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. 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.
Table of Contents
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
Objectives and Topics
This paper aims to provide a critical analysis of the concept of the "best interest of the child" as defined in Article 3 of the UN Convention on the Rights of the Child (UN-CRC), exploring why this vague term remains both essential for child protection and a subject of ongoing controversy in legal and social discourse.
- Historical development and structural overview of the UN-CRC.
- Critical examination of the interpretative ambiguity regarding the "best interest" principle.
- Analysis of negative perspectives, specifically the potential for arbitrary application and lack of empirical observation.
- Evaluation of positive aspects, including its ethical justification and role as a mediating principle in complex cases.
Excerpt from the Book
3.1 Negative aspects
The term ‘best interest of the child’ is not accurately defined in the CRC and that makes it “nahezu beliebig interpretierbar“. (Liebel, 2013: p.338) Dettenborn (2007: p. 47) calls it a “definitorische Katastrophe“.
In German domestic policy, there is a discussion about whether or not day care for children should be expanded. But both the supporting and the opposing parties support their claim by citing the ‘best interests of the child’ by interpreting the term to fit their position. (cf. Maywald, 2012: p. 92) Hence it can be described as a “Generalklausel“ (Plewig cited from: Zitelmann, 2001: p. 119) that can be applied to and may fit any argument.
Furthermore, the permanent reference to the ‘best interest‘ renders it impossible to make objective decisions. The term is not empirically observable and leads to a practice that cannot be scientifically verified. (cf. Dettenborn, 2007: p. 48)
In connection with article 12, the child’s will always has to be considered and incorporated in the decision-making process. This brings up the question whether and when a child is “capable of forming his or her own views“ (United Nations Human Rights Office, web source) and how that view affects the ‘best interests’. On the one hand, the task of connecting these requirements in the decision-making process puts enormous pressure on the parents, law makers, social workers and all other professions involved. On the other hand, the task seems unmanageable due to the vast amount of work and potential conflicts of interest. (cf. Kerber-Ganse, 2008: p.70)
Summary of Chapters
1. Introduction: This chapter introduces the "best interest of the child" as a central yet vaguely defined concept in Article 3 of the UN-CRC and outlines the guiding questions for the paper.
2. The UN Convention on the Rights of the Child: This section covers the historical evolution of children's rights treaties and provides a structural overview of the UN-CRC's articles and principles.
3. Critical examination of the term “best interest of the child“: This core section analyzes the controversy surrounding the term, contrasting its practical drawbacks with its ethical necessity in social and legal work.
4. Conclusion: The conclusion synthesizes the debate, suggesting that despite its vagueness, the term remains an essential, evolving standard for protecting children globally.
5. Literature: This chapter lists all academic sources and web references used for the research and analysis.
Keywords
UN-CRC, best interest of the child, children's rights, child protection, Article 3, human rights, social work, legal interpretation, decision-making, child development, ethical standards, international law.
Frequently Asked Questions
What is the core subject of this paper?
The paper focuses on the concept of the "best interest of the child" within the United Nations Convention on the Rights of the Child (UN-CRC), examining its definition and application.
What are the primary thematic areas covered?
The document covers the history of the CRC, its structural composition, and a critical discourse on the ethical and legal implications of applying the "best interest" principle.
What is the main research goal?
The goal is to explore why, despite the lack of a universal definition, the "best interest" term remains a vital and necessary element in child protection policy.
Which methodology is used?
The paper employs a literature-based analysis and a comparative approach to evaluate different scholarly and legal perspectives on the term's positive and negative aspects.
What topics are discussed in the main body?
The main body investigates the historical development of the convention, identifies arguments for and against the clarity of the term, and discusses the challenges faced by professionals in applying it.
Which keywords characterize the work?
Key terms include UN-CRC, best interest of the child, children's rights, and child protection.
Why is the term considered a "definitorische Katastrophe" by some?
Critics argue that because the term is not precisely defined, it is "virtually interpretable at will," making it a "sweeping clause" that can be used to justify contradictory arguments.
How does the paper view the role of the child's will?
The paper notes that in accordance with Article 12, the child's will must be incorporated into the decision-making process, though this adds complexity and pressure for decision-makers.
What is the conclusion regarding the term's future?
The author concludes that rather than abandoning the term, it is better to continue debating its meaning, as it serves an essential function in protecting children from abuse and arbitrariness.
- Arbeit zitieren
- Hermann Fuchs (Autor:in), 2017, Critical examination of the term "best interest of the child" in the UN-CRC, München, GRIN Verlag, https://www.grin.com/document/418507
