The Best Interests of the Child is a near-omnipresent idea in child protection. What does it actually mean?
by Law Aritao | Director, Prosecution and Aftercare, International Justice Mission’s Center to End Online Sexual Exploitation of Children
The United Nations Convention on the Rights of the Child says:
- 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. (Art. 3, Sec 1, UN CRC)
In this article, we will explore (a) attempts at defining the term, (b) criticisms against the term, and finally, (c) a Philippines-specific definition from the Rule on Examination of a Child Witness.
Prior Attempts at Definition
Let’s look at some definitions the legal community has supplied.
Joan B. Kelly offers this working definition in the context of custody disputes:
what combination of factors this child needs in a custody and/or access arrangement that will sustain his or her adjustment and development. (Source below)
Children’s Bureau (childwelfare.gov) supplies this working definition:
Although there is no standard definition of “best interests of the child,” the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child. (Source below)
Although the Convention on the Rights of the Child does not give a strict definition of this idea, it tends to emphasize the idea of a child’s protection. (Source below)
Melone Hatley, P.C:
In the context of child custody cases, focusing on the child’s “best interests” means that all custody and visitation discussions and decisions are made with the ultimate goal of promoting and encouraging the child’s happiness, security, mental health, and emotional development into adulthood. (Source below)
Doing the Right Thing (for the child)
The above definitions share the common trait of prioritizing the welfare of the child, and we might aggregate the ideas (albeit simplistically) into one phrase:
Doing the right thing for the child.
If such a reduction is not helpful for you, that’s perfectly understandable. The crucible of the best interests standard may as well be a spectrum in between overly broad discretion, and a stiflingly narrow, codified blueprint of that “right thing for the child.”
As the standard makes contact with medical, educational, and legal disciplines, it is expected that it remain broad enough to encompass the uniqueness of a child. At the same time, a sense of immateriality, combined with the term’s ubiquity, has led many to criticize the usefulness of “the best interests of the child.” Let us explore some of those concerns.
Erika Salter, in her abstract for “Deciding for a child: a comprehensive analysis of the best interest standard,” summarizes her critique:
It is ill-defined and inconsistently applied; it is unreasonably demanding and narrow; it fails to respect the family. (Re-formatted for brevity. Source below)
In a less critical manner, via the educational journal Interchange, Stephen Smith suggests that knowing and refining the standard of best interests may not be as helpful as actually knowing the child’s unique situational needs:
Yet just when child advocacy is taking hold there comes the realization that the level of care required by a child, beyond merely protecting her or him from harm, cannot be legislatively promulgated…
Serving a child’s best interests requires an ethics not of the high seas but of the terra firma situations in which we find ourselves with children. (Source below)
Exploring how the concept is likely better seen as a procedural requirement, Milka Sormunen says in Understanding the Bests Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights:
The concept’s vagueness provides a significant problem in understanding best interests as a substantive right: what do ‘best interests’ mean and how can they be defined in individual situations? This vagueness originates not only from understanding the best interests as a substantive right but also from the indeterminacy of the concept itself and its application to a broad range of situations. (Source below)
A Definition from the Rule on Examination of the Child Witness (Philppines):
‘Best interests of the child’ means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (Rule on Examination of the Child Witness, Philippines)
The above definition is likely one of the more helpful written definitions of the term in Philippine law, especially because of its second sentence. Searching for the least detrimental option sounds like a method aligned with Sormunen’s position that the best interests standard is most useful as a procedural requirement- i.e., at the very least, a court must go through the process of examining the least detrimental alternative for safeguarding the growth and development of the child. We will explore this idea in the next article.
Kelly, J 1997, ‘The Best Interests of the Child | A concept in search of meaning’ Family Law Journal Vol 35(4) pp 377-387
Children’s Bureau https://www.childwelfare.gov/pubPDFs/best_interest.pdf accessed January 26, 2021'
Humanium.org https://www.humanium.org/en/the-childs-best-interest/ accessed January 26, 2021
Melone Hatley, P.C. https://www.melonelawpc.com/what-does-best-interest-of-the-child-mean/ accessed January 26, 2021
Salter, E 2012, ‘Deciding for a child: a comprehensive analysis of the best interest standard’ Theroetical Medicine and Bioethics Volume 33(3) pp 180-199
Smith, S, 2004, ‘A Child’s Best Interests: A Commentary On “Jurisprudential and Ethical Perspectives On ‘The Best Interests of Children’ by Keith Walker’ Interchange Volume 29 (3) pp 309-3016
Sormunen, Milka, ‘Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights’, Human Rights Law Review, Volume 20(4) pp745-768
Rule on Examination of the Child Witness (Philippines)