Commentary on the United Nations Convention on the Rights of the Child.Article 3: The Best Interests of the Child (v. 3)

Article 3 The Best Interests of the Child

A Commentary on the United Nations Convention on the Rights of the Child Editors André Alen, Johan Vande Lanotte, Eugeen Verhellen, Fiona Ang, Eva Berghmans and Mieke Verheyde

Article 3 The Best Interests of the Child By

Michael Freeman University College London

LEIDEN • BOSTON 2007

This book is printed on acid-free paper. A Cataloging-in-Publication record for this book is available from the Library of Congress. Ang, Fiona. Article 38 : children in armed conflicts / by Fiona Ang. p. cm. — (A commentary on the United Nations Convention on the Rights of the Child, ISSN 1574-8626 ; 38) ISBN 90-04-14561-3 (acid-free paper) 1. Child soldiers—Legal status, laws, etc. 2. Children and war. I. Title. II. Commentary on the United Nations Convention on the Rights of the Child ; article 38. K4725.A93 2005 342.08'772—dc22 2005051811

Cite as: M. Freeman, “Article 3. The Best Interests of the Child”, in: A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans and M. Verheyde (Eds.) A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff Publishers, Leiden, 2007).

ISSN 1574-8626 ISBN 978-90-04-14861-1 © 2007 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. Cover image by Nadia, 1 1/2 years old http://www.brill.nl All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. PRINTED IN THE NETHERLANDS

CONTENTS

List of Abbreviations .................................................................................... Author Biography .......................................................................................... Text of Article 3 ............................................................................................

vii ix xi

Chapter One. Introduction ............................................................................ Chapter Two. Comparison with Related International Human Rights Standards ........................................................................................ 1. The Declaration of Geneva ................................................................ 2. The Universal Declaration of Human Rights ................................ 3. The European Convention on Human Rights ................................ 4. The United Nations Declaration on the Right of the Child ........ 5. The International Covenant on Economic, Social and Cultural Rights .................................................................................... 6. The International Covenant on Civil and Political Rights .......... 7. The Hague Convention on International Child Abduction ........ 8. The European Convention on Custody and Restoration of Custody of Children 1980 ............................................................ 9. The African Charter on the Rights and Welfare of the Child 1990 ............................................................................................ 10. The Hague Convention on Intercountry Adoption ...................... 11. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 .................................................................................. 12. The European Convention on The Exercise of Children’s Rights .................................................................................................... Chapter Three. The Meaning and Scope of Article 3 .............................. 1. Article 3(1) The Best Interests Principle ........................................ 1.1 Its Origins .................................................................................... 1.2 Its Meaning .................................................................................. 1.3 Its Role ........................................................................................ 1.4 Best Interests and Culture ........................................................ 1.5 Why Best Interests? ..................................................................

1 11 11 12 12 14 15 16 17 20 20 22

22 23 25 25 25 27 32 33 40

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CONTENTS

1.6 Implementing The Best Interests Principle .......................... 1.7 The Text ...................................................................................... 1.8 Article 3(1) .................................................................................. a) In all actions .......................................................................... b) Concerning children ............................................................

41 44 44 44 45

c) Whether undertaken by public or private .............. 47 d) Courts of law ................................................................ 48 e) The Best Interests of the child .................................. 50 f ) A primary consideration .................................................... Article 3(2): Care and Protection .................................................... 2.1 Whose Responsibility? .............................................................. 2.2 A Compromise ............................................................................ 2.3 Inconsistencies ............................................................................ 2.4 A Backdrop Provision ................................................................ 2.5 The Text ...................................................................................... a) Undertake to Ensure ............................................................ b) Protection and Care .............................................................. c) Necessary for the child’s well-being ................................ d) Rights and duties of parents .............................................. 2.6 The Balancing Exercise ............................................................ 3. Article 3(3): Appropriate Standards for Institutions, Services and Facilities Responsible for the Care and Protection of Children ................................................................................................ 3.1 Relationship to Article 18 ........................................................ 3.2 Standards and Care .................................................................... 3.3 Suitability of Staff ...................................................................... 3.4 Services outside State Responsibility ....................................

60 64 64 65 65 66 67 67 67 68 69 69

Bibliography ....................................................................................................

75

2.

71 71 72 72 73

LIST OF ABBREVIATIONS

ACRWC ECECR ECHR HCIA HCPC FAO FGM ICCPR ICESCR UNCRC UNDCR UNESCO WHO

African Charter on the Rights and Welfare of the Child European Convention on the Exercise of Children’s Rights European Convention on Human Rights Hague Convention on Intercountry Adoption Hague Convention on the Protection of Children Food and Agriculture Organization Female Genital Mutilation International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights United Nations Convention on the Rights of The Child United Nations Declaration on the Rights of the Child United Nations Educational, Scientific and Cultural Organization World Health Organization

AUTHOR BIOGRAPHY

Michael Freeman has been Professor of English Law at University College London (UCL) since 1984. He was made a Fellow in 2000. He studied law at UCL and initially taught at the University of Leeds, joining UCL in 1969. He is a barrister, of Gray’s Inn. He was a founding editor of the International Journal of Children’s Rights in 1993, and has edited the journal ever since. He was Vice-President of the International Society of Family Law from 1994–2000, and was the founding editor of its Annual Survey of Family Law from 1982 to 1994. He edited Current Legal Problems from 1992 to 2004 and is now a founding editor of the International Journal of Law In Context (from 2005). He is the General Editor of the International Library of Medicine, Ethics and Law and the author of three volumes on this series, Ethics and Medical Decision Making, Children, Medicine and Law and The Ethics of Public Health. He is the General Editor also of the Library of Family, Society and Law, and the author of a volume in this series on Domestic Violence. He is the author of The Rights and Wrongs of Children (London, Frances Pinter, 1983), The Moral Status of Children (The Hague, Martinus Nijhoff, 1997), Children, Their Families and the Law (Basingstoke, Macmillan, 1992). Amongst his relevant edited collections are Children’s Rights: A Comparative Perspective (Aldershot, Ashgate, 1996), Children’s Health and Children’s Rights (Leiden, Brills, 2006), and Overcoming Child Abuse: A Window on A World Problem (Aldershot, Ashgate, 2000), and, with Philip Veerman, The Ideologies of Children’s Rights (Dordrecht, Martinus Nijhoff, 1992). He is also the author of a standard text on legal theory, Introduction to Jurisprudence, now in its seventh edition (London, Stevens, 2001), and monographs on violence and abuse, Violence In The Home: A Socio-Legal Study (Aldershot, Gower, 1979) and, with Christina Lyon, on cohabitation, Cohabitation Without Marriage (Aldershot, Gower 1983). He has been actively involved in promoting inter-disciplinary studies and has convened colloquia on law and science, law and literature, law and medicine, law and popular culture, law and sociology, law and psychology, and law, mind and brain. He has lectured on children’s rights in, amongst other countries, Australia, Argentina, Barbados, Belgium, Bulgaria, Canada, Chile, Czech Republic, Hong Kong, Israel, Malaysia, New Zealand, Netherlands, Norway, Peru, Poland, Puerto Rico, South Africa, Spain, Sweden, Switzerland and the United States. He was the first foreign lawyer to represent a dissident in a Soviet court (the Baumanskii People’s Court in Moscow in 1986).

TEXT OF ARTICLE 3

ARTICLE 3

ARTICLE 3

1. 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.

1. Dans toutes les décisions qui concernent les enfants, qu’elles soient le fait des institutions publiques ou privées de protection sociale, des tribunaux, des autorités administratives ou des organes législatifs, l’intérêt supérieur de l’enfant doit être une considération primordiale.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take appropriate legislative and administrative measures.

2. Les Etats parties s’engagent à assurer à l’enfant la protection et les soins nécessaires à son bien-être, compte tenu des droits et des devoirs de ses parents, de ses tuteurs ou des autres personnes légalement responsables de lui, et ils prennent à cette fin toutes les mesures législatives et administratives appropriées.

3. States Parties shall ensure that institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

3. Les Etats parties veillent à ce que le fonctionnement des institutions, services et établissements qui ont la charge des enfants et assurent leur protection soit conforme aux normes fixées par les autorités compétentes, particulièrement dans le domaine de la sécurité et de la santé et en ce qui concerne le nombre et la compétence de leur personnel ainsi que l’existence d’un contrôle approprié.

CHAPTER ONE

INTRODUCTION* Article 3 of the Convention is regarded by the Committee on the Rights of the Child as one of the general principles of the Convention.1 Although none of the four principles is more important than any of the other three, it may be argued that recognition of the child’s best interests underpins all the other provisions in the Convention. It is hardly a novel idea. It is found pervasively in domestic legislation. But, as will become apparent in chapter 2, it is a new principle of interpretation in international law.2 The literature on ‘best interests’ is voluminous,3 and the criticisms of the concept are well-rehearsed. Robert Mnookin pointed out in 1975 that ‘deciding what is best for a child poses a question no less ultimate that the purposes and values of life itself’.4 And yet, as he concedes, the standard has come to be seen as ‘neutral’.5 Of course, what is encompassed by best interests depends upon how that concept is understood. As Michael King and Christine Piper point out ‘The broad range of factors – genetic, financial, educational, environmental and relational – which science would recognise as capable of affecting the welfare of the child are narrowed by law to a small range of issues which fall directly under the influence of the judge, the social workers or the adult parties. . . . Among social problem construction theorists the issue is usually

* August 2006. 1 The other three are in Article 2 (freedom from discrimination), Article 6 (the right to life) and Article 12 (respect for the child’s views). On non-discrimination see S. Besson, ‘The Principle of Non-Discrimination in the Convention on the Rights of The Child’ (2005) 13 International Journal of Children’s Rights 433. 2 See to this effect G. Van Bueren, The International Law on The Rights of The Child (The Hague, Martinus Nijhoff Publishers, 1995), p. 45. 3 Including J. Elster, ‘Solomonic Judgements: Against the Best Interests of the Child’ (1987) 54 Univ. of Chicago L.R. 1 and H. Reece, ‘The Paramountcy Principle: Consensus or Construct?’ (1996) 49 Current Legal Problems 267. 4 ‘Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy’ (1975) 39 Law and Contemporary Problems 226, 260. 5 Ibid., 235.

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presented in terms of political ideology. By reconstructing the social dimension of any issue concerning the welfare of the child in such matters as housing, education, health care and financial security in ways which emphasise individual responsibility and the failure to accept that responsibility or perform those duties expected of a child carer, law in capitalist societies effectively depoliticises social problems and reinforces liberal, individualistic ideology to the detriment of socialist notions of collective or governmental responsibility’.6

However, the Committee on the Rights of the Child, in referring to the best interests principle, has frequently attempted to address such structural problems, as we will see in chapter 3. The best interests principle is, of course, indeterminate. One of the dangers of this is that, in upholding the standard, other principles and policies can exert an influence from behind the ‘smokescreen’ of the best interests principle.7 It can cloak prejudices, for example anti-gay sentiments. It can also be merely a reflection of ‘dominant meanings’.8 For Thèry, the criterion is an ‘alibi for dominant ideology, an alibi for individual arbitrariness, an alibi for family and more general social policies for which the law serves as an instrument’.9 Different cultures will also and inevitably operate with different concepts of what is in a child’s best interests.10 When a Christian parent confronts a Muslim one over whether their son should be circumcised – English courts have had to adjudicate twice recently on this dispute11 – both parents may have the boy’s best interests at heart, though differ on their interpretation of what this requires. The English Court of Appeal thought it was not in a 5-year-old’s best interests to be circumcised against the wishes of his primary carer (the nominally Christian mother).12 In coming to this conclusion it

How The Law Thinks About Children (2nd ed, Aldershot, Arena, 1995), p. 50. See Reece, op. cit., note 3, pp. 295–296. 8 See I. Thèry, “The Interest of The Child” and the Regulation of the Post-Divorce Family’ in C. Smart and S. Sevenhuijsen (eds), Child Custody and the Politics of Gender (London, Routledge, 1989), p. 81. 9 Ibid., p. 82. 10 See Thorpe L.J.’s comment: the fact that a court in Dubai had reached a decision contrary to that which an English court would have reached ‘does not mean that the welfare of the child is not the first consideration for the judge of the Sharia Court. It is the interpretation of child welfare, governed as it is by different religions, cultures and traditions, that produces such starkly different outcomes’ (Al-Habtoor v. Fotheringham [2003] 1 FLR 951, 970–971). 11 See Re J [2000] 1 FLR 571; Re S [2005] 1 FLR 236. 12 See Re J, ibid., 574. 6 7

INTRODUCTION

3

may be thought the carer’s wishes prevailed over the child’s longer-term interests. But, of course, we do not know what these necessarily are. There is a distinction between, what has been called,13 ‘current interests’ and ‘future-orientated interests’. And the two can come into conflict. Current interests tend to be formulated in relation to experiential considerations: future-orientated interests, by contrast, focus on developmental considerations. Mnookin was pointing to much the same point when he observed: ‘The conditions that make a person happy at age seven to ten may have adverse consequences at age thirty. Should the judge ask himself what decision will make the child happiest in the next year? Or at thirty? Or at seventy? Should the judge decide by thinking about what decision the child as an adult looking back would have wanted made? In this case, the preference problem is formidable, for how is the judge to compare “happiness” at one age with “happiness” at another age?’14

The determination of a child’s best interests once seemed to occur predominately in disputes over custody. But now some of the most difficult cases relate to medical decision-making.15 Conflicts may still be between parents, over, for example, whether a child should be given the MMR vaccine.16 But they are increasingly fought between parents and doctors and relate to the most vulnerable of children, those at the edges of life. Should an HIV-infected mother be allowed to prevent her baby being tested for HIV? And should she be permitted to breast-feed her baby?17 Should parents be entitled to refuse their consent to their baby having a liver transplant – they did not believe it was in his best interests – when the unanimous medical judgement indicated the transplant was appropriate?18 The HIV mother was overruled: not so the parents in the liver transplant case. Said the President of the Family Division in England: ‘to prolong life . . . is not the sole objective of the court and to require it at the expense of other considerations may not be in a child’s best interests’. She believed ‘the best interests of this child require that his future treatment should be left in the

13 By Allen Buchanan and Dan Brock, Deciding For Others: The Ethics of Surrogate Decision Making. (Cambridge, Cambridge University Press, 1989), p. 247. 14 Op. cit., note 4, p. 260. 15 A good discussion of which is Angus Dawson, ‘The Determination of The Best Interests in Relation to Childhood Immunisation’ (2005) 19 Bioethics 72. 16 Re C [2003] 2 FLR 1054, 1095. 17 See Re C (HIV Test) [1999] 2 FLR 1004. 18 See Re T [1997] 1 FLR 502.

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hands of his devoted parents’.19 This shows just how flexible the notion of best interests is.20 It may be thought incongruous that in a convention about rights best interests should feature so prominently. After all, Article 3(1) is about best interests, and not best rights. Indeed, it neither creates any rights nor for that matter does it impose any duties. There is considerable discussion in philosophical and jurisprudential literature about the relationship of rights in interests.21 There are two competing theories as to the nature of rights: one emphasises will or choice,22 the other interest or benefit.23 The will theory is subscribed to by those who view the purpose of law as being to grant the widest possible means of self-expression to the individual. Individual discretion is the single most distinctive feature of the concept of rights in this view.24 The interest (or the benefit) theory argues that the purpose of rights is not to protect individual assertion but certain interests. Rights are said to be benefits secured for persons by rules regulating relationships. One version of this theory says that X has a right whenever he or she stands to benefit from the performance of a duty. Another says that X can have a right whenever the protection or the advancement of an interest of his or hers is recognised (by moral theory or a normative set of rules such as a convention or legal system) as a reason for imposing obligations, whether they are actually imposed or not. This has the advantage of enabling us to talk of rights in advance of determining exactly who has the duty, or needing to spell out in detail what is comprised in the duty. It cannot be said that the Convention explicitly adopts either view though it can be interpreted as, largely, perceiving rights in terms of interests. But

Ibid., p. 512. This is illustrated by examining the classic account of best interests in J. Goldstein, A. Solnit, S. Goldstein and A. Freud, The Best Interests of the Child (New York, Free Press, 1996) together with the critique of this book by M. Freeman, ‘The Best Interests of the Child: Is The Best Interests of The Child in the Best Interests of Children?’ (1997) 11 International Journal of Law, Policy and the Family 360. 21 See the recent account of M. Kramer, N. Simmonds and H. Steiner, A Debate Over Rights (Oxford, Oxford University Press, 1998). 22 Today, notably propagated by H.L.A. Hart. For example in Essays on Bentham (Oxford, Oxford University Press, 1982), ch. VII. 23 First found in the writings of Jeremy Bentham and to-day espoused by Neil MacCormick, Joseph Raz, David Lyons and Tom Campbell among many others. 24 See R. Flathman, The Practice of Rights (Cambridge, Mass, Harvard University Press, 1976). 19

20

INTRODUCTION

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Article 3(1) is about best interests and the relationship between this general guiding principle and the catalogue of rights set out in succeeding articles is not clear. Suppose it is not considered (but by whom?) that actualising a particular right in the Convention is in a child’s best interests. Does the emphasis on best interests trump other considerations? Does it afford space to values other than those sanctioned in the Convention? The best interests of the child is not the determining consideration,25 but only a primary consideration. So in what circumstances may a consideration other than the best interests of the child prevail? For example, can cultural or religious norms override a child’s best interests?26 That they can is clearly a widely – held view. As we will see (in chapter 3) the travaux préparatoires envisage that only in limited circumstances – the example given is medical emergencies27 – should the child’s best interests not prevail. However, it is clear that the best interests principle can be interpreted, and is indeed being interpreted, as capable of being overridden in other circumstances than these and for other considerations. And this is inevitable. There are other considerations: to take an obvious example, it is necessary to protect society against young offenders and measures taken against such children may well not be in their best interests.28 Less obviously, considerations of immigration control may militate against what is in a child’s best interests.29 Van Bueren asks the pertinent question: ‘What is the status of the best interests of the child in international law, does it for example take second place to what may loosely be described as public policy?’30 There is an answer to this within the Convention itself. The best interests principle in Article 3(1) must be seen both as informed by and constrained by the rights, and the other principles, provided for by the Convention.31 As Tobin puts it: ‘a proposed outcome for a child cannot be said to be in

Cf. the language of Lord MacDermott in the English case of J v. C [1970] A C 668, 710. And see E. Brems, ‘Right Above Their Heads: The Headscarf Controversy and Children’s Rights’ (2006) 14 International Journal of Children’s Rights 119. 27 Op. cit., note 2, p. 48. 28 The notorious trial in England in 1993 of two 11-year-olds for a horrendous murder of a child of two-and-a half is a good illustration. See in relation to this case (Thompson and Venables), M. Freeman, The Moral Status of Children (The Hague, Martinus Nijhoff, 1997) ch. 12. 29 See C. Sawyer, ‘Not Every Child Matters: the UK’s Expulsion of British Citizens’ (2006) 14 International Journal of Children’s Rights 157. 30 See op. cit., note 2, p. 48. 31 See Philip Alston and B. Gilmour Walsh, The Best Interests of The Child: Towards a Synthesis of Children’s Rights and Cultural Values (UNICEF, 1996), p. 32. 25 26

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his or her best interests where it conflicts with the provisions of the Convention’.32 Writing specifically about a child’s health rights he notes that ‘this requires a consideration of the other guiding principles under the Convention. . . . The other rights listed under the CRC such as the protection against violence (article 19); the right to an adequate standard of living (article 27); the right to education (article 28); the right to play and leisure (article 31) and protection against all forms of exploitation (articles 32–36) also inform any assessment of the best interests of a child’.33

And it is significant that the UN Committee on the Rights of the Child maintains that the obligation to consider children’s best interests requires a child impact assessment and evaluation with respect to all legislation and other forms of policy development to determine the impact of any proposed law or policy or budgetary allocation on children’s rights.34 The relationship of the best interests principle in Article 3(1) and the emphasis on a child’s right to participate in Article 12 may also be thought to be puzzling. What if a child’s views conflict with what adults think is his or her best interests? What is the point, it may be asked, of giving the child the opportunity to be heard, if at the end of the day we do not listen or we override in the name of upholding what we consider to be best interests? A number of answers have been given to this.35 They all involve in some way balancing autonomy and best interests. Back in 1983 I offered a model of liberal paternalism.36 It is, of course, fundamental to believing in rights that one accepts that there is a right to make mistakes, to let others do things which we would not do.37 The problem has arisen starkly when the young person is an anorexic who is refusing her consent to treatment38 or a Jehovah’s Witness who requires a blood transfusion and is refusing to

32

See J. Tobin, ‘Beyond the Supermarket Shelf: Using A Rights Based Approach To Address Children’s Health Needs’ (2006) 14 International Journal of Children’s Rights 275, 287. 33 Ibid., 287. 34 Committee on the Rights of the Child, General Comment No. 5 – General Measures of Implementation for the Convention on the Rights of The Child CRC/GC/2003/5, para. 45. 35 The classic source (though not in relation to children) is J.S. Mill’s account in On Liberty, first published in 1859. See N. Thomas and C. O’Kane ‘When Children’s Wishes and Feelings Clash with Their “Best Interests”’ (1998) 6 International Journal of Children’s Rights 137. 36 See The Rights and Wrongs of Children (London, Frances Pinter, 1983), pp. 54–60. 37 A point most strongly made by Ronald Dworkin, Taking Rights Seriously (London, Duckworth, 1977), pp. 188–189. 38 See Re W [1993] Fam 64 and Re C [1997] 2 FLR 180.

INTRODUCTION

7

have it.39 Or what of a young woman who desperately needs a heart transplant but, as she puts it in a recent dramatic case, would rather die with her own heart than live with someone else’s?40 When can we impose limits on rights in the name of ‘best interests’? One of the best attempts at an answer is by John Eekelaar, who situates children’s rights within dynamic self-determinism. The goal of this is ‘to bring a child to the threshold of adulthood with the maximum opportunities to form and pursue life-goals which reflect as closely as possible an autonomous choice’.41 Virginia Morrow explains that this requires ‘not the straightforward delegation of decision making to children but rather enabling children to make decisions in controlled conditions the overall intention being to enhance their capacities for mature well founded choices’.42 Jane Fortin also explains this. She notes: ‘there are respectable jurisprudential arguments for maintaining that a commitment to the concept of children’s rights does not prevent interventions to stop children making dangerous short-term choices, thereby protecting their potential for long-term autonomy’.43 There are variations on the best interests principle in a number of the other Articles of the Convention. Thus, Article 9(1) requires States Parties to ensure that a child not be separated from parents against their will except when competent authorities determine that ‘such separation is necessary for the best interests of the child’. This may be the case where there is abuse or neglect. Article 9(3) recognises the right of the child to contact with parents ‘except if it is contrary to the child’s best interests’.44 Article 18(1) states that States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents, it continues, 39 As in Re E [1993] 1 FLR 386, Re L [1998] 2 FLR 810 and Re P [2004] 2 FLR 1117 discussed by M. Freeman, ‘Rethinking Gillick’ (2005) 13 International Journal of Children’s Rights 201. 40 Re M [1999] 2 FLR 1097. 41 ‘The Interests of The Child and the Child’s Wishes: the Role of Dynamic Self-Determinism’. (1994) 8 International Journal of Law, Policy and the Family 42, 53. 42 “We Are People Too”: Children’s and Young People’s Perspectives on Children’s Rights and Decision Making in England (1999) 7 International Journal of Children’s Rights 149, 166. 43 (2004) 15 King’s College Law Journal 253, 259. 44 The issue – though not the Article – is discussed in Hendricks v. Netherlands [1982] 29 DR 5.

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have ‘the primary responsibility’ and ‘the best interests of the child will be their basic concern’.45 Article 20(1) states that a child deprived of a family environment or ‘in whose own best interests cannot be allowed to remain in that environment’ is entitled to special protection and assistance to be provided by the State.46 Article 21 – the adoption provision – mandates States Parties which have a system of adoption to ensure that ‘the best interests of the child shall be the paramount consideration’. It will be observed that, in contrast to Article 3(1), best interests in this Article are ‘the paramount consideration’. It may be observed that Article 5 of the UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally also sets this standard: ‘the best interests of the child, particularly his or her need for affection and right to security and continuing care, should be the paramount consideration’. Article 37(c) requires that children deprived of their liberty are to be separated from adults ‘unless it is considered in the child’s best interest not to do so’. It is manifest that this is an exception which is to be used only in accordance with the child’s best interests and ‘not imposed as a disciplinary measure or as a means of securing the child’s co-operation’.47 Article 40(2) (b) (iii) mandates that children accused of breaking the penal law should be guaranteed that the matter will be determined without delay by a competent, independent and impartial authority in a fair hearing in the presence of legal or other appropriate assistance and, ‘unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians’. Rule 15.2 of the Beijing Rules similarly provides. So the best interests standard is invoked eight times in the Convention. Nevertheless, I conclude this ‘Introduction’ by noting that the Article which precedes Article 3, namely Article 2, requires States Parties to ‘respect and ensure the rights set forth in the present Convention to each child within their jurisdiction . . .’. Thus, the rights of the child precede the ‘best interests’

45 The reference to ‘best interests’ was suggested by the Brazilian representative: see UN Doc E/CN.4/L.1575, para. 89 (1981). 46 This should be read in the light of Article 9(1). 47 Op. cit., note 2, p. 220.

INTRODUCTION

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standard. Whilst the basic premise of the Convention is the application of its provisions with the ‘best interests of the child’ always in mind, we cannot escape the conclusion that this cannot be done without reference to the rights of the child recognized in the Convention.48

48 See to like effect Joachim Wolf, ‘The Concept of the “Best Interest” in Terms of the UN Convention on the Rights of The Child’ in (eds.) M. Freeman and P. Veerman, The Ideologies of Children’s Rights (Dordrecht, Martinus Nijhoff, 1992), 125, 129.

CHAPTER TWO

COMPARISON WITH RELATED INTERNATIONAL HUMAN RIGHTS STANDARDS Early legal statements are conspicuously silent on children’s rights: the Ten Commandments, arguably the most influential of all legal codes contains a clear normative pronouncement on parent-child relations but it is in terms of respect for parents, and is silent on the obligation of parents to love and nurture their children.1 The documents which emanated from the great libertarian revolutions, the American and the French, have nothing specifically to say about children. 1. The Declaration of Geneva The first international declaration, the Declaration of Geneva of 1924, is most limited in its scope. In its Preamble it states that ‘mankind owes to the child the best it has to give. Its five terse principles emphasize welfare: the requisite means for normal development; food and medicine, help for the ‘backward’, rehabilitation of the delinquent; relief in times of distress; to be put in a position to earn a livelihood and protection against exploitation; and socialization to serve others.2 The principles, the fifth above all, reflected the aftermath of an imperialist war.3 It was an ‘aspirational document’.4

As noted by P. Silverman, Who Speaks For The Child? (Don Mills, Ontario: Musson, 1978). A good discussion of the background to this is P. Veerman, The Rights of The Child and the Changing Image of Childhood (Dordrecht: Martinus Nijhoff, 1992), pp. 155–161. 3 See E. Fuller, ‘Great Britain and the Declaration of Geneva V (1925) VI (7) The World’s Children, p. 116. See also E. Jebb, International Responsibilities for Child Welfare (Geneva: Save The Children International Union, 1927). 4 The background is in D. Marshall, ‘The Construction of Children as an Object of International Relations: The Declaration of Children’s Rights and the Child Welfare Committee of the League of Nations, 1900–1924’ (1999) 7 International Journal of Children’s Rights 103. 1 2

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2. The Universal Declaration of Human Rights In 1948 the Universal Declaration of Human Rights was adopted.5 There are provisions in this tailored to children. Motherhood and childhood are to be entitled to special care and assistance, and children born out of wedlock are to enjoy the same social protection.6 Everyone is to have the right to education: this is to be free at elementary level and compulsory also at that level.7 And the rights set out in the Declaration are for all ‘without distinction of any kind’ (though in the list of distinctions which follow ‘age’ is omitted).8 3. The European Convention on Human Rights Two years later in (1950) the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was adopted. This makes no specific reference to children, certainly not to their welfare or best interests – indeed, its failure to do so has been a subject of concern9 – but in its Preamble it refers to ‘the inherent dignity and . . . equal and inalienable rights of all members of the human family’. There are specific references to children (in Article 5(1) (d) and in 6) and the First Protocol in 1952 forbids the denial of the right to education. There was always going to be space for a child’s best interests in Article 8. This provides: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

But this right can be challenged inter alia. ‘. . . For the protection of the rights and freedoms of others’.10

It is no surprise that children have been construed as ‘others’ and their best interests incorporated into this clause. 5 M. McDougal, H. Lasswell and Chen discuss the customary law status of this Declaration: see Human Rights and World Public Order (New Haven, N.J.: Yale University Press, 1980), pp. 272–274. 6 Article 25.2. 7 Article 26.1. 8 Article 2. 9 Examples of this concern (in England) are J. Fortin, ‘Rights Brought Home For Children’. (1999) 62 Modern Law Review 350 and J. Herring, ‘The Human Rights Act and the Welfare Principle in Family Law – Conflicting or Complementary?’ (1999) 11 Child and Family Law Quarterly 223. 10 Article 8(2).

COMPARISON WITH RELATED INTERNATIONAL HUMAN RIGHTS STANDARDS

13

Thus, in Hokkanen v. Finland, a custody and access dispute between a father and maternal grandparents, the European Court of Human Rights advised that when interpreting Article 8(2) of the ECHR domestic courts should consider ‘. . . the interests and rights of all concerned. . . . And more particularly the best interests of the child and his or her rights under Article 8 of the Convention’.11 The Court has since gone further than this in Yousef v. The Netherlands, a dispute after the mother’s death between the unmarried father and maternal grandparents over whether he should be allowed to recognise the child formally. It emphasized that ‘in judicial decisions where the rights under Article 8 of parents and those of a child are at stake, the child’s rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail’.12 Both these examples relate to private disputes. The Court has also become increasingly vigilant of the need to take account of the child’s best interests in public law disputes, for example where the child has been taken from parents into state care. In Johansen v. Norway it stressed the crucial importance to be attached in the balancing exercise ‘to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. In particular . . . the parent cannot be entitled under article 8 of the Convention to have such measures taken as would harm the child’s health and development’.13 This ruling has been reiterated many times since.14 The fact that the European Court has found a way of accommodating children’s welfare within the Convention should not delude us into believing that the result to be achieved within domestic legislation, for example the English,15 and in the new environment of European jurisprudence is necessarily the same. As Fortin points out,16 there are evidential differences between the requirements of Article 8 and, for example, the paramountcy principle in section 1 of the Children Act 1989.17 The outcome will often be 11

[1996] 1 FLR 289, 305. [2003] 1 FLR 210, 221–222. 13 (1996) 23 EHHR 33, para. 78. 14 See Scott v. United Kingdom [2000] 1 FLR 958, 968; K and T v. Finland [2001] 2 FLR 707, para. 154; L v. Finland [2000] 2 FLR 118; Haase v. Germany [2004] 2 FLR 39, 56–57; Pini and Bertani; Manera and Atripaldi v. Romania [2005] 2 FLR 596, 625; Süss v. Germany [2006] 1 FLR 522, 536. 15 Children Act 1989 s.1: the child’s welfare is ‘paramount’. 16 Children’s Rights and the Developing Law (London: LexisNexis, 2003), p. 59. 17 See J. Herring, op. cit., note 9, p. 231. But cf. H. Swindells, ‘Crossing The Rubicon – Family Law Post The Human Rights Act 1998’ in (ed.) S. Cretney, Family Law: Essays For The New Millennium (Bristol: Jordans, 2000), pp. 62–65. 12

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the same, but this is not always so. The case of Elsholz v. Germany is a good illustration of this.18 The European Court a father’s claim that he had been treated unfairly by the courts in Germany which had refused him contact with his son, because, it said, they had failed to investigate more closely the child’s real state of mind.19 So is Sommerfeld v. Germany, in which the European Court criticised the German court for being satisfied that an 11-year-old girl could firmly assert she wanted nothing further to do with her father. Instead, it should have sought ‘psychological expert evidence in order to evaluate the child’s seemingly firm wishes’.20 More seriously, by seeing the child’s interests within Article 8(2), the European Court has failed to recognise that the child is a person with rights. It has clearly overlooked the Preamble which, it will be remembered, talks of the ‘equal and inalienable rights of all members of the human family’. And it is clear that domestic courts are following the lead of the European Court and are failing to recognise that children too are rights-holders under the ECHR.21 It may be concluded that the ECHR is defective. Alternatively, and more charitably, that it is a creature of post World War Two when children did not occupy the stage they do now. There are, of course, all sorts of other gaps in the ECHR which would unquestionably be plugged were the exercise of drawing up the Convention to be brought forward to to-day.22 4. The United Nations Declaration on the Rights of the Child In 1959 the UN Declaration on the Rights of the Child was proclaimed. As with the Geneva Declaration 35 years earlier, the premise was that ‘mankind owes to children the best it has to give’. Both Declarations emphasized child protection, protecting the child rather than the child’s rights.23 It has a more modern ring, for example there is a non-discrimination principle.24 There

18

[2000] 2 FLR 486. [2002] 1 FLR 136. 20 [2002] 1 FLR 119, 143. 21 See A. Bainham, ‘Can We Protect Children and Protect Their Rights?’ (2002) Family Law 279. More generally see U. Kilkelly, ‘The Impact of the Convention on the Case – Law of the European Court of Human Rights’ in (ed.) D. Fottrell, Revisiting Children’s Rights (The Hague: Kluwer Law International, 2000), pp. 87–100. 22 For a critique see J. Fortin, op. cit., note 9. 23 This dichotomy – or rather this way of expressing it – can be traced to Richard Farson, Birthrights (Harmondsworth: Penguin, 1978), p. 9. 24 Principle 1. 19

COMPARISON WITH RELATED INTERNATIONAL HUMAN RIGHTS STANDARDS

15

is also a recognition of the special needs child.25 A number of the principles repeat those found in the 1924 Declaration. Particularly significant, however, is that the 1959 Declaration is the first international human rights document to refer specifically to the ‘best interests of the child’. Thus, Principle 2 states ‘The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration’.

It should be noted ‘the paramount consideration’ and not, as subsequently diluted in Article 3 of the UNCRC ‘a primary consideration’. The best interests of the child is laid down as the ‘guiding principle’ also in the education principle of the 1959 Declaration. ‘The best interests of the child shall be the guiding principle of those responsible for [the child’s] education and guidance . . .’.26

Of course, the 1959 Declaration may be said to have been superseded by the UNCRC. Indeed, the English Court of Appeal in 1998 questioned its continuing relevance.27 5. The International Covenant on Economic, Social and Cultural Rights The International Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR) recognises children in several of its Articles. Thus, Article 10 mandates ‘special measures of protection and assistance’ and protection from ‘economic and social exploitation’. There is a concern to reduce the still birth rate and infant mortality and ‘the healthy development of the child’ is stressed.28 There is an emphasis on education ‘directed to the full development of the human personality and the sense of its dignity’. States Parties recognized that primary education was to be compulsory and free; secondary education ‘generally available’;29 and higher education ‘equally accessible

25

Principle 5. Principle 7. 27 In Re A (Children: 1959 UN Declaration) [1998] 1 FLR 354, 358. Thorpe L.J. said it was ‘antiquated’ and its relevance and value ‘most doubtful’. 28 Article 12(2) (a). 29 Article 13(2) (b). 26

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to all’.30 There is no reference in the ICESCR to the best interests of the child or to any other guiding principle that is specifically child – oriented. 6. The International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (ICCPR), also of 1966, through it only entered into force in 1976, also has provisions targeted at children. Thus, every child – there is to be no discrimination – is to have the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State; to be registered and have a name and the right to acquire a nationality.31 The death sentence is not to be imposed for crimes committed by persons below the age of 18.32 There are provisions for separate juvenile systems of justice and for different penal systems.33 There is the right to freedom of thought, conscience and religion.34 This extends to ‘everyone’ in theory, but the reality is that parents have the liberty to ensure ‘the religious and moral education of their children in conformity with their own convictions’.35 There is also an article dealing with marriage and, therefore, necessarily with divorce. It is provided that ‘In case of dissolution, provision shall be made for the necessary protection of any children’.36 It is not provided that this protection is to be governed by any best interests principle. Such a principle appears nowhere in the ICCPR. There was discussion on the desirability of including a specific article on the rights of the child.37 States in favour of such an article emphasized the need for children to be free from discrimination, but were of the view that not all of the rights and freedoms in the Covenant could be exercised by children. They argued that children needed special measures of protection. Those opposed to a special article considered that the Covenant’s rights extended to children anyway because of the prohibition of discrimination

30

Article 13(2) (c). Article 24. This is the only specific article on children. 32 Article 6(5). The initiative for this came from Japan (UN Doc A/C.3/SR.1174). 33 Article 10(2) (b) and (3). Sri Lanka proposed this. 34 Article 18(1). 35 Article 18(4). 36 Article 23(4). 37 See G. Van Bueren, The International Law on The Rights of the Child (Dordrecht: Martinus Nijhoff, 1995), p. 21. 31

COMPARISON WITH RELATED INTERNATIONAL HUMAN RIGHTS STANDARDS

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in Article 2.38 There was also a concern that a special article on children would raise doubts as to the general applicability of other articles. Of course, history has shown such a concern to be groundless. 7. The Hague Convention on International Child Abduction 1980 saw the adoption of two international measures concerned broadly with child abduction (more accurately with the international return of children). The Hague Convention on the Civil Aspects of International Child Abduction is the most significant. It is not the first Hague Convention to impinge on children and their welfare: there is a Convention on maintenance obligations (1956) and a second one in 1973; there is one on the protection of infants in 1961; one on adoption in 1965, and there have been others since that on child abduction to which reference will be made subsequently. The presumption which underpins The Hague Convention on International Child Abduction is that a prompt return of an abducted child to the country of his or her habitual residence is always in that child’s best interests.39 Unlike in domestic disputes, in international adduction cases the child’s welfare is not paramount.40 The duty to return the child is not absolute. A Judge can avoid return if there is a grave risk that return of the child would lead to physical or psychological harm or otherwise place the child in an intolerable situation.41 But the Convention is quite clear that this defence is not to serve as a pretext for inquiring into the merits of the custody issue: it is not to be ‘equated with a “best interests of the child” standard’.42 Return of the child is to the country, and not to a particular parent, so that only if return would expose a child to serious harm because the court in that country cannot provide sufficient protection should the defence be satisfied. The defence, predictably, has been raised most commonly where there are allegations of domestic violence and of sexual abuse. But, as a U.S. Court 38

Which states it applies to all human beings. Because that country’s courts will be able fully to assess what should happen to the child. There are many judicial pronouncements to this effect, including Butler-Sloss L.J. in Re P [1998] 2 FLR 825, 827. I am not alone in believing that in the context of many signatories to the Convention this is a palpable fiction, but we have to believe in it. 40 See to this effect Hale J. in Re R [1999] 1 FLR 828, 836. See also M v. M [2006] 1 FLR 138, 147 (Wilson J.). 41 See Article 13(b). 42 See L. Silverman, ‘Interpreting The Hague Abduction Convention’ (2005) 38 University of California, Davis Law Review 1049, 1055. 39

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observed, ‘the exception for grave risk of harm is not license for a court in the abducted – to country to speculate on where the child would be happiest’.43 An English court has said there must be ‘clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial and not trivial’.44 In the context of Member States of the European Union, this defence must now be read in the light of Article 11(4) of the Brussels P bis Regulation45 (effective from 1st March 2005). This prevents a court from refusing to return a child ‘if it is established that adequate arrangements have been made to secure the protection of the child after his or her return’. There are not many cases in which courts refuse return on Article 13(b) grounds.46 Whether they will decrease within the European Union, or even vanish, remains to be seen. Most attention has centred on domestic violence.47 Courts have not been very sympathetic here. A good illustration is the English case of Re W.48 The judge found herself working within the strictures of a code which required evidence to support a grave risk of harm to the child, not the returning parent. This is, of course, most unsatisfactory for it should be obvious that domestic violence is a form of child abuse. Another defence is that the court finds ‘the child objects to being returned and has obtained an age and degree of maturity at which it is appropriate to take account of its (sic) views’.49 This may be said to reflect the aims of Article 12 of the UNCRC.50 The Hague Convention does not establish a minCourt of Appeals for the Sixth Circuit in Friedrich v. Friedrich 78 F. 3d 1060 (6th Cir. 1996). The Court of Appeal in Re C [1999] 1 FLR 1145, 1154. 45 See Council Regulation (EC) No. 2201/2003 (27 November 2003) Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility: 2003 O.J. (L 338). This is discussed by A. Schulz, ‘The New Brussels P Regulation and the Hague Conventions of 1980 and 1996’ (2004) International Family Law Journal 22. 46 Some U.K. examples are Re G [1995] 1 FLR 64, Re F [1995] Fam. 224 and McMillan v. McMillan 1989 SLT 350. A controversial U.S. decision is Danaipour v. McLarey 286 F. 3d 1 (1st Cir. 2002) and 386 F. 3d 289 (1st Cir. 2004). Another is Blondin v. DuBois 238 F. 3d 153 (2d. Cir. 2001). 47 See, for example, M. Weiner, ‘International Child Abduction and the Escape from Domestic Violence’ (2000) 69 Fordham Law Review 593, Carol S. Bruch, ‘The Unmet Needs of Domestic Violence Victims and Their Children in Hague Child Abduction Convention Cases’ (2004) 38 Family Law Quarterly 529; Miranda Kaye, ‘The Hague Convention and the Flight From Domestic Violence. How Women and Children Are Being Returned By Coach and Four’ (1999) 13 International Journal of Law, Policy and the Family 191. 48 [2004] 2 FLR 499. 49 Article 13. 50 As was noted by Ward L.J. in Re T [2000] 2 FLR 192, 203–204. 43

44

COMPARISON WITH RELATED INTERNATIONAL HUMAN RIGHTS STANDARDS

19

imum age below which the child’s objections of a girl of 14 1/2 years to being returned from England to New Zealand were overridden in TB v. JB.51 The English Court of Appeal was confident that New Zealand’s courts could protect the mother and the children from their severely abusive step-father.52 However, courts have accepted the objections of much younger children: in S v. S53 those of a girl of 9. There is also a defence under Article 20. The return of a child may be refused if this ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’. So far as is known no one has attempted to argue that the return of a child might be contrary to the protection of children’s rights in the UNCRC. Certainly, there is no reported instance of such an argument succeeding. The courts in those countries where Article 20 is operative – Finland and the United Kingdom are two examples of countries where it is not – have evinced a reluctance to give much scope to Article 20. In Australia, for example, it was held that Article 20 should only be invoked when the return orders would utterly shock the conscience of the court or offend all notions of due process.54 The interface between the ECHR and the Hague Convention has been discussed in case law.55 Future decisions by the European Court of Human Rights could have a ‘dramatic impact’ on the Hague Convention.56 As yet, they have supported the Hague Convention. Thus, it found Romania to be

51

[2001] 2 FLR 515. See also Re S [1999] 1 FLR 843 (the girl was 9 1/2 and the court believed the Swedish authorities would protect her against the mother’s boyfriend who, it was alleged, had sexually abused her). 53 [1992] 2 FLR 492. In Re R [1995] 1 FLR 716, siblings of 7 1/2 and 6 were judged mature enough, but, despite their objections, their return was ordered. Looking at other jurisdictions, it is worth comparing Dep’t of Couty. Servs v. M and C 24 Fam. LR 178 (Fam.Ct. Australia 1998): ‘We see no error in the fact that he assessed the statements of the children [9 and 11] in the light of the fact they were of superior intelligence to most of their peers’. And Raijmakers – Eghaghe v. Haro 131 F. Supp. 2d 953 (ED Mich. 2001) ordering discovery and in camera interviews to determine the objections of an 8-year old girl with the decision of 15 December 1998 R.J.Q. (Cour Supérieure 1999), finding that an 8-year-old was too young for her views to be considered. 54 Director-General v. Bennett 26 Fam. L.R. 71 (Fam. Ct. Australia 2000). See also Fabri v. Pritikin – Fabri 221 F. Supp. 2d 859 (N.D. ILL. 2001) and L v. Ministère Public, N° de role 02/14917 (2002) (In the latter French procedures were compared with those of the European Court of Human Rights and with other international provisions concerning the protection of children). 55 On this see A Schulz, ‘The 1980 Hague Child Abduction Convention and the European Convention on Human Rights’ (2002) 12 Transnational Law and Contemporary Problems 356. 56 See L. Silverman, op. cit., note 42, p. 1085. 52

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in violation of Article 8 of the ECHR for failing to take adequate measures to secure the prompt return of a child pursuant to its obligations under the Hague Convention.57 And Austria was found liable for failing to enforce an order of return in favour of a U.S. applicant.58 8. The European Convention on Custody and Restoration of Custody of Children 1980 Of lesser profile and significance is the European Convention on Recognition and Enforcement of Decision Concerning Custody of Children and on Restoration of Custody of Children of 1980.59 Some legal systems adopt a rule that if an application is made under this Convention and The Hague Convention the latter should be heard first.60 The provision of greatest interest to us here is Article 10(1) (b). This provides for the refusal of recognition and enforcement ‘Where it is found by reason of a change of circumstances including a mere change in residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child’.

Thus, unlike its Hague counterpart, there is an explicit acknowledgment of a welfare test.61 9. The African Charter on the Rights and Welfare of the Child 1990 The African Charter on the Rights and Welfare of the Child (ACRWC) was preceded by a Declaration of the Rights and Welfare of the African Child in 1979. The 1979 document was aspirational: it emphasised the unequal status of female children,62 referred to child marriage and female

Ignaccolo – Zenide v. Romania 31 E.H.R.R. 7 (Eur.Ct. H.R. 2001). Sylvester v. Austria, Application. No. 36812 77 and 40104 98, 37 E.H.R.R. (Eur. Ct. H.R. 2003). 59 There is a commentary by Jones (1980) 30 ICLQ 467. 60 England adopts this approach: see Child Abduction and Custody Act 1985 s. 16 (4) (c) and Re D [2000] 1 FLR 24. This is not the Irish practice: see R.J. v. M.R. [1994] 1 I.R. 271 (Sup.Ct). 61 There is also the Inter-American Convention on the International Return of Children 1989. It is modelled on the Hague Convention. Its Article 11 is like Article 13 of the Hague Convention and like it there is no reference to a child’s best interests or welfare. 62 Para. 2. 57

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circumcision63 and urged Member States to ratify the ILO Convention on minimum age for employment.64 It urged particular attention to be paid to the needs of refugee and displaced children.65 There is no best interests principle. The ACRWC of 199066 is said by Lloyd67 to be the ‘most forward thinking of all the regional systems’. It is ‘Africa sensitive’.68 Van Bueren describes it as ‘the most progressive of the treaties on the rights of the child’.69 The most significant innovation empowers the monitoring Committee to receive ‘communications from any person, group or non-governmental organisation recognised by the organisation of African Unity . . .’70 So children can petition the Committee on alleged violation of their rights including their economic, social and cultural rights. Furthermore, unlike the UNCRC, their welfare is the primary consideration. Article 4(1) is clear. ‘In all actions concerning the child undertaken by any person or Authority the best interests of the child shall be the primary consideration’

It should also be noted that Article 4(1) extends to all actions by ‘any person’, so that parents are included. This is wider than Article 3(1) of the UNCRC.71 In other ways also the ACRWC is wider than the UNCRC. There is a specific article condemning apartheid72 – then on its dying legs – and child marriage.73 And special reference is made to the extended family. The nondiscrimination provision extends to ‘fortune’.74

63

Para. 3. Para. 9. 65 Para. 12. 66 Accounts of which are A. Lloyd, ‘Evolution of the African Charter on the Rights and Welfare of the Child and the African Committee of Experts: Raising The Gauntlet’ (2002) 10 International Journal of Children’s Rights 179;’ Dejo Olowa, ‘Protecting Children’s Rights in Africa: A Critique of the Africa Charter on the Rights and Welfare of the Child’ (2002) 10 International Journal of Children’s Rights 127; D.M. Chirwa. ‘The Merits and Demerits of the African Charter on the Rights and Welfare of the Child’ (2002) 10 International Journal of Children’s Rights 157. 67 Op. cit., note 66, p. 179. 68 Ibid., p. 182. 69 Op. cit., note 37, p. 402. 70 Article 44(1). 71 See further Chirwa, op. cit. note 66, p. 160, Lloyd, op. cit., note 66, p. 183. 72 Article 26(1). 73 Article 21(2). 74 Article 3. In the UNCRC Article 2(1) it is ‘property’ that is referred to. 64

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10. The Hague Convention on Intercountry Adoption 1993 The main purposes of the Hague Convention on Protection of Children and co-operation in respect of Intercountry Adoption of 1993 (HCIA) are to establish safeguards to ensure that Intercountry adoptions take place in the best interests of children and with respect to children’s fundamental rights as recognised in international law, to establish a system of co-operation amongst Contracting States to ensure those safeguards are respected, and to secure the recognition in Contracting States of adoptions made in accordance with the Convention.75 The HCIA draws on principles established by Article 21 of the UNCRC. And, as indicated, in its goals is upholding a best interests standard. It is, of course, a matter of some controversy how best to uphold the best interests of, for example, a small child in a Romanian orphanage.76 The Convention rejects the child rescue approach.77 It views intercountry adoption as a step to be taken only when all others have failed, and only then if all investigative hurdles have been surmounted and the adoption process regulated to ensure welfare interests are safeguarded.78 11. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 The Hague Convention on, inter alia, the Protection of Children of 1996 (HCPC) can be traced back to an earlier Hague Convention of 1961 on the Protection of Infants.79 Both Conventions focus on jurisdictional conflict arising in relation to child protection proceedings. Neither has had much impact. And neither makes reference to the child’s best interests.

75

Article 1. See D. Reich, ‘Children of the Nightmare’ (1990) 14 (3) Adoption and Fostering 9. 77 As does J. Triseliotis, ‘Intercountry Adoption: Global Trade or Global Gift? (2000) 24(2) Adoption and Fostering 45. See alo B. Bowring, ‘Children of Russia: Victims of Crisis, Beneficiaries of International Law’ (1999) 11 Child and Family Law Quarterly 125. 78 Including health and development concerns: see C. Harnott and R. Robertson, ‘Intercountry Adoption – Implications for Adoption Agencies and Medical Advisers’ (1999) 23 (4) Adoption and Fostering 26. 79 Convention Concerning The Powers of Authorities and the Law Applicable in Respect of the Protection of Infants 1961. 76

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12. European Convention on the Exercise of Children’s Rights 1996 The European Convention on the Exercise of Children’s Rights 1996 (ECECR) is an attempt by the Council of Europe to invigorate the provisions of the UNCRC.80 Its central objective is ‘. . . in the best interests of children, to promote their rights, to grant them procedural rights and to facilitate the exercise of those rights by ensuring that children are, themselves or through other persons or bodies, informed and allowed to participate in the proceedings affecting them before a judicial authority’.81

The ECECR then tailors children’s rights to their best interests. Its application is confined to ‘family proceedings, in particular those involving the exercise of parental responsibilities such as residence and access to children’.82 But many of the rights only extend to children ‘considered by internal law as having sufficient understanding’. There is nothing thus to prevent a country setting a very high qualifying age. And, since most of the protective provisions apply only to those who have ‘sufficient understanding’, the interests of those excluded are very weak: there are no rights to information, to be consulted and to express views.83 It is difficult to see how the avowed aim of promoting best interests can possibly be fulfilled by this constraint. The same can be said about the provisions which limit the appointment of a special representative to cases ‘where internal law precludes the holders of parental responsibilities from representing the child as a result of a conflict of interest with the latter’.84 So, children involved in proceedings where a conflict of interest is not recognised by the internal law are not entitled to separate representation. Where separate representation is allowed, the separate representative need not convey the child’s views to the court if she considers this ‘manifestly contrary to the best interests of the child’.85 Can a child challenge this?86 There must be concern as to the way the ECECR uses the best interests standard. 80 See M. Killerby, ‘The Draft European Convention on the Exercise of Children’s Rights’ (1995) 3 International Journal of Children’s Rights 127. 81 See Article 1(2). 82 Article 1(3). 83 See further C. Sawyer, ‘One Step Forward, Two Steps Back – The European Convention on the Exercise of Children’s Rights’ (1999) 11 Child and Family Law Quarterly 151. 84 Articles 4(1) and 9(1). 85 Article 10(1). 86 Sawyer, op. cit., note 83, p. 155 discusses this. So does J. Fortin, Children’s Rights and the Developing Law (London: Lexis Nexis, 2003), p. 200.

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It should also be pointed out that the ECECR makes no provision for children involved in public law proceedings, for example those to remove an abused or neglected child from parents.87

87 Cf., for example, s. 41 of the Children Act 1989 (England). See, further, J. Masson and M. Winn Oakley, Out of Hearing: Representing Children In Care Proceedings (Chichester: John Wiley, 1999).

CHAPTER THREE

THE MEANING AND SCOPE OF ARTICLE 3 Article 3 of the UNCRC is in three paragraphs. The first paragraph (Art 3(1)) enunciates the best interests principle. The second paragraph imposes an obligation on States Parties to take appropriate legislative and administrative measures to ensure children’s well being. The third paragraph imposes an obligation on States Parties to ensure that those responsible for the care and protection of children conform with the standards established by competent authorities. This commentary will analyse each of these paragraphs in turn. 1. The Best Interests Principle 1.1 Its Origins Article 3(1) is pivotal to the whole Convention: it lays down the general standard which underpins the rights set out in subsequent articles. Principle 2 of the 1959 Declaration stated: ‘The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration’.

The first draft of the UNCRC included this principle in full.1 Most significant is the standard upheld by this principle. The child’s best interests are to be the paramount consideration. They are not therefore one factor among others. They are not even the first consideration.2 Under this test they are not merely the most important consideration. They are simply determinative.3

1 2 3

This was Poland’s proposal. English legislation in the past used this test, particularly in relation to adoption. See Lord MacDermott in J v. C [1970] AC 668, 710.

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Some delegations were uncomfortable about this. As a result, an alternative draft was submitted in 1980 to the Working Group of the Commission on Human Rights whose responsibility the drafting of the Convention was. This read: ‘In all official actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative authorities, the best interests of the child shall be a primary consideration’.4

This revised text was first discussed in 1981 and, though there were reservations, it was adopted. There was no discussion about it again until 1988. At that point there was a proposal to substitute ‘the’ for ‘a’ in qualifying the words ‘primary consideration’. Such an amendment was rejected. The only amendment agreed to was the addition of a reference to ‘legislative bodies’ after ‘administrative authorities’.5 This addition does, of course, broaden the scope of the best interests considerably, suggesting as it does that legislation ought to be accompanied by ‘child impact’ statements.6 Given the complexity of the concept ‘best interests’ it might be expected that it gave rise to lengthy debate at the drafting stage of the UNCRC. Far from it. As Alston observed, ‘its meaning seems either to have been taken for granted or to have been considered unimportant’.7 One representative did note that the concept was inherently subjective: especially so, it was thought, because reference to physical, mental, moral, spiritual and social development, which were in the 1959 Declaration and therefore the original draft, was missing.8 In debates on other provisions in the UNCRC, where there is reference to best interests of the child, there was rather more discussion. But, in relation to what became Article 3(1), delegates were happy to accept the concept without debating its meaning or its problems further. Familiarity is said to breed contempt: here it bred content. Many of the delegates will have been familiar with the concept from their own legal systems and clearly did not think it needed debating further.

4

UN Doc E/CN.4/L 1542 (1978), para. 44. UN Doc E/CN.4/1989/48 paras. 117–118. 6 I advocated these in 1987: see ‘Taking Children’s Rights Seriously’ (1987–1988) 1 Children and Society 299, 316–317. See also P. Newell and M. Rosenbaum, Taking Children Seriously (London: Calouste Gulbenkian Foundation, 1991). 7 ‘The Best Interests Principle: Towards A Reconciliation of Culture and Human Rights’ (1994) 8 International Journal of Law and the Family 1, 11. 8 Op. cit., note 5, para. 120. 5

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As a result there is no discussion of the implications of including the best interests principle in Article 3(1), that is in one of the first five articles of the Convention. These five articles set out the framework for the whole Convention. Inevitably they assume an overarching importance. What then are we to do when there is a conflict, or seeming conflict, between one of the rights enunciated in the Convention and what is considered (by whom?) to be in a child’s best interests? This problem was not discussed in the drafting process. 1.2 Its Meaning The UNCRC does not define best interests. Of the many attempts to define the concept one of the best is that of John Eekelaar. He says best interests can be defined as ‘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’.9

And he adds ‘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’.10

The best interests concept is indeterminate. And there are different conceptions of what is in a child’s best interests. Different societies, different historical periods will not agree. To take one obvious example: views of corporal punishment of children have changed, and there are still differences between different cultures today. For some best interests can be reduced to a satisfaction of material needs. Poverty or homelessness is clearly not in a child’s best interests. Others will emphasize emotional security, psychological well-being, attention to developmental interest. Some – less today – will stress moral and religious welfare.11 What this means will also be interpreted differently: to some it would 9 ‘The Importance of Thinking That Children Have Rights’ (1992) 6 International Journal of Law and the Family 230–231. 10 Ibid., p. 234. 11 A clear statement to this effect is Lindley L.J. in the English Court of Appeal in Re McGrath [1893] 1 Ch. 143.

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not be in a child’s best interests to be reared in an environment which ignores religious instruction; for others moral integrity is what is in issue, so that a child’s best interests require an environment safe from sex and violence, alcohol, drugs and gaming. But does this also include protection from possible homosexual example and influence? Certainly, there is case law suggesting it is not in a child’s best interests to be brought up by lesbians. Concern was expressed at the stigma that might attach to such children and also about the fear that homosexuality might be caught by such children as any other ‘disease’.12 Education is clearly in a child’s best interests, but where does it rank in emphasis with these other features of welfare? And does education mean schooling? Is it in a child’s best interests to be educated by parents or a home tutor and thus deprived of interaction with other children?13 It may be that the decision one comes to, say in a disputed custody, or the policy a legislator adopts, will depend on which aspect of a child’s welfare is dominant in the minds of the judge or legislator. In other words there is an ineradicable element of values and hence subjectivity.14 It is therefore important that conclusions should be supported by reasoned argument and that bias or worse prejudice should be eliminated. Most legal systems will have experienced discrimination against particular religions, to take one obvious example.15 The U.S. decision in Painter v. Bannister16 illustrates these dilemmas well. The case arose out of a dispute between a 6-year-old’s father and his maternal grandparents. The father had temporarily relinquished custody to them 18 months earlier after the death in a car accident of his wife and daughter. He had now remarried. The Supreme Court of Iowa, reversing the trial judge, awarded custody to the boy’s grandparents. The Court relied heavily on the testimony of a child psychologist. It maintained its decision was in the psychological best interests of the child. The evidence of the child

12 As in Re P [1983] 4 FLR 401, where it was said to lead to ‘corruption’, defined as the ‘erosion of the instinctive rejection of devious conduct which . . . inevitably resides in the normal mind’: ibid., p. 404. And see S. Morin and S. Schultz, ‘The Gay Movement and the Rights of Children’ (1978) 34(2) Journal of Social Issues 137. To Reece the best theoretical response to the corruption argument is ‘so what?’ See ‘The Paramountcy Principle: Consensus or Construct?’ (1996) 49 Current Legal Problems 267, 290. 13 Could this even amount to a risk of suffering significant harm? A English court thought so in Re O [1992] 2 FLR 7. 14 See J. Elster, ‘Solomonic Judgements: Against the Best Interests of the Child’ (1987) 54 University of Chicago Law Review 1. 15 See C. Hamilton, Family, Law and Religion (London, Sweet and Maxwell, 1995). 16 140 N.W. 2d 152 (1966).

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psychologist was that the boy would ‘go wrong’ if he was returned to his father. But he had not assessed the father. His testimony was based on adoption studies which found that the majority of children ‘who are changed, from ages six to eight, will go bad, if they have had a prior history of instability’.17 Most significantly we get in the judge’s reasoning a frank admission of his own thinking process, an insight into how he understood ‘best interests’. ‘The Bannister home [the grandparents] provides Mark with a stable, dependable, conventional, middle-class, Middlewest background and an opportunity for a college education and profession, if he desires it. It provides a solid foundation and secure atmosphere. In the Painter home [the father], Mark would have more freedom of conduct and thought with an opportunity to develop his individual talents. It would be more exciting and challenging in many aspects, but romantic, impractical, and unstable’.18

The judge also pointed out that the father’s life was characterised by ‘Bohemian approach to finances and life in general’, that he had been classified by an expert as a ‘romantic and somewhat of a dreamer’, that he had ‘no concern for formal religious training’, that he was a ‘political liberal’, and that at his wife’s funeral he wore ‘a sport shirt and sweater’.19 The judge added that the court believed ‘security and stability in the home are more important than intellectual stimulation in the proper development of a child’.20 A second illustration is the English case of Re M in 1996,21 often referred to as the ‘Zulu boy’ case. The question was whether it was in a 9-year-old’s best interests to remain in London with his foster mother or return to his parents in South Africa. The foster mother was a white Afrikaner, the parents Zulus. The mother had been the foster mother’s nanny and cook/housekeeper when she had lived in South Africa. The child was with the foster mother with the parents’ agreement and had been with her in London for 4 years. The child was settled in England and there is no doubt that he wished to remain with his foster mother. But his view was not sought and his immediate return to South Africa was ordered by the court. The boy resisted and had to be forcibly returned. He spent a few months back in 17 See L.C. Halem, Divorce Reform: Changing Legal and Social Perspectives (New York, Free Press, 1980), p. 206. 18 Op. cit., note 16, p. 158. 19 Ibid., p. 159. 20 Ibid., p. 160. 21 [1996] 2 FLR 441.

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South Africa before his parents bowed to the inevitable and allowed him to return to his foster mother in London. The court reasoned that, other things being equal, it was in the interests of a child that he should be bought up by his natural parents and not, as was happening here, by a psychological parent.22 Further, the child’s development had to be ‘Zulu development and not Afrikaans or English development’.23 The child had ‘the right to be reunited with his Zulu parents and with his extended family in South Africa’.24 This despite the court being under ‘no illusions whatever about the harm that return to South Africa will cause. It is not just the uncertainty about the stability of his parents’ marriage and their relationship nor about their housing conditions nor economic security nor personal safety’.25 More, it was ‘the risk that he will go downhill emotionally, he will go downhill psychologically, he will pine for [his foster mother] and [her girls], he will get grumpy and disagreeable, he will not quickly grasp Ndelele and Afrikaans, he will be a bit of an outsider with the group when he gets there and everything may go horribly wrong . . .’.26 As we know, it did. If it is in a child’s best interests to grow up in the environment of his cultural origins, if biology is more important than psychology, blood than nurturance, then the court came to the right conclusion. But many will question whether this child’s best interests were rightly identified. These two cases are but illustrations and many more could be given. They are graphic examples of the difficulties of deciding what is in a child’s best interests. The text can be easily stated, but its content and application can be about as difficult as any decision gets. Is it any surprise that when the Bible wished to teach as about wisdom it chose a custody dispute?27 The UNCRC could have assisted decision-makers to determine what is in a child’s best interests had it gone beyond the bald normative statement in Article 3(1). For example, it could have offered a checklist of factors. There are precedents within municipal legal systems for taking this approach,28

22 This terminology can be traced to J. Goldstein, A. Freud and A. Solnit, Beyond The Best Interests of The Child (New York, Free Press, 1973), p. 27. See also J. Goldstein, A. Freud, S. Goldstein and A. Solnit, The Best Interests of the Child (New York, Free Press, 1996), pp. 11–13. 23 Per Thorpe J., quoted at op. cit., note 21, p. 462. 24 Ibid., p. 454 per Neill L.J. 25 Ibid., p. 460 per Ward L.J. (who is of South African origin). 26 Ibid., pp. 460–461 (evidence of Dr. Cameron). 27 See 1 Kings 16–28. 28 For example, the English. See Children Act 1989 s.1 (3).

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and where such lists exist they have undoubtedly proved useful. Of course, at the level of constructing an international document it may have been a step too far: it seems likely that there would have been no consensus as to what to include in such a list. But given the existence of Article 12 of the UNCRC, would it not have been possible to include reference to the child’s wishes and feelings?29 In Finland children over the age of 12 can even veto court decisions relating to their custody and access by their parents to them.30 A decision may be in a child’s best interests but children ‘are not packages to be moved around’.31 If reference to children’s wishes and feelings is controversial, other factors which might have been included are less so. For example, there could have been some reference to the needs of children; all children have physical, emotional and educational needs.32 There could have been some reference to harm a child has suffered or at risk of suffering.33 What constitutes harm may sometimes be controversial34 – does physical chastisement? But in most cases this is not so. That a child needs bonds of attachment, and that it can be damaging to break these is also now a generally accepted piece of evidence.35 If the checklist were nothing more than an aide-mémoire it would, I think, have been useful.36 But there is no checklist in Article 3, just an unadorned normative statement.

29 See C. Sturge and D. Glaser, ‘Contact and Domestic Violence – The Experts’ Court Report’ (2000) 30 Family Law 615. 30 See K and T v. Finland [2001] 2 FLR 707. 31 According to Butler-Sloss L.J., later to become President of the Family Division in England, in Re S [1992] 2 FLR 313, 321. 32 On educational needs, May v. May [1986] 1 FLR 325 is instructive, because the values of the judges come through so clearly. They preferred the father’s parenting, partly because he stressed the importance of academic achievement. The mother took a more relaxed attitude to schooling and to homework. 33 See Re M and R [1996] 2 FLR 195. 34 Being bought up in a non-conventional religion has sometimes been thought to be harmful. So has rearing in a naturalist environment: an example of this is Re W [1999] 1 FLR 869. 35 See J. Bowlby, Attachment (London, Hogarth Press, 1969). But it may be necessary to move a child nevertheless, for example see Re G [1993] 1 FLR 910 where there was drug-taking. Rather more controversially there are cases where children have been moved to uphold the rights of a biological parent. The Jessica saga in the U.S. was one such notorious instance. This is thoroughly discussed in M. Guggenheim, What’s Wrong With Children’s Rights (Cambridge, Mass, Harvard University Press, 2005). 36 So described by Waite L.J. in Southwood LBC v. B [1993] 2 FLR 559, 573.

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1.3 Its Role As indicated in chapter 1 of this Commentary,37 the best interests principle, with three other provisions, is accorded special significance by the monitoring committee. Indeed, that committee has continued to emphasize its importance by the vast number of references it makes to Article 3(1) when it is identifying particular substantive problems in State Parties’ reports. To take a couple of examples at random. In 1987, in its report on Australia,38 it expressed its concern about the lack of prohibition in local legislation of the use of corporal punishment in schools, at home and in institutions. The Committee could have said this contravenes Article 19, which it does. It added a number of other Articles, including Article 3 which it said this practice also contravened. In 1995, in its report on Nicaragua39 it expressed concern about the early and lower marriageable age for girls and raised questions as to that country’s laws compatibility with, inter alia, Article 3. Alston has argued that Article 3(1) has three roles to play in relation to children’s rights. It can ‘support, justify or clarify a particular approach to issues arising under the Convention’.40 As such it would then be ‘an aid to construction as well as an element which needs to be taken fully into account in implementing other rights’.41 As just indicated, the Committee on the Rights of the Child certainly emphasises this role. Secondly, it is a ‘mediating principle which can assist in resolving conflicts between different rights where these arise within the overall framework of the Convention’.42 This may be so but it hardly assists because so much will depend upon the values of the persons undertaking the mediation and upon what aspects of the Convention they accord most importance to. The third role – identified by Stephen Parker43 – sees the best interests principle as a basis for evaluating the laws and practices of States Parties where the matter is ‘not governed by positive rights in the Convention’.44 In other words, where lacunae are identified. Alston is of the view that the best Ante, p. 1. CRC/C/15/Add. 79. See CP Cohen, Jurisprudence on the Rights of The Child (Ardsley, New York, Transnational Publishers, 2005) vol. 1, pp. 372–373. 39 CRC/C/15/Add. 36. And see Cohen, op. cit., note 38, p. 460. 40 Op. cit., note 7, pp. 15–16. 41 Ibid., p. 16. 42 Ibid. 43 ‘The Best Interests of the Child; Principles and Problems’ (1994) 8 International Journal of Law and the Family 26. 44 Ibid., p. 27. 37 38

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interests principle should apply where failure to observe it would affect the enjoyment of any children’s right. And he sees ‘strong policy reasons’45 for adopting this approach. 1.4 Best Interests and Culture The reconciliation of the best interests principle with cultural norms is a major concern, perhaps more so now than it was in 1989. We are much more sensitive to cultural diversity and arguably more tolerant of it than we were when the principle was being formulated.46 On the other hand, under the UNCRC the child is given a much greater role in deciding what is in the child’s best interests than would be the case in traditional societies. Van Bueren sensibly argues that the rights approach in the UNCRC would be ‘wholly undermined if article 3(1) allowed back in either the traditional best interests approach or an extreme stance of cultural relativism’.47 And she notes this argument is strengthened by the Vienna Programme of Action ‘which links and gives equal weight to the principle of nondiscrimination, best interests and the views of the child’.48 Different societies have different understandings of childhood. We first saw this with the Ariès thesis,49 itself now heavily criticised.50 But even in contemporary terms there are different views on such questions as whether children should work; when they should be allowed to marry and what choice, if any, they should have. Even on such questions as to whether they should obey their parents.51 As Ncube recognises, ‘the normative universality Op. cit., note 7, p. 16. See, for example, B. Barry, Culture and Equality (Cambridge, Polity Press, 2001) for a critique, and B. Parekh, Rethinking Multiculturalism (Basingstoke, Macmillan, 2000) for a defence. See also, for responses to Barry, P. Kelly, Multiculturalism Reconsidered (Cambridge, Polity Press, 2002). Earlier examples are the important work of C. Geertz, Local Knowledge (New York, Basic Books, 1983) and The Interpretation of Cultures (New York, Basic Books, 1973) and W. Kymlicka, The Rights of Minority Cultures (Oxford, Oxford University Press, 1995). 47 The International Law on the Rights of The Child (Dordrecht, Martinus Nijhoff, 1995), p. 47. 48 Ibid. 49 P. Ariès, L’Enfant et la Via Familiale Sous L’Ancien Régime (Paris, Libraire Plon, 1960), translated into English as Centuries of Childhood (London, Jonathan Cape, 1962). 50 See, for example, L. Pollock, Forgotten Children: Parent-Child Relations From 1500–1900 (Cambridge, Cambridge University Press, 1983); B. Hanawalt, Growing Up In Medieval London: The Experience of Childhood in History (New York, Oxford University Press, 1993; N. Orme, Medieval Children (New Haven, Yale University Press, 2001). See also the impressive collection by W. Koops and M. Zuckerman, Beyond The Century of The Child (Philadelphia, University of Pennsylvania Press, 2003). 51 The Israeli legal system, following its biblical roots, mandates this. It (but not the Israeli example) is discussed by A. Bainham, “Honour Thy Father and Thy Mother”: Children’s Rights 45 46

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achieved in the definition and formulation of children’s rights has to contend with diverse and varied cultural and traditional conceptions of childhood, its role, its rights and obligations’.52 He describes some aspects of the traditional African conception of childhood that are very different from the model found in the developed world. He notes: ‘. . . in the African cultural context childhood is not perceived and conceptualised in terms of age but in terms of inter-generational obligations of support and reciprocity. In this sense an African ‘child’ is often always a ‘child’ in relation to his or her parents who expect and are traditionally entitled to all forms of support in times of need and in old age’.53 There may be difficulties also with the UNCRC’s emphasis (in Article 12) on participation, since the traditional African family ‘expects “childhood” . . . to be a continuous period of self-effacing obedience to traditional authority’.54 But the relationship between autonomy and culture is best left for discussion in the volume on Article 12. When culture is discussed in the context of human rights it is easy to assume that we are talking only of cultural practices in the developing world. But this is not so. To take a simple example, it could be argued that the English cultural practice of sending young children away to boarding public (really very private!) schools is not in children’s best interests. But it is not such practices upon which attention focuses. It is rather on female genital mutilation (FGM),55 child marriage,56 arranged and forced marriage,57 practices which tend to be prevalent in the developing world or in parts of it.

and Children’s Duties’ in (eds.) G. Douglas and L. Sebba, Children’s Rights and Traditional Values (Aldershot, Ashgate, 1998), p. 93. 52 W. Ncube, ‘Prospects and Challenges in Eastern and Southern Africa: The Interplay Between International Human Rights Norms and Domestic Law, Tradition and Culture’ in (ed.) W. Ncube, Law, Culture, Tradition and Children’s Rights in Eastern and Southern Africa (Aldershot, Dartmouth, 1998), p. 5. 53 W. Ncube, ‘The African Cultural Fingerprint? The Changing Concept of Childhood’ in op. cit., note 52, pp. 11, 18. See further H. Verhoef, ‘ “A Child Has Many Mothers”: Views of Child Fostering in Northwestern Cameroon’ (2005) 12 Childhood 369. 54 Ibid., p. 19. 55 Discussed by M. Freeman, ‘The Morality of Cultural Pluralism’ (1995) 3 International Journal of Children’s Rights 1 in terms of three approaches to culture ( monism, relativism and pluralism). There are many accounts of this: one of the best is E. Dorkenoo, Cutting The Rose (London, Minority Rights Group, 1994), See also P. Wheeler, ‘Eliminating FGM: ‘The Role of the Law’ (2003) 11 International Journal of Children’s Rights 257. 56 One insightful account is M. El Jerrari, ‘Child Marriage and Islam in India, Morocco, Pakistan and Egypt’ in (ed.) J. Willems, Developmental and Autonomy Rights of Children (Antwerpen, Intersentia, 2002), p. 209. 57 In Britain, the Home Office issued a report on this: see A Choice by Right (London, Home Office, 2000).

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A valuable way of looking at the debate is suggested by Alston who uses the analogy drawn from European Human Rights jurisprudence of ‘margin of appreciation’.58 This would give States Parties a degree of discretion, enabling cultural considerations to be accommodated within the best interests norm. But Alston is surely also right to insist that culture ‘must not be accorded the status of a metanorm which trumps rights’.59 There are cultural practices which it is possible to reconcile with the best interests standard and others which fall outside any margin of appreciation. Slavery and apartheid are the clearest of examples of the latter. Slavery, and practices similar to slavery such as imprisonment within brothels and forcing children into prostitution, cannot escape censure because they are endemic within certain cultures.60 There is no place here for the cultural defence.61 Female infanticide is another example. FGM is also unacceptable, even to a cultural pluralist. The practice can be subjected to an internal critique and the arguments used to support it can be readily deconstructed. I have done this elsewhere.62 An interesting contrast is the practice of male circumcision, a cultural practice which many condemn,63 but which I would argue is defensible within the best interests standard and other norms in the UNCRC.64 Brems argues that the flexibility allowed ‘best interests’ should not only be seen in the cultural context but other factors, such as available resources, also need to be taken into account.65 She draws on Armstrong66 to understand how custody arrangements in Africa are strongly influenced by resource factors. Armstrong found that many, if not most, children stay with different relatives for periods of their lives: among low-income groups this transfer 58 P. Alston, ‘The Best Interests Principle: Towards A Reconciliation of Culture and Human Rights’ (1994) 8 International Journal of Law and The Family 1, 20. 59 Ibid. 60 And see J.T. Levy, The Multiculturalism of Fear (New York, Oxford University Press, 2000). 61 Contrast D. Coleman, ‘Individualizing justice Through Multiculturalism: The Liberals’ Dilemma’ (1996) 96 Columbia Law Review 1093 and L. Volpp, ‘Talking “Culture”: Gender, Race, Nation and the Politics of Multiculturalism’ (1996) 96 Columbia Law Review 1573. 62 See, op. cit., note 55. 63 See M. Fox and M. Thomson, ‘Short Changed? The Law and Ethics of Male Circumcision’ (2005) 13 International Journal of Children’s Rights 161. 64 ‘A Child’s Right To Circumcision’ (1999) 83 British Journal of Urology International, Supplement 1, 74. 65 See E. Brems, Human Rights: Universality and Diversity (Dordrecht, Martinus Nijhoff, 2001). See also E. Brems, ‘Children’s Rights and Universality’ in (ed) J. Willems, op. cit., note 56, 21, 39. 66 A. Armstrong, ‘School and Sadza: Custody and The Best Interests of The Child in Zimbabwe’ (1994) 8 International Journal of Law and the Family 151.

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of custody is ‘a way of sharing economic resources among family members’.67 A child may be sent to live with relatives because of their proximity to a school: in return they may be expected to perform household work. Alston and Gilmour – Walsh suggest that these practices, not perhaps practices envisaged by the UNCRC, are in child’s best interests ‘because they ensure better schooling opportunities and better nutrition’.68 So long as the arrangement works. But if, as Rwezaura points out,69 it may not – the children may not be enrolled in school or may be overburdened with household chores – and then the arrangement will clearly not be in the child’s best interests. These examples point to the complexity of the problem. As Brems acknowledges,70 it is ‘not sufficient to rely on one single factor (such as culture or economic resources) to determine the best interests of the child’. Much has, I think, been overlooked in this debate. At root the conflicts may be understood as conflicts between different communities of judgement. For Kant71 and for Hannah Arendt72 judgement is neither about truth claims nor about mere subjective preference. For Kant, the core of what makes judgement possible is our ‘common sense’ shared by other judging subjects. It is this shared sense that allows us to exercise an ‘enlarged mentality’ by imagining judgements from the standpoints of others.73 For Kant, the ground for our ‘common sense’ is the identical cognitive faculties of imagination and understanding that all human beings share: in exercising the enlarged mentality we put ourselves in the place of every other person. Judgements are thus universally valid. For Arendt, the common sense that makes judgement possible is not based in universally – shared cognitive faculties, but in shared community. She says: ‘The capacity to judge is a specifically political ability in exactly the sense denoted by Kant, namely the ability to see things not only from one’s own point of view but in the perspective of all those who happen to be present’.74

Ibid., 170. P. Alston and B. Gilmour-Walsh, The Best Interests of The Child; Towards A Synthesis of Children’s Rights and Cultural Values (UNICEF, 1996), p. 25. 69 B. Rzewaura, ‘The Concept of The Child’s Best Interests in the Changing Economic and Social Context of Sub-Saharan Africa’ (1994) 8 International Journal of Law and the Family 82, 102. 70 Op. cit., note 65 in (ed) Willems, p. 40. 71 I. Kant, Critique of Judgment (Indianapolis, Hackett, 1987) (originally published in 1790). 72 H. Arendt, Between Past and Future (New York, Viking Press, 1961); Lectures on Kant’s Political Philosophy (Chicago, University of Chicago Press, 1982). 73 Op. cit., note 71, § 35, 150–151. 74 Op. cit., note 72 (1961), p. 221. 67

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The claims for validity are thus not universal, as with Kant, but for the community of judging subjects involved in the exercise of the enlarged mentality. The conception of the ‘enlarged mentality’ is an important framework for understanding that subjectivity need not collapse into arbitrariness. By basing judgement in real community, Arendt makes us ask about judgement: good judgement for and according to whom? With Kant, with his transcendental universality, this is an unnecessary question. But Arendt’s reliance on actual community provides a way of using the Kantian framework where there are doubts about a universality of judgement. But whose standpoints are to be considered, and by whom? What is meant by community? If the common sense essential to judgement is not that of Kant’s transcendental world of all human beings with identical faculties of imagination and understanding, what is it? The concept of the enlarged mentality is valuable, but does it work in a diverse, contested and fragmented social world? These are not, or not just, theoretical questions. They throw light on the controversies which bedevil our thinking about children’s best interests and culture. These debates too – and obviously – require a theory of judgement. They require an understanding of the relationship between the universal and the particular in human judgement, and they require a clear sense of the community (or communities) from which claims of agreement are made. The core of this debate is over claims about the universality of human (and thus children’s) rights. And this comes sharply into focus when a practice like FGM is in issue.75 We may condemn such a practice in the name of universality, but others condone it in the name of culture. Our claim to normative universality is challenged by others as merely the imposition of a particular Western conception on those who have different conceptions of core human values. How is one then to justify claims of abuses of rights? What is the basis for such claims? With reference to which community is the judgement about abuses of rights made? Is it the community of all 6 billion of us, to which we all belong because we are human? Does being ‘human’ mean the same

75 See S.A. James, ‘Reconciling International Human Rights and Cultural Relativism’ (1994) 8 Bioethics 1 and M. Nussbaum, Sex and Social Justice (Oxford, Oxford University Press, 1999), ch. 4.

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to all mankind? Or, are we necessarily invoking, even here, a Western conception of what being ‘human’ is? Should we instead be looking to the particular community in which the abuses are taking place? And, if so, is there any greater reason to envision that community as monolithic, so that it has only one relevant shared ‘common sense’? Why should we do this when practices alleged to be abuses frequently take place where there are multiple overlapping communities with different ‘common senses’? Or, should we rather say there is a world community, that it is not transcendental in nature, but rather empirical, a social world constituted by communication and actions such as ratifications of international conventions on human and children’s rights? And is it not possible to express such norms in universal terms and yet apply them in ways which are responsive to local context? For example, it may be possible to condemn child marriage but be sensitive to different understandings of the concept of ‘child’ in different cultures. Surprisingly, perhaps – and, of course, not using this route – an English court adopted this culture – sensitive approach as long ago as 1968.76 But the decision was controversial then, and remains so to-day. There is another danger in these discussions, and that is that it pits ‘us’ against them. But there are people in our communities who do not accept human rights ideals or children’s rights, and people in communities which reject such ideals who happily endorse them. So, what is it that makes it possible for some people to judge not only differently from, but in opposition to, their communities? Arendt herself was ambivalent. In the last analysis, she thought, one is a member of a world community by the sheer fact of being human. This is one’s ‘cosmopolitan existence’. When one judges and acts in political matters, ‘one is supposed to take one’s bearings from the ideal, not the actuality, of being a world citizen’, and, quoting Kant, ‘a Weltbetrachter, a world spectator’.77 But what do we mean when we say an entire community is wrong? We all know that the Nazis were wrong, that enslaving children is wrong, that torture and rape are wrong. How do we know this?78 Are we saying that those who uphold genocide or slavery are not exercising judgement? Or their judgement is bad judgement? Or their common sense distorted? From what standpoint do we make such a claim? How do we exercise our judgement? 76 Mohamed v. Knott [1969] 1 Q. B. 1. (A 13-year-old girl was held not to be in moral danger when the morality of Northern Nigeria, her homeland, was considered). 77 Op. cit., note 74 (1961), p. 76. 78 And see R. Dworkin, Justice In Robes (Cambridge, Mass.: Harvard University Press, 2006).

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The discussion thus far has assumed that our judgements are grounded in local communities but most communities are not homogeneous. We are exposed to overlapping communities, and these differ in their ‘common sense’, at least in some respects. How then do we exercise our enlarged mentality when different judgements appear valid depending on which community’s common sense we have reference to? Are we to choose from different common senses of different communities, and, if so, how? A set of norms like the UNCRC requires us to make judgements across different communities. Can valid judgements be made across different communities? The European jurisprudence use of ‘margin of appreciation’ has already been referred to.79 Of course, the functional equivalent of this in the UNCRC is the entering of reservations. For obvious reasons States Parties cannot enter a reservation to Article 3. When we are critical of the overuse of reservations, as we should be, we act as members of a community committed to children and as such we work to change the common sense of our own and others’ communities. We can exercise our judgements against our communities – this has long been the route to progress. Exercising judgements against other communities takes on new dimensions: it is both easier (because there will be support from many others including those who do not see problems in their own communities), and more difficult (because we are intrusive outsiders, and because we must understand before we can judge). In disputes about children’s rights, what we see are competing communities claiming that they provide the appropriate framework for judging. The greater the capacity to form links between competing frameworks, the greater the possibility of claiming validity across communities. If we want to see our visions of children’s rights prevail across communities, some of which currently lack our judgement, we must engage in dialogue. Our aim must be the enlargement of a shared common sense. Children’s rights discourse must not be seen, as it frequently is, as a foreign imposition, rather as an element of shared common sense. It is thus necessary to participate in dialogue that seriously engages local perspectives. We cannot adopt positions of superiority. The practical meaning and application of children’s rights is contested more or less everywhere. We ‘proclaim’ children’s rights, and condemn their abuses elsewhere.

79

Supra, 35.

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The developed world must carefully scrutinize its own policies, for example towards refugees and asylum seekers. How many of these uphold ‘best interests’ standards?80 We need to find ways to engage in debate to enable distinct communities of judgement to hear each other enough to include each other in their exercise of enlarged mentality. Without this, all that happens is the entrenchment of insularity, and criticism which amounts to little more than name – calling. We need to open channels of communication. The challenge is the creation of ‘common sense’, where currently it does not exist. 1.5 Why Best Interests? There are a number of reasons why children’s best interests are to be a primary consideration. Sceptics will criticize these arguments but it is useful to set them out.81 First, it may be argued that children have the right to have their welfare prioritized. Critics of children’s rights as such naturally reject this. Others who do not reject children’s rights nevertheless reject the right to prioritization of children’s interests. So justifications must be based on a defence of this position. This leads to the second argument and most common justification. Children are more vulnerable. In a world run by adults, there would otherwise be a danger that children’s interests would be completely ignored. A third argument is that children must be given the opportunity to become successful adults. A fourth justification is that adults create children. As Libby Purves put it: ‘We invited them to life’s party’.82 A fifth argument is often described as ‘the argument from Solomon’,83 that is the desire to sacrifice one’s own interest to those of one’s child is what being a parent is all about. The true mother, it will be remembered, was prepared to give up her child rather than see him cut in two.

80 See J. McAdam, ‘Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary Protection’ (2006) 14 International Journal of Children’s Rights 251. 81 An excellent sceptical article is H. Reece, op. cit., note 12. 82 ‘Child Victims of Divorce’, The Times (London) 7 December 1993. 83 See supra, note 27.

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There are also utilitarian arguments in favour of prioritizing children’s interests. Thus, it may be thought that giving greater weight to children’s interests maximizes the welfare of society as a whole. Barton and Douglas have even argued that children are important for the continuity of order in society.84 Putting children first is a way of building for the future. It is significant that countries reconstructing after nightmares of rightlessness have put children’s interests in the foreground.85 1.6 Implementing the Best Interests Principle We knew that the best interests principle was always going to be easier to state than to implement. The Committee on the Rights of the Child’s observations are permeated with comments to this effect. Thus a common criticism it makes is that the general principle of the best interests of the child is not fully applied and duly integrated in the implementation of the policies and programmes of States Parties.86 The Committee invokes the best interests principle to criticize many laws, policies and practices of States Parties. It not infrequently notes the ways culture, religion and tradition frustrate the implementation of the best Law and Parenthood (London, Butterworths, 1996), p. 423. An example is Mozambique: see L.F. Sacramento and A.M. Pessoa, ‘Implementation of the Rights of The Child in the Mozambican Context’ in (eds) M. Freeman, Children’s Rights: A Comparative Perspective (Aldershot, Ashgate, 1996), p. 145. 86 This is taken from the report on Sweden in 1999: see CRC/C/15 Add. 101. But similar comments are found in many other reports. Examples are Algeria (see CRC/C/15Add. 76 para. 16 in 1997); Azerbaijan (see CRC/C/15/Add. 77, para. 15 in 1997); Bahrain (see CRC/C/15/Add. 175, para. 22 in 2002); Bangladesh (see CRC/C/15/Add. 221, para. 31 in 2003) (The Committee noted that increased importance had been given to the principle); Belarus (see CRC/C/15/Add. 180, para. 26 in 2002); Belize (see CRC/C/15/Add. 99, para. 15 in 1999); Bulgaria (see CRC/C/15/Add. 66, para 12 in 1997); Cambodia (see CRC/C/15/Add. 128, para. 26 in 2000); Chile (see CRC/C/15/Add. 173, para 24 in 2002); Cote d’Ivoire (see CRC/C/15/Add. 155, para. 28 in 2001), Cyprus (see CRC/C/15/Add. 205, para. 25 in 2003); Czech Republic (see CRC/C/15/Add. 81 para. 13 in 1997); Denmark (see CRC/C/15/Add. 33, para.10 in 1995) and CRC/C/15/Add. 151, para. 29 in 2001); Djihouti (see CRC/C/15/Add. 131, para. 24 in 2000); Ecuador (see CRC/C/15/Add. 93, para. 19 in 1998); Eritrea (CRC/C/15/Add. 204, para. 24 in 2003); Estonia (CRC/C/15/Add. 196, para. 22 in 2003); Fiji (CRC/C/15/Add. 89, para. 12 in 1998); Finland (CRC/C/15/Add. 53, para. 13 in 1996 and CRC/C/15/Add. 132, para. 22 in 2000); Gambia (CRC/C/15/Add. 165, para. 26 in 2001); Georgia (CRC/C/15/Add. 124, para. 27 in 2000); Ghana (CRC/C/15/Add. 73, para. 13 in 1997); Grenada (CRC/C/15/Add. 121, para. 24 in 2000); Guatemala (CRC/C/15/Add. 154, para. 25 in 2001); Guinea (CRC/C/15/Add. 100, para. 24 in 1999); Holy See (CRC/C/15/Add. 46, para. 15 in 1995); Hungary (CRC/C/15/Add. 87, para. 13 in 1998); Iraq (CRC/C/15/Add. 94, para. 16 in 19998); Italy (CRC/C/15/Add. 198, para. 23 in 2003); Jamaica (CRC/C/15/Add. 210, para. 27 in 2003); Kazakhstan (CRC/C/15/Add. 213, para. 25 in 2003); Republic of Korea (CRC/C/15/Add. 88, para. 25 in 1998 and CRC/C/15/Add. 197, para. 29 in 2003); Kyrgyzstan (CRC/C/15/Add. 127, para. 21 in 2000); Laos People’s Democratic 84 85

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interests principle.87 It is, for example, critical of the low minimum age of marriage and in particular the lower marriageable age of girls in a number of legal systems.88 There are frequent criticisms too of laws penalising children born outside wedlock.89 The latter is, of course, an infringement of the non-discrimination principle in Article 2 as well. It is an example – one of many – where the Committee identifies a State Party’s law as being incompatible with a number of Articles. Article 3 is commonly used in this way. The treatment of Roma, indigenous children, refugees and asylum seekers90 – there are criticisms of these – is a further illustration where these two principles are used in tandem. The low legal age of criminal responsibility is another concern.91 And there are many other examples of juvenile justice laws and practices which are cited as incompatible with the best interests principle.92 As an example, note

Republic (CRC/C/15/Add. 78, para. 14 in 1997); Latvia (CRC/C/15/Add. 142, para. 22 in 2001); Lebanon (CRC/C/15/Add. 169, para. 27 in 2002); Lesotho (CRC/C/15/Add. 147, para. 22 in 2001); Liechtenstein (CRC/C/15/Add. 143, para. 19 in 2001); Malawi (CRC/C/15/Add. 174, para. 26 in 2002); Malta (CRC/C/15/Add. 129, para. 26 in 2000); Marshall Islands (CRC/C/15/Add. 139, para 27 in 2000); Micronesia (CRC/C/15/Add. 86, para. 14 in 1998); Republic of Moldova (CRC/C/15/Add. 192, para. 24 in 2002); Netherlands (CRC/C/15/Add. 114, para. 28 in 1999); Netherlands Antilles (CRC/C/15/Add. 186, para. 29 in 2002); Niger (CRC/C/15/Add. 179, para. 25 in 2002); Oman (CRC/C/15/ Ass. 161, para. 30 in 2001); Pakistan (CRC/C/15/Add. 217, para. 33 in 2003); Paraguay (CRC/C/15/Add. 166, para 26 in 2001); Romania (CRC/C/15/Add. 199, para. 23 in 2003); San Marino (CRC/C/15/Add. 214, para. 15 in 2003); Saudi Arabia (CRC/C/15/Add. 148, para. 36 in 2001); Seychelles (CRC/C/15/Add. 189, para. 26 in 2002); South Africa (CRC/C/15/Add. 122, para. 25 in 2000); Spain (CRC/C/15/Add. 185, para. 26 in 2002); St Vincent and the Grenadines (CRC/C/15/Add. 184, para. 23 in 2002); Surinam (CRC/C/15/Add. 130, para. 28 in 2000); Switzerland (CRC/C/15/Add. 182, para. 25 in 2002); Togo (CRC/C/15/Add. 83, para. 37, in 1997); Tunisia (CRC/C/15/Add. 181, para. 27, in 2002); Turkey (CRC/C/15/Add. 152, para. 28 in 2001); United Kingdom of Great Britain and Northern Ireland (CRC/C/15/Add. 134, para. 24 in 2000); Vanatu (CRC/C/15/Add. 111, para. 19, in 1999); Yemen (CRC/C/15/Add. 102, para. 17 in 1999). 87 This is not just in relation to traditional societies in Africa. See for example its concern about Poland (CRC/C/15/Add. 31, para. 12 in 1995). 88 Examples are Ethiopia (CRC/C/15/Add. 67, para. 27 in 1997); Japan (CRC/C/15/Add. 90, para. 35 in 1998); Korea (CRC/C/15/Add. 51, para. 12 in 1996); Kuwait (CRC/C/15/Add. 96, para. 15 in 1998); Madagascar (CRC/C/15/Add. 26, para. 9 in 1994); Morocco (CRC/C/15/Add. 60, para. 25 in 1996); Paraguay (CRC/C/15/Add. 27, para. 7 in 1994) and Sri Lanka (CRC/C/15/Add. 40, para. 11 in 1995). 89 An example is Korea (CRC/C/15/Add. 51, para. 22 in 1996). 90 See Belgium (CRC/C/15/Add. 38, para. 9 in 1995); Canada (CRC/C/15/Add. 37, para. 13 in 1995); Denmark (CRC/C/15/Add. 33, para. 14 in 1995); Finland (CRC/C/15/Add. 132, para. 25 in 2000); Germany (CRC/C/15/Add. 43, para. 19 in 1995); Iceland (CRC/C/15/Add. 203, para. 23 in 2003); Italy (CRC/C/15/Add. 198, para. 46 in 2003. 91 For example, in Chile (CRC/C/15/Add. 22, para. 17 in 1994); China (CRC/C/15/Add. 56, para. 13 in 1996); Kuwait (CRC/C/15/Add. 96, para. 15 in 1998). 92 An example is in relation to Egypt (CRC/C/15/Add. 5, para. 14 in 1993).

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its criticism of Secure Training orders in England and Wales. The Committee is concerned that the ‘ethics of the guidelines for the administration and establishment of secure training centres . . . appears to lay emphasis on imprisonment and punishment’.93 There are many references to corporal punishment.94 This is clearly incompatible with Article 19 (and indeed Articles 5, 6, 28(2), 37(a) and (c) and 39 as well). The Committee is concerned about its use by parents and in schools, as well as in institutions. In a report on Canada it advocates the launching of educational campaigns ‘with a view to changing attitudes in society on the use of physical punishment in the family and fostering the acceptance of its legal prohibition’.95 This is a rare example in the Reports of the advocacy of social engineering. Another – and a very significant one – is in the 2002 report on Guinea – Bissau which argues for awareness – raising ‘to change traditional perceptions regarding children as objects and not as subjects of rights’.96 Similar statements are to be found in reports, inter alia, on Cambodia,97 Mexico98 and Paraguay.99 There are many references also to economic difficulties100 and a concern that with budgetary constraints101 the best interests of children are neglected. It is all too easy for children to be victims of economic reform. It is equally easy for socio-economic disparities to be aggravated in such a situation.102 Children, we should remind ourselves, are not the paramount or the primary consideration, only a primary consideration. This is all the worse when 93

CRC/C/15/Add. 34, para. 18 in 1995. Examples are Australia (CRC/C/15/Add. 79, para. 15 in 1997); Canada CRC/C/15/Add. 37, para. 25 in 1995); Czech Republic (CRC/C/15/Add. 81, para. 18 in 1997); Ethiopia (CRC/C/15/Add. 67, para 27 in 1997); Ghana (CRC/C/15/Add. 73, para. 36 in 1997); Jamaica (CRC/C/15/Add. 32, para 7, in 1995); Senegal (CRC/C/15/Add. 44, para. 24 in 1995); Togo (CRC/C/15/Add. 83, para. 40 in 1997). In the case of Ghana caning is specifically referred to: it is surprising that this is not cited in many other countries’ reports where it remains prevalent. 95 CRC/C/15/Add. 37, para. 25 in 1995. 96 CRC/C/15/Add. 177, para. 20. 97 CRC/C/15/Add. 128, para. 26 (in 2000). 98 CRC/C/15/Add. 112, para. 19 ( in 1999). 99 CRC/C/15/Add. 166, para. 17 (in 2001). 100 See the reports on Poland (CRC/C/15/Add. 31, para. 11 in 1995); Russian Federation (CRC/C/15/Add. 4, para. 8 in 1993). 101 For example, Ecuador (CRC/C/15/Add. 93, para. 15 in 1998); Finland (CRC/C/15/Add. 53, para. 10 in 1996); Jamaica (CRC/C/15/Add. 32, para. 9 in 1995); Korea (CRC/C/15/Add. 88, para. 28 in 1998). 102 Note the concern of the Committee with indigenous or other vulnerable groups of children: see Bolivia (CRC/C/15/Add. 1, para. 9 in 1993); Canada (CRC/C/15/Add. 215, para. 25 in 2003); Japan (CRC/C/15/Add. 90, para. 13 in 1998). 94

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a country is ravaged by war or civil conflict, as many parts of the world have in the years since the UNCRC came to fruition. Thus, in its report on Sudan, the Committee recognises that ‘natural and man-made disasters have had a negative impact on efforts by [Sudan] to ensure full implementation of the Convention. In this regard, the Committee notes the problems caused by civil war in the South of the Sudan and that the different groups involved in this conflict have often disregarded the best interests of the child’.103 And in relation to Albanian-speaking children in Kosovo, it urges solutions, especially in the light of Article 3(1). Apart from recommending the media be opened up and information be imparted to children in Albanian, it does not expostulate on these solutions.104 1.7 The Text The text of Article 3 was debated over an 11-year period. There was a Draft on the initiative of Poland, a number on Comments on this, a proposal submitted to a Working Group in 1979, a Revised Polish Draft which formed the basis for discussion at the 1980 session of the Working Group. In 1980 proposals were submitted to the Working Group by Australia and the United States. In 1981 there was discussion at the Working Group. There were further proposals: one by Belgium, in 1983, a number by NGOs in 1984. In 1986 Bangladesh offered a ‘Comment’: in 1988 there was a Technical Review and a Second Reading took place in 1988–1989. At this there was some discussion. From this a text emerged which is now Article 3. However, it cannot be said that much assistance with construction can be found in the travaux préparatoires.105 With this in mind, it is time to examine the text. 1.8 Article 3(1) (a) In all actions The best interests principle applies to ‘all actions’ by those who come within its orbit. Not everyone does, as we shall see106: the principle does not extend to parents. Within its scope the principle purports to be comprehensive: it applies to ‘all actions concerning children’.

103 104 105 106

CRC/C/15/Add. 10, para. 8 in 1993. Report on Yugoslavia CRC/C/15/Add. 49, para. 28 in 1996. See generally HR/1995/Ser. 1/article 3. Infra, 47–48.

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But what is meant by ‘actions’? The word is not defined. It appears for the first time in the revised Polish draft of 1981.107 At the time of the Second Reading a number of delegations questioned whether the best interests of the child should be a primary consideration in all actions. And it was generally noted that there were situations in which the competing interests inter alia of justice and of society at large should be of at least equal, if not greater, importance than the interests of the child.108 It was this concern that led to a dilution of the standard from ‘the’ primary consideration to ‘a’ primary consideration. Finland had suggested that the interests of the child should be ‘the’ primary consideration only in actions concerning his or her welfare.109 And the United Kingdom, supported by Norway, thought that either the word ‘all’ should be deleted or the interests of the child should only be ‘of’ primary consideration.110 In all this discussion there was no debate about what the word ‘actions’ means. Does it embrace also ‘omissions’ or is the word used deliberately so as to exclude failures to act? I think it is clear that there was no legislative intent. We should, I would argue, avoid literalism and endeavour wherever possible to interpret this Convention purposefully.111 It would make no sense to exclude omissions from the ambit of the best interests principle. To do so would mean, for example, that social welfare authorities could fail to take action to protect children from neglect or abuse, even though it is obviously in the best interests of children that action – perhaps to remove such children from abusive parents – be taken.112 Similarly, an educational authority could conceivably claim it was not in breach of the UNCRC – at least of Article 3(1) – in not establishing an effective network of schools. Omissions of this nature may, it is thought, be barely distinguishable from actions.113 (b) Concerning Children The best interests principle applies to actions concerning children. It is difficult to think of many governmental decisions which do not concern

107

See E/CN.4/1349. See E/CN.4/1989/48, para. 121. 109 Ibid., para. 123. 110 Ibid., para. 124. 111 See Vienna Convention on the Law of Treaties 1969. 112 And see C. Brennan, ‘Third Party Liability for Child Abuse: Unanswered Questions’ (2003) 25 Journal of Social Welfare and Family Law 23. 113 For agreement see Alston, op. cit., note 7, pp. 13–14. 108

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children. The decision to build a new major road concerns children. The decision to go to war certainly concerns children who may, if the war lasts long enough or if other norms in the UNCRC are violated,114 be conscripted into military service. It will also concern children in the country against whom war is waged. Decisions to go nuclear or to prevent other nations doing so concerns children. Decisions taken in relation to global warming concerns children – and generations beyond. The passing of laws about cloning, pre-implantation genetic diagnosis, abortion all concern ‘children’: whether they come to be born at all hinges on legislative policy. And gets us into tricky questions – not within the scope of this discussion – like whether any life is preferable to no life.115 This is to give ‘concerning children’ its broadest interpretation. Should we do so? There are two arguments for adopting a broad construction. First, we would want – or should want – the best interests of children to play a role as extensively as possible. Secondly, the reference is to ‘children’, not ‘child’, as occurs later in the sentence (‘the best interests of the child’). ‘Children’ suggest the class of children, not the individual child. I agree with Alston that ‘the use of the plural would seem to indicate an intention to achieve a broad rather than a narrow coverage for the best interests principle’.116 The UNCRC is as much focused on distributive justice as it is on the individual child. We are most familiar with the best interests principle in the context of the custody dispute, but when we see it in the UNCRC its scope is unquestionably much broader. The provision does not state ‘In all actions concerning the child’, which, it is submitted, could have been given a narrow construction. A broad construction is therefore appropriate so long as it does not become so general as to embrace absolutely everything. It would seem that the Committee does adopt a broad construction. Thus, to take examples at random, in its report on Benin we read ‘It is the Committee’s view that further efforts must be undertaken to ensure that the general principles of the Convention not only guide policy discussion and decision-making, but are also appropriately integrated in all legal revisions as well as in judicial and administrative decisions and in projects, programmes and services which have an impact on children’.117 114 In particular, Article 38(3) of the UNCRC and First Protocol. See also J. Kuper, International Law Concerning Child Civilians in Armed Conflict (Oxford, Oxford University Press, 1997) and G. Goodwin – Gill and I. Cohn, Child Soldiers (Clarendon Press, Oxford, 1994). 115 See D. Parfit, Reasons and Persons (Oxford: Oxford University Press, 1984). 116 Op. cit., note 7, p. 14. 117 CRC/C/15/Add. 106, para. 14 in 1999.

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In other reports the phrase ‘relevant to children’ or ‘in all relevant fields’ or ‘relating to children’ or have an ‘impact on children’ occurs.118 (c) Whether undertaken by public or private The best interests principle is confined to actions by ‘public or private social welfare institutions, courts of law, administrative authorities or legislative bodies’. The 1979 Polish draft to the Working Group would have applied the best interests principle to all actions concerning children ‘whether undertaken by their parents, guardians, social or State institutions, and in particular by courts of law and administrative authorities’.119 An alternative proposal by the United States limited the principle to ‘all official actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative authorities’.120 Neither of these models was eventually adopted. The word ‘official’ was deleted, and the phrase ‘legislative bodies’ was added.121 The final provision is therefore much closer to the United States’ proposal. This reflects a dominant view that obligations should not be imposed on parents and guardians, that only official actions should be governed by the best interests principle, that private family decisions should not be so regulated. But, while this position was encoded through the deletion of the reference to parents and guardians, this was done at the cost of deleting the reference to ‘official actions’ also. Can one read more into the deletion of ‘official’ than this? Does it, as Alston argues, ‘leave the door open to Article 3(1) being applied to non-official entities as well’?122 Note among the entities specified are ‘private social welfare institutions’. How much is embraced by this? Presumably, it includes children’s charities, voluntary organisations, religious associations. Does it also include extended family arrangements of the sort found in Africa?123 No doubt this will depend upon whether such networks are characterised

118 For example Andorra CRC/C/15/Add. 176, para. 26 in 2002, Azerbaijan CRC/C/15/Add. 77, para. 15 in 1997, Bahrain CRC/C/15/Add. 175, para. 22 in 2002, Belarus CRC/C/15/Add. 180, para. 26 in 2002. 119 See UN Doc.E/CN.4/1349, pages 2–3, at Article 3(1980). 120 See UN Doc.E/CN.4/L.1575, para. 20 (1981). 121 See UN Doc.E/CN.4/1989/WG.1/CRP.1, Add. 1, p. 4 at 4. Article 3; E/CN.4/1989/48, paras. 117, 126. 122 Op. cit., note 7, p. 15. 123 See R. Levine et al., Child Care and Culture: Lessons From Africa (Cambridge: Cambridge University Press, 1994); C. Kagitcibasi, Family and Human Development: A View From The Other Side (Hove, Lawrence Erlbaum, 1996). See also the study by C. Oleke et al., ‘The Varying Vulnerability of African Orphans: the case of the Laagi, Northern Uganda’ (2006) 13 Childhood 267.

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as ‘family’ or as more close to a welfare institution? They embrace family members, grandparents, uncles, aunts etc, and so may be more appropriately classified as ‘family’, but perform a role which in industrialized countries vests in welfare agencies. The better view is, I believe, to see these extended family arrangements as falling outside the concept of ‘private social welfare institutions’. However, it must be stressed that even if Article 3(1) does not extend to parents, the best interests principle is so extended, if rather weakly, in Article 18(1). This lays down that parents (and guardians) have the primary responsibility for the upbringing and development of the child. ‘The best interests of the child will be their basic concern’. Note the use of the word ‘will’, in contrast to the mandatory ‘shall’ in Article 3(1). It is worth observing also that there is a preference for the nuclear family structure implicit in Article 18.124 However, Article 27(2) does state that parent(s) ‘or others responsible for the child’ have the primary responsibility to secure the conditions of living necessary for the child’s development. There is no reference to a best interests principle here. This may not be surprising because the duty is laid firmly on parents and others responsible for the child, and not on the state.125 (d) Courts of law Courts of law includes all courts of law, whether trial or appellate, staffed by professional judges or lay persons. It includes both civil and criminal courts and administrative tribunals. It must extend to all institutions which make decisions about children. Scotland’s ‘children’s hearing’ must be included.126 Whether the family group conference, pioneered in New Zealand and Australia but now found elsewhere, is to be characterised as a court of law is more dubious, but if it is not so characterised it will regarded as a public social welfare institution.127 It functions as both. There are big issues

124 See also F. Olsen, ‘Children’s Rights: Some Feminist Approaches to the United Nations Convention on the Rights of the Child’ in P. Alston, S. Parker and J. Seymour. Children, Rights and the Law (Clarendon Press, Oxford, 1992), p. 192. 125 See B. Walsh, ‘The United Nations Convention on the Rights of the Child: A British View’ (1991) 5 International Journal of Law and the Family 170, 172–177. 126 On which see C. Hallett and C. Murray, ‘Children’s Rights and the Scottish Children’s Hearings System’ (1999) 7 International Journal of Children’s Rights 31, and A Griffiths, ‘Hearing Children in Children’s Hearings’ (2000) 11 Child and Family Law Quarterly 283. 127 See J. Hudson, A. Morris, G. Maxwell and B. Galaway, Family Group Conferences (Leichhardt, NSW, Australia, Federation Press, 1996). On children’s rights see especially pages 96–97.

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here which fall outside the remit of this book. There are, for example, questions about the absence of ‘due process’ and the implications of this for the welfare of the child. They came to the fore in the United States in the leading case of Re Gault nearly 40 years ago.128 Where a welfare approach is retained, as in Scotland, there is ‘a danger that adults dominate an unstructured and unregulated system and that the child’s own voice is lost without legal representation’.129 The Scottish children’s hearing system was found to violate the right to a fair trial under Article 6 of the ECHR (it was its failure to provide parties with copies of all the documents relating to the hearing that was impugned).130 And, more recently, the Scottish authorities were forced to drop their opposition to providing free legal representation for children: they had argued that this was at odds with the informal nature of the children’s hearing. It was the Scots Court of Session which held there to be an infringement of Article 6 of the ECHR in this case.131 The Scottish children’s hearing system has since been amended, and reporters are now required to give copies of all reports and papers relating to the proceedings, not only to the child’s parents, but also to the child him or herself. At various stages of the drafting process there were attempts made to insert a reference into this article to enable the views of the child to be heard. For example, the United States proposed a paragraph (as Article 3(2)) which stated: ‘In all judicial or administrative proceedings affecting a child that has reached the age of reason, an opportunity for the views of the child to be heard as an independent party to the proceedings shall be provided, and those views shall be taken into consideration by the competent authorities’.132

This led to debates about how the child should be heard: the Netherlands would have inserted ‘either directly or indirectly through a representative’.133 There were concerns also about determining the best interests of a child who was not capable of forming his or her own views. The text adopted

128

387 US 1 (1967). The view of M. Henaghan, ‘New Zealand and the United Nations Convention on the Rights of the Child: A Lack of Balance’ in (eds.) M. Freeman, Children’s Rights: A Comparative Perspective (Aldershot, Dartmouth), 1996, 165. 130 McMichael v. United Kingdom (1995) 20 EHRR 205. 131 S v. Principal Reporter and Lord Advocate [2001] UKHRR 514. And see C. McDiarmid, ‘Welfare, Offending and the Scottish Children’s Hearing System’ (2005) 25 Journal of Social Welfare and Family Law 31. 132 E/CN. 4/L 1575, para. 20. 133 E/CN. 4/L 1575, para. 30. 129

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at the First Reading contained a version of the United States’ proposal, with ‘capable of forming his own views’ inserted for ‘age of reason’ and with the Netherlands’ addition.134 Subsequently, the Working Group decided to delete this paragraph and it became the basis for, what is now, Article 12.135 The concept of best interests and participation thus became separated in the Convention. (e) The Best Interests of the Child The UNCRC does not define best interests, nor does it elaborate on them any further. As indicated already,136 there is no checklist of factors. There was an attempt in the First Polish draft to develop the concept. This stated: ‘The child shall enjoy special protection and shall be given opportunities and facilities, by law and other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration’.137

Of course, this begged questions: what, for exameple, is a ‘normal manner’? New Zealand noted that this, as indeed ‘best interests’, will ‘in fact be defined nationally in terms of the laws and child-rearing practices which are adopted and acceptable in that nation’.138 Spain wished to insert the words ‘avoiding anything that damages or may impair his physical or mental health, especially drugs in any of their forms’ after ‘normal manner’.139 The Food and Agriculture Organization of the U.N. (FAO) thought reference should be made to the child’s ‘emotional development’,140 and UNESCO to his or her cultural development ‘with due regard for national or regional realities’.141 The WHO wanted clarification about what ‘special protection’ was to shield against. Would it be, it asked, against harmful social environment, disease, abuse?142 There were, in other words, attempts to flesh out the concept. The best interests principle is clearly paternalistic. It is viewed from an adult perspective. This emphasis would have been diluted had reference

134 135 136 137 138 139 140 141 142

E/CN. 4/1988/WG. 1/WP.1/Rev.1. E/CN.4/L. 1575. Supra, p. 30. E/CN.4/1292 p. 124. E/CN.4/1324/Add. 5. E/CN.4/1324. E/CN. 4/1324. E/CN.4/1324. E/CN.4/1324.

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been made in Article 3(1) to a child’s views, as was the case at early stages in the drafting process. The principle has tended to emerge and evolve from the paradigmatic custody dispute. In this context the decision-maker must know the options (the alternative environments), the possible outcomes of each option (difficult because of all the intervening variables), the probabilities of each possible outcome occurring, and the value, necessarily to some extent subjective, of each outcome.143 ‘The child (or at least the child’s time) can be seen as the object of distribution’.144 But, as Parker points out, in relation to Article 3(1), where the scope is infinitely wider than the custody dispute, the decision-maker is concerned with how ‘other goods (such as money, health care, education) are distributed between children and between children and others’.145 And principles of distributive justice become central. Article 3(1) only requires that the child’s best interests be a primary consideration. Suppose then the choice is between building a school and a nursing home for the elderly. A case may be made in favour of the nursing home: the elderly have paid taxes for many years and now deserve to reap the rewards. Note the principle of desert has been involved. And other principles could be.146 If the choice is between different categories of children, for example premature babies and children with HIV/AIDS or children with rare diseases and a general vaccination programme, then, as Parker states, ‘different local theories of justice could tend one way or another.’147 Some insight into best interests can be gained by examining reports of the Committee on the Rights of The Child. This is clear at least about what is not in the best interests of the child. To start with a straightforward example: reports by the Committee condemn corporal punishment, whether within the family, at schools or in institutions, as not being in the child’s best interests.148 There is, of course, a growing jurisprudence in Europe in 143 See S. Parker, ‘The Best Interests of The Child – Principles and Problems’ (1994) 8 International Journal of Law and The Family 26, 29. 144 Ibid., p. 36. 145 Ibid., p. 37. 146 I discuss these in M.D.A. Freeman, Lloyd’s Introduction To Jurisprudence (London: Sweet and Maxwell, 2001), ch. 7. 147 Op. cit., note 143, p. 39. 148 In June 2006 it issued a ‘General Comment’. This emphasized that ‘eliminating violent and humiliating punishment of children, through law reform and other necessary measures, is an immediate and unqualified obligation’ for states which have ratified the UNCRC. In 2005 the European Committee of Social Rights found Belgium, Greece and Ireland in breach of human rights obligations under the European Social Charter for not prohibiting corporal punishment of children, including in the family.

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particular against this practice.149 This can be coupled with abuse, and child abuse and neglect are also frequently identified as practices which must be eliminated if Article 3(1) is to be implemented by States Parties.150 There is less emphasis in the reports of the Committee on female genital mutilation. Some 3 million girls in Africa may be subjected to this each year. There is now evidence that these girls find child birth more difficult, and a finding that the rate of infant mortality of their babies may be in excess of 50 per cent above the norm.151 FGM is thus not in the interest of the next generation of children, even if, in relation to girls themselves, it can be legitimated by culture.152 Reports, for example in relation to Ethiopia153 and Sudan,154 condemn the practice: the report on Senegal explicitly identifies the practice as incompatible with the best interests principle.155 And this, we are led to believe, has had a positive impact in that country. Given its entrenchment within family laws, it is not surprising that the Committee censures States Parties which have not enacted the best interests principle in that branch of law. There are some surprising culprits. Thus, in relation to Norway, the Committee expresses concern that the general principle in Article 3(1) ‘is not always a primary consideration, such as in matters relating to family law’.156 There is concern also about the Czech Republic157 and the Russian Federation.158 In the Czech Republic’s case the Committee expresses concern that the best interests principle ‘is still not adequately defined and reflected in all legislation, court decisions and policies affecting children’.159 A surprising criticism perhaps, given that the UNCRC does not define ‘best interests’ at all. The greatest concern, however, centres on non-European countries where custom and religious tradition trump the best interests principle in family contests over such matters as custody and adoption. Thus, in some legal systems there is an inflexible 149 On European jurisprudence see N. Taylor, ‘Physical Punishment of Children: International Legal Developments’, New Zealand Family Law Journal, 5(1), 14–22 (2005). 150 For example, in relation to Australia CRC/C/15/Add. 79, para.15 in 1997, Canada CRC/C/15/Add. 37, para. 25 in 1995, Czech Republic CRC/C/15/Add. 81, para. 13 in 1997, and in numerous reports on other articles, in particular on Article 19. 151 This finding was widely reported in the media in May 2006. 152 See supra, 35. 153 CRC/C/15/Add. 67, para. 6 in 1995. 154 CRC/C/15/Add. 10, para. 12 in 1993. 155 CRC/C/15/Add. 44, para. 24 in 1995. 156 CRC/C/15/Add. 126, para. 29 in 2000. 157 CRC/C/15/Add. 201, para. 31 in 2003. 158 CRC/C/15/Add. 110, para. 25 in 1999. 159 Op. cit., note 157, para. 31 in 2003.

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rule based on age and gender so that children of a particular age and/or gender remain with or are given to a particular parent or family member. In such societies, as the Committee says à propos of Bangladesh, ‘children’s lives are governed by family customs and religious law rather than State law’,160 or state law merely encodes religious law. In the Dominican Republic,161 India,162 Iran,163 Madagascar,164 Sudan165 and Syria166 for example there is concern that the best interests principle is not, or is not always, a primary consideration in matters relating to family law. India and Iran are cited as countries where custody is determined by the child’s age. It is also, as a result, discriminatory against the mother. In Israel the problem is that many such decisions are taken by Rabbinical courts which do not necessarily apply the best interests principle in practice.167 In Palau, under customary law, family matters usually reflect ‘the best interests of all concerned parties’, rather than the best interests of the child.168 The Committee is critical also of States Parties which have a low minimum age of marriage. The laws of these countries tend to specify a lower age for girls than for boys (and are thus also in breach of the non-discrimination principle in Article 2).169 The UNCRC does not itself specify a minimum age for marriage. In relation to Bolivia it spells out why a low age for marriage for girls – specifically a lower age than for boys – is not in the child’s best interests. It ‘deprives this group of children of the benefit of other protections afforded by the Convention’.170 The Committee is also ‘deeply concerned . . . by the fact that [in Panama, but of course in many other similar countries]

160

CRC/C/15/Add. 74, para. 12 in 1997. CRC/C/15/Add. 150, para. 33 in 2001. 162 CRC/C/15/Add. 115, para. 25 in 2000. 163 CRC/C/15/Add. 123, para. 33 in 2000. 164 CRC/C/15/Add. 218, para. 28 in 2003. 165 CRC/C/15/Add. 190, para. 29 in 2002. 166 CRC/C/15/Add. 212, para. 28 in 2003 167 CRC/C/15/Add. 195, para. 29 in 2002. 168 CRC/C/15/Add. 149, para. 34 in 2001. 169 See in relation to Bolivia CRC/C/15/Add. 1, para. 9 in 1993, Ethiopia CRC/C/15/Add. 67, para. 27 in 1997, Guatemala CRC/C/15/Add. 58, para. 26 in 1996, Japan CRC/C/15/Add. 90, para. 35 in 1998, Korea CRC/C/15/Add. 51, para. 22 in 1996, Kuwait CRC/C/15/Add. 96, para. 15 in 1998, Lebanon CRC/C/15/Add. 54, para. 28 in 1996, Morocco CRC/C/15/Add. 60, para. 25 in 1996, Nicaragua CRC/C/15/Add. 36, para. 13 in 1995, Paraguay CRC/C/15/Add. 27, para. 7 in 1994, Ukraine CRC/C/15/Add. 42, paras. 8 and 17 in 1995 and Yemen CRC/C/15/Add. 47, para. 14 in 1996. 170 CRC/C/15/Add. 1, para. 9 in 1993. 161

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approximately 20 percent of the children born each year are to adolescent mothers’.171 The Committee is also concerned about the treatment of children from minority cultures. Thus, in relation to Canada, it recommends that the best interests principle ‘be appropriately analysed and subjectively implemented with regard to’ inter alia ‘Aboriginal children’.172 In relation to Bulgaria its concern is Roma children.173 In reports on a number of European countries in particular, there is concern about the treatment of asylum-seeking and refugee children. For example, the report on Belgium in 1995 was critical of laws and policy which denied rejected asylum seekers ‘full enjoyment of their rights, including health care and education’.174 Finland’s ‘society’ is censured for its ‘increasing negative attitude . . . towards foreigners’.175 In a later report, municipal authorities in Finland are said not to regard ‘the best interests of unaccompanied child asylum-seekers and refugees’ as always ‘a primary consideration’.176 Japan is also the focus of attention: its treatment of Ainu and Korean children causes particular concern.177 It is one of a number of countries where the treatment of children with disabilities is said to conflict with the best interests principle (It obviously does with Article 2 as well).178 The Committee frequently notes that the treatment of non-marital children (children born out of wedlock)179 is not in the best interests of children. Of course, Shakespeare grasped this 400 years ago.180 It is only in the relatively recent past that countries have moved to remove the illegitimacy stigma.

171

CRC/C/15/Add. 68, para. 15 in 1997. CRC/C/15/Add. 215, para. 25 in 2003. and see S. Toope, ‘The Convention on the Rights of the Child: Implications for Canada’ in (ed.) M. Freeman, Children’s Rights: A Comparative Perspective ( Aldershot, Dartmouth, 1996), p. 33. 173 CRC/C/15/Add. 66, para. 12 in 1997. 174 CRC/C/15)Add. 38, para. 9. For a similar criticism of Germany see CRC/C/15/Add. 43, para. 19 in 1995. 175 CRC/C/Add. 53, para. 15 in 1996. 176 CRC/C/15/Add. 132, para. 25 in 2000. 177 CRC/C/15/Add. 90, paras. 13 and 35 in 1998. 178 Others include Bulgaria CRC/C/15/Add. 66, para. 12 in 1997, Czech Republic CRC/C/ 15/Add. 81, para. 13 in 1997, Nigeria CRC/C/15/Add. 61, para. 12 in 1996 and Peru CRC/C/ 15/Add. 8, para. 19 in 1993. 179 They are still called ‘illegitimate’ in some legal systems. Libya is cited as an example of this: CRC/C/15/Add. 84, para 12 in 1998. But it is not alone. 180 See Edmund’s speech in Act 1, Scene P of King Lear. His ‘dimensions are as well compact, [his] mind as generous, and [his] shape as true, as honest madam’s issue’. 172

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So it is not surprising that systems which have not done so – or had not at the time of reports – can be identified.181 Systems of justice for juveniles may also not be in their best interests. Few can fail to be shocked by the trial in England in 1993 of two 11-year-olds for the murder, committed when they were 10, of a toddler. The trial was conducted as any trial for murder would have been, in a hostile atmosphere with crowds baying outside for the boys to be hanged.182 Not surprisingly, and in the light of a succession of policies, the United Kingdom is criticised by the Committee: ‘the best interests of the child is not consistently reflected in legislation and policies affecting children . . ., notably in the juvenile justice system and immigration practices’, it says in its 2002 report.183 There are numerous laws and practices in different systems which are not in the child’s best interests. A low age of criminal responsibility: the UNCRC, rather unfortunately, desists from specifying what the appropriate age for imposing criminal responsibility should be. Bangladesh is censured for this, as it is for allowing the death penalty and imprisonment of children of 16 in ordinary prisons.184 China is criticised too:185 its definition of child leads it to impose a low age of criminal responsibility. Guatemala is cited for this too,186 as is Jamaica where administration of juvenile justice more generally is said not to be in the best interests of children.187 Syria, which according to the Reports has one of the youngest ages of criminal responsibility (7), is also identified.188 The practice of flogging or caning juvenile offenders, once common, has now declined. But it does still exist, and the Committee 181

Examples cited by the Committee include Germany CRC/C/15/Add. 43, para. 28 in 1995, Italy CRC/C/15/Add. 198, para. 27 in 2003, Japan CRC/C/15/Add. 90, para. 13 in 1998, Madagasear CRC/C/15/Add. 26, para. 9 in 1994 (the emphasis is on particularly children of incestuous unions), Nigeria CRc/C/15/Add. 61, para. 12 in 1996, Tunisia CRC/C/15/Add. 39, para. 7 in 1995. 182 See generally P. Cavadino (ed.), Children Who Kill (London, Waterside Press, 1996). On the Bulger trial itself see M. Freeman. The Moral Status of Children (The Hague, Kluwer Law International, 1997), 235–254; S. Asquith, ‘When Children Kill Children’ Childhood, 3, 99 (1996) and C. Hay, ‘Mobilization Through Interpretation: James Bulger, Juvenile Crime and the Construction of a Moral Panic’ Social and Legal Studies, 4, 197 (1995). A revealing, if somewhat unusual, account is B. Morrison, As If (London, Granta Books, 1997). On the aftermath of the trial see V and T v. United Kingdom (2000) 30 EHRR 121 and Venables v. News Group Newspapers Ltd [2001] 1 All E R 908 (where injunctions were granted to protect anonymity on release, in order to protect them from harassment and attempts on their lives). 183 CRC/C/15/Add. 188, para. 25. See also the recommendation in para. 26. 184 CRC/C/15/Add. 74, para. 12 in 1997. 185 CRC/C/15/Add. 56, para. 13 in 1996. 186 CRC/C/15/Add. 38, para. 26 in 1996. 187 CRC/C/15/Add. 32, para. 7 in 1995; CRC/C/15/Add. 210, para. 26 in 2003. 188 CRC/C/15/Add. 70, para. 12 in 1997.

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rightly censures it as contrary to the best interests principle.189 It is also clearly not in the best interests of children that they be detained together with adult offenders. Sweden is thus urged to ensure that children in detention are separated from adults, ‘taking into account the best interests of the child and alternatives to institutional care’.190 Elsewhere, the Committee emphasizes that ‘detention should be a measure of last resort and for the shortest appropriate period of time’. It believes that ‘the institutionalization and detention of children must be avoided as much as possible and alternatives to such practices must be developed and implemented.’191 Many other things are not in the child’s best interests. Poverty is an egregious example. Associated with it are multi-faceted indicia of deprivation. Since even in a relatively prosperous country like the United Kingdom a third of children live in poverty, it is hardly surprising that most children in the world suffer the injustices of poverty. Poverty, not to mince words, is not in a child’s best interests.192 This is not to say that material welfare, without more, is. There are few references to poverty in the Reports, at least in discussions about the best interests norm. Perhaps it is too obvious. The Committee emphasizes the poverty of vulnerable children in particular. In the report on Bolivia, for example, children living in poverty are said to be ‘particularly disadvantaged in their access to adequate health and educational facilities and are the primary victims of such abuses as sale and trafficking, child labour and other forms of exploitation’.193 Canada, a rather richer country, is urged ‘to take immediate steps to tackle the problem of child poverty and make every feasible effort to ensure that all families, particularly single parent families, have adequate resources and facilities’.194 The Committee also expressed concern about ‘the increasing number of children begging and sleeping on the streets, benefit entitlements and teenage pregnancies’.195

189

See, in relation to Ethiopia, CRC/C/15/Add. 67, para. 27 in 1997. CRC/C/15/Add. 2, para. 12 in 1993. 191 Said in relation to Nigeria – but generalizable. See CRC/C/15/Add. 61, para. 40 in 1996. 192 Poverty may be the single most significant factor determining children’s physical and emotional development. See E. Tronick, ‘Policy Guidelines for the implementation of Early Childhood Development Programmes’: Report presented at the meeting on ‘Early Childhood and Pre-School Education’, UNICEF New York, 25 September 1992. See also J. Bradshaw, ‘Child Poverty and Child Outcomes’ (2002) 16 Children and Society 131. 193 CRC/C/15/Add. 1, para. 9 in 1993. See also CRC/C/15/Add. 95, para. 28 in 1998. 194 CRC/C/15/Add. 37, para. 21 in 1995. 195 CRC/C/15/Add. 34, para. 15 in 1995. 190

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A number of concerns associated with poverty are also identified as challenges to the best interests principle. Street children, curiously not singled out in the UNCRC other than as ‘children in especially difficult circumstances’ in the Preamble, are one example.196 In the report on Mexico the best interests principle is invoked to argue that in sufficient resources are allocated to children living and/or working in the streets.197 It could clearly be used elsewhere but references to the phenomenon are sparing. The best interests principle dictates that children who work on the streets should have security of employment and, where they do the same work as adults, equal pay. Indeed, it might be possible to construct new post-UNCRC rights to this effect. The Committee does not, however, so argue. Poverty is associated with bad housing, with unemployment of the breadwinner(s), with a poor environment, with racism and with many other things.198 It follows that none of these are in a child’s best interests: even if not directly affected by them, children are indirectly harmed by their presence. The Committee makes many references to forms of racism, in particular to discrimination against categories of children.199 Bad housing and homelessness, unemployment, a sub-standard environment (for example one which is polluted or remote from shops and schools or from what employment there is) are clearly not in the best interests of children, but whether they are within the remit of the UNCRC depends upon how broadly this is interpreted.200 Adoption may well be in the best interests of some children, even where it uproots children from one culture and transplants them into another.201

196 See J. Ennew, ‘Outside Childhood: Street Children’s Rights’ in (ed.) B. Franklin, The New Handbook of Children’s Rights (London, Routledge, 2002), p. 388. Note her comment that ‘state provision for street children is taken less in their best interests and more in the interest of cleansing the streets of their presence’ (p. 390). 197 CRC/C/15/Add. 13, para. 16 in 1994. 198 Relative poverty of children is high even in prosperous countries like Great Britain, where it is still nearly 30%. 199 In Reports on Bulgaria CCR/C/15/Add. 66, paras. 12 and 22 in 1997, Canada CRC/C/15/Add. 215, para. 24 in 2003, Japan CRC/C/15/Add. 90, para. 13 in 1998 and Yugoslavia CRC/C/15/Add. 49, para. 28 in 1996. Comments are also made in other parts of Reports: an example is Australia CRC/C/15/Add. 79, para. 32 in 1997. See on Australia, M. Rayner, ‘The State of Children’s Rights in Australia’ in op. cit., note 196, p. 345. 200 See supra, 45. 201 A useful discussion is P. Selman and J. White, ‘Mediation and the Role of “Accredited Bodies” in Intercountry Adoption’ in (eds.) M. Hill and M. Shaw, Signposts in Adoption (London, BAAF, 1998), p. 216.

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Inter-country adoption is one of the most controversial areas in the UNCRC: some countries, notably Venezuela, being understandably unhappy with the whole concept. If other provisions in the UNCRC were universally fulfilled – the most obvious examples being adequate standard of living in Article 27 and adequate health care for mothers and children in Article 24 (2) – there would be little need for inter-country adoption. The Committee makes some references to inter-country adoption in the context of the best interests principle. Thus, in 1996, it recommends to Cyprus that its laws and practices be made to conform fully to the UNCRC and the relevant Hague Convention, ‘including the principle of the best interests of the child’.202 It was similarly concerned about Honduras.203 In relation to some countries its concern relates to the legal framework and procedures governing adoption more generally. Myanamar is one such example.204 There are also particular practices which the committee does not consider to be in children’s best interests: examples are Hungary, where a child can be placed for adoption before birth,205 and Italy, where ‘adopted children cannot know the identity of their natural parents even after having reached majority and when proved to be in their best interests’.206 In adoption, there is, of course, a triangular ‘contest’. Not only must the interests of the child be considered, but there are those of both biological (or birth) parents and the prospective adopters to consider. It may therefore be thought that adoption is the paradigmatic case for children’s best interests only being a primary consideration. Interestingly, this was the English position until recently,207 but a recent change in the law, generally welcomed in England, has made children’s welfare the paramount consideration in adoption as in other questions relating to the upbringing of children.208 One of the most difficult questions in relation to adoption relates to adoption across racial lines, in particular adoption of black children by white adoptive parents. Debates rage, in the United States in particular, over whether such an adoption can be said to be in the child’s best interests. Should an adoptive agency’s evaluation of prospective adopters be colourblind? Can the best interests of a black child be evaluated ‘without considering

202 203 204 205 206 207 208

CRC/C/15/Add. 59, para. 30. CRC/C/15/Add. 24, para. 26 in 1994. CRC/C/15/Add. 69, para. 17 in 1997. CRC/C/15/Add. 87, para. 17 in 1998. CRC/C/15/Add. 198, para. 27 in 2003. Adoption Act 1976 s.6. Adoption and Children Act 2002 s.1(2).

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the social meaning of race for that child’?209 The best interests principle cannot be isolated from its social context. Those making the decisions must assess how a particular social setting might affect a child in need of adoption ‘in the light of that child’s racial ascription and other social identifications such as physical and developmental ability, sex, ethnicity, age, and perhaps religious affiliation’.210 Clearly, children socially identified as nonwhite ‘live under the pressure of racial imposition before, during, and after the moment of adoptive placement’.211 Fogg-Davis urges social workers to find these children homes which will encourage ‘racial navigation, the raceconscious activity of resisting the flatness of racial stereotype’.212 The Committee also addresses ways of making children’s best interests more visible: thus an Ombudsperson for children, the concept pioneered in Norway,213 is recommended in the Report on Algeria,214 and a guardianship service for Belgium for unaccompanied asylum-seeking children.215 Complaints proceedings are also advocated.216 Concern is expressed about parents representing children in child abuse cases.217 This unhealthy phenomenon began to be addressed in the mid-1970s after the Maria Colwell case in England dumb-founded all those concerned with child protection and with upholding the child’s best interests.218 Visibility will also be heightened if those deputed to take care of children’s best interests know what to look for. It is, therefore, right that the Committee should stress the need for education and training. All professionals concerned with children should be so trained.219 In the Report on Panama it

209 See H. Fogg – Davis, The Ethics of Transracial Adoption (Ithaca, Cornell University Press, 2002), p. 48. 210 Ibid. 211 Ibid. 212 Ibid. For other treatments of this subject, and other views, see E. Bartholet, Family Bonds: Adoption and the Politics of Parenting (New York, Houghton, Mifflin, 1993), R. Banks, ‘The Colour of Desire: Fulfilling Adoption Parents’ Racial Preferences Through Discriminatory State Action’ (1998) 107 Yale L.J. 875 and R. Kennedy, ‘Orphans of Separatism: The Painful Politics of Transracial Adoption’ (1995) American Prospect 38. 213 See M.G. Fiekkøy, A Voice For Children: Speaking out as their Ombudsman (London, Jessica Kingsley, 1991). 214 CRc/C/15/Add. 76, para. 33 in 1997. 215 CRC/C/15/Add. 178, para. 26 in 2002. 216 See the Report on Senegal: CRC/C/15/Add. 44, para. 24 in 1995. 217 It is specifically mentioned in the Report on Nigeria (CRC/C/15/Add. 61, para. 40 in 1997), but could be applied almost anywhere. 218 On this case see J. Howells, Remember Maria (London, Butterworths, 1974). 219 See the comment on Panama (CRC/C/15/Add. 68, para. 27 in 1997).

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lists, and the list is not exclusive, ‘judges, lawyers, law enforcement personnel, health professionals, teachers, social workers personnel working in child care institutions for children, police officers and officials of the central and local administrations’.220 A concern with training is also articulated elsewhere. Thus, in reference to China, it is the view of the Committee that ‘insufficient steps have been taken to create awareness of the provisions and principles of the Convention, notably its articles 2, 3, 6 and 12, among adults, including professionals working with or for children, and children themselves’.221 In relation to the Czech Republic the Committee’s concern is the insufficiency of research, as well as of training.222 It is clear that much more needs to be done everywhere to increase awareness of the life-chances of children. For that is what ultimately their best interests are about. (f ) A primary consideration The best interests norm requires the child’s best interests to be a primary consideration. It should be stressed at the outset that the word ‘shall’ is used. It is unquestionable, in other words, there is a mandatory duty to regard the child’s best interests as ‘a primary consideration’. But it is a primary consideration, and not the primary consideration. As indicated already,223 the principle could easily have been ‘the primary consideration,’ or indeed ‘the paramount consideration’. This was the formulation in the UNDCR of 1959224 and it was how it appeared in the First Draft of the UNCRC.225 It is also the test adopted in the African Charter.226 At the drafting stage there was no support for the paramountcy test. There is a difference between ‘primary’ and ‘paramount’. The word ‘paramount’ emphasises that the child’s best interests are determinative: they determine the course of action to take. If a child’s best interests are paramount, it is difficult to see any other consideration being seriously taken into account. The child’s best interests would be more than just the top item in a list: they would come close to being the only consideration. How close, of course, would be ultimately dependent on the values of the decision – maker.

220 221 222 223 224 225 226

Ibid. CRC/C/15/Add. 56, para. 14 in 1996. CRC/C/15/Add. 201, para. 31 in 2003. Supra, 25. Supra, 15. Supra, 25. Supra, 21.

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‘Primary’, by contrast, means ‘first’. That a child’s best interests should be ‘first consideration’ (let us leave out whether this is preceded by the definite or indefinite article) is an exhortation to consider specifically the best interests of the child and to give the child’s best interests greater weight than other considerations. This follows the explanation of a leading English judge of the last generation, speaking in his capacity as a member of the legislative House of Lords.227 Of course, the question then is how much weight is to be attached to the child’s best interests. In a memorandum circulated by the Lord Chancellor in England on 19 February 1975 an attempt was made to answer this. To make the child’s welfare (we can for their purposes use ‘welfare’ and ‘best interests’ interchangeably) first consideration, he wrote, is ‘clearly intended to mean that the child’s interest is to be weighted – but the question of weighted by how much is not answered’.228 If the child’s best interests are of primary consideration, what is the difference between a primary consideration and the primary consideration? The use of the language ‘a primary consideration’ instead of ‘the primary consideration’ suggests that the best interests of the child are a consideration of first importance among other considerations. They do not, however, have ‘absolute priority’229 over other considerations. In the deliberations over drafting, it was clear that some delegations were concerned that there were occasions in which there were competing interests, for example of ‘justice’ and society at large (whatever this might mean). These, some claimed, were of equal importance: perhaps even, in the eyes of some, greater importance than the child’s interests.230 One example used was where a medical emergency occurred during childbirth: in such situation the mother might (or would) have a superior interest.231 And so courts have held in a number of jurisdictions: women can refuse a caesarean section even where this will put her baby and/or herself at risk.232 For Alston ‘a’ rather than ‘the’ is there to offer the decision-maker sufficient flexibility, at least in ‘extreme cases’,

227

Lord Simon of Glaisdale: Hansard, H.L. vol. 359, col. 544. This was to assist with the interpretation of, what became, the Children Act 1975 (on which see MDA Freeman, The Children Act 1975: Text With Concise Commentary, London, Sweet and Maxwell, 1976). 229 S. Detrick’s expression, which I approve, see S. Detrick, A Commentary on the United Nations Convention on the Rights of The Child (The Hague, Kluwer Law International, 1999), p. 91. 230 See UN Doc./E/CN.4/1989/48, para. 121. 231 See UN Doc./E/CN.4/L.1575, para. 24 (1981). 232 In England see St. George’s NHS Trust v. S [1999] Fam 26. 228

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where the interests of people other than the child or children may be allowed to prevail.233 Alston and Gilmour-Walsh believe the drafters wished to ensure ‘a degree of flexibility in the application of the principle, not because they thought that the children’s interests should not be paramount (sic) in some circumstances, but because the principle as contained in Article 3 was to be of broad application, and an approach that gave paramountcy to children’s best interests could not be justified in all of the situations to which the article might apply’.234

Alston also makes the point that by making the standard ‘a’ rather than ‘the’ primary consideration, a burden of proof is imposed to show that, under the circumstances, other feasible and acceptable alternatives do not exist.235 Applying a best interests test gives rise to many problems. These problems would be aggravated had a paramounty test been adopted. But we cannot ignore them even within the framework of ‘a primary consideration’ standard. One of these which must be addressed is competing best interests. Suppose a policy, an action, a decision is in the best interests of one group of children but not in the best interests of another. The most graphic illustration of this conflict occurred in England in the famous conjoined twins case of Re A.236 English courts had to decide whether it would be lawful to separate conjoined twins (whose staunchly Catholic parents did not wish the operation to take place).237 It was known that the weaker of the twins would inevitably not survive the operation to separate them. The judges had thus to weigh the competing interests of the two children. It was clearly in the interests of the stronger twin to give her the chance of survival: but could it be said to be in the weaker twin’s interest to take an action that could cause her to die? Two judges (the trial judge and Robert Walker L.J. in the Court of Appeal) considered it would be: she had no quality of life while conjoined and would, at least, achieve the dignity of bodily autonomy (of course only momentarily) if separated. The two other appellate judges (Ward L.J. and Brooke L.J.) accepted it would not be in her best

Op. cit., note 7, p. 13. Op. cit., note 68, p. 11. 235 Op. cit., note 7, p. 13. 236 [2001] Fam 147. 237 On the issue of parental opposition see M. Freeman, ‘Whose Life Is It Anyway?’ (2001) 9 Medical Law Review 259. For a different view – upholding parents’ rights to decide – see R. Gillon, ‘Imposed Separation of Conjoined Twins – Moral Hubris by the English Courts?’ (2001) 27 Journal of Medical Ethics 3. 233 234

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interests. Nevertheless, as Ward L.J. put it: ‘the best interests of the twins is to give the chance of life to the child whose actual bodily condition is capable of accepting the chance to her advantage, even if that has to be at the cost of the sacrifice of the life which is so unnaturally supported.’238 It was accepted by these judges, the majority in the Court of Appeal, that what was in the best interests of one child was not in the best interests of the other. It should not be overlooked that there are parents who, being under 18, are children themselves. What is in their interests may conflict with the best interests of their offspring. It may be in the best interests of a 15-year-old girl to retain contact with her baby, but in the baby’s best interests to be adopted by a family who can offer him the appropriate care, nurture and environment. If the best interests of both are a primary consideration, are the interests of one to prevail over the interests of the other? Would it be right to argue that in interpreting a Convention about the rights of children the best interests of the child in the dyad should be our appropriate concern? This would be to label the 15-year-old in our example as a parent rather than a child, to look at her in terms of her role rather than her chronological age.239 Another approach might be to come to the least detrimental conclusion240: in a sense that is, of course, what the English Court of Appeal did in the conjoined twins case.241 It may be easier to imagine these conflicts occurring in cases like those just discussed. But clearly they will occur all too often when major decisions of policy are being designed. The question may arise, for example, as to how resources are to be distributed. In general terms the best interests of children should be a primary consideration. But how is the distribution to be made between different groups of children? According to needs,242 desert,243

Op. cit., note 236, p. 197. For similar facts see the English case of Birmingham City Council v. H [1994] 2 AC 212, and see G. Douglas, In Whose Best Interests?’ (1994) 110 Law Quarterly Review 379. 240 This is in line with J. Goldstein, A. Freud and A. Solnit, Beyond The Best Interests of The Child (New York, Free Press, 1973), pp. 53–64. 241 Supra, 63. 242 ‘From each according to his ability, to each according to his needs’ was how Karl Marx put it. See also D. Miller, Social Justice (Oxford, Oxford University Press, 1976) and M. Walzer, Spheres of Justice (Oxford, Blackwell, 1983). 243 See J. Lucas (1972) 47 Philosophy 229, J. Kekes (2006) ‘Justice: A Conservative View’ (2006) 23(2) Social Philosophy and Policy 88. 238 239

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moral virtue?244 There are different conceptions of justice.245 Suppose a decision has to be taken about whether to finance a new neonatal unit or a new young offenders’ institution. How is one to decide which project is of the greatest importance? Nor in an era of globalisation should we ignore the impact of policies on children in other, particularly poorer, nations.246 If the best interests of the world’s children are a primary consideration, rich nations will have to re-examine many of their policies. So, of course, will poorer nations where the primary consideration may well be the interest of corrupt elites. However, as Pogge observed, ‘relative poverty breeds corruptibility and corruption’, and it is ‘by no means entirely homegrown.’247 2. Article 3(2): Care and Protection Article 3(2) focuses on the child’s need for care and protection. States Parties are to take appropriate legislative and administrative measures to ensure the child such protection and care as is necessary for his/her well-being. This echoes Article 2(1) of the Constitution of the World Health Organisation (WHO),248 which states that a function of the WHO is ‘to promote maternal and child health and welfare’. 2.1 Whose Responsibility? This raises the question as to whose responsibility children are.249 There are dystopias where children are indeed children of the state.250 And there have been experiments – Nazism and Stalinism the most obvious examples – where this was tried and, mercifully, failed.251 Where, as in the norm, children are 244 As is common within the natural law tradition: see example J. Finnis, Natural Law and Natural Rights (Oxford, Clarendon Press, 1980). 245 See MDA Freeman, Lloyd’s Introduction To Jurisprudence (London, Sweet and Maxwell, 2001), ch. 7. 246 See, further, J. Rawls, The Law of Peoples (Cambridge, Mass, Harvard University Press, 1999) See also T. Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113. 247 See T. Pogge, ‘An Egalitarian Law of Peoples’ (1994) 23 Philosophy and Public Affairs 195, 214. See also M. Risse, ‘What Do We Owe To The Global Poor?’ (2005) 9 Journal of Ethics 81. 248 This was pointed out by the delegation of the WHO during the course of the drafting of Article 3(2): see UN Doc. E/CN.4/1989/WG.1/CRP.1, p. 13. 249 See B. Walsh, ‘The United Nations Convention on the Rights of The Child: A British View’ (1991) 5 International Journal of Law and the Family 170, 172. 250 In Plato’s Republic, for example. See also A. Huxley, Brave New World, published in 1932. 251 On the Soviet Union see U. Bronfenbrenner, Two Worlds of Childhood: US and USSR (New York, Russell Sage Foundation, 1970). He quotes Makarenko: ‘the duty of the father toward

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the responsibility of their families, there is still an absence of agreement as to who these families are. In most of the developed world, primary responsibility vests in parents: in other parts of the world, particularly in Africa, the burden falls upon the extended family or on the community. 2.2 A Compromise Article 3(2) effects a compromise. The primary duty rests with States Parties, but they must take into account ‘the rights and duties’ of parents, legal guardians and others legally responsible for the child. Article 5 again recognizes the responsibilities, rights and duties of parents or, where applicable, members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the UNCRC.252 And Article 18 vests primary responsibility for the upbringing and development of the child in the parents or legal guardians and states that ‘the best interests of the child will be their concern’. 2.3 Inconsistencies It will be noted that there are inconsistencies in these three articles. Articles 5 and 18 vest primary responsibility with parents etc: Article 3(2) imposes this on States. And in Article 3(2) and 18 there is no reference, as there is in Article 5, to the extended family or community. It may be observed that other articles in the UNCRC also use inconsistent terminology: thus Articles 7(1), 9, 10 and 29(2)(c) refer only to ‘parents’ and Articles 14(2), 18 and 40(2) (ii) refer to ‘parents and, where applicable, legal guardians’. By contrast, Article 19 refers to ‘parent(s), legal guardian(s), or any other person who has care of the child’. Article 20 uses the expression ‘family environment’: Article 20(3) refers to ‘parents or others caring for the child’. Article 26(2) uses the expression ‘persons having responsibility for the maintenance of the child’, and Article 27 refers to ‘parent(s) or others responsible for the child’ and to ‘parents or other persons having financial responsibility for the child’.

his children is a particular form of his duty towards society’ (official Soviet handbook, 1954). See also J. Harwin, Children of the Russian State 1917–1995 (Aldershot, Avebury, 1996). 252 See UN Doc.E/CN.4/1989/48, paras. 178–179.

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2.4 A Backstop Provision Article 3(2) is not simply a restatement of the obligations imposed on States Parties by the provisions of the UNCRC. If it were, it could be seen as needless reduplication. Rather, it should be seen as a backstop provision, there to ensure that failures by States Parties cannot be justified just because an obligation does not exactly fit within a specific provision. If there are lacunae in the provisions of the Convention, Article 3(2) is intended to fill them in. Accordingly, if a particular form of protection or care is being denied as a result of an act or omission not specifically proscribed in UNCRC provisions, the State Party remains under an obligation to take ‘appropriate legislative and administrative measures’. There are categories of children neglected by the UNCRC: for example, gay children,253 girl children254 and street children.255 Of course, it may be said that it is unnecessary for the Convention to refer specifically to such categories. After all, the Convention applies to all children irrespective of sexual orientation, gender, socio-economic status etc.256 But street children are often conceptualized as outside childhood.257 And certainly they do not appear in the text of the UNCRC.258 It may be that as a marginalized group they need special ‘rights’, protection or care going beyond the specific obligations encoded in the Convention. For example, security of employment, equal wages where they are doing work done by adults, protection from hazardous conditions of living and work.259 It may be argued that, by virtue of Article 3(2), State Parties are obligated to take legislative and administrative measures to achieve these ends and other similar goals. I have used the example of street children, but there are other ‘children in especially difficult circumstances’ for whom a similar analysis could be applied.

253 On one problem (HIV/AIDS) see P. Veerman, G. Tatsa, P. Druzin and R. Weinstein ‘HIV Prevention, Children’s Rights, and Homosexual Youth’ (1999) 7 International Journal of Children Rights 83. See also M. Freeman, ‘The Future of Children’s Rights’ (2000) 14 Children and Society 277, 283–284. 254 The Committee on the Rights of the Child held a general discussion of the ‘girl child’ on January 23, 1995. See UN Doc. CRC/C/38 (1995) 255 This is developed, infra 67 and 73. 256 They are children after all (see Article 1) and discrimination is not acceptable (see Article 2). 257 See J. Ennew, ‘Outside Childhood: Street Children’s Rights’ in (ed.) B. Franklin, The New Handbook of Children’s Rights (London, Routledge, 2002) 258 The Preamble refers to ‘children living in exceptionally difficult conditions.’ 259 Op. cit., note 257, p. 388.

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It must be stressed also that Article 3(2) has to be read together with Article 3(1). This means that in taking appropriate legislative and administrative measures States Parties must place the best interests of the child as a primary consideration. But many States Parties take steps as regards street children which are less in their best interests than in the interests of cleansing the streets of their presence.260 As noted, the UNCRC assumes the family to be the main providers of rights to children: the obligation of states being to support this primary obligation. This assumes children have families, even those who do not live with them. There are provisions in the UNCRC dealing with the support of family life, as well as with separation from parents, family reunification and adoption261 – these apply with particular force to children living and working on the streets. These children may form their own ‘families’ involving networks of other children.262 The neat categories of Article 3(2) do not always fit the realities of the lives of some of the most vulnerable children. 2.5 The Text (a) Undertake to ensure Article 3(2) states that States Parties ‘undertake to ensure’ the child such protection and care as is necessary for the child’s well-being. Note the tone of this language. They are not mandated to ensure: rather they have agreed to do so. A contractual obligation – or semi-contractual – obligation has less force perhaps than an imposed one. Others might, however, argue that it may be taken more seriously. (b) Protection and Care ‘Protection and care are not defined. It is common to see the UNCRC as about the three ‘Ps’: protection, provision, and participation.263 Children failed by the UNCRC – and street children would be a good example of this – have often fallen through the protective net of the many provisions which purport

260 Egregious examples were policies pursued in Brazil, Guatemala and South Africa. But the policy of ‘extermination’ was prevalent elsewhere too. 261 See Articles 9, 10, 18, 20, 21, 27. 262 See J. Ennew, ‘Why the Convention is not about Street Children’ in D. Fottrell (ed.), Revisiting Children’s Rights (The Hague, Kluwer Law International, 2000), p. 178. 263 See, for example, G. Van Bueren: op. cit., note 47. But the triad is accepted by virtually every writer on the UNCRC. It is added to by Jan Willems, ‘The Children’s Law of Nations’ in (ed.) J. Willems, op. cit., note 56, p. 81. He includes also ‘prevention’.

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to protect them. Most obviously, since they work for survival, they have not been protected from economic exploitation. Many will not have been protected from abuse or from sexual exploitation.264 It must be assumed that ‘protection’ in Article 3(2) embraces these examples and others in the text of the Convention, but goes beyond them to embrace protection in the widest understanding of concept. ‘Care’ as such assumes relatively little focus in the UNCRC. Article 18(2) mandates States Parties to assist parents in performing their child-rearing responsibilities, and to ensure ‘the development of institutions, facilities and services for the care of children’. Article 20(2) refers to ‘alternative care’ and Article 21 recognizes inter-country adoption as ‘an alternative means of child’s care’. Disabled children have the right to ‘special care’.265 There are health care rights, including an emphasis on preventive health care.266 ‘Care’ in Article 3(2) must be interpreted broadly to take account of the provision of services such as these, but to go beyond them. What it embraces will depend on the circumstances of the particular child: that child’s needs given his/her environment. Refugee children, disabled children, trafficked children, street children are exposed both to common and different problems and require different attention to their care needs. It should be stressed that care (‘after-care’) may well be needed by victimized children when they are no longer chronological ‘children’.267 Of course, they then fall outside the remit of the UNCRC, even of Article 3(2).268 This is most unfortunate. (c) Necessary for the child’s well-being The protection and care that States Parties undertake to ensure is that which is ‘necessary’ for the child’s well-being. The Convention does not state from which viewpoint ‘necessary’ is considered. It could mean ‘necessary from the perspective of that State Party’: different states will have different views as to what needs to be provided to ensure protection and care, and the country’s resources and priorities will also differ. ‘Necessary’ could also be considered using objective criteria. It could also be looked at in terms of

264

See Articles 19, 34 and 35. See Article 23(2). 266 Article 24(2). 267 This is provided for by a number of legal systems: for example, in England: see Children (Leaving Care) Act 2000. 268 Children are defined in Article 1 as human beings under 18 years of age, unless under the applicable law majority is attained earlier. 265

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what parents etc think necessary, and the wishes and views of the child could also be fed into the equation. At the very least ‘necessary’ must be read in the light of the obligations set out in the text of the Convention. But this surely does not mean that what is necessary for protection and care ends at the list contained in the articles of the convention.269 (d) Rights and duties of parents State Parties are to take account of the ‘right and duties’ of the child’s parents. Rights and duties of parents are not defined in Article 3(2) or anywhere else in the Convention. They will vary from legal system to legal system.270 They relate to such matters as the right to bring up one’s child, to have contact with him/her when an absent parent, to give consent to medical treatment, to choose a school, to instruct in a religion (or not) etc. Many legal systems now emphasize parental responsibilities rather than parental rights, and rightly so.271 The UNCRC has an article (article 18) on ‘Parental Responsibilities’. These are not defined, though reference is made to ‘upbringing and development’ (which is broad enough to embrace the examples listed above). The Convention stressess that the best interests of children ‘will be their basic concern’.272 Parental rights are not discussed as such anywhere in the Convention. 2.6 The Balancing Exercise States Parties must thus ensure the child protection and care, whilst at the same time respecting the rights and duties of parents. There are inevitable conflicts here. Suppose the state wishes to make it unlawful to hit children but parents believe it is one of their legitimate prerogatives. The liberty of parents to inflict corporal chastisement can, of course, be removed by the state, as it has in Sweden (in 1979) and in a number of countries since.273 Parents in these countries no longer have this right (better seen as a liberty). But where the right/liberty still exists, the state must nevertheless 269

If it did, Article 3(2) would be a redundant provision. The Scots legal system is one to spell them out: see Children (Scotland) Act 1995 sections 1 and 2. 271 Examples are Norway, Germany, England and Scotland. 272 Article 18(1). 273 These include Finland in 1983 (the only country where a majority of the population favoured abolition before the law was changed); Norway in 1987; Denmark in 1986 and 1997; Austria in 1989 (the first non-Nordic country to do so); Cyprus in 1994; Latvia in 1998; Croatia in 1999; Germany in 2000; Iceland in 2003; Ukraine in 2004; Romania in 2004. There are judicial pronouncements also in Italy in 1996 and Israel in 2000. 270

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protect children. Can it do this by limiting punishment to that which is ‘reasonable’ or ‘moderate’ (the traditional common law approach)274 or by banning the use of implements or imposing an age limit below which hitting is impermissible? States will eventually decide – some later rather than sooner – that the only way to protect children is to ban hitting in the name of discipline. In doing so they will have the support of the UNCRC, and of the Committee on the Rights of the Child.275 There are, of course, many other examples. Parents who wish to withdraw their children from school: education is presumably ‘care’ – the case of Amish parents in Wisconsin is a classic illustration.276 Disputes may arise between parents and doctors over medical treatment: whether a desperately sick toddler should have a liver transplant;277 whether conjoined twins should be separated;278 whether life-sustaining treatment should be continued when clinical judgement indicates otherwise.279 Does the state protect the child or defer to parental choice, parental decision-making being a clear example of the exercise of parental rights? But an exercise, of course, that can be abused. The conflict is at its sharpest when children need protection against their parents. Most obviously when there is child abuse. It is strange to think that child abuse was only really discovered less than 50 years ago, and child sexual abuse even more recently than that. It is therefore not surprising that abuse within the family has not been a concern of international law. The drafters of the UNCRC did, however, show real concern: hence Article 19. States Parties’ commitment to eradicating abuse and neglect is reflected in the absence of reservations to this article.280 Child abuse is, of course, a social construction:281 nevertheless that a particular action by a parent would have been abuse a generation ago or is not abuse in another culture does

274 See the English case of R v. Hopley (1860) 2 F and F 202. There are similar statements on the limits of parental authority in U.S., Canadian and Australian decisions. 275 This in June 2006 issued a General Comment: The Right of The Child To Protection from Corporal Punishment and other Cruel or Degrading Forms of Punishment: It issued this to ‘highlight the obligation of all States Parties to move quickly to prohibit and eliminate all corporal punishment.’ 276 Wisconsin v. Yoder 406 US 205 (1972). 277 Re T [1997] 1 FLR 502. 278 Re A [2001] Fam 147. 279 R v. Portsmouth Hospital NHS Trust v. Glass [1995] 2 FLR 905. 280 The Committee would surely not tolerate any. 281 See I. Hacking, The Social Construction of What? (Cambridge, Mass, Harvard University Press, 1999), 125–162.

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not mean that States Parties are not to protect children against it. It is common to give parents an opportunity to learn parenting skills, so that children may not be removed from abusive parents initially. But whether this is compatible with the intention of Article 3(2) may be doubted. Similar questions may arise when an abusive parent has a new baby. The imperative to protect this baby may need to take precedence over parental autonomy. Regional conventions, notably the European Convention on Human Rights,282 afford parents greater space than does the UNCRC. Whether they are right to so do may be doubted. 3 Article 3(3): Appropriate Standards for Institutions, Services and Facilities Responsible for the Care and Protection of Children States Parties are to ensure that institutions, services and facilities responsible for the care and protection of children conform with the standards set by competent authorities. This relates particularly to areas of safety, health, the suitability of staff and to competent supervision. In conformity with Article 3(1), these standards must comply with the best interests principle set out therein. 3.1 Relationship to Article 18 This article is closely related to paragraph 2 and 3 of Article 18. Article 18(2) mandates States Parties to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and to ‘ensure the development of institutions, facilities and services for the care of children’. These institutions are clearly secondary and exist in a support relationship with parents. There is no intention to make children ‘children of the state’. Article 18(3) deals with the right of children of working parents to benefit from child care services and facilities. So close is the relationship between Article 18(2) and 3(3) – indeed, logically, Article 18(2) should precede 3(3) –that there were suggestions during the drafting process that Article 3(3) be incorporated into Article 18. That this did not happen is explained by the views of delegations which did not think the two articles dealt with the same type of institutions.283

282 283

See Article 8. See UN Doc. E/CN.4/1989/48, paras. 138–145.

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3.2 Standards and Care Article 3(3) obligates States Parties to ensure that institutions etc conform with standards established by competent authorities. However, there is nothing in the UNCRC to require States Parties to establish competent authorities in the first place. And, furthermore, there is no definition of ‘competent’, or any requirement as to what the ‘standards’ should be, though they clearly must comply with Article 3(1). The original text related to ‘officials and personnel of institutions directly responsible for the care of children’. For this there was substituted the expression ‘institutions, services and facilities responsible for the care or protection of children’. This is to indicate that Article 3(3) is not only concerned with institutional care but also with the increasing range of alternatives to such care.284 These include services arranged by the parents themselves, including childminding and private fostering arrangements. The institutions etc do not have to be public institutions.285 Juvenile justice facilities are clearly included, as are institutional care arrangements including, for example, those for children with disabilities. Although, as already indicated, there is no obligation in the text of the Convention to establish standards, the general guidelines for periodic reports leave us in no doubt that, in the opinion of the UN Committee on the Rights of the Child, States Parties must establish appropriate standards for all institutions, services and facilities responsible for the care or protection of children, just as they must ensure that these entities conform with such standards.286 3.3 Suitability of Staff The emphasis on ‘suitability of staff ’ is particularly significant. It is clear from the travaux préparatoires that this extends to include appropriate training and qualification of officials and personnel of child care institutions.287 It was once assumed that institutions were safe havens for children otherwise at risk and that those employed to look after children would give such

284 This reflects the tendency in many countries to move away from institutional care arrangements for children: UN Doc. E/CN.4/1989/48, para. 133. 285 But not to the extended family or the community, where this is involved in child care functions. 286 UN Doc. CRC/C/58, p. 11. para. 37 (1996). 287 UN Doc. E/CN.4/1989/48, para. 144.

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children much-needed relief and protection. Evidence accumulated in the last 20 years ago has cast doubts on this: more and more examples come to light of abuse, physical, emotional and sexual, within institutions by those deputed to care for children.288 A point has been reached where it becomes important to ask whether it is necessarily in a child’s best interests to be removed from abusive parents when the alternative may be worse. The Utting Report in England pointed out that ‘persistent sexual abuses are a scourge of childhood . . . sexual terrorists whose success depends, paradoxically, on their capacity to ingratiate themselves with adults and children. An outstanding characteristic is their ability to establish themselves in roles in which they are trusted to excess as friend, colleague or employee. Their subsequent activities are concealed by suborning, blackmailing and threatening their victims’289 Fortin comments: ‘Too many children are “rescued” from parental abuse, only to be bullied and abused by their peers or by residential care staff, and sometimes by both’.290 3.4 Services Outside State Responsibility A more difficult case is those services which fall outside the direct responsibility of particular States Parties. A good example is provision for street children who tend to fall within the sphere of non-governmental action. As Ennew observes: ‘there are no internationally accepted criteria for the qualifications and supervision of street children projects and few cases in which national standards are applied, supervised or subjected to routine inspection’.291 A result is that many children in street children projects are not adequately protected against their protectors, and may find themselves 288 There is considerable evidence of this from around the world. Some examples in the United Kingdom can be seen in L v. Tower Hamlets L.B.C. and Havering LBC [2001] Fam 313 (actions brought by children, now adults, in negligence against local authorities for having placed them, during their childhood with foster carers who allegedly sexually abused them, and were convicted of sexual offences against other children). In relation to private care see T. Philpot, A Very Private Practice (London, BAAF, 2001). On residential homes see A. Levy and B. Kahan, The Pindown Experience and the Protection of Children (Staffordshire County Council, 1991) (children were routinely isolated and humiliated and certain punishment techniques were clear breaches of Article 19). See also R. Waterhouse, Lost In Care (London, Stationery Office, 2000), reporting on sexual abuse of children in children’s homes in North Wales. On tort (delict) actions are D. Fairgrieve and S. Green, Child Abuse Tort Claims Against Public Bodies (Aldershot, Ashgate, 2004). 289 W. Utting, People Like Us: The Report of The Review of Safeguards For Children Living Away From Home (London, Department of Health/Welsh Office, 1997), paras. 9.1–9.2. 290 Children’s Rights and the Developing Law (London, LexisNexis, 2003), p. 496. 291 ‘Why the Convention is not about Street Children’ in (ed.) D. Fottrell, Revisiting Children’s Rights (The Hague, Kluwer Law International, 2000), 169, 180.

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neglected, abused or exploited by those whom society expects will care for them. Even if there is no abuse, the standard of care may be inadequate. But there are reported cases of gross abuse. One cited by Ennew292 relates to a case in Ethiopia which came to light in 1999. Orphans (more likely, she thinks, displaced children found on urban streets) were being sexually exploited by paedophiles employed by non-governmental organizations. The culprits were two expatriate staff members, one British, the other Canadian, both of whom had dubious employment records in previous work with children in developing countries, one of whom was under investigation for abusing Ethiopian children in his care in Australia. Of course, attention to Article 3(3) should raise questions about how such projects are organized and supervised, about who has the responsibility for vetting references and qualifications and for giving work permits and visas. Sex tourism cannot be allowed to masquerade as social work.293

292 Ibid., 181, citing A. Gillan, ‘Charity’s Haven for Famine Children Destroyed by Paedophile’, The Guardian, 22 July 1999. 293 And see A. Vittachi, Stolen Childhood: In Search of The Rights of the Child (Cambridge, Polity Press, 1989), 105–122. A further insight is B. Rubenson, L.T. Hanh, B. Höjer and E. Johannson ‘Young Sex Workers in Ho Chi Minh City Telling Their Life Stories’ (2005) 12 Childhood 391.

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