The International Best Interests of the Child and US Child Welfare Industry Hypocrisy

The phrase “best interests of the child” is a cornerstone of American legal jurisprudence concerning children and children’s rights. Surprisingly, or perhaps not surprisingly, this fundamental concept is not limited to the United States or other common law countries.

A recent lecture by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, entitled The Best Interests of the Child – what it means and what it demands from adults, discusses this idea from a European and international human rights perspective as established in the United Nations Convention on the Rights of the Child.

Here are some excerpts:

The idea that society should respect the best interests of the child is seen as fundamental in all cultures. After all, children do symbolize the survival of the family, the group, the nation and even humanity itself.

From the very first draft of the UN Convention on the Rights of the Child . . . it was clear that the principle of the ‘best interests’ should be included and given a prominent position.

The 1959 Declaration of the Rights of the Child had in fact already evoked the principle, stating that ‘the best interests of the child shall be the paramount consideration’ in the enactment of laws relating to children, as well as ‘the guiding principle of those responsible for (the child’s) education and guidance’.

The Convention on the Rights of the Child extends the principle to cover all decisions affecting the child. This is a radical departure. The best interests of the child shall now be a primary consideration in all actions concerning children – not just actions taken by the state authorities, parliamentary assemblies and judicial bodies but also those taken by relevant private institutions.

The drafters of the Convention not only widened the scope of the principle, but they also made it one of the ‘umbrella’ provisions and thereby important for the overall framework of the Convention. The UN Committee on the Rights of the Child has taken the principle one step further, defining the best interests of the child as a ‘general principle’ guiding the interpretation of the entire Convention.

Governments – or individual adults – have sometimes misused the ‘best interests of the child’ to justify actions that in reality have violated the rights of the child. Corporal punishment has been defended with the argument that it teaches children necessary limits and is therefore for their own good in the long run. Adopted children have been prevented from knowing their biological family ‘in their own interests’. Children of indigenous peoples have been forcefully removed from their families and placed in boarding schools so that they could be introduced to ‘civilization’, again in the name of their ‘best interests’.

Though necessarily general and incomplete, a reasonable first building block towards the definition of what is in the best interests of the child is the sum total of the norms in the Convention. This means, for example, that it is in the best interests of the child to: receive education (Art. 28); have family relations (Art. 8); know and be cared for by his or her parents (Art. 7); be heard in matters concerning him or her (Art. 12), and to be respected and seen as an individual person (Art. 16). In the same way, the Convention states what is not in the best interests of the child: for instance, to be exposed to any form of violence (Art. 19); to be wrongly separated from his or her parents (Art. 9); to be subjected to any traditional practices prejudicial to the child’s health (Art. 24); to perform any work that is hazardous or harmful (Art. 32), or to be otherwise exploited or abused (Arts. 33-36).

There is another important aspect of the Convention that is relevant to this discussion: the emphasis on respecting the evolving capacities of the child. For the best interests of the child to be determined, it is important that the child himself or herself be heard. With increased age and maturity, the child should be able to influence and decide more. This obvious point is often forgotten. Adults tend to discuss what is best for children without seeking their opinions or even listening to them.

Article 12 states that the child who is capable of forming an opinion on matters affecting him or her has the right to express that opinion freely and that the child’s opinion should be given due weight in accordance with his or her age and maturity.

This approach does not necessarily mean that the child can take complete responsibility for the decision. The spirit of Article 12 is rather to ensure consultation and growing participation than to relinquish all power to the child.

The Convention as a whole gives pointers as to what is good for the child. It also requires that the child be heard and that his or her opinions be taken seriously.

When considering decisions that are likely to affect a child or children considerably, decision makers should always systematically attempt to assess and evaluate the consequences of the proposed action. . . . it is important that children be heard whenever possible, and that their opinions be sought before the final decision is taken.

Children are not the people of tomorrow, but are people of today. They have a right to be taken seriously, and to be treated with tenderness and respect. They should be allowed to grow into whoever they were meant to be – the unknown person inside each of them is our hope for the future.

The United States is the only country in the world (except Somalia which has no functioning government) which has not ratified the United Nations Convention on the Rights of the Child. This alone should be an enduring mark of shame for every child advocate, social worker, children’s lawyer, CASA, juvenile court judge, local/state/federal child welfare bureaucrat, the NACC, ABA Center on Children and the Law, and even your humble blogger. With the coming election and new president, regardless of party, let’s re-dedicate ourselves to passing this UNIVERSAL document dedicated to the rights of the child.

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