The best interests of the child: A gateway to children’s rights?

Introduction The requirement that the child’s best interests should inform decisions made about the child is a well-established legal principle. The principle has been used to guide decision-making in family law for decades and it is contained in family law statutes in many jurisdictions around the world. The principle has been subjected to rigorous and critical analysis by scholars like Goldstein, Freud and Solnit and Mnookin who identify it as a vague, indeterminate and subjective standard. Despite these concerns, the enactment of the United Nations Convention on the Rights of the Child (CRC) enshrined the principle in binding international human rights law and, according to the Committee on the Rights of the Child, the best interests principle, set out in Article 3 of the CRC, is one of the general principles of the children’s rights Convention. Parker, Eekelaar, Herring and others have engaged with the principle in the context of the CRC, assessing its role in the determination of family law matters including custody, adoption and alternative care. Most scholarship, although critical of the best interests principle, has accepted its value and sought ways to remedy any flaws so that its potential to advance the interests and position of children can be maximised. Few question the connection between the best interests principle and children’s rights and ask whether an approach predicated on what is in the best interests of the child can indeed further implementation of the rights of the child more generally. A rare voice here is Cantwell who questions the use of the best interests principle as a ‘trump card’ and asks whether this provision, among others, takes children’s rights too far away from its human rights origins. Against this backdrop, this chapter proposes to critique the best interests principle as a provision of the Convention on the Rights of the Child. In doing so, the basis for the approach of the Committee on the Rights of the Child’s – framing Article 3(1) as a right, a rule of procedure and an interpretive principle – is analysed and its legitimacy examined. The chapter goes on to outline with reference to original research on children’s rights advocacy whether in fact the principle has additional value, namely as a gateway to children’s rights when used within this broader policy context.