The Best Interest of the Child

(From: Jan C.M. Willems (ed.), Developmental and Autonomy Rights of Children: Empowering Children, Caregivers and Communities, Intersentia: Antwerp/Oxford/New York, 2002, pp. 191-207 (90-5095-224-0; www.intersentia.com) read the full text here.

In Europe, Article 8 ECHR has been used quite often in family cases. It has become clear that family life and private life need to be distinguished. The rights of the child and ‘the best interests’ of the child have not been examined exhaustively in the context of Article 8 ECRM. 1

In Western societies the unlinking of marriage, sexuality and procreation and the growing number of divorces have had a major impact on the family. In some countries the increased participation of women in the labour market played a role too. Although in many cases the child rearing function proves to be too small a basis for the preservation of a family, in general the family is still seen as the ideal environment for raising a child. There has been very little research attention on the impact of non-Western cultures on the concept of ‘family life.’ Increased mobility and migration, however, do appear to influence ‘family life.’ Research on and assistance to families (or children) still seem to be based on traditional middle-class family ideals, and on views on the developmental psychology of young children. The view on identity formation seems to be rather important in the interpretation of children’s rights. This psycho-developmental view tends to be rather deterministic, focusing on a goal like becoming ‘a normal, healthy adult,’ whatever that may be. In the children’s rights movement this adults’ perspective has been criticised and replaced by a more autonomous view of the child from the moment of birth. A kind of compromise has been found in a developmental approach. 2

As Campbell says: 3

‘In the case of children (that is, in law “minors”) it is helpful to distinguish between their interests as persons (which they have in common with all persons), as children (which they have as immature and dependent persons), as juveniles (which they develop as they approach maturity) and as future adults (which relate to their future interests as adults). This analysis enables us to refine the principle that “the best interests” of the child should determine how they are treated by parents, state, and others, and may lead us to give rather more emphasis to the rights of the child rather than those of the future adult.’

Brems refers to ‘the rights reflecting children’s current interests as children’: 4

‘On the one hand these reflect the special vulnerability of children and their need for protection. On the other hand there are the concerns children frequently put forward themselves, such as time and facilities to play.’

Children’s rights should be regarded not only from a (restricted) psychological family view, but just as much from a social, economic and communitarian (cultural) view. This fits into the holistic approach of human rights in the Convention on the Rights of the Child. 5

All rights are complementary to each other and essential for the full and harmonious development of the personality, and inherent to the human dignity of the child. Looking at children not only as depending upon their parents or on professional assistance, gives also room for exploring survival and empowerment strategies of themselves and their peer group. The best interests of the child, according to Eekelaar, can be defined as: 6

‘Basic interests, for example to physical, emotional and intellectual care; developmental interests, to enter adulthood as far as possible without disadvantage; autonomy interests, especially the freedom to choose a lifestyle of their own.’

And he adds: 7

‘It would be logically possible to have framed the Convention on the Rights of the Child as a list of duties owed by adults to children. But that would have revealed a negative, suspicious, view of human nature; it would have seen people as servile, responding best to restraint and control. The strength of rights formulation is its recognition of humans as individuals worthy of development and fulfilment. This is not an appeal to narrow self-interest. On the contrary, it recognises the insight that people can contribute positively to others only when they are respected and fulfilled. And to recognise people as having rights from the moment of their birth continuously into adulthood could turn out, politically, to be the most radical step of all.’

From this point of view the interests of children of imprisoned parents can be considered more precisely in the scheme of the three P’s: Provision, Participation and Protection, with the fourth P, Prevention, as a kind of general underlying notion.

Notes:

  1.  G.J. VAN WIJK, ‘De houding van het Europese Hof voor de Rechten van de Mens bij kinderbeschermingsmaatregelen: Respect voor de rechten van het kind?’ NJCM-Bulletin 2000, no. 2, 659-665.
  2. ‘Development is not solely an intrapersonal mechanism but rather an interactional one. Children are active agents in their own psychological growth and need the active participation and support from the environment, particularly in the resolution of conflicts. Certain periods are crucial in the acquisition of cognitive skills and affective competencies. Moreover, conflicts and crisis are necessary for successful development. Children need to be challenged to reach higher levels of reasoning, and to individuate.’ (C. VAN NIJNATTEN,Detention and Development; Perspectives of Children of Prisoners, Forum Verlag Godesberg, Mönchengladbach, 1998, 34-35.)
  3. T.D. CAMPBELL, ‘The rights of the minor: as person, as child, as juvenile, as future adult,’ International Journal of Law and the Family 1992, no. 6, 1-18.
  4. E. BREMS, ‘Children’s Rights and Universality,’ supra, Chapter 2, para. 2.2 i.f
  5. E.M. MIJNARENDS, ‘De betekenis van het (…) Kinderrechtenverdrag voor Nederland, Ars Aequi 2000, no. 2, 87; Committee on the Rights of the Child, General Comment No. 1 on Article 29(1), CRC/GC/2001/1.
  6. J. EEKELAAR, ‘The importance of thinking that children have rights,’ International Journal of Law and the Family, 1992, no. 6, 230-231.
  7. EEKELAAR, ibid., 234.

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