Баланың мүддесі: құқықтық принциптер мен қолданылуы

Child rights principle
best interest decisions in respect of children
Best interests or best interests of the child is a child rights principle, which derives from Article 3 of the UN Convention on the Rights of the Child, which says that "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". Assessing the best interests of a child means to evaluate and balance "all the elements necessary to make a decision in a specific situation for a specific individual child or group of children".

Best interests' assessments can be conducted informally and ad hoc or as formalised processes. Assessments look at everyday matters and decisions with more or less severe implications for the child. 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.

Best interests' determinations are formal processes conducted with the involvement of public authorities and professional decision makers. The objective of the best interests' determination is to reach a decision based on national law that safeguards the rights of the child and promotes her or his well being, safety and development. Decision makers weigh and balance all the relevant factors of the case, giving due consideration to all the rights of the child and the obligations of public authorities and service providers towards the child. The objective of the best interests' determination process is the identification of a durable solution. Best interests' determinations are carried out when the issues at stake are expected to have significant implications on the child's present and future life.

The definition of the Best Interests of the Child is not straightforward in either legal practice or when formulating laws and conventions. 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. 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 epidemiological and psychological research into account regarding children's physical, mental and social well being after divorce or separation.

Reference to the best interests of the child has been introduced into relevant EU laws and policies, including in the context of migration, asylum, trafficking and potential return. The wording attached to the best interests' principle ranges between the imperative "must" and "shall" to the less prescriptive "should".

Since the US has not yet ratified the UN Convention on the Rights of the Child, which is the central instrument defining and providing the right of the best interests of the child for much of the world, a different set of laws, precedents, and applications apply.

The use of the best interests doctrine represented a 20th century shift in public policy. The best interests doctrine is an aspect of parens patriae, and in the United States it has replaced the Tender Years Doctrine, which rested on the basis that children are not resilient, and almost any change in a child's living situation would be detrimental to their well being. Until the early 1900s, fathers were given custody of the children in case of divorce. Many U. S. states then shifted from this standard to one that completely favored the mother as the primary caregiver. In the 1970s, the Tender Years Doctrine was replaced by the best interests of the child as determined by family courts. Because many family courts continued to give great weight to the traditional role of the mother as the primary caregiver, application of this standard in custody historically tended to favor the mother of the children. The "best interests of the child" doctrine is sometimes used in cases where non parents, such as grandparents, ask a court to order non parent visitation with a child. Some parents, usually those who are not awarded custody, say that using the "best interests of the child" doctrine in non parent visitation cases fails to protect a fit parent's fundamental right to raise their child in the manner they see fit. Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 LEd2d 49 (2000).

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. The Adoption Assistance and Child Welfare Act of 1980 requires that, " each child has a case plan designed to achieve placement in the least restrictive (most family like) setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child." Although the statute does not define the "best interest of the child", best interest is referenced in two other sections. Moreover, several states have chosen to statutorily define or reference the "best interest of the child", and require the courts within those jurisdictions to consider specific factors.

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.