In E. Sutherland & L. Macfarlane (Eds.). However, ‘what is best for any child or even children in general is often indeterminate and speculative and requires a highly individualized choice between alternatives’ (Mnookin and Szwed 1983, p. 8; see also Breen 2002; Elster 1989; Freeman 2005). 2017; Skivenes et al. Available at: German Civil Code. We are very grateful for the expert knowledge, guidance and help received from: Morag McArthur (Australia), Katrin Kriz and Marianne Roth (Austria), Chris Walmsley and Nicholas Bala (Canada), Anemone Skårhøj (Denmark), Jonathan Dickens (England), Judit Strömpl (Estonia), Tarja Pösö (Finland), Monika Haug (Germany), Roberta Teresa Di Rosa (Italy), Kenneth Burns (Ireland), Gustav Svensson (Sweden), Stefan Schnurr (Switzerland) and Katrin Kriz (MA, USA). Hetherington, R., Cooper, A., Smith, P., & Wilford, G. (1997). [21] A larger weight is attached to what serves the child best: The definition of the Best Interests of the Child is not straight forward in either legal practice or when formulating laws and conventions. Nine of the 14 countries used the term ‘best interest’ in the text, whereas England and Ireland used the wording ‘the welfare of the child’. An example of the force of clear instructions for professionals is shown in a study of child protection workers in England, California (USA) and Norway on the use of adoption as a child protection measure (Skivenes and Tefre 2012). Table, Overall, eight main material considerations are represented in the legislation analysed, as well as one category for the weight of the principle and procedural aspects. Only Norway has given professionals strong discretionary authority over this matter. 1. Available at: Child Care Act. To a much lesser degree the principal of the "best interest of the child" has been utilized in immigration law as it relates to child migrants. The best interests of a child may change significantly over time as children grow and their situations and capacities evolve, so their best interests’ may need to be reassessed periodically. 1), All texts we analysed were written in or translated into English. 98. Step 1: Recipient email address(es) (First one is Required). We should ask whether the indeterminacy and the ambiguity of the best interest principle demands that each individual be considered on his or her own terms, and that there should not be any material content guiding the decision because it can only be made in regard to the unique child it concerns. Available at: Children and Young Persons Act. This material was collected in 2015–2016 with support and guidance from national experts.6 To ensure that we had found the right child protection legislation used for care order removals, we asked child protection experts in each of the countries to inspect and confirm our selected law. Under traditional American family law such decisions only fall to a judge after a parent has been convicted of abuse or neglect, or … The "best interest of the child" doctrine is largely seen in child welfare laws and the paramount consideration of the court when making decisions with regards to abused and neglected children. A primary consideration does not have an ‘absolute priority’ over other considerations. 14 (2013), par. Switzerland [Law in original language: Gesetz betreffend Förder- und Hilfeleistungen für Kinder und Jugendliche (Kinder- und Jugendgesetz, KJG)]. This material may be freely reproduced and distributed. Factors to be considered include parental capacity to provide adequate care, sibling and other family relationships, and the child's wishes. Although many countries include specific material factors to be considered, as we have shown above, seven countries—Australia, Canada, Denmark, Estonia, Germany, Spain and the USA—have an unspecified caveat that ‘any other fact or circumstance’ (Australia #2) considered relevant should be included in the decision-making process. [4], Best interests’ assessments aim to gather all the facts needed to arrive at a conclusion about the impact of any action, measure or decision on the child and her or his future. Balancing a child’s best interests and a child’s views. Bergen: University, Department of Administration and Organization Theory, report number 79. (2013). Presented with the same case, close to all staff in England and California (USA) recommended adoption for the child, whereas six out of ten of the Norwegians did the same. The factsheet also addresses the definition of best interests and guiding principles of best interest determinations. Why it remains important to take children’s rights seriously. GC 14 2013). It has been argued that the current standard should be replaced with a best interests of the child from the perspective of the child approach that takes child-focused epidmiological and psychological research into account regarding children’s physical, mental and social well-being after divorce or separation. Determining the best interests of the child. The model of rules. The legislation also emphasizes the child’s place in the family and the importance of a positive relationship with a parent for development. Its implementation has received considerable criticism by some child psychologists, epidemiologists and the family law reform movement, particularly with regard to how it often marginalizes children from one of their parents after divorce or separation, even though a child benefit from close contact with both parents. This code does not include references to general terms of the child’s well-being, such as best interests, the need for stability or the child’s relationship with the parent/caregiver (covered by other codes), Includes statements about participation for and/or involvement of children, including hearing the child’s viewpoint, feelings, wishes, meaning and opinions, Includes considerations of the child’s relationship with a caregiver or a parent, and/or with the family or a wider network of relations. Available at: Child Protection Act. England. The Australian legislation has a specific focus on Aboriginal or Torres Strait Islander children or young people, stating that it is a high priority to protect and promote the child’s cultural and spiritual identity. Available at: General Law Chapter 119 Protection and Care of Children and Proceedings against Them. The legislation can reference protection broadly or be more detailed (but yet far-reaching), like the English legislation, which includes both past and present risks, in that ‘(e) any harm which he (the child) has suffered or is at risk of suffering’ (#3.e). This publication is a product of the State Statutes Series prepared by Child Welfare Information Gateway. (1) Child welfare must promote the favourable development and well-being of the child. In cases of unaccompanied or separated children, the role of the guardian or representative is essential to facilitate the communication between the child and the authorities. Such signalling is typically followed by delegation of authority to exercise discretion, that is ‘when someone is in general charged with making a decision subject to standards set by a particular authority’ (Dworkin 1967, p. 32). (2008). The child's age, gender and background, the child's level of development and evolving capacities should be considered. The legislators have only set a few requirements on the considerations that decision-makers must take into account when making the child’s best interest decisions in child protection. The Austrian legislation highlights the negative impact a decision made against the child’s wishes may have: ‘6. Part of Springer Nature. There are numerous dimensions in relation to a child’s best interest that a decision-maker can (and must) consider, including expert knowledge about nutrition, attachment, education, brain development and the normative and cultural values for a good and meaningful life (cf. For simplicity, we use the term ‘country/national legislation’ even when we only have legislation from a state/canton/province/territory. 14, 2013 on the right of the child to have his or her best interest taken as a primary consideration. Mnookin, R. H., & Szwed, E. (1983). (1) For the care and protection chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that are relevant to the child or young person: … (b) any views or wishes expressed by the child or young person. Germany [Law in original language: Bürgerlichen Gesetzbuches]. Suggested Citation: Child Welfare Information Gateway. Preservation of a child’s relationship, be it to carers, parents or others in a wider sense, is included by eight of the 14 countries. Committee on the Rights of the Child, General Comment No. Skivenes, M. (2002). In social science, a core challenge is to understand the uses of government power in professional practices in which exercise of discretion is essential. 14 on the right of the child to have his or her best interests taken as a primary consideration, Safe and Sound, What States can do to ensure respect for the best interests of unaccompanied and separated children in Europe, Guidelines on Formal Determination of the Best Interests of the Child, Hague Conference on Private International Law, List of international and European laws on child protection and migration, https://en.wikipedia.org/w/index.php?title=Best_interests&oldid=981044908, Articles needing cleanup from November 2019, Cleanup tagged articles with a reason field from November 2019, Wikipedia pages needing cleanup from November 2019, Creative Commons Attribution-ShareAlike License. Five countries have English as the original language (Australia, Canada, England, Ireland and the USA) and five have an official English translation of the law (Denmark, Estonia, Finland, Germany and Norway). Skivenes, M., Barn, R., Kriz, K., & Pösö, T. (2015). The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community’ (#3.6). These five factors centre around the child and his or her viewpoints, relationships, permanency, needs and risks. Assessments look at everyday matters and decisions with more or less severe implications for the child. Freeman, M. (2007). Interpretation should be made available free of charge and with a neutral bearing when interpreters are directly involved. This service is more advanced with JavaScript available, Human Rights in Child Protection Child well-being in rich countries: A comparative overview (Innocenti report card no. 103.89.84.228, The criticism of child protection systems may be because of the strong discretion it gives professional decision-makers in determining the best interests of a child that needs protection. Estonia [Law in original language: Lastekaitseseadus]. Committee on the Rights of the Child, General Comment No. 14. © 2020 Springer Nature Switzerland AG. 14, 2013). The communication with the child has to be effective and child-sensitive and might require quality interpretation and cultural mediation. There is also a large amount of the national legislation (in 10 of the 14 countries) that raises the issue of the child’s needs as an important consideration. Available: Dworkin, R. M. (1967). Follow these Steps to email a friend or colleague a link to this information. Strong discretion concerns decisions that are not ‘bound by any standards set by an authority’ (Schneider 1992, p. 33). The legislation that requires that the child’s identity, individuality or culture be considered varies in the comprehensiveness and details of the wording/text. 22, Article 5. the court must consider: The welfare checklist considers the needs, wishes and feelings of the child and young person and this analysis is vital to ensure that the human rights of children are always in the forefront of all consideration. All countries have some reference to weighting, timelines and/or procedural requirements. Potential conflicts are solved on a case-by-case basis. A key standard in this area is the Convention on the Rights of the Child (CRC) of 1989. Summaries of laws for all States and U.S. territories are included. For example, ‘the child’s welfare shall be the court’s paramount consideration’ (England #1.b).