KEY LEARNING POINTS
• Whenever a decision is to be made that will affect an individual child, or a group of children, their best interests should be a primary consideration: this is a fundamental principle in the Convention on the Rights of the Child, is an important principle in promoting child development, and is enshrined in UNHCR’s policy framework.
• “Best Interests” is a clear, simple concept: but implementing it often requires handling complex and sometimes conflicting considerations in which complete information may not be available.
• Decisions in a child’s Best Interests are likely to have to be made by individuals with appropriate qualifications and expertise, including the ability to engage the child himself or herself in considering the various options.
•
“The
Best Interests of the Child” principle is a valuable tool in programming, in
monitoring and for impact assessment. A child-centred situation analysis, in
which young people themselves are involved, may be required in order to assess
the likely impact of particular policy decisions on children.
“THE CHILD’S BEST INTERESTS” IS A FUNDAMENTAL PRINCIPLE IN DISPLACEMENT SITUATIONS
The Best Interests principle is found widely in national law regarding children, and its inclusion in Article 3 of the United Nations Convention on the Rights of the Child has given it global application. But as well as being a central legal principle, the concept of the child’s Best Interests is vital from a child development perspective in ensuring that the child’s well-being and future development are central to decision-making.
The CRC broadens the scope of the Best
Interests principle to relate it not just to decisions about individual
children, but to young people collectively. Article 3 of the Convention states,
"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". This is presented as Overhead 6.2. Because UNHCR has adopted the CRC as its normative frame of reference, the rule should be applied to any decision made which affects children of concern to UNHCR, whether individual children or groups of children. The UNHCR “Policy on Refugee Children”1 states that, “In all actions taken concerning refugee children, the human rights of the child, in particular his or her best interests, are to be given primary consideration”. Like the Convention, this policy applies the principle to children individually and collectively, but broadens its application to "all actions" and makes Best Interests the primary consideration for such decisions rather than only a primary consideration.
The Best Interests of the child principle is a valuable tool for impact assessment and monitoring in programming. Because children are more physically vulnerable than adults, when decisions are made that affect a population generally, greater weight must be given to assessing the impact on the youngest members. Because children are still developing, conditions that pose hardships or discomfort for adults may have serious long-term consequences for children and adolescents.
The concept is simple: when authorities make decisions concerning a child or children as a group, their Best Interests must be a primary basis for the decision. In practice, however, a complex set of considerations can arise when applying it in a specific situation. The best interests principle has been criticized because it does not provide detailed guidance on how to determine what action, in fact, is in the best interests of a child or group of children. At times parties standing on opposite sides of an issue concerning children will each claim the child's “best interests” as the basis for their position.
The principle recognizes that an individual child (and more so for a group) has more than one “interest”. When considering an action, the entire range of a child's needs and rights (physical, psychological, social, cultural, spiritual, developmental, legal, etc.) must be taken into account - and also their immediate and long-term implications. The information available is often limited, and the interests that must be considered can be competing. All this must be taken into account to make a decision that is, on balance, the best one for the child(ren) concerned.
This Topic considers the application of
the Best Interests principle to individuals and to groups, examines issues of
who decides what is in the best interests of a particular child or group of children,
and how decisions should be made.
THE “BEST INTERESTS” PRINCIPLE
APPLIED TO INDIVIDUALS AND
GROUPS
This important principle should be applied
both to decisions relating to individual children, and to broader policy
matters and decisions relating to groups of children.
Individual Best Interests decisions will need to be made in a wide range of different situations, often raising difficult issues and dilemmas. Such situations may include the following.
- Repatriation situations: as with adults, separated children can have legitimate claims to refugee status which must be considered before they can be sent back as part of a larger repatriation movement. Sometimes adolescents may have needs and opinions different from those of their families, and these need to be taken into account when repatriation decisions are being made.
• Family reunification situations where a decision needs to be made about the possibility of a separated child living, for example, with grandparents in the country of origin, an uncle in a second country of asylum or remaining with an unrelated family in a refugee situation.
• Situations where abuse or exploitation have been revealed: for example, is it in the best interests of a teenage girl who has alleged sexually abuse by a step-parent to remain in the family where the risk of further abuse may exist, or to remove her to another family against her will? Group situations can also raise questions of the Best Interests of children. In refugee contexts, the following are some examples of situations which may emerge.
• In some displacement situations basic education has been denied to children because the availability of schooling was seen to discouraging families from repatriating. Such a policy may be interpreted as violating the Best Interests principle as well as the specific right of all children to education specified in the Convention on the Rights of the Child.
• As a displaced population progresses toward self-sufficiency, decisions must be made about how and when to reduce food rations. The Best Interests principle may be useful in ensuring that the specific needs of children are continuing to be met.
•
In
situations where there is ongoing conflict, difficult decisions may have to be made
about whether to assist the population where they are or to arrange to move
some or all members to a safer location. Sometimes other groups organize an
evacuation and UNHCR must decide whether to participate, if only to reduce the
likelihood of family separation or other problems. In all these cases the Best
Interests principle must be considered, and a long-term view taken.
- The large-scale demobilization of former child soldiers may raise questions about whether they should be allowed to return directly to the families (where this is possible) or whether they should all first be admitted into some form of residential interim or transit care.
KEY OBJECTIVES OF “BEST INTERESTS”
DECISIONS
The key objectives involved in assessing
the best interests of children consist of the following:
1.
ensure
their protection - both in terms of physical safety and legal rights;
2.
ensure
that care arrangements provide for both their physical and emotional needs;
3.
provide
for their ongoing developmental needs - psychological, social, educational and
physical, both for the immediate future and in the long-term;
4.
provide
for their participation in these decisions, in keeping with their maturity and
capacity;
5. put their safety and welfare ahead of all other considerations.
These points appear as Overhead 6.3.
WHO DECIDES WHAT IS IN THE BEST INTERESTS OF CHILDREN?
Where one or both parents are present, national and international law generally recognize their authority in deciding what is in the best interests of their children. However, the Best Interests principle is specified as the basis for courts or other authorities to make decisions concerning the protection and care of children who are without a parent or normal guardian, whose parents are in a legal disagreement over their care and protection, or where parental rights have been terminated to protect a child's safety or well-being, as in a case of child abuse.
In many countries, national law provides for a guardian responsible for the protection of a child not in the care of her or his parents. Often this is a department of child welfare. Court proceedings may be involved to appoint a specific individual as guardian. The guardian is charged with responsibility to ensure the protection and care of a child and to make decisions that are in his or her best interests. Very often, however, particularly in the developing world, guardianship of separated or orphaned children is determined by customary practice rather than the specifications of national law. In a situation of displacement it is important for government and NGO personnel and UNHCR staff members to know what applicable national law specifies concerning guardianship of separated children and to have an understanding of relevant customary practices.
It is also true, however, in the context of a failed state or a complex emergency, that both legal and customary systems of guardianship may have broken down and procedures must be put in place by those who intervene to make decisions about the immediate protection and care of separated children. Within the guidance of the Convention on the Rights of the Child, the Best Interests principle is the basic operational guideline for such decisions. However, those who intervene to protect children must carefully avoid taking action in the short run that may not be in their long-term best interests. For example, UNHCR has included policy guidelines in Refugee Children that prohibit adoptive placements in an emergency, before family tracing is possible. Particularly in situations where there is no legitimate state authority responsible for the care and protection of separated children, UNHCR is obliged as part of its protection mandate to ensure that an appropriate, if interim, system is put in place to make Best Interests decisions. Likewise, UNHCR has an obligation to ensure that the Best Interests of children and adolescents are given primary consideration when decisions are taken that affect them as a group. UNHCR's Refugee Children: Guidelines on Protection and Care and the Office's "Policy on Refugee Children" provide guidance on how to do this.
Where a procedure must be put in place to make Best Interests decisions regarding individual children it is essential that suitably qualified personnel are involved. The qualifications needed depend in large part on the nature of the decisions they must make (e.g., medical intervention, evacuation, type of placement for care, protection from recruitment). There are, however, certain kinds of knowledge and expertise that are generally needed among the personnel involved:
• a solid understanding of the practical implications of stages of child and adolescent development and psycho-social well-being
• an understanding of the issues involved in the decision – physical, psychosocial, educational etc.
• a knowledge of the safety implications and legal context
• an understanding of the cultural and religious context
• a knowledge about the social and economic context
• the ability to engage the child (or2 children) in discussion about the available options
It is vital that the decision-maker should be able to separate the interests of the child(ren) from those of all others, including parents, other adults, social groups, institutions and the state, and subordinate the interests of these other parties in favour of the child’s welfare. The decisions being taken can have profound long-term implications, and very often the matter of determining Best Interests is actually a choice among the least damaging of a limited number of alternatives.
The decision-maker must be able to balance the options and make such choices in a way that is both informed and objective.
Those personnel charged with making Best
Interests decisions must carefully consider how children themselves are
involved in decision-making: this important issue is discussed below.
HOW ARE DECISIONS MADE ABOUT CHIDREN’S BEST INTERESTS?
Identifying the various, interwoven “interests” of children and adolescents, individually or in groups, is difficult and requires a range of skills, but this is only part of the process. Making a decision involves considering all these factors to reach a conclusion that takes into account the weight that should be given to each. This point was well made in Unaccompanied Children: Care and Protection in Wars, Natural Disasters, and Refugee Movements2:
...What is truly best for a child cannot be determined by a general formula. What is best for one child will not necessarily be best for another. The touchstone is what is best for the individual child in his or her particular circumstance.
In the final analysis determination of a child's best interests or those of a group requires judgement that takes into account a range of relevant, and possibly competing factors, within the realm of achievable possibilities. For example, safety versus maintaining family attachments are at stake when the evacuation of children is proposed. In some cases where tracing on behalf of a separated child is successful, a difficult choice is required between preserving a child's attachment to a long-term foster family and returning the child to the biological parents. In the context of repatriation, difficult decisions are sometimes required as to whether a child who is orphaned or whose parents cannot be traced should stay in a foster family in a country of asylum, or be returned to uncertain care in the country of origin. So far as possible, such determinations must be made on a case-by-case basis using the Best Interests principle. (Exercise 9.1 in the ARC Resource Pack on Situation Analysis provides a complex exercise which involves determining
the best interests of a large group of Rwandese children who had been fostered by families in the host country).
Child Participation will be an essential part of the process: this important principle is discussed in greater detail in Topic 7 of this Resource Pack. Article 12 of the Convention on the Rights of the Child requires state parties to ensure that children capable of forming their own views have the opportunity to express these in all matters that affect them, and that these views are given consideration in keeping with the age and maturity of the child. Also, Best Interests decisions require information that can only come from the individual child(ren) concerned. In some situations, decisions in the child’s best interests may need to over-ride the stated wishes and opinions of the child: such decisions should only be taken after very careful consideration, and it is vital that the reasons for, and implications of the decision are explained carefully to the child.
A child-centred situation analysis may be required
in order to assess the likely impact of particular policy decisions on children
- for example in issues such as the phasing-out of food rations or examining
the impact of education when largescale repatriation is envisaged. The
involvement of young people themselves will be an essential part of the
process.