Australia, Denmark, Spain and the USA are all in this category: ‘(d) the likely effect on the child or young person of changes to the child’s or young person’s circumstances, including separation from a parent or anyone else with whom the child has been living’ (Australia #1.d). 3), General law, Chapter 119 Protection and care of children, and proceedings against them (Sec. EU Dublin III Council Regulation, par. Legislation is an important mechanism by which governments state their goals and ambitions and signal and instruct professionals on how they wish their goals to be implemented in the various institutions of a welfare state. There is also a large amount of the national legislation (in 10 of the 14 countries) that raises the issue of the child’s needs as an important consideration. All countries have some reference to weighting, timelines and/or procedural requirements. (1989). (1) Child welfare must promote the favourable development and well-being of the child. However, this raises the fundamental problem with the exercise of discretion to which decision-makers are not bound by any standards, as Dworkin (1967) already had discussed. The countries differ in how they regulate and organize the institutional settings for child protection and decision-making processes (Burns et al. Child and Family Service Act, R. S. O, c. C11. (#2.b). Available at: Children Act. Available at: General Law Chapter 119 Protection and Care of Children and Proceedings against Them. Burns, K., Pösö, T. & Skivenes, M. (2017). Altogether, the best interest principle in its current state in the CRC offers little guidance for decision-makers; nonetheless, it is the guiding principle for decisions that have a tremendous impact on the lives of children and adults (Breen 2002; Elster 1989; Freeman 2007; Skivenes 2002).
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Preservation of a child’s relationship, be it to carers, parents or others in a wider sense, is included by eight of the 14 countries. The empirical studies that should be pursued are whether and how the various prerogatives of professional decision-makers are exercised. The factsheet also addresses the definition of best interests and guiding principles of best interest determinations. The lack of focus in the legislation on education and health is surprising, as it is well established that these areas are extremely important for children’s future adulthood, and to gain employment and independence from the state. Here, a range of considerations are provided that the decision-makers should consider. Balancing a child’s best interests and a child’s views. (2008). 14 on the right of the child to have his or her best interests taken as a primary consideration, 2013. In this study, we examine the contested ‘best interest’ principle. In H. Geach & E. Szwed (Eds.). Such signalling is typically followed by delegation of authority to exercise discretion, that is ‘when someone is in general charged with making a decision subject to standards set by a particular authority’ (Dworkin 1967, p. 32). Such issues as the stability of the child's life, links with the community, and stability of the home environment provided by each parent may be considered by a court in deciding the child's residency in custody and visitation proceedings. Summaries of laws for all States and U.S. territories are included. However, ‘what is best for any child or even children in general is often indeterminate and speculative and requires a highly individualized choice between alternatives’ (Mnookin and Szwed 1983, p. 8; see also Breen 2002; Elster 1989; Freeman 2005). https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/best-interest/, http://www.uib.no/sites/w3.uib.no/files/attachments/appendix_to_the_best_interests_of_the_child_in_child_protection.pdf, https://en.wikipedia.org/wiki/Adverse_Childhood_Experiences_Study, https://www.ontario.ca/laws/statute/90c11?_ga=1.16889017.1635595470.1466670145 - BK2, http://www.irishstatutebook.ie/eli/1991/act/17/enacted/en/html, https://www.riigiteataja.ee/en/eli/506052015001/consolide, http://www.finlex.fi/en/laki/kaannokset/2007/en20070417?search%5Btype%5D=pika&search%5Bpika%5D=Child, http://www.legislation.gov.uk/ukpga/1989/41/section/1, http://www.legislation.act.gov.au/a/2008-19/current/pdf/2008–19.pdf, http://www.gesetzessammlung.bs.ch/frontend/versions/3254, https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Bundesnormen&Dokumentnummer=NOR40146725, https://www.retsinformation.dk/Forms/R0710.aspx?id=173200-idcc44e087-df5d-42e4-a6c9-b82107b50646, https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXVII/Chapter119/Section1, http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html-p5900, http://noticias.juridicas.com/base_datos/Privado/lo1-1996.html, https://www.riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/socialtjanstlag-2001453_sfs-2001-453, https://www.regjeringen.no/en/dokumenter/the-child-welfare-act/id448398/, Department of Administration and Organization Theory, https://doi.org/10.1007/978-3-319-94800-3_4, 2 The Principle of the Best Interest of the Child and Discretion, 3 Child Protection Systems, Welfare States and Jurisdictions.
, This article is about best interest decisions in respect of children. 90. Ten of the 14 countries have four or more material themes reflected in the child’s best interest principle, whereas the other four have zero to three material themes to consider. The best interests doctrine is an aspect of parens patriae, and in the United States it has replaced the Tender Years Doctrine, which rested on the basis that children are not resilient, and almost any change in a child's living situation would be detrimental to their well-being. Although the interpretation of the best interest principle varies considerably, all 14 countries specify how factors should be ranked or the best interest principle weighted against other principles or mention a timeline. Although the USA has not ratified the CRC, we include it as several states use the principles from the CRC and the best interest principle in child protection, Gateway, C. W. I. Strong discretion is evident, as in these countries.
United Nations, Convention on the Rights of the Child.
It is clear that depending on the specific country, these considerations represent zero to seven material themes that professionals are instructed to consider. Available at: Children and Young People Act. The legislation in England, Estonia, Finland, Ireland, Switzerland and the USA does not refer to this consideration. 14 on the right of the child to have his or her best interests taken as a primary consideration, Safe and Sound, What States can do to ensure respect for the best interests of unaccompanied and separated children in Europe, Guidelines on Formal Determination of the Best Interests of the Child, Hague Conference on Private International Law, List of international and European laws on child protection and migration, https://en.wikipedia.org/w/index.php?title=Best_interests&oldid=981044908, Articles needing cleanup from November 2019, Cleanup tagged articles with a reason field from November 2019, Wikipedia pages needing cleanup from November 2019, Creative Commons Attribution-ShareAlike License. Link to Child Welfare Information Gateway, Determining the Best Interests of the Child. Presented with the same case, close to all staff in England and California (USA) recommended adoption for the child, whereas six out of ten of the Norwegians did the same. The Austrian, Canadian and Swedish legislation includes both dimensions: ‘In the assessment of what is best for the child, particular focus must be placed on—the risk of the child or other family member being subjected to abuse or the child being illegally removed or retained or otherwise treated badly’ (Sweden #2.a). Available at: German Civil Code. The best interests of a child may change significantly over time as children grow and their situations and capacities evolve, so their best interests’ may need to be reassessed periodically. 46), Organic Law 1/1996, of 15 January, on protection of minors, modification to the Civil Code and the Civil Procedure Act (Art. Schneider, V. (1992). 37 ), Consolidation Act on Social Services 2011 (Sec. The remaining three considerations are included by fewer than half of the countries and can be regarded as factors that do not have the same relative importance: child’s identity (six of 14); natural parents’ perspective (four of 14) and the future of the child (three of 14). Ten of the 14 countries include some wording regarding the needs of the child, whereas the legislation in Estonia, Ireland, Norway and Switzerland does not explicitly mention needs. https://en.wikipedia.org/wiki/Adverse_Childhood_Experiences_Study. Adamson, P. (2013).
(2013). PhD thesis (in Norwegian).
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