the involvement of public authorities and professional decision makers. The objective of the best interests determination is to reach a decision based on national law that safeguards the rights of the child and promotes her or his well-being, safety and development. Decision-makers weigh and balance all the relevant factors of the case, giving due consideration to all the rights of the child and the obligations of public authorities and service providers towards the child. The objective of the best interests determination process is the identification of a durable solution. Best interests determinations are carried out when the issues at stake are expected to have significant implications on the child's present and future life.

Elements of a best interests assessment and determination process in transnational cases

Best interests assessments aim to gather all the facts needed to arrive at a conclusion about the impact of any action, measure or decision on the child and her or his future. The central perspective is that of the girl or boy concerned. A trust-based relationship and communicating effectively in the child's main language enables the child to exercise his or her right to be heard. Comprehensive assessments involve a multi-disciplinary team of qualified professionals.
A comprehensive best interests assessment and determination process addresses all of the following:
  • Establishing the child's identity and the identity of the child guardian and the quality of their relations, and any accompanying persons in transnational cases.
  • Case assessment, including the following components:
  • * Hearing the child;
  • * Assessment of the child's situation, background and needs;
  • * Social situation and family assessment;
  • * Gathering evidence including through forensic examinations and interviews with the child;
  • * Risk and security assessments;
  • * Mapping sources of support, skills, potentials and resources for empowerment;
  • Developing a life project.
  • Comprehensive child impact assessment of any potential decisions.
  • Identification of a durable solution in transnational cases.
  • Continued assessments during the implementation of the durable solution with due follow-up, review and monitoring, and adjustments to the durable solution arrangements, if and as required, according to the best interests of the child

    Procedural safeguards in best interests determinations

Procedural safeguards and documentation in best interests determinations include:
  • The right of the child to express her or his views and to have them taken into account: In a judicial or administrative procedure, children have the right to be heard and to have their views taken into account.
  • *The process of hearing the child needs to be documented, with a clear description of how the child's views are balanced against other views and other information sources. The communication with the child has to be effective and child-sensitive and might require quality interpretation and cultural mediation. In cases of unaccompanied or separated children, the role of the guardian or representative is essential to facilitate the communication between the child and the authorities.
  • *The child has a right to a hearing when the decision-making body is a court. The hearing should be held without delay in a child-sensitive way and prevent secondary victimisation of child victims and witnesses in judicial proceedings.
  • *The child's age, gender and background, the child's level of development and evolving capacities should be considered.
  • *Child-friendly information in a language that the child understands, enabling the child to form an opinion and to express her or his views should be provided.
  • * In transnational cases, children who do not speak the language of the country of destination have a right to translation and interpretation. Interpretation should be made available free of charge and with a neutral bearing when interpreters are directly involved.
  • Guardianship and representation: children have a right to an independent representative or guardian who is competent and equipped to represent and promote the best interests of the child.
  • Legal representation: When the best interests of a child are formally decided by a court or other competent body, the child is entitled to legal representation, legal information and defence, including for children applying for asylum or special protection as victims of crime.
  • Legal reasoning: Decisions need to be documented, motivated in detail, justified and explained, including how the decision is considered to relate to the best interests of the child and how the underlying considerations have been balanced to arrive at the decision.
  • Mechanisms to review or revise decisions: Formal mechanisms have to be in place to reopen or review decisions on the best interests of a child. Children need access to support in accessing and using these mechanisms. It has to be clearly established when a case or decision can be reopened or reviewed, as for instance when there is new evidence or when the authorities have not been able to implement the first decision.
  • Right to appeal: Best interests determinations are subject to legal remedies. Children need to have access and support, such as legal assistance and representation, to appeal a decision. During the appeal procedure the implementation is suspended. For decisions concerning transfer or return of a child to another county, sufficient time must be available between the decision and the execution of the decision, to enable the child to hand in an appeal or request a review of the decision.

    Balancing rights and interests in best interests determinations

The different elements considered in an assessment and determination of the best interests of a child may appear to be competing or in contradiction. Potential conflicts are solved on a case-by-case basis. The right of the child to have her or his best interests taken as a primary consideration means that the child's interests have high priority and are not just one of several considerations. A larger weight is attached to what serves the child best:
  • The possibility of harm outweighs other factors;
  • The child's right to be brought up by her or his parents is a fundamental principle;
  • A child's best interests can generally best be met with her or his family, except where there are safety concerns;
  • The survival and development of the child are generally ensured best by remaining in or maintaining close contacts with the family and the child's social and cultural networks;
  • Matters related to health, education and vulnerability are important factors; and
  • Continuity and stability of the child's situation are important.

    Criticism

The definition of the best interests of the child is not straightforward in either legal practice or when formulating laws and conventions. Its implementation has received considerable criticism by some child psychologists, epidemiologists and the family law reform movement, particularly with regard to how it often marginalizes children from one of their parents after divorce or separation, even though a child benefit from close contact with both parents. It has been argued that the current standard should be replaced with a best interests of the child from the perspective of the child approach that takes child-focused epidemiological and psychological research into account regarding children's physical, mental and social well-being after divorce or separation.
The best interests standard is often better suited to identifying the best of several acceptable alternatives and has less value in determining which alternatives should be deemed acceptable. Alternative models include deferring to parents or guardians when the decision falls into the zone of parental discretion and the harm principle, which requires outside intervention to prevent serious harm. For example, one custody situation might be considered optimally in the best interests of the child, but a slightly different arrangement might fall into the zone of parental discretion. However, a situation that would put the child into serious danger would violate the harm principle and therefore be rejected.