The Best Interests of the Child: Is It a Concept of ‘Paramount’ or ‘Primary’ Consideration? Comparative Analyses.

Author: Saba Khujadze

Introduction

The concept of primary consideration of the best interests of the child is recognised as one of the main mechanisms for the protection of children's rights. Its definition is debated to this day. Almost all States around the world have undertaken to primarily take into account the best interests of the child in any related action. What is the starting point of this ‘obligation’ and why is it important to prioritise the best interests of the child?

The concept of the primary consideration of the child’s best interests applies to all aspects of the child's life. According to this concept, any decision or action affecting a child's life should be evaluated carefully. This means that the interests of others, such as parents, society, or the State, should not outweigh the interests of the child, although they may influence the final decision. 

In addition, consideration of the best interests of the child should aim to realise the child's rights and take into account the child's opinion. This includes considering the child's views in the decision-making process, as well as ensuring that the opinions of others, such as parents, legal guardians, community members, and professionals, are also heard.

However, implementing the above principle is a difficult process, as the presumption of the child's welfare focuses on the idea that the child's best interests are properly assessed and determined by adult professionals. Moreover, integrating the child's rights in diversified national jurisdictions involves analysing the best interests of the child by considering the child's views [1] and, thus, implementing a child-centred protective mechanism. However, in the past, children were ‘overlooked’ and ‘disenfranchised’ in State's policymaking and development, whereas nowadays, the principle of consideration of the best interests of the child ensures that the rights of children, not adults, are taken into account first. [2]

The principle of the child's best interests also suggests that the family must properly assess the child's best interests and, accordingly, give them primary attention when making decisions in the family. [3] To this end, the concept highlights the need to weaken the authority of parents. At first, it was used only as a standard to justify the interference with rights. [4] The first precedent in which the concept of the best interests of the child was used, dates back to the 18th century when English law allowed fathers to appoint guardians, giving them the power to make decisions on behalf of the children, with the court overseeing the process to ensure the protection of the child’s best interests. [5]

In view of the foregoing, the international community's serious interest in the legal status of children was initially expressed by the 1924 Declaration of the Rights of the Child, which declared the need for special protection of the child. [6] In 1948, the United Nations General Assembly adopted an expanded version of the Declaration, and already in 1959 – a new Declaration – consisting of the ten basic principles for the protection and welfare of children, was adopted. [7]

Indeed, this Declaration is the first international human rights document that specifically addresses the best interests of the child. Notably, Principle 2 of the Declaration indicates that:

“The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually, and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration”. [8]

However, before going into further discussions, it should initially be noted that this Declaration was non-binding. At the same time, despite international measures aimed at strengthening the protection of children's rights, such efforts were not enough. Consequently, there was a need to develop a single, comprehensive document that would ensure the effective protection of children's rights and would be an international and legally binding act. The idea came to fruition in 1989 with the adoption of the Convention on the Rights of the Child by the United Nations General Assembly. [9] The extreme importance of the Convention on the Rights of the Child is shown by the fact that, as of today, 196 states have ratified it,[10] except the USA.[11]

Importantly for our discussion, in the original draft of the Convention on the Rights of the Child, the above-mentioned 2nd principle of the 1959 Declaration was fully implemented. [12] However, a different wording was formed on a later date, which was finally reflected in the first paragraph of Article 3 of the now enforced Convention: “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”.[13]

As we can observe, in contrast to the 1959 Declaration, the Convention on the Rights of the Child does not give the child’s best interests ‘paramount’ importance, but simply requires giving these interests ‘primary consideration’. Hence, the present paper will seek to analyse those two approaches through a comparative analysis and identify which one is the most reliable for the due protection of the best interests of the child. 

1. The essence of the concept of the child’s best interests

The protection of the best interests of the child, which was recognized as a guiding principle by the 1959 Declaration, was reflected in the Convention on the Rights of the Child as a valid principle in specific areas of the child's life. According to the UN Committee on the Rights of the Child, the protection of the best interests of the child is not only a right of the child but also one of the three principles. These three principles are as follows: 

1. Prohibition of discrimination against children (Article 2);

2. The right to inviolability, preservation, and development of the child's life (Article 6); and

3. The right of the child to freely express his or her views and the right to be heard [14] (Article 12).[15]  

The mentioned principle, except for the reflection in Article 3 of the Convention, is also included in all the rights guaranteed by the Convention and in several articles. To illustrate, it is directly mentioned in Article 9 on the separation of the child from the family; Article 18 on child upbringing and development; Articles 20 and 21 on various procedures for the separation of children from their families and adoption; and Articles 37 and 40 on the child's relationship with the police and the judicial system.

Reflecting the best interests of the child in the Convention means recognising that the child’s best interests should always be understood as a leading principle in cases concerning a child. Indeed, the proper fulfilment of these requirements should always be the priority of a child’s parents, the State, and any other third party involved . Notwithstanding, it is not ruled out that in certain cases the particular interests of the child might conflict with the rights, interests, and/or obligations of the parents, guardians, or the State. However, taking into account each of the relevant factors, the respective State or judicial authority must seek to primarily protect the best interest of the child when deciding a case that is directly or indirectly related to the interests of the child.

Thus, the existence of clearly defined, solid, and effective legal guarantees of the principle of the best interests of the child is directly related to the protection of the basic rights of the child, ensuring their well-being and the proper development of their personality.

1.1 Dimensions of the general comment of the UN Committee on the Rights of the Child

The UN Committee on the Rights of the Child attempted to clarify the definition of the concept of the best interests of the child in the General Comment #14 in 2013. [16] According to the commentary, the concept of the best interests of the child has three dimensions: 

1. Substantive right. When different interests are considered in the case of deciding on a certain issue, the best interests of the child should be evaluated, and these interests should be given primary consideration. Furthermore, it should be ensured that this right is always exercised when making decisions about the child;

2. Basic legal principle. If a legal provision allows for more than one interpretation of the child’s best interests, the interpretation that most effectively serves the observance of the best interests of the child should be employed; and

3. Procedural norm. The decision-making process regarding a particular child should include an assessment of the possible impact (positive or negative) of the decision on the child. Assessment and determining the child’s best interests also require procedural guarantees. Furthermore, it should be clearly stated in the justification of the decision, if any, that the best interests of the child were taken into account. Indeed, States parties should demonstrate what they specifically considered to be the best interests of the child, the criteria on which those interests were determined, and how the best interests of the child were weighed against other interests.[17]

1.2 Analysis of the first paragraph of Article 3 of the UN Convention on the Rights of the Child

For greater clarity of the concept of the best interests of the child, it is appropriate to analyse the first paragraph of Article 3 of the Convention, which begins with the following words: "concerning children [...]". What is meant by the term ‘child’? 

According to Article 1 of the Convention, "[...] a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier". [18]

In this connection, Article 3, paragraph 1 of the Convention, applies to children not only as individuals but also as a group in general, obliging States to assess and give primary consideration to the best interests of children as a group in all actions related to them. [19] However, this does not mean that in a decision related to an individual child, their interest should be understood as, in general, the interest of children, since the best interests of the child should be assessed individually. [20] This approach is also evident from the case law of the European Court of Human Rights [21] decisions of the Court of Justice of the European Union.[22]

As for the term ‘concerning’, it includes any decisions and other measures that are directly related to and affect the child, even if the child is not the immediate target of the specific measure. [23] However, this does not mean that the full process of assessing and determining the best interests of the child must be followed in any State’s specific action when such an action is not related to the child. [24] Otherwise, the mentioned would inevitably be an extra burden for the State. Against this background, it is logical to always consider the above principle if a specific decision significantly affects or will affect the child. Accordingly, in the case of measures that do not have a significant impact and are not directly aimed at the child, the term ‘concerning’ should be defined on a case-by-case basis.

Besides, the first paragraph of Article 3 of the Convention continues as follows: "[...] in all actions". As the UN Committee on the Rights of the Child explains, the word ‘actions’ includes decisions and actions, conduct, proposals, services, procedures, and other measures, as well as inaction or failure to act and negligence. [25]

Furthermore, the main requirement of the first paragraph of Article 3 is that "[...] the best interests of the child shall be a primary consideration". The mentioned proposal does not give the States parties to the Convention discretionary powers to decide whether to evaluate and pay primary attention to the best interests of the child when taking any action, but rather it implies the State’s obligation to mandatorily consider the best interests of the child to a higher degree against other interests.[26]  

Given the foregoing, it is crucial to compare the content of Article 3 of the Convention in the sense that the child’s best interests shall be given primary consideration ("a primary consideration") with the requirement prescribed in the 1959 Declaration stating that the best interests should be given the paramount consideration ("a paramount consideration"). The original draft of the current Convention on the Rights of the Child fully shared but could not get enough support to be present.

2. Comparison of the concept of a ‘paramount consideration’ of the best interests of the child with a ‘primary consideration’

Some suggest that in the text of the first paragraph of Article 3 of the Convention, it could easily be written that the child’s best interests should be given a ‘paramount consideration’ and not simply a ‘primary consideration’. [27] It seems that the requirement to give decisive importance to the best interests of the child was a rather strict message to the States, as it implies not only that the consideration of the best interests of the child is necessary and significant but also that this principle should be determined as a decisive factor in the drafting and adoption of respective national laws. [28]

Thus, a ‘paramount consideration’ means that the best interests of the child should be the determining factor in taking any action. If the child's best interests are to be paramount, this requirement would oblige the decision-maker to consider the child's best interests as the sole factor in assessing and determining those interests. However, the evaluation and determination of the child’s interests would still, to some extent, depend on the decision-making body. Therefore, this does not imply giving absolute protection to the mentioned right of the child nor that the restriction of this right is not always permitted.

Considering a common interpretation, when the courts consider the best interests of the child as the deciding factor, they may also take into account the interests of the parents. Although it seldom occurs, these parental interests , either directly or indirectly, may not coincide with the child's best interests. In such cases , the courts are expected to strike a balance between the child’s and parents’ “concurring” interests and render a decision safeguarding the best interests of the child concerned. Thus, protecting the best interests of the child does not mean that others’ Convention rights are neglected. In this regard, the reasonable solution can be to use the ‘paramount consideration’ approach under the requirements of the principle of proportionality, without prejudice to other valuable and conventionally protected interests. [29]

One question arises: why does the main international instrument for the protection of the rights of the child not include the best interests of the children in the highest degree of protection, especially considering that it was this mechanism that gave the basis for the recognition of this right as a principle?

I would agree with some scholars remarking that the purpose of using ‘primary consideration’ instead of ‘paramount consideration’ is not to weaken this principle but to ensure its flexibility and, in extreme cases, give preference to other interests. [30]

Moreover, according to the UN Committee on the Rights of the Child, the concept of a child’s best interests is complex and must therefore be determined on a case-by-case basis. This implies that the said concept is flexible and adaptable. [31] The Committee also believes that the determination of best interests should be made taking into account the specific situation of the child concerned, context, condition, and needs. In the case of collective decisions, such as those of the legislature, the best interests of children should be assessed and determined according to the specific circumstances of the existing group and/or children in general. This includes determining the best interests of vulnerable children. [32] Thus, the Committee suggests the evaluation of the child’s best interests within the scope of the principle of proportionality. 

Indeed, this approach is shared by numerous scientists who argue that, given the abstract nature of the principle, it is better to maintain flexibility, and avoid prescribing a precise, unified definition of it. [33] In this respect, depending on the specificity of the child’s best interests, I would suggest that it is necessary to evaluate individual circumstances each time and determine these interests on a case-by-case basis.

Besides, perhaps the stated reasons were indeed the intention of the drafters of the Convention; however, it would not be unfounded to assume that their goal was to maintain the flexibility of the principle precisely, because it would ensure universal recognition of the Convention, facilitating its signing and subsequent ratification by the contracting States.

I find this approach proportionate. To illustrate, a parallel can be drawn regarding the Convention, which does not address the question of whether its provisions apply to the child from birth or to the unborn child as well. In this respect, it can be contended that the purpose of the Convention entrusting the State parties to regulate the issues related to abortion was to facilitate the universal acceptance of the Convention, otherwise it would most likely not gain such wide recognition. Therefore, we can assume that for the same reason, it was avoided to provide a higher degree of protection for the principle of the best interests of the child the contracting States.

Notwithstanding, it is worth noting that the further limitation of the States solution to avoid subjectivity in applying the principle of the best interests of the child. However, the designation as ‘paramount’ does not make it an absolute concept. This may impede the determination of the child’s best interests on a case-by-case basis and might result in a weaker guarantee for the protection of such interests due to its lack of flexibility. 

Hence, despite the absence of the wording ‘paramount consideration’ in respect of the protection of the child’s interests directly in the Convention, it is worth noting that the current wording of the Convention on the Rights of the Child still requires that the child’s interests be given decisive importance in only certain cases if the principle of proportionality so requires. An example of this is the case of adoption, [34] where a stricter test must be applied in assessing the best interests of the child. As the Committee notes, the child’s best interests should be the ‘paramount’ factor in adoption decisions. [35] This requirement is reflected in Article 21 of the Convention. 

Conclusion 

The present paper observes that in contrast to the 1959 Declaration, the current Convention on the Rights of the Child does not give the child’s best interests ‘paramount’ importance, but simply requires giving these interests ‘primary consideration’. At the same time, this paper highlights that the principle of a child’s best interests is of particular importance. At the very least, those involved in any action affecting a child should be able to agree on a specific interest that is best for the child and forms the basis for a common ground for the negotiation between the opposing interests of the child and the third parties. In this respect, the present paper sheds a light on the problematic definition of the content of the established concept of a child’s “best interest”. The principle of the "best interest" of the implementation of the universal rights of children should be considered and defined, on the one hand, by the criteria established in the 2013 General Comment of the UN Committee on the Rights of the Child and on the other, assessed individually per case. However, if a deeper analysis of the definition and practical application of the concept of the principle of the child’s "best interest" is abandoned, the main principle of implementing and ensuring children's rights competes with and even opposes other rights and principles. In light of the foregoing, this paper has noted that the child’s best interests are at times of decisive importance, and one of the various concepts to be considered in a case referring to a child. 

Ultimately, to determine how to evaluate the mentioned interests of the child – to be given ‘primary’ or ‘paramount’ consideration – the present paper recommends considering, in general, the role of the principle of priority of the best interests of the child in terms of protection of the rights of the child in any decision-making that directly or indirectly affects or will affect a child. To this end, while keeping in mind the specificities of each case related to a child, the principle of proportionality plays a crucial role. In this respect, the deeper the interference is in the rights of the child by a third individual or a State, the stricter the consideration - whether of ‘primary’ or ‘paramount’ - of the best interests of the child should be applied to keep the Convention’s child-centred mechanism effective in practice.

1 Hanita Kosher, Asher Ben-Arieh, Yael Hendelsmand, Children’s Rights and Social Work, Springer Briefs in Rights-Based Approaches to Social Work, Shirley Gatenio Gabel ed., Springer Publications, 2016, p. 31.

2 Anne B. Smith, Children’s Rights Towards Social Justice, Momentum Press, 2016, p. 10.

3 Ibid., p. 26.

4 June Carbone, Legal Applications of the “Best Interest of the Child” Standard: Judicial Rationalization or a Measure of Institutional Competence, American Academy of Pediatrics, 2014, S111.

5 Ibid.

6 The League of Nations. (2017, October 4). Geneva Declaration of the Rights of the Child, 1924. Humanium. Retrieved December 3, 2022, from: https://www.humanium.org/en/geneva-declaration/#:~:text=The%201924%20Geneva%20Declaration%20stated,that%20it%20has%20to%20give.%E2%80%9D&text=The%20fundamental%20needs%20of%20children,%2C%20assistance%2C%20relief%20and%20protection. 

7 The United Nations General Assembly. (2017, October 4). Declaration of the Rights of the Child, 1959. Humanium. Retrieved December 5, 2022, from: https://www.humanium.org/en/declaration-rights-child-2/. 

8 UN General Assembly. (2011, May 25). UN Declaration on the Rights of the Child (1959). Child Rights International Network [CRIN], Principle 2. Retrieved December 6, 2022, from: https://archive.crin.org/en/library/legal-database/un-declaration-rights-child-1959.html#:~:text=Every%20child%2C%20without%20any%20exception,himself%20or%20of%20his%20family. 

9 UN General Assembly. (1989, November 20). Convention on the Rights of the Child. OHCHR. Retrieved December 5, 2022, from: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child. 

10 Olga Cvejic Jancic, Ed., The Rights of the Child in a Changing World 25 Years after The UN Convention on the Rights of the Child, Springer Publications, 2016, p. 2.

11 United Nations Treaty Collection, Convention on the Rights of the Child. Retrieved December 3, 2022, from: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en. 

12 Michael Freeman, Article 3. The Best Interests of the Child, in Andre Alen, Johan Vande Lanotte, Eugeen Verhellen, Fiona Ang, Eva. Berghmans and Mieke Verheyde, Eds, A Commentary on the United Nations Convention on the Rights of the Child, Leiden: Martinus Nijhoff Publishers, 2007, p. 25. 

13 Paragraph 1, Article 3, Convention on the Rights of the Child. UN General Assembly. November 20, 1989.

14 CRC/C/GC/12, General Comment No. 12 (2009): The right of the child to be heard, UN Committee on the Right of the Child, § 2. Retrieved December 7, 2022, from: https://www.refworld.org/docid/4ae562c52.html.

15 CRC/GC/2003/5, General Comment No. 5 (2003): General measures of implementations of the Convention on the Rights of the Child, UN Committee on the Right of the Child, § 12. Retrieved December 6, 2022, from: https://www.refworld.org/docid/4538834f11.html.

16 CRC/C/GC/14, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), UN Committee on the Right of the Child. Retrieved December 7, 2022, from: https://www2.ohchr.org/english/bodies/crc/docs/gc/crc_c_gc_14_eng.pdf. 

17 Ibid., § 6.

18 Article 1, Convention on the Rights of the Child. UN General Assembly. November 20, 1989.

19 CRC/C/GC/14, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), UN Committee on the Right of the Child, §§ 22-23. Retrieved December 7, 2022, from: https://www2.ohchr.org/english/bodies/crc/docs/gc/crc_c_gc_14_eng.pdf.

20 Ibid., § 24.

21 See, for example, Anayo v. Germany, 20578/07, ECtHR, (21/12/2010); K. and T. v. Finland, 25702/94, ECtHR, (12/07/2001); Levin v. Sweden, 35141/06, ECtHR, (15/03/2012); Schneider v. Germany, 17080/07, ECtHR, (15/09/2011).

22 See, for example, E. v. B., C-436/13, CJEU, (01/10/2014).

23 CRC/C/GC/14, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), UN Committee on the Right of the Child, § 19. Retrieved December 7, 2022, from: https://www2.ohchr.org/english/bodies/crc/docs/gc/crc_c_gc_14_eng.pdf.

24 Ibid., § 20.

25 Ibid., §§ 17-18.

26 Ibid., §§ 36-37.

27 Michael Freeman, Article 3. The Best Interests of the Child, in Andre Alen, Johan Vande Lanotte, Eugeen Verhellen, Fiona Ang, Eva. Berghmans and Mieke Verheyde, Eds, A Commentary on the United Nations Convention on the Rights of the Child, Leiden: Martinus Nijhoff Publishers, 2007, p. 60.

28 Ibid., p. 25.

29 Miche Theresa Boyd, The Determinants Of The Child’s Best Interests In Relocation Disputes, The University of the Western Cape Faculty of Law, 2015, p. 16. 

30 Alfred Glenn Mower, Jr., The Convention on The Rights of the Child, International Law Support for Children, Greenwood Press, 1997, §§ 23-24. 

31 CRC/C/GC/14, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), UN Committee on the Right of the Child, § 32. Retrieved December 7, 2022, from: https://www2.ohchr.org/english/bodies/crc/docs/gc/crc_c_gc_14_eng.pdf. 

32 Ibid., §§ 32-33.

33 Regina Jensdóttir, The concept of the child’s best interests in the work of the Council of Europe, The best interests of the child - A dialogue between theory and practice, Council of Europe, 2016, p. 85.

34 Article 21, Convention on the Rights of the Child. UN General Assembly. November 20, 1989.

35 CRC/C/GC/14, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), UN Committee on the Right of the Child, § 37. Retrieved December 7, 2022, from: https://www2.ohchr.org/english/bodies/crc/docs/gc/crc_c_gc_14_eng.pdf.