Report No. 257
B. "Best Interest of the Child" in International Human Rights Law
1.5.1 While the "welfare of the child" principle dominates the domestic legal framework, a comparable legal standard is found in international human rights law. According to the United Nations Convention on the Rights of the Child (hereinafter, CRC), "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."5
The Convention directs the State Parties to ensure that "both parents have common responsibilities for the upbringing and development of the child."6 The CRC provides that a child should be separated from his or her parents if there is "abuse or neglect of the child by the parents, or where the parents are living separately and a decision must be made as to the child's place of residence."7 Welfare of the child, as a criterion for decision, is generally flexible, adaptable and reflective of contemporary attitudes regarding family within society.8
5 Convention on the Rights of the Child, Article 3, (1989).
6 Id., at Article 18.
7 Id., at Article 9.
8 Gilmore, Stephen, Great Debates: Family Law, Palgrave Macmillian, (2014) pp. 76-83.
1.5.2 The Committee on the Rights of the Child has provided additional guidance regarding the best interest standard in its General Comment 14.9 The Committee stated that it is "useful to draw up a non-exhaustive and non-hierarchical list of elements that could be included in a best-interests assessment by any decision-maker having to determine a child's best interests."10
The Committee suggested that the following considerations can be relevant: the child's views; the child's identity (such as sex, sexual orientation, national origin, religion and beliefs, cultural identity, and personality); preservation of the family environment and maintaining relations (including, where appropriate, extended family or community); the care, protection and safety of the child; any situation of vulnerability (disability, minority status, homelessness, victim of abuse, etc.); and the child's right to health and right to education.11 However, there are two main criticisms of the best interest standard when applied to custody issues.
9 Committee on the Rights of the Child, General Comment No. 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Article 3, para. 1), U.N. Doc. CRC/C/GC/14 (May 29, 2013).
10 General Comment 14, at ¶ 50.
11 General Comment 14, at ¶¶ 52-79.
1.5.3 First, it is unpredictable and information intensive. Parents who are divorcing are left guessing as to how the courts will make custody decisions; this can lead to unnecessary pre-court bargaining that may be harmful to both the child and the parents.12 This could be resolved by a more predictable rule-based standard, which delineates the content of the best interest standard. On the other hand, a rule-based standard is likely to be rigid and not consider the individual circumstances of each case.13
Second, the best interest of the child standard primarily focuses on the predicaments of the child alone and does not take into consideration the feelings and interests of the parents. The parents are also actors within the family who have rights and any legal framework must account for their welfare as well.14 Thus, it is an open question whether the best interest of the child standard is an adequate legal tool to resolve child custody decisions, or whether it needs to be supplemented with further legislative guidelines.