About the principle “the child’s best interests”

“The child’s best interest” is a central concept in family law, and the interpretation of the principle can have wideranging consequences.

Trude Haugli writes in the book “Convention on the Rights of the Child, Children’s Rights in Norway” from Universitetsforlaget 2012, 2nd edition by Njål Høstmælingen, Elin Saga Kjørholt and Kirsten Sandberg (eds.):

“Even though it is extraordinary that almost all of the nations of the world support the child’s best interest as a fundamental consideration regarding all actions that concern children, the principle has also received criticism.
A central question is whether the fundamental need for the principle disappears when the Convention recognises children’s rights, not just their interests.

What a child’s best interests are is not defined in article 3 and is not further defined anywhere else in the Convention. Neither has the Committee established criteria for evaluating whether the states are implementing the principle. If it is used in way that is too general and with an indeterminate content, there is a risk that the principle becomes so open to interpretation that it becomes optional and thereby loses it’s value. Graver’s general observation of principles as legal norms can also be applied here:

Principles often appear to be pretty spacious phenomenas that can open a situation op to the risk of concealing the real motivations behind a position. You simply can’t know what considerations and counterconsiderations and facts someone has weighted to make a legal conclusion, when a decision is justified with a reference to a principle. Arguing from principles can, on this basis, contribute to concealing the true character of the law.

However, the Convention must be treated as a unity. As a unity it does go some way in the direction of establishing a broad ethical or value-based framework, which provides a higher degree of safety or clarity regarding the content of the principle of the child’s best interest.

There is also the risk that each decision maker will interpret it in their own way and that children’s procedural rights in the meaning of the right to equal treatment and predictability is weakened. However, article 3 must be seen in cohesion with article 12 and getting information on and taking into consideration the child’s own option is an important tool in the process towards finding out what are the child’s best interests.

By including the principle about the child’s best interest in the Convention it is possible for the states to “smuggle” cultural considerations into the implementation of the Convention, and this can undermine the fundamental consensus or agreement that the Convention reflects. This is only partially a problem. The states should be able to prioritise important cultural considerations and interpret them into the Convention within the framework of the Convention, but not if they contradict basic human rights.

The fact that referencing the child’s best interests can give legal decisions a legitimacy that may not always be justified should not be ignored. It is hard to argue against a decision that seems to be made based on considerations of what’s best for the child. There is thus an inherent risk for the principle to be used (consciously or unconsciously) to legitimise political positions, certain value judgments or legal decisions where it has actually been other considerations that were the motivating factor or that has been more important than the interests of the child that the case concerns, for example justice between the adults, considerations of the generally preventive effect, economy and equality.”