Critical examination of the term "best interest of the child" in the UN-CRC

Term Paper, 2017

11 Pages, Grade: 2,0

Hermann Fuchs (Author)



1. Introduction

2. The UN Convention on the Rights of the Child
2.1 History of the CRC
2.2 Structural overview and principal articles of the CRC

3. Critical examination of the term “best interest of the child“
3.1 Negative aspects
3.2 Positive aspects
3.3 Summary

4. Conclusion

5. Literature

1. Introduction

In the United Nations Convention on the Rights of the Child, one of the central concepts is the ‘best interest of the child’ as captured in 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.


However, there is no universal definition of what this term includes. It is fairly open to interpretation. Its primary objective is the protection of the child, but often there is controversy regarding its construction.

- Why is the ‘best interest of the child’ so important?
- Why is it so difficult to define the ‘best interest of the child’?
- Should this vague term even exist?
- Is there an alternative?

These are the questions that led to writing this paper.

The following will be a comparison of the negative and positive aspects of the ‘best interest’. To start, there will be an overview over the history and structural composition of the UN Convention.

Most literature used was in the German language, translations of literal citations can be found in the footnotes.

2. The UN Convention on the Rights of the Child

The following paragraph will give a short overview over the historic development of the Convention on the Rights of the Child. Of the nine international human rights contracts it is the most important that only affects children. The next paragraph shall demonstrate the structure of the agreement and outline the content of some of the more important articles.

The agreement is called ‘convention’ because it is a treaty with validity among more than two states. The common abbreviation for the Convention the Rights of the Child is ‘UN-CRC’ or just ‘CRC’. The latter shall be frequently used in this essay.

2.1 History of the CRC

International concern with children’s rights dates back to the end of the 19th century when there were the first attempts to make agreements under in- ternational law involving the adjudgment and protection of children’s rights. The first such treaty was the ‘Hague Agreement‘ in 1902. The agreement regu- lated the state of guardianship over minors. (cf. Praetor Intermedia, web source)

Another international treaty dates back to 1910 in Paris and had the goal of fighting the trafficking of (young) women. (cf. Schweizerische Eidgenossen- schaft, 2014, web source) Until 1989, 71 states had signed it. The international interest in protecting young people’s rights - albeit in this case only women’s rights - is visible and would lay the foundation for later attempts to secure es- sential children's rights.

Intensive efforts from NGOs once again attracted notice to the subject in the 1920s. Save The Children International Union, for example, published a ‚Chil- dren’s Charter‘ on which part of the CRC is based. (cf. Lücking, 2005: p.111)

This 5-step program drafted by Eglantyne Jebb was later adopted by the League of Nations and is also known as the Geneva Declaration of the Rights of the Child. (cf. Save The Children, web source)

Unfortunately, it only invited the governments to provide conditions that make it possible for children “sich sowohl in materieller wie in geistiger Hinsicht in natürlicher Weise zu entwickeln1“. (Bundesministerium für Familie, Senioren, Frauen und Jugend cited from: Maywald, 2012: p.23) More detailed regulations were still missing, though.

After World War II and the establishment of the United Nations there was a demand to confirm the Geneva Declaration with a few modifications. But because it was viewed as “nicht mehr zeitgemäß2“ (Lücking, 2005: p.111 f.), it was reworked and accepted as the new ‘Declaration of the Rights of the Child’ in November 1959. However, this treaty was again not mandatory but a “wohlmeinender Appell3“. (Heinhold, 2012: p.15)

In February 1978, the Polish delegation suggested to make the ratification of the children’s rights obligatory. There was some disagreement between the member states about certain points which led to long negotiations. The UN Commission on Human Rights was assigned the task to work out a new convention text. It was completed in November 1989 and ratified in September 1990.

In addition to the CRC the United Nations upgraded it by drafting two optional protocols: the Optional Protocol on the Involvement of Children in Armed Conflicts (2000) and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2002). (cf. Maywald, 2012: p. 26)

2.2 Structural overview and principal articles of the CRC

The CRC consists of four parts. The preamble states some basic principles, for example that the child “for the full […] development […] should grow up in a family environment“. (United Nations Human Rights Office, web source)

Part One describes the rights of children and ranges from article 1 to article 41.

Part Two (article 42 - 45) addresses the implementation of the Convention, in- cluding the appointment of a commission and the cooperation with UNICEF or NGOs.

Part Three (article 46 - 54) clarifies organizational measures like signing, ratification, modifications and termination.

There is no children’s right that can be singled out as the ‘most important’. All the rights are equal and correlate with each other. However, there are four main principles: respect for children’s rights/prohibition of discrimination (article 2), best interests of the child (article 3), right to life (article 6), consideration of the child’s will (article 12).

The other articles specify these main principles and can be grouped in the socalled ‘three P’s’: provision, protection and participation.

3. Critical examination of the term “best interest of the child“

The ‘best interest of the child’ is a new ethical concept designed to implement a
practice in which parents and guardians, but also social workers, courts, hospi- tals and other institutions allow for a best possible development of the child. Its introduction into international law was viewed as a catalyst of a “neuen völkerrechtlichen bzw. menschenrechtlichen Status des Kindes “. (4 Haslinger, 1994: p. 70) Although that may be true for some countries and cultures, in Germany the best interest of the child has been part of the constitution long before the CRC.


1 to develop naturally in material as well as intellectual aspects

2 outdated

3 well-meaning plea

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Critical examination of the term "best interest of the child" in the UN-CRC
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Critics, Children, Interest, UN, United Nations, Convention, Rights, Child, Article 3
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Hermann Fuchs (Author), 2017, Critical examination of the term "best interest of the child" in the UN-CRC, Munich, GRIN Verlag,


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