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1
Smyth, Ciara. "The Best Interests of the Child in the Expulsion and First-entry Jurisprudence of the European Court of Human Rights: How Principled is the Court’s Use of the Principle?" European Journal of Migration and Law 17, no. 1 (March 16, 2015): 70–103. http://dx.doi.org/10.1163/15718166-12342072.
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The principle of the best interests of the child is regularly referred to by the European Court of Human Rights in its jurisprudence involving children. However, the principle is notoriously problematic, and nowhere more so than in the immigration context where the state’s sovereign interests are keenly at stake. This article critically examines the expulsion and first-entry jurisprudence of the European Court of Human Rights under Article 8 of the European Convention on Human Rights, interrogating whether a ‘principled’ approach is adopted to the best interests principle. It is argued that a principled approach is one which sees the best interests principle interpreted in the light of its parent document, the un Convention on the Rights of the Child, as interpreted by the un Committee on the Rights of the Child. It is demonstrated that despite widespread recourse to the best interests principle, the European Court of Human Rights fails to adopt a rights-based approach when identifying the best interests of the child and does not always give sufficient weight to the best interests of the child when balancing the interests of the state against those of the individual. The analysis also reveals a way for the Court to develop a more principled approach to the best interests principle.
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Zermatten, Jean. "The Best Interests of the Child Principle: Literal Analysis and Function." International Journal of Children's Rights 18, no. 4 (2010): 483–99. http://dx.doi.org/10.1163/157181810x537391.
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AbstractThe Best Interests of the Child principle is an innovative concept introduced by the United Nations Convention on the Rights of the Child. It serves as a foundational element of the Convention and has been identified by the Committee on the Rights of the Child as one of the Convention's four general principles. Despite limited historical references to this idea in the late 19th and early 20th centuries, this is a distinctly contemporary legal concept. As a result, its content and functionality has been the subject of thorough academic study as well as systematic examination and elaboration in jurisprudential settings. The paper makes a significant contribution to this interpretive dialogue by providing a conceptual and literal analysis of the principle, including as it relates to other articles of the Convention. The political dimensions of the principle are also considered with a view to its practical implementation at the national level.
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Thomson, Michael. "A capabilities approach to best interests assessments." Legal Studies 41, no. 2 (February 11, 2021): 276–93. http://dx.doi.org/10.1017/lst.2020.47.
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AbstractIt is an accepted principle of domestic and international law and policy that the welfare or best interests of the child must be the primary or paramount consideration in any decision made with regard to that child's upbringing. While this ‘best interests standard’ has become a core principle of welfare law, what might constitute a child or young person's best interests is given very little formal shape or content. This has provoked sustained criticism from practitioners, academics and the judiciary. In response, this paper argues that the capabilities approach can give best interests assessments much needed normative content, thereby addressing many of the criticisms directed towards the standard. The approach provides a theoretically nuanced framework for theorising about basic social justice and for evaluation, deliberation, and policy development across social welfare sectors. In arguing for a capabilities approach to best interests assessments, the paper sets out an agenda for change. It addresses the conceptual and methodological justifications for this change, and explores the empirical work that would be required. It identifies the steps and underlying principles necessary for a best interests process aligned with the capabilities approach, providing the necessary foundations for a radical reconceptualisation of best interests processes.
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Bobar, Cosmina Flavia. "Considerations on the Best Interests of the Child as a Principle of Exercising Parental Authority." Journal of Legal Studies 18, no. 32 (December 1, 2016): 88–96. http://dx.doi.org/10.1515/jles-2016-0018.
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Abstract The principle of the best interests of the child is the basis for international or national normative documents adopted after the 1989 UN Convention on the Rights of the Child. They enshrine the prevalence of this principle in any decision that must be made with regard to the child, and regardless of its author. In the matter of parental authority, the Romanian Civil Code subordinates parental rights and duties to this principle, placing the interests of the child above the interests of parents. This study presents such aspects as referring to the principle of the best interests of the child, including from a historical perspective, while also emphasising concern in the doctrine for defining but also establishing criteria to appraise the best interests of the child, prior to the amendment of Law no. 272/2004 on the protection and promotion of children’s rights.
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GILLETT, GRANT. "Ashley, Two Born as One, and the Best Interests of a Child." Cambridge Quarterly of Healthcare Ethics 25, no. 1 (January 2016): 22–37. http://dx.doi.org/10.1017/s0963180115000262.
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Abstract:What is in the best interests of a child, and could that ever include interventions that we might regard as prima facie detrimental to a child’s physical well-being? This question is raised a fortiori by growth attenuation treatments in children with severe neurological disorders causing extreme developmental delay. I argue that two principles that provide guidance in generating a conception of best interests for each individual child yield the right results in such cases. The principles are as follows: thepotentiality principle, whereby every child should be able to develop its potential and is entitled to receive certain help in doing so, and theprinciple of psychosomatic harmony, whereby every human being is entitled to treatment that is appropriate to or enables a life in which mind and body are in tune with each other. These principles indicate a certain response to what we can call Ashley-type cases and admit certain caveats.
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Kravchuk, Natalya V. "The Hague Convention on International Child Abduction: The Protection or Neglect of a Child`s Interests?" Family and housing law 6 (December 10, 2020): 18–21. http://dx.doi.org/10.18572/1999-477x-2020-6-18-21.
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The paper analyses provisions of Convention on the Civil Aspects of International Child Abduction with regard to a principle of the best interests of the child. The jurisprudence of the European Court of Human Rights on the best interests of the child dictates they should be interpreted broadly and cannot be identified by the application of the legal presumption. There is therefore a potential conflict between this reading and a narrow interpretation of this notion by the Hague convention according to which the best interest of the child in the case of international abduction is to return to the state of habitual residence. To secure the best interests of the child while applying Hague convention it is necessary to take into consideration respective international standards.
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Kalverboer, Margrite, Daan Beltman, Carla van Os, and Elianne Zijlstra. "The Best Interests of the Child in Cases of Migration." International Journal of Children’s Rights 25, no. 1 (June 20, 2017): 114–39. http://dx.doi.org/10.1163/15718182-02501005.
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The best interests of the child principle has a legal base in the United Nations Convention on the Rights of the Child. In 2013, the United Nations Committee on the Rights of the Child published guidelines on the implementation of the best interests of the child in General Comment No. 14. Together with the Best Interest of the Child Method, which is developed by Zijlstra et al. (2012), this framework offers a valuable tool for decision-making processes concerning children, in particular, in this review’s context, in migration procedures. In the assessment of the best interests of children who are forcibly migrated, special attention has to be given to risk factors associated with the different phases in the migration process that may harm their mental health, well-being and development. This requires knowledge based on academic studies and the involvement of professionals who have knowledge of children’s mental health and development.
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Pobjoy, Jason M. "THE BEST INTERESTS OF THE CHILD PRINCIPLE AS AN INDEPENDENT SOURCE OF INTERNATIONAL PROTECTION." International and Comparative Law Quarterly 64, no. 2 (March 16, 2015): 327–63. http://dx.doi.org/10.1017/s0020589315000044.
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AbstractThe Convention on the Rights of the Child, and the best interests principle codified in Article 3 in particular, is playing an increasingly significant role in decisions involving the admission or removal of a child from a host State. This article examines the extent to which the best interest principle may provide an independent source of international protection. That protection may, for instance, proscribe the removal of a child from a host State notwithstanding that the child is ineligible for protection as a refugee or protection under the more traditionalnon-refoulementobligations in international human rights law.
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Archard, Dave. "‘My child, my choice’: parents, doctors and the ethical standards for resolving their disagreement." Northern Ireland Legal Quarterly 70, no. 1 (March 8, 2019): 93–109. http://dx.doi.org/10.53386/nilq.v70i1.234.
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Disagreements between doctors and parents as to the appropriate treatment of a child have been exacerbated by a number of recent developments, especially the use of the internet. In normative terms there has been a popular assertion of a parent’s right to choose the treatment of his or her child and this has been defended in the bioethics literature, often in the context of a preference for a harm over a best interests principle for adjudicating these differences. This article affirms the centrality of a best interest standard and criticises arguments for giving parental views a certain moral weight based upon the view that parents know best, or on the interests of the parents, or as consistent with the use of child protection principles, or in value uncertainty.
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Glac, Wojciech. "Zasada dobra dziecka w praktyce orzeczniczej polskich sądów." Homo et Societas 3 (2018): 110–18. http://dx.doi.org/10.4467/25436104hs.18.009.12310.
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The Best Interests of the Child Principle in Judicial Practice of Polish Courts – a Review The best interests principle being one of the Polish family law general clauses consists in respect for child’s subjectivity with special regard to conflict or critical situations in their family. The Polish judicature unanimously indicates that the best interests of the child are superior value requiring extraordinary guarantee from the state. The paper comprises a review of selected court rulings which shape the judicial area the above-mentioned principle is applied in.
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Collins, Tara M. "Respecting the principle of best interests of the child in Canadian monitoring." International Journal of Canadian Studies, no. 42 (2010): 69. http://dx.doi.org/10.7202/1002172ar.
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Candra, Sasmita Adika, Rodliyah Rodliyah, and L. Parman. "The Best Interest of The Child Principle in The Juvenile Justice System." International Journal of Multicultural and Multireligious Understanding 6, no. 4 (September 29, 2019): 490. http://dx.doi.org/10.18415/ijmmu.v6i4.1017.
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Children are Nation Assets who have limitations in understanding and protecting themselves from the various influences of the existing system, therefore protection efforts are needed. Research Objectives analyze the concept of the best interests of children in the juvenile criminal justice system, the application of the principle of best interest for children in sexual abuse cases in the Central Lombok Police Station. Empirical legal research methods. Results of research Setting the principle of best interest for children in Law Number 11 of 2012 concerning the Child Judicial System in the provisions of Article 2 letter d. The application of the principle of best interest for children in the Central Lombok Resort Police, suspects are not treated the same as adults, given the opportunity to go to school, be examined in a special room that is a PPA unit room, a PPA special investigator and dressed non-official.
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Zito, Ferdinand. "The child's best interests … or near enough? A lawyer's perspective." Children Australia 35, no. 2 (2010): 48–52. http://dx.doi.org/10.1017/s1035077200001073.
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The ‘best interests of the child’ is rhetoric often applied and to an obscure legal concept. Nevertheless, it remains one of the most important standards, if not the most important, to be applied when attempting to determine what might be the interests of children at law. But as might be the case with other supposedly fundamental principles, there is much ambiguity in the meaning and uncertainty in the application of this principle and the standard it presumes to impose. Not surprisingly, many questions remain unanswered. Firstly, what exactly is the paramount status of the best interests standard? Secondly, in deciding the best interests of the child, does the ultimate responsibility lie with the judge or does it require some judicial deference to community values, as presumably expressed in the legislation? Lastly, does the standard, as it stands today, run the risk of being so general that its application can easily be distorted? Indeed, given the inherent difficulties in articulation and application of the standard, it might be unrealistic to expect mere legal provisions to ease social and emotional tensions that exist in the realm of child welfare today. As children themselves generally do not make applications to the court, their interests inevitably will be dependent on those of other parties, such as parents and the various professionals who assist them. As long as these principles are sought to be upheld in a system which is philosophically and practically adversarial, our ability to promote, maintain and protect the best interests of children will be inhibited. Is near enough good enough … or is it just the best we can do?
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Datsenko, Vasyl. "The best interests of the child in international law: conceptual framework." Legal Ukraine, no. 5 (June 25, 2020): 14–23. http://dx.doi.org/10.37749/2308-9636-2020-5(209)-2.
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On today’s international law, there is a broad consensus on the idea of those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child «On the right of a child to receive respect for the rest of the world». Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child’s best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.
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Prabhat, Devyani, and Jessica Hambly. "Bettering the Best Interests of the Child Determination: Of Checklists and Balancing Exercises." International Journal of Children’s Rights 25, no. 3-4 (November 17, 2017): 754–78. http://dx.doi.org/10.1163/15718182-02503008.
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The paper compares European Court of Human Rights (ECtHR) and uk court judgments on cross-border nationality cases concerning children and wholly domestic family law cases regarding children (without the cross-border element). It identifies different legal standards that apply to the well-being of children such as the best interests principle and the welfare principle and maps how successful these standards are in bringing in the views of children. It appears that cross-border nationality cases are unable to consider the interests of children as seriously as the wholly domestic family law cases. The domestic court approach of welfare brings in children’s views more effectively than nationality cases in domestic courts or at the ECtHR. It would benefit children if a rigorous best interests determination is carried out in nationality proceedings and a welfare approach is adopted consistent with family law cases.
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Drăghici, Aurelia Teodora, Andrei Murgu, and Teodor Bodoașcă. "Opinions Regarding the Principle of Promoting with Priority the Superior Interest of the Child in the Regulation of Law No. 272/2004 and the Romanian Civil Code." International conference KNOWLEDGE-BASED ORGANIZATION 26, no. 2 (June 1, 2020): 150–56. http://dx.doi.org/10.2478/kbo-2020-0068.
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SummaryThe study is devoted mainly to the logical-legal analysis of the provisions of art. 2 of Law no. 272/2004 on the promotion and protection of children’s rights, as well as art. 263 of the Civil Code, which establish the main normative solutions regarding the “priority promotion of the principle of the best interests of the child”. Although the phrase “the best interests of the child” is used in the construction of many rules of Law no. 272/2004, the Civil Code and other normative acts, the legislator refrained from establishing its significance, leaving this approach to the doctrine. The proposed study is intended to be a contribution to achieving this goal. We were also concerned with the identification of normative inaccuracies and the substantiation of pertinent proposals of lege ferenda for the improvement of the regulations regarding the principle of promoting with priority the principle of the best interest of the child.
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DATSENKO, Vasyl. "Conceptual framework for the best interests of the child in international law." Slovo of the National School of Judges of Ukraine, no. 1(30) (July 30, 2020): 51–62. http://dx.doi.org/10.37566/2707-6849-2020-1(30)-4.
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On today’s international law, there is a broad consensus on the idea of those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child “On the right of a child to receive respect for the rest of the world”. Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child's best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.
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PARKER, STEPHEN. "THE BEST INTERESTS OF THE CHILD - PRINCIPLES AND PROBLEMS." "International Journal of Law, Policy and the Family" 8, no. 1 (1994): 26–41. http://dx.doi.org/10.1093/lawfam/8.1.26.
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Archard, David, and Marit Skivenes. "Balancing a Child's Best Interests and a Child's Views." International Journal of Children's Rights 17, no. 1 (2009): 1–21. http://dx.doi.org/10.1163/157181808x358276.
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AbstractWe consider the problem of reconciling the two commitments to hear a child and to promote a child's best interests by identifying the principal issues at stake and illustrating them by reference to legal decision-making in the domains of health in the United Kingdom and custody and child protection in Norway. We agree that a child's views are not authoritative but dispute Harry Brighouse's claim that they are only of consultative value, affirming the fundamental right of a child capable of expressing a view of doing so and of thereby participating in the procedures where decisions affecting his or her interests are made. In conclusion we offer a checklist of questions that need to be asked about the way in which jurisdictions combine their explicit commitments to the two principles of best interests and hearing the child's views.
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Bakarbessy, Leonora, and Dian Purnama Anugerah. "IMPLEMENTATION OF THE BEST INTERESTS OF THE CHILD PRINCIPLES IN INTERCOUNTRY ADOPTION IN INDONESIA." Yuridika 33, no. 1 (February 8, 2018): 73. http://dx.doi.org/10.20473/ydk.v33i1.7202.
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Adoption of Indonesian children by foreigner is a form of intercountry adoption. In Indonesia such adoption is not prohibited but conditions are more difficult because it is a last effort or ultimum remedium for the best interests of the child. Therefore petition for intercountry adoption throught the court, its decision in the form of a court decision, because the proof as the same as the evidence in civil suit.This is defferent from the petition of national adoption.This paper discusses the implementation of the best interest of child’s principle in Indonesia and how to conduct intercountry adoption in Indonesia in order to avoid any attempts of illegal adoption. This paper concludes that the Indonesian Government has issued a number of laws and regulations govern the intercountry adoption. These laws require implying the principle of the best interest of children in order to protect the interest of children who is adopted by foreigner. In order to undertake the adoption, the court should decide that it is eligible after the Ministry of Social of the Republic of Indonesia approves adoption application.
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Lacombe, Étienne F. "PRIORITIZING CHILDREN’S BEST INTERESTS IN CANADIAN YOUTH JUSTICE: ARTICLE 3 OF THE UN CONVENTION ON THE RIGHTS OF THE CHILD AND CHILD-FRIENDLY ALTERNATIVES." Windsor Yearbook of Access to Justice 34, no. 2 (February 14, 2018): 209–33. http://dx.doi.org/10.22329/wyaj.v34i2.5025.
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The UN Convention on the Rights of the Child confers on children a number of rights, not the least of which is the guarantee that their best interests shall be a primary consideration in all actions that concern them. This article applies the Best Interests of the Child [BIC] principle—a widespread concept in family law—to the context of criminal policy. It calls for a rebalancing of Canadian youth justice so as to prioritize children’s best interests. As marginalized societal actors, children are at risk of seeing their interests increasingly overlooked if they are not brought to the fore.
Once a defining feature of Canada’s response to juvenile delinquency, the BIC principle has waned in the face of sweeping penal populism. Examples from Scotland, Scandinavia and Washington reveal means by which child-friendly justice systems can withstand the influence of punitive public sentiment. Mirroring such approaches in Canada would require repurposing the deeply engrained concept of proportionality and viewing children’s interests as inherent to advancing public safety.
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Gispen, Marie Elske C. "Vulnerability and the Best Interests of the Child in Tobacco Control." International Journal of Children’s Rights 29, no. 3 (August 17, 2021): 589–608. http://dx.doi.org/10.1163/15718182-29030003.
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Abstract The vulnerability of individuals is often used as a springboard to call upon additional rights protection or to scale up interventions. This is also the case in child health and tobacco control research. While human rights law is generally a strong mechanism to support such calls, critics like Martha Fineman question specific understandings of vulnerability within human rights law. Against this backdrop, the article analyses the usefulness of relying on vulnerability in human rights law to argue for better rights protection. The article concludes that Article 3 crc – reflecting the best interests of the child norm – seems a suitable “solution” to Fineman’s critique on the notion of vulnerability in human rights law. Finally, the universal and particular vulnerabilities of children in relation to tobacco-related harm can be a springboard into rights protection but are not the principle legal source that require governments to break down structural health inequalities.
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Negara, Arman Sukma. "Diversion As A Crime Solution Towards Child Crime Prepertrator." Ius Poenale 2, no. 1 (March 17, 2021): 21–30. http://dx.doi.org/10.25041/ip.v2i1.2204.
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Diversion efforts is an alternative solution for the sake of realizing children's interests and protecting the future of children from the destructive effects of imprisonment, which stigmatize criminals in the eyes of the community, but all of these have not been maximally realized because there is a court decision in the Lampung region itself which still applies sanctions punishment as an effective method of providing a deterrent effect on children. Based on this, this research's main problem focuses on implementing diversion for children as a criminal solution for juvenile offenders and whether diversion is an instrument in realizing the best interests of children. This research uses a juridical empirical, and normative juridical approach. The results of the discussion are in this research, namely that in the principle of the best interests of children as a criminal solution for child offenders, diversion is one of the instruments in realizing the best interests of the child considering that diversion instruments for children can improve the child's image from the impression of a criminal. The advice that can be given is that law enforcers should prioritize the principle of the child's best interests in every legal process rather than prioritizing repressive actions that lead to imprisonment sanctions and eliminating children's rights such as protection of their future.
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Lind, Judith. "The rights of intended children: The best interests of the child argument in assisted reproduction policy." Childhood 26, no. 3 (June 18, 2019): 352–68. http://dx.doi.org/10.1177/0907568219853331.
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Assisted reproduction policies constitute a particularly interesting case for the study of child rights governance as the child here is an intended child. The child’s rights are in potential conflict not with the parental, but the reproductive rights of adults. The article aims to analyse the mobilisation of the best interests of the child principle as a rhetorical resource in Swedish assisted reproduction policies and to trace the limits of governance in the name of the rights of the child.
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Xia, Jianghao. "The Best Interests of the Child Principle in Residence Disputes after Parental Divorce in China." International Journal of Law, Policy and the Family 34, no. 2 (August 1, 2020): 105–25. http://dx.doi.org/10.1093/lawfam/ebaa001.
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Abstract This article analyses how the best interests of the child principle have been implemented in residence disputes following a parental divorce in China. In doing so, it will analyse the Chinese Marriage Law 2001 and the Specific Opinions on Child-upbringing Issues after Parental Divorce, drawing on an empirical study conducted by the author involving 300 litigated cases over residence disputes in courts. This study shows that the continuity of circumstances and the abilities of each of the parents are used as the primary and secondary criteria for residence judgments, respectively. And it appears that Chinese judges prefer certain easily ascertainable factors, eg parents’ financial ability and the continuity of circumstances, to other internally emotional factors, eg children’s emotional needs and attachments. In addition, a considerable number (69 per cent) of the judges tend to simplify the decision-making process by only considering a single factor alone, or even no specific factor. In view of this, several legislative proposals for the statutory provision of residence disputes in the forthcoming Chinese Civil Code are put forward.
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Veselov, Mykola. "ADMINISTRATIVE AND LEGAL ENSURE OF “THE BEST INTERESTS OF THE CHILD” IN THE FIELD OF JUNIOR JUSTICE." PUBLIC ADMINISTRATION AND LAW REVIEW, no. 3 (October 1, 2020): 49–56. http://dx.doi.org/10.36690/2674-5216-2020-3-49.
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Today, the concept of “best interests of the child” is recognized as one of the guiding principles of ensuring the rights of children in all spheres of social relations. The object of this study is social relations in juvenile justice as a specific area of children’s rights. The aim of the article is to clarify the meaning of the concept of “best interests of the child” as well as to define the features of administrative and legal provision of this principle in the field of juvenile justice. To achieve this goal, general scientific and special methods of scientific research are used. The author argues that the definition of “best interests of the child” in the field of juvenile justice should only be generally oriented to guaranteeing child’s vital and social needs as a participant in jurisdictional proceedings, taking into account his or her age, biological and social characteristics. Under any circumstances, the list of such interests cannot be exhaustive. In view of the public-service nature of administrative and legal relations, an important role in the current and future ensure of the best interests of the child in any type of jurisdictional proceedings belongs to the administrative and legal means. The priority of attention to administrative and legal means in ensuring the best interests of the child in the field of juvenile justice is due to the wide range and relative universality of administrative and legal regulation, which allows to meet the procedural needs of children within purely jurisdictional proceedings as well as to facilitate other organizational and legal issues of social protection of children.
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Cherkassky, Lisa. "The Interfamilial Principle and the Harvest Festival." European Journal of Health Law 23, no. 1 (February 10, 2016): 61–79. http://dx.doi.org/10.1163/15718093-12341379.
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It is widely accepted that younger children can act as saviour siblings by donating cord blood or bone marrow to their gravely-ill brothers or sisters. However, it is under dispute whether these procedures are in the best interests of the child. This article suggests that parents may be relying on a thinly-veiled interfamilial approach, where the wider benefit to the whole family is used to justify the procedure to the Human Tissue Authority in the United Kingdom. This article suggests that the merging of familial interests to validate a non-therapeutic bone marrow harvest on a child forces altruism in a patient too young to understand, rendering the harvests unlawful under current law.
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Noori, Seyed Masoud, and Maryamossadat Torabi. "The Principle of Protecting the Best Interests of the Child in Shia Jurisprudence and Iran’s Legal System with Emphasis on Custody (New Understanding of a Traditional Legal Concept)." Asian Journal of Legal Education 6, no. 1-2 (January 2019): 67–82. http://dx.doi.org/10.1177/2322005819841525.
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In this article, children’s rights will be studied in the Iranian legal system with remarks on its references in the Shia Jurisprudence. One of the main issues regarding children, is their guardianship, custody or tutorship. The Iranian legal system, same as the Shia Jurisprudence, has always kept the best Interest of the child as an essential ground for law making. Referring to court decisions; it is evident that control of the guardianship on the child is limited by the best interests of the child, because this interests is what we are sure to understand from the reason of custody of the child and that this system is designed only to secure child’s best interests since he/she might be incapable to secure his/her interests alone. The Iranian legal system, especially in the family law section is based on the Islamic rules. The main documents in the Shia Jurisprudence in Islam are Quran, Hadith, Consensus and reasoning which will be defined herein. In addition, a more recent review will be made in this study regarding the ratified laws regarding children’s rights and international treaties and conventions while focusing on the Convention on the Rights of the Child even though, Iran joined this convention by having several reservations.
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Savirimuthu, Joseph. "Datafication as parenthesis: reconceptualising the best interests of the child principle in data protection law." International Review of Law, Computers & Technology 34, no. 3 (March 11, 2019): 310–41. http://dx.doi.org/10.1080/13600869.2019.1590926.
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Eekelaar, John. "The Role of the Best Interests Principle in Decisions Affecting Children and Decisions about Children." International Journal of Children’s Rights 23, no. 1 (March 28, 2015): 3–26. http://dx.doi.org/10.1163/15718182-02301003.
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The principle of the best interests of the child is firmly established and operates across a wide range of circumstances. The generally accepted view is that the principle demands decision makers to seek the best outcome for the children concerned, but that this has to be weighed against other interests. This leads to a very open-ended process. This article picks up on a distinction made, but not developed, between decisions about children and decisions about other matters which affect children indirectly. This distinction could be helpful in providing a better structure for these decisions. It is also shown that this structure is reconcilable with Article 8 of the European Convention.
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Banach, Mary. "The Best Interests of the Child: Decision-Making Factors." Families in Society: The Journal of Contemporary Social Services 79, no. 3 (June 1998): 331–40. http://dx.doi.org/10.1606/1044-3894.992.
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This study examines the factors considered by professionals working within the family court arena when they apply the standard of best interests of children to make a determination about where a child should reside. This study uses a qualitative design based on the critical incident technique. Recorded interviews were conducted with all respondents using a semi-structured format in which they were asked to delineate the factors they relied on to make a decision in a case in which they were involved. Results indicate that professionals rely on three domains to make decisions using the best interests standard: precipitating events, guiding principles, and case variables. Respondents also generally agreed that the best interests of children as a standard can be subjectively interpreted to the detriment of clear and unbiased decisions. Recommendations for use of these domains in decision-making concerning the best interests of children are proposed as a guard against the subjective interpretation of the standard.
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Ishaque, S., and M. Mustafa Khan. "The Best Interests of the Child: A Prevailing Consideration within Islamic Principles and a Governing Principle in Child Custody Cases in Pakistan." International Journal of Law, Policy and the Family 29, no. 1 (February 11, 2015): 78–96. http://dx.doi.org/10.1093/lawfam/ebu015.
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Anwar, Mashuril, and M. Ridho Wijaya. "Fungsionalisasi dan Implikasi Asas Kepentingan Terbaik Bagi Anak yang Berkonflik dengan Hukum: Studi Putusan Pengadilan Tinggi Tanjung Karang." Undang: Jurnal Hukum 2, no. 2 (March 24, 2020): 265–92. http://dx.doi.org/10.22437/ujh.2.2.265-292.
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The principle of best interest for children requires sanctions of deprivation of liberty as a last resort. Therefore, the principle of the best interests of children must be considered in the resolution of cases of children in conflict with the law. This article, which focuses on the decision of the Tanjung Karang High Court, discusses the functionalization of the best interests principle for children in conflict with the law and the implications of their application. This article concludes, judges in deciding cases of children in conflict with the law in general have not considered the principle of the best interests of the child. Of the 22 cases of children in conflict with the law at the Tanjung Karang High Court, only three decisions that can be categorized have considered the principle of the best interests of the child. Of the three decisions, two were sentenced not prison and one sentenced to prison. The application of the best interest principle for children in conflict with the law can have both positive and negative implications. It has positive implications, especially for offenders, because it protects children’s rights and reduces the burden of court cases and correctional institutions. But it can also have negative implications, because it is feared not to provide a deterrent effect and invite negative public perceptions of the judiciary.
Abstrak
Asas kepentingan terbaik bagi anak menghendaki sanksi perampasan kemerdekaan sebagai upaya terakhir. Oleh karenanya, asas kepentingan terbaik bagi anak harus menjadi pertimbangan dalam penyelesaian perkara anak yang berkonflik dengan hukum. Artikel ini, yang berfokus pada putusan Pengadilan Tinggi Tanjung Karang, membahas fungsionalisasi asas kepentingan terbaik bagi anak yang berkonflik dengan hukum dan implikasi penerapannya. Artikel ini menyimpulkan, hakim dalam memutus perkara anak yang berkonflik dengan hukum pada umumnya belum mempertimbangkan asas kepentingan terbaik bagi anak. Dari 22 perkara anak yang berkonflik dengan hukum pada Pengadilan Tinggi Tanjung Karang, hanya tiga putusan yang dapat dikategorikan telah mempertimbangkan asas kepentingan terbaik bagi anak. Dari tiga putusan tersebut, dua divonis bukan penjara dan satu divonis penjara. Penerapan asas kepentingan terbaik bagi anak yang berkonflik dengan hukum bisa berimplikasi positif sekaligus negatif. Ia berimplikasi positif terutama bagi pembuat delik, karena melindungi hak-hak anak dan mengurangi beban perkara pengadilan dan lembaga pemasyarakatan. Namun ia juga bisa berimplikasi negatif, karena dikhawatirkan tidak memberikan efek jera dan mengundang persepsi negatif masyarakat terhadap lembaga peradilan.
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Truog, Robert D. "Is ‘best interests’ the right standard in cases like that of Charlie Gard?" Journal of Medical Ethics 46, no. 1 (October 29, 2019): 16–17. http://dx.doi.org/10.1136/medethics-2019-105808.
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Savulescu and colleagues have provided interesting insights into how the UK public view the ‘best interests’ of children like Charlie Gard. But is best interests the right standard for evaluating these types of cases? In the USA, both clinical decisions and legal judgments tend to follow the ‘harm principle’, which holds that parental choices for their children should prevail unless their decisions subject the child to avoidable harm. The case of Charlie Gard, and others like it, show how the USA and the UK have strikingly different approaches for making decisions about the treatment of severely disabled children.
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Lundberg, A. "The Best Interests of the Child Principle in Swedish Asylum Cases: The Marginalization of Children's Rights." Journal of Human Rights Practice 3, no. 1 (February 2, 2011): 49–70. http://dx.doi.org/10.1093/jhuman/hur002.
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Hubbard, Ryan, and Jake Greenblum. "Parental Decision Making: The Best Interest Principle, Child Autonomy, and Reasonableness." HEC Forum 31, no. 3 (March 2, 2019): 233–40. http://dx.doi.org/10.1007/s10730-019-09373-9.
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Van Rossum, Wibo. "The clash of legal cultures over the ‘best interests of the child’ principle in cases of international parental child abduction." Utrecht Law Review 6, no. 2 (June 4, 2010): 33. http://dx.doi.org/10.18352/ulr.123.
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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 20, no. 4 (November 26, 2020): 745–68. http://dx.doi.org/10.1093/hrlr/ngaa034.
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Abstract According to Article 3(1) of the United Nations Convention on the Rights of the Child, the best interests of the child have to be a primary consideration in all cases concerning children. The Committee on the Rights of the Child understands Article 3(1) as a ‘threefold concept’: a substantive right, an interpretive principle and a rule of procedure. This article argues that the provision is best understood as a procedural obligation. Understanding Article 3(1) as a procedural obligation remedies key problems that originate from interpreting the provision as a substantive right. A significant strength of the procedural approach is that it can be consistently applied in different case groups. This article illustrates the argument with the case law of the European Court of Human Rights related to children, in which the article detects three layers of a procedural approach to the best interests of the child.
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Maxwell, Allie. "The Hague Convention on the Civil Aspects of International Child Abduction 1980: The New Zealand Courts' Approach to the "Grave Risk" Exception for Victims of Domestic Violence." Victoria University of Wellington Law Review 48, no. 1 (March 15, 2018): 81. http://dx.doi.org/10.26686/vuwlr.v48i1.4768.
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The Hague Convention 1980 was welcomed by the international community to resolve the emerging issue of international child abduction. The Convention is premised on the assumption that all child abduction is inherently harmful. Thus, it is generally in the best interests of children to be returned to the country of habitual residence as expediently as possible, restoring the status quo.Domestic violence victims do not fall within the typical abduction paradigm which the Convention was drafted to remedy. New Zealand courts have adopted a narrow approach to the "grave risk" defence, requiring the abducting party to prove that the country of habitual residence cannot adequately protect the child. This is rarely established due to the influence of the principle of comity. This approach therefore effectively blocks the discretionary inquiry, which only occurs once the defence is established, in which the Convention principles can be weighed against the welfare and best interests of the individual child, a consideration paramount in both domestic and international law. Domestic violence makes it unlikely that return will ever be in the child's welfare and best interests. A change in approach is suggested, under which consideration of the adequacy of the habitual residence's protection laws becomes a relevant consideration in the exercise of discretion. This ensures all considerations are given due regard and the safety of young domestic violence victims is better assured.
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Daly, Aoife. "No Weight for “Due Weight”? A Children’s Autonomy Principle in Best Interest Proceedings." International Journal of Children’s Rights 26, no. 1 (March 7, 2018): 61–92. http://dx.doi.org/10.1163/15718182-02601012.
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Article 12 of the un Convention on the Rights of the Child (crc) stipulates that children should have their views accorded due weight in accordance with age and maturity, including in proceedings affecting them. Yet there is no accepted understanding as to how to weigh children’s views, and it is associated strongly with the indeterminate notion of “competence”. In this article, case law and empirical research is drawn upon to argue that the concept of weighing their views has been an obstacle to children’s rights, preventing influence on outcomes for children in proceedings in which their best interests are determined. Younger children and those whose wishes incline against the prevailing orthodoxy (they may resist contact with a parent, for example) particularly lose out. Children’s views appear only to be given “significant weight” if the judge agrees with them anyway. As it is the notion of autonomy which is prioritised in areas such as medical and disability law and parents’ rights, it is proposed in this article that a children’s autonomy principle is adopted in proceedings – in legal decisions in which the best interest of the child is the primary consideration, children should get to choose, if they wish, how they are involved and the outcome, unless it is likely that significant harm will arise from their wishes. They should also have “autonomy support” to assist them in proceedings. This would likely ensure greater influence for children and require more transparent decision-making by adults.
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Josefsson, Jonathan. "Children’s Rights to Asylum in the Swedish Migration Court of Appeal." International Journal of Children’s Rights 25, no. 1 (June 20, 2017): 85–113. http://dx.doi.org/10.1163/15718182-02501009.
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Children’s rights to asylum have led to political controversies in a number of countries in recent years. This article focuses on the translation of nearly universally recognised children’s rights principles into a domestic practice of immigration control, and explores how legal norms regarding children’s rights to asylum have developed in the Swedish Migration Court of Appeal 2006–2013. Court decisions are analysed with a focus on the meanings given to the best interests of the child, how this is given weight against state interests of immigration control, and how children’s interests are given normative force. It is only in a small minority of cases in which the Best Interests Principle (bip) in fact does have a decisive normative force in granting residence permits and the meanings and use of children’s interests in court argument makes evident that the bip enables both the granting and denial of residence permits. The bip is doing normative work in double directions.
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Sund, Lars-Göran, and Marie Vackermo. "The Interest Theory, Children’s Rights and Social Authorities." International Journal of Children’s Rights 23, no. 4 (December 21, 2015): 752–68. http://dx.doi.org/10.1163/15718182-02304002.
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The principle of ‘the best interests of the child’ (art. 3 of the Convention on the Rights of the Child) is sometimes put forward as being the leading guide, i.e. it will in the long run – via, e.g. court cases and legal writing – give accurate and detailed information on the scope of children’s rights and the responsibilities of, e.g., parents. We claim that this principle does not provide us with the necessary analytical tools to enhance the legal rights of children. To this end it is more efficient to accept the explanatory power and apply the elements of the Interest theory, i.e. the chain of children’s interests and rights, obligations of e.g. parents and sanctions against failures. In this context we also illustrate that rights can have different strengths by briefly examining the role of social authorities in relation to the rights of children.
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Wadjo, Hadibah Zachra, Elias Zadrach Leasa, Denny Latumaerissa, and Judy Marria Saimima. "Penyelesaian Perkara Anak Sebagai Pelaku dan Korban Ditinjau Dari Asas Kepentingan Terbaik Bagi Anak." SASI 26, no. 2 (June 4, 2020): 201. http://dx.doi.org/10.47268/sasi.v26i2.306.
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In reality, specifically for the principle of the best interests of children who are accommodated in the Aanak Criminal Justice System Act not yet maximized to be applied in cases of children who are dealing with the law both against children as perpetrators and children as victims, which in the settlement of losses suffered by children as a victim of a criminal offense, it has not been concretely felt. Based on the explanation above, the problem that the writer wants to analyze is Is the settlement of the case of children considering the best interests of the child as the perpetrator and the child as the victim? Constraints in fulfilling the best interests principle for children as perpetrators and children as victims. The research method used is a type of empirical juridical research. The results showed that the fulfillment of the best interests of children in the case of children in conflict with the law must be supported by all relevant stakeholders so that children's rights can be implemented at all stages of the case inspection in accordance with the mandate of the Aanak Criminal Justice System Law and the Law related, it is not enough there, the fulfillment of the best interests must also continue to be supported back to the community. Obstacles in fulfilling the best interests of cases of children in conflict with the law, namely the lack of investigators for the protection of women and children, inadequate facilities or infrastructure, human resources both for women and children protection investigators and for assisting victims who are not yet qualified, lack of budget in case settlement children in conflict with the law.
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Widjaja, Angela Melani, Ike Yeni Kartika Sari, Hasna Firaz Isza Fadhilah, and Devi Sukma Ayuningtyas. "The Application of the Best Interest of the Child Principle as a Basis for Determining Child Custody." Unram Law Review 4, no. 2 (October 23, 2020): 163–73. http://dx.doi.org/10.29303/ulrev.v4i2.126.
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This research was conducted to introduce the principle of the best interest of the child as a basis for judges to create decisions regarding the child custody that reflects child protection. Based on this idea, the problem formulations in this research are: First of al, what is the basis for determining child custody by judges in Indonesia? and Secondly, what is the basis for determining child custody that reflects the principle of The Best Interest of The Child This paper is legal research which applies statute approach, conceptual approach, and case approach. Based on this research, it was found that Firstof all, there are differences for judges in determining child custody in Indonesia for Muslim and non-Muslim couples. For Muslim couples, if the child is 12 (twelve) years old and over, the custody of the child is prioritized to be handed to the mother and if the child is under 12 (twelve) years of age, then custody will be given to the mother. For non-Muslim couples, generally, the custody of the child will be prioritized to be given to the mother. Secondly, The basis for determining the provision of child custody that reflects the principle of the best interest of the child for Muslim couples is that if the child is over 12 (twelve) years old, therefore the judge should not necessarily prioritize giving custody to the mother, rather they must pay attention to aspects of the need and the wishes of the child. If the child is not yet 12 (twelve) years old, the judge should also consider the desires and needs of the child and not necessarily give custody to the mother. The basis for determining the granting of child custody that reflects the principle of the best interest of the child for non-Muslim couples is when the judge does not necessarily give priority to the mother, but should consider the desiresand needs of the child.
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Kabanov, V. L. "On the Thirtieth Anniversary of the Creation of the Convention on the Rights of the Child: History and New Challenges." Social Sciences and Childhood 1, no. 1 (2020): 88–99. http://dx.doi.org/10.17759/ssc.2020010107.
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The article analyzes the history of the development of the 1989 Convention on the Rights of the Child. Brief characteristics of the “Declaration of the Rights of the Child” by K.N. Wentzel, 1924 Declaration of the Rights of the Child, 1959 Declaration of the Rights of the Child, features of the Convention on the Rights of the Child. The author’s concept of the implementation of the principle of the best procuring of children interests is presented.
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Datsenko, Vasyl. "Interrogation of a child under 10 years of age in the case of determining the place of residence for the best interests of the child." Slovo of the National School of Judges of Ukraine, no. 3(28) (December 19, 2019): 140–52. http://dx.doi.org/10.37566/2707-6849-2019-3(28)-11.
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The article explores the legal nature of the right of a child under the age of 10 to freely express their views on issues that affect her personally. Disputes about determining a child's place of residence are extremely complex, both in practical and emotional terms. Such disputes are filled with the negative emotions of parents who cannot decide with whom the child will reside. Under current law, the child itself has a role to play in resolving such a conflict. The relationship between such a right and the principle of the best interests of the child in determining his or her place of residence is analyzed. The practical aspects of the court interrogation of a child under 10 years are covered. It is established that there are no clear rules in national legislation that would indicate in which cases it is necessary to listen to opinion of a child under 10 years of age. This situation creates the risk of infringement of the relevant right of the child, as in some cases, in the absence of an imperative indication in the law, the court may not pay sufficient attention to such issue. In turn, such a violation will prevent the best interests of the child in making a decision in the case. In order to prevent the violation of such a right of the child under 10 years of age it is offered to hear its opinion every time after confirming the possibility of the child to express its opinion. This approach follows from the analysis of the norms of international and national legislation. In addressing the possibility of the child expressing his / her opinion, it is suggested to consider carefully the opinion of experts in matters concerning the development of the child and adolescents - the body of guardianship and care. In some cases, it is suggested to question the child in court in the presence of a psychologist or to appoint a psychological examination. Key words: the principle of ensuring the best interests of the child, a child under 10 years of age, the right of the child to express an opinion, a dispute about determining the child's place of residence, family and legal relations.
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Brittle, Ruth. "A Hostile Environment for Children? The Rights and Best Interests of the Refugee Child in the United Kingdom’s Asylum Law." Human Rights Law Review 19, no. 4 (December 2019): 753–85. http://dx.doi.org/10.1093/hrlr/ngz028.
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Abstract Children experiencing persecution, torture, ill-treatment, exploitation and violence are compelled to flee across international borders to seek protection in another state. When a child seeks international protection, the framework of rights under the Convention on the Rights of the Child and the Convention Relating to the Status of Refugees should guide a state to determine the child’s status and protection needs. However, a child’s best interests and right to protection may clash with a state’s interest in immigration control. Increasingly, states are implementing strict laws to discourage irregular migration and to encourage those without leave to remain to return to their countries of origin. Such laws or policies have an impact on people seeking international protection, including children. The UK government’s ‘hostile environment’ policy is an example of this and applies to all adults and children who enter the UK irregularly and have no right to remain. I argue that the UK’s approach violates its international obligations under the Convention on the Rights of the Child. This article analyses how the children’s rights framework, in particular the ‘best interests’ principle, is able to challenge the UK’s ‘hostile environment’ policy.
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Syafiuddin, M. Nur, Rachmad Safa’at, Prija Djatmika, and Istislam Istislam. "Understanding Child Support in the Pattern of Child Protection based on the Principle of Child Protection." International Journal of Multicultural and Multireligious Understanding 8, no. 1 (January 3, 2021): 92. http://dx.doi.org/10.18415/ijmmu.v8i1.2260.
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Children have human rights (HAM) as those of adults. Unfortunately, discussions regarding children's rights are not as intense as adult rights or women's rights. There are not many parties that discuss and take concrete actions related to the protection of children's rights. In fact, children are a reflection of the future, assets of family, religion, nation and state. This study aims to describe and analyze the meaning of child support in the pattern of child protection in Indonesia based on the best interests of the child. This normative legal research utilized a philosophical and statutory approach. Analytical techniques used to process legal materials were analytical prescriptive methods, hermeneutics (interpretation) of law and ijtihadi. The legal materials used were primary legal materials including laws on child protection and secondary legal materials consisting of all literature and publications relevant to the field of child protection law. The results showed that there are at least two meanings of child support in the pattern of child protection in Indonesia based on the principle of child protection: child support as a guarantee for child welfare and child support as a futuristic value in child protection.
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Leloup, Mathieu. "The principle of the best interests of the child in the expulsion case law of the European Court of Human Rights: Procedural rationality as a remedy for inconsistency." Netherlands Quarterly of Human Rights 37, no. 1 (March 2019): 50–68. http://dx.doi.org/10.1177/0924051918820986.
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According to Article 3 CRC, the best interests of the child should be a primary consideration in all actions concerning children. This article examines how the European Court of Human Rights applies this principle in expulsion cases that have an impact on the right to family life. A distinction is made between the cases where the expulsion measure is aimed at one of the parents and the cases where the child itself is the subject of the impugned decision. A critical examination of the available case law proves that the Court’s use of the principle is inconsistent in several areas. It is argued that the Court should adopt a procedural approach towards the principle. This would make the case law more consistent, while simultaneously increasing the children’s protection.
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Arnold, Samantha, Martine Goeman, and Katja Fournier. "The Role of the Guardian in Determining the Best Interest of the Separated Child Seeking Asylum in Europe: A Comparative Analysis of Systems of Guardianship in Belgium, Ireland and the Netherlands." European Journal of Migration and Law 16, no. 4 (November 14, 2014): 467–504. http://dx.doi.org/10.1163/15718166-12342066.
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Separated children seeking asylum in Europe have the right to a representative, typically in the form of a guardian, and the right to have their best interests taken into account. These rights are articulated in the Council Directives and Regulations regulating the Common European Asylum System. The original language used around the time of developing the Common European Asylum System related to ‘harmonisation’. This article, therefore, looks at the level of harmonisation of the systems of guardianship, and the guardians’ responsibility to determine and promote the best interest, for separated children seeking asylum in Europe. The article begins by defining the guardian and the best interest principle and outlining the relevant law, which presently exists in Europe. Three case studies were chosen to provide current examples of the differences in practice in Europe, namely: Belgium, Ireland and the Netherlands. The question dealt with in this article is to what extent the three case study countries meet the minimum standards set out in European law in respect of guardianship and the best interests of separated children seeking asylum.