Best Interest of the Child

by

Johanna Schiratzki

• LAST REVIEWED: 29 June 2021
• LAST MODIFIED: 22 April 2013
• DOI: 10.1093/obo/9780199791231-0109

Introduction

The study of the principle of the best interests of the child—or with notions used synonymously in the literature, the welfare principle or paramountcy principle—is a comparatively new topic. It has generated a great deal of interests across several disciplines, i.e., law, social policy, philosophy, anthropology, medicine, and sociology. When the best interests of the child are discussed, recurring themes include the scope for discretion and the dependency of interdisciplinary knowledge. The principle of the best interests of the child has an impact in multiple areas, e.g., health-care welfare provisions and education as well as in court proceedings involving children. The significance of the principle depends on the jurisdiction in which the principle is applied and varies from one legal field to another. Procedural safeguards to identify the best interests of the child in decision making are often included in national child protection systems. When studied in a legal context, the principle is frequently analyzed in connection with children’s rights, a distinction being made between children’s rights and interests based on the principle of the best interests of the child functioning as an interpretative tool as well as a procedure rule or basis for substantive rights. Although the principle of the best interests of the child constitutes an integral part of children’s human rights, codified in Article 3 of the 1989 United Nations Convention on the Rights of the Child (UNCRC), it has roots that precede the discourse on the human rights of children cited under Reference Works. Within legal science, the topic of the best interests of the child has been approached from different angles, such as: (a) general overviews that are closely related to children’s rights issues; (b) studies on the application of the principle of the best interests of the child to various legal issues, such as parental responsibility, adoption, migration, etc., in specific jurisdictions; (c) studies on the best interests from various scientific perspectives. This presentation follows a threefold outline: research on the best interests of the child is introduced from a general perspective, followed by a section on the best interests in what could be labeled as the public sphere, namely where the best interests of the child depend first and foremost on public authority, e.g., concerning migration. The article concludes with a section on the best interests of the child in the private sphere, e.g., in family law.

General Overviews

Given the wide range of application of the principle of the best interests of the child, it is not surprising that comparatively few overviews cover all aspects of the principle. Comprehensive work is found in Freeman 2007, which covers the development of the principle in international law and analyzes the scope and meaning of the concept in the United Nations Convention on the Rights of the Child. Zermatten 2010 stresses that the principle is not only one of the four principal articles of the United Nations Convention on the Rights of the Child but also constitutes (1) a rule of procedure stating that whenever a decision is to be taken that will affect a child or a group of children, the decision-making process must consider the possible impacts on children of the decision, (2) the foundation for substantive rights in guaranteeing that the principle will be applied whenever a decision is to be taken concerning a child or a group of children or the right of the child to have his/her best interests assessed, (3) a fundamental, interpretive legal principle developed to limit the unchecked power over children by adults. The principle is further analyzed in relation to the Convention on the Rights of the Child in Detrick 1999. Eekelaar 1986 analyzes the principle in the light of children’s autonomy and dependency. A key work on the interdependency between law and other disciplines is King and Piper 1995. Archard and Skivenes 2010 discusses understanding the best interests of the child in relation to law making. Tobin 2009 looks into the ability of judges to apply the principle of the best interests of the child.

• Archard, David, and Skivenes, Marit. “Deciding Best Interests: General Principles and the Cases of Norway and the UK.” Journal of Children’s Services 5.4 (2010): 43–54.

  DOI: 10.5042/jcs.2010.0695

  The article addresses the difficult matter of interpreting the best interest principle and offers advice both for those who must make laws and those who make decisions within the constraints of those laws. Suitable for researchers and policymakers. Available online for purchase or by subscription.

• Detrick, Sharon. A Commentary on the United Nations Convention on the Rights of the Child. The Hague: Martinus Nijhoff, 1999.

  This comprehensive commentary devotes fourteen out of 790 pages on Article 3 on the best interests of the child. It further analyzes the interpretation of the principle by international courts, notably the European Court of Human Rights, clarifying the wide margin of authority the state enjoys when applying the principle. Suitable for researchers, students, and policymakers.

• Eekelaar, John. “The Emergence of Children’s Rights.” Oxford Journal of Legal Studies 6.2 (1986): 161–182.

  DOI: 10.1093/ojls/6.2.161

  In this comprehensive study, the development of children’s rights and best interests in English law is investigated. It summarizes the legal position of children’s autonomous interests as children have been given the important but dangerous right of being entitled to make their own mistakes. Suitable for researchers, students, and policymakers. Available online for purchase or by subscription.

• Freeman, Michael. “Article 3: The Best Interests of the Child.” In A Commentary on the United Nations Convention on the Rights of the Child. Edited by André Alen, Johan vande Lanotte, Eugeen Verhallen, Fiona Ang, Eva Berghmans, and Mieke Verheyde, 1–74. Leiden, The Netherlands: Martinus Nijhoff, 2007.

  In this key work, the best interests of the child according to the United Nations Convention on the Rights of the Child (UNCRC) are compared with related international human rights standards. Literature, case law, and reports of the UNCRC Convention up until 2007 are analyzed as well. Suitable for researchers, students, and practitioners.

• King, Michael, and Christine Piper. How the Law Thinks of the Child. 2d ed. Aldershot, UK: Arena, 1995.

  The authors discuss the scope for discretion as well as the interdependency between law and other disciplines when assessing the best interests of the child. They state that the reconstruction of issues concerning the welfare of the child in legal terms depoliticizes the issue of children’s welfare. Suitable for researchers, students, and policymakers.

• Tobin, John. “Judging the Judges: Are They Adopting the Rights Approach in Matters Involving Children?” Melbourne University Law Review 33.2 (2009): 579–625.

  The article examines an impressive range of domestic, regional, and international case law in discussing the capacity of a judge to engage with children’s rights and what is considered a necessary inclusion of the best interests in a model of children’s rights. Suitable for researchers, students, and policymakers.

• Zermatten, Jean. “The Best Interests of the Child Principle: Literal Analysis and Function.” International Journal of Children’s Rights 18.4 (2010): 483–499.

  DOI: 10.1163/157181810X537391

  This comprehensive paper provides a conceptual and literal analysis of the principle within the framework of the United Nations Convention on the Rights of the Child. It cautions against a subjective understanding of the principle and advocates the development of a more objective understanding. Suitable for researchers, students, and policymakers. Available online for purchase or by subscription.