The best interest of the child: implications and limits
The best interest of the child is a fundamental principle that guides all decisions concerning children, in both legal and social terms. This principle, enshrined in the United Nations Convention on the Rights of the Child (1989), stipulates that the child’s well-being must be the absolute priority in all actions concerning him or her. Criteria generally taken into account to determine this interest include safety, physical and mental health, emotional and social development, and access to education and care.
The principle of the best interest of the child is enshrined in several international legal instruments, such as the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption. At national level, many countries incorporate this principle into their civil codes and child protection regulations, making it a basis for judicial decisions.
Integration into judicial decisions…
The best interest of the child is taken into account in custody, adoption and protection cases. Judges must assess the family situation, the child’s needs and the ability of parents or guardians to meet those needs. This principle also guides decisions on foster and institutional placements.
Landmark court cases, such as post-divorce custody decisions in which judges favored a child’s residence with the parent who provided the best environment, illustrate the application of this principle. Similarly, in some adoption cases, decisions have been taken to place children in families that better meet their psychological and social needs, even if this means making difficult choices.
Some difficulties encountered…
Applying the best interest of the child presents a number of challenges, including lack of resources, lengthy and complex legal procedures, and conflicts of interest. Welfare officers and judges may encounter conflicting elements when assessing family situations. There is often tension between the interest of the child and the rights of the parents.
For example, in cases of child abuse, the protection of the child may require the intervention of the authorities, which may be perceived as a violation of parental rights. “According to Hélène LOKONHOUNDE NOBRE, social worker and head of the Guichet Unique de Protection Sociale in Parakou 2, “Reconciling these two aspects requires a nuanced and often delicate approach.
The influence of social factors…
Cultural, economic and social considerations may also influence the interpretation and application of this principle. For example, in some cultures, family ties and respect for parental decisions may take priority, which can sometimes conflict with measures taken to protect the child. Social workers, psychologists and specialized lawyers play a crucial role in assessing and defending the best interest of the child.
They are often the first to come into contact with vulnerable children, and must be able to identify their specific needs. To be effective, these professionals are trained in child psychology, family law and child protection, enabling them to navigate complex and diverse situations. Ongoing training is essential to keep pace with legislative developments and best practices in child protection.
Edifying cases…
According to Professor Maxime AGOUA, Program Manager at the Réseau des Structures de Protection des Enfants en Situation Difficile (ReSPESD), the best interest of the child is one of the seven principles governing child protection. We believe that taking charge of a child, accompanying him or her and guaranteeing the effectiveness of his or her rights, should be done in his or her best interest. It goes without saying that we must not only seek to give the child the best, but above all put his or her interest first.
According to him, “A man, after divorcing his wife, was confronted with an unsettling revelation. His ex-wife told him that the child he thought was his was not actually his. For all those years, the child had grown up thinking that this man was his father. Faced with this situation, the perplexed man asked for clarification. The couple went before a judge, where it was decided to carry out a DNA test to establish the child’s paternity. Meanwhile, another man was introduced by the mother as the real father.
The ten-year-old then expressed his distress to the judge, saying he didn’t understand the situation. He insisted that he didn’t know the man presented to him as his father, and asked not to be forced into a relationship with someone he didn’t recognize. Moved by the child’s tears, the judge decided to suspend the DNA test, thus postponing the case. This incident underlines the importance of taking the best interest of the child into account, reminding all those involved in child protection of the need to act with caution and sensitivity in their interventions”.
Day-to-day implications…
In everyday life, the best interest of the child influence decisions relating to children’s education, health and well-being, promoting environments conducive to their development. This principle is crucial to ensuring that decisions are made on the basis of children’s needs and rights, rather than adult interest. Furthermore, the best interest of the child must be integrated into the development of laws and programs aimed at protecting children’s rights.
This requires a collaborative approach between various actors, including government, NGOs and civil society. The best interest of the child is a complex, multi-faceted principle that guides the protection and well-being of children worldwide. Although it is enshrined in national and international legislation, the challenges associated with its application require constant attention and cooperation between all the players involved. Ultimately, successfully defending this interest involves striking a delicate balance between children’s needs, parents’ rights and socio-cultural realities.