I A problematic and a changing concept
1 The concept and its impact
The best interests of the child shall be a primary consideration in all actions concerning children. This principle is laid down in Article 3.1 of the UN Convention on the Rights of the Child. Since a large number of States are Parties to the Convention, the principle has had great impact on the law of the child in the world. To be sure, it does represent a major achievement in this area of law.
The principle is quoted in national laws concerning custody and contact, adoption, name, protective measures etc. As it has been vigorously adopted by different NGOs and authorities with the task to protect child interests, national legislators are called upon to change or modify the laws in order to make them conform with the principle of the best interests of the child. The principle is also very often used in the political debate by those advocating changes in the laws relating to matters which concern children.
In this paper we address some innate problems in the concept and some important changes which it needs to adapt to. Our perspective is that of the legislator, more precisely the civil law legislator. We look at the issues mainly from the angle of custody and contact conflicts and we make some recommendations to the national and international legislators.
It is fair to say that the concept of ”the best interests of the child” has in only a decade conquered the world. It is one of the most important principles in family law.
But a concept which gains so much attention and so much success, which is never questioned but rather used as the starting point for all debate, creates and faces many problems.
The first problem is that such a concept is likely to deceive and to some extent stop critical and creative thinking. Thereby it can become its own worst enemy.
The second problem is that the concept may become too dominant. This may have the effect that other interests are lost or do not get the attention they deserve.
The third problem is that the concept includes so many pressures and difficulties in application that it becomes shallow and loses much of its substance.
The fourth problem is that the best interests principle sometimes favours undesirable behaviour on the part of one of the parents.
2.1 Stops critical and creative thinking
There is a danger that after establishing a concept such as ”the best interests of the child” one is struck by some kind of a ”lean back syndrome”. The legislator may tend to feel that once a real life problem has been successfully referred in law to the magical solution of ”the best interests of the child”, everything has been done. There are, in actual life, no magical solutions to the very difficult issues involved in matters of custody and contact, and the fact that a ”perfect” legal solution exists may tempt the legislator to sweep difficult issues under the carpet, thereby not really tackling them. This is comfortable for the legislator, but it tends to leave too many difficulties to the judge.
The legislator may not only lean back but may even actively change the law for the worse in the name of ”the holy principle”. This could be the case, for example, if the principle is allowed to replace a carefully struck balance in law between, on the one hand, the child’s need to have access to both parents and, on the other hand, the need to keep the child away from difficult conflicts. Applying the principle can often be much more difficult than applying a set of rules which attempt to strike that balance. At least there is a need for guidance in the form of naming such important circumstances and facts which the judge must always take into account when assessing a case.
In Sweden, a law was passed in 1998 allowing for the court to decide on joint custody even if one parent is opposed to that solution, provided that this is in the best interests of the child. One important argument invoked in favour of the reform was that there must exist a possibility to go against the will of one of the parents in those cases where joint custody is in fact in the best interests of the child but one parent does not want it. This has been criticized by those who say that the legislator shows an unreasonably high preference for joint custody and will induce many judges to choose joint custody without examining thoroughly if this is in fact the best solution for the child. One must admit that such a danger exists and that the law places a rather heavy burden on the judge.
2.2 Becomes too dominant
It is unusual in civil law that one interest is held out as clearly more important than others. Normally the legislator tries to strike a balance between conflicting interests without giving a marked preference to one of those interests. When dealing with the protection and the rights of children it is, however, no doubt well motivated to give such a preference, as has been done in the UN Convention on the Rights of the Child. But we must be aware of the risks entailed, the most important being that other interests may be unjustly set aside. Suppose that in a specific case sole custody for the mother and joint custody are, on balance, equal alternatives for the child, whereas it would mean a lot for the father’s wellbeing if he would be given joint custody. Or suppose that – when seized with the task of entrusting custody of an orphaned child to a specially appointed custodian – the social authorities find that the child would be marginally better off financially or socially in a family of complete strangers than with, for instance, its grandmother. It is true that the best interests principle leaves room for taking the father’s and grandmother’s interests into account in these cases. But there is a clear danger that the effort to find the best possible solution for the child becomes so dominant that the interests of parents and other people particularly closely connected to the child are set aside, even when this should not be the case.
One example of an important competing interest founded in international law is everyone’s right to respect for his or her family life according to the European Convention on Human Rights (Article 8.1). A parent who is not allowed to have any or very little contact with his or her child can well argue that there has been an interference with his or her right to such respect. How does the legislator or the judge strike the right balance between the two strong legal principles, the best interests of the child and the right to respect for family life? This is a very important issue with which we deal in the second part of this paper.
2.3 Pressures and difficulties in application cause loss of substance
It is obvious that the application of the concept ”the best interests of the child” involves numerous pressures and unsolved questions. When the concept is applied in practice the questions will be solved in many different ways. As there is no effective mechanism to prevent this, the concept becomes shallow and loses substance. We will give just a few examples of the difficulties.
How do the traditions and the culture of a country or a people affect our concept? In a country where almost all children are brought up by their mothers it is normally considered to be in the best interests of a child to stay with the mother after a divorce, whereas in a country where the fathers take a greater responsibility for the children it is different. Is any of the solutions better than the other? Does it matter what people believe to be true, or should the judge try to find a more objective – global – truth?
These problems are highlighted when a child moves from one part of the world to another. Suppose for example that a family moves from Iran to Australia. The parents separate and cannot agree on custody of the children. Is ”the best interests of the child” that which is considered best in Australia, or that which is considered best in Iran? What if the father plans to move back to Iran, while the mother plans to stay in Australia? How does the court decide if it is better for the child to grow up here or there? How do possible political and cultural changes in the two countries affect this evaluation? And how is it affected by the fact that the standard of living is considerably higher in one country than in the other?
It is not clear if the concept of ”the best interests of the child” deals mainly with short term or long term interests. Suppose that it is clear to the judge that the child will be safer and more secure with the father for the next four or five years but will prosper in its teens and later if it is left to the mother. How does the judge deal with such a difficulty? Should we consider it a problem if in one country the judges will in this case always give custody to the father, in another country to the mother?
In many national laws it is expressly stated that the views of the child shall be taken into account in matters affecting the child (cf Article 12 of the Convention on the Rights of the Child). The views of the child are sometimes treated as something separate from the best interests of the child, sometimes as an integral part of the concept. It is not altogether clear to what extent the judge should address the views of the child when assessing what is in the best interests of that child. Should the views of the child be considered as an integral part of the best interests or something separate? Should the views perhaps always be decisive when it is doubtful what is in the best interests of the child? Should the views be decisive as long as the result is not manifestly detrimental to the child? Or should the views themselves have no impact on this assessment, except perhaps as a piece of evidence? How is the age and maturity of the child to be taken into account?
How does the concept deal with gender issues? To what extent is the gender of the child to be taken into account when determining its best interests? Is it in the best interests of a child to be brought up to be given equal opportunities or not? Is equality between the sexes a factor at all in matters of custody and contact?
How does one deal with agreements between the parents? If the parents agree on custody and contact, should the judge always accept this as the best solution for the child or make an independent judgment? In many jurisdictions the judge will rule according to the agreement without making any substantial assessment of his or her own. Is it acceptable that in those countries the principle plays, at least seemingly, such a secondary role in these cases? Are there safeguards to protect children when one parent puts pressure on the other, or when one parent gives in because he or she cannot stand fighting anymore against the more stubborn ex-partner?[1]
Two judges may have totally different ideas of what is actually in the best interests of the child in a certain case. This could have to do with their values and attitudes, but it could also depend on coincidence or prejudice. Therefore, discretion is an important problem with a concept like this one. If the judge is left with applying the principle without further guidelines, it may be very difficult to foresee the outcome. Also, it may be more difficult for the losing parent to accept the judgment. Discretion may cause important differences in application even within a very homogeneous country and thereby add to the fragmentarization of the concept.
2.4 Occasionally, the best interests principle favours undesirable behaviour on the part of one of the parents
It has been known to happen more than once that although a parent has wrongfully removed or retained a child, that parent still wins the battle over the child and obtains sole custody, since this is considered to be in keeping with the best interests of the child. Similarly, it has been known to happen that although a parent has wilfully cut off the child’s contact with the other parent, that parent still succeeds in preventing the other parent from obtaining a contact order, since such an order is considered not to be in the best interests of the child. And if a parent opposes contact to a degree that enforcement of an existing contact order risks causing tension to the child, the court is unlikely to allow the order to be enforced.
It would seem, then, that in some circumstances – and particularly in connection with the notion that children need continuity – the best interests principle could favour a parent who behaves badly.
3 Changes
The concept is problematic not only in the different ways described above. It is also changing, which in itself is problematic. The most important change is that society and its values constantly develop. If yesterday it was thought to be of the utmost importance for a child to enjoy the secure care of the mother, and tomorrow it is felt that the most important factor is the early in life possibility to explore many aspects of life and to choose career and lifestyle according to one’s talents and personal preferences, then where are we today? And how should these changes affect us when we make decisions in individual cases? How do we make sure that the changes are in fact observed and come to influence the concept the way they should?
One important change is the greater equality between the sexes, including the emancipation of women. Along with this, men start abandoning the traditional patterns and roles of the male sex. This development has come far in some parts of the world, barely started in others. How does the development towards greater equality affect our views when we ask ourselves what is in the best interests of a child? Does a child have a better chance of a good life with an emancipated mother than with a mother who is directed towards spending her life in the home, serving a man? Or is it rather the opposite which is true? And is a ”modern” father to be preferred to a ”traditional” one?
Children are exposed to new possibilities and new threats. Information technology, computers, biomedicine, violence in the media etc. change the world. If some of the development is in the best interests of children and some not, how do we take this into account when judging the best interests of the child? And does it make a difference if the child lives in a country which has managed to handle the possibilities and the threats in a positive way, or in a country which has not been able to cope with the problems and where therefore the threats are greater than the possibilities?
Research expands our knowledge. We know more today about children’s needs than we did ten years ago. For instance, we are much more aware of the fact that a conflict between the parents exposes the child to serious risks, both psychologically and socially, and we know much more about the nature of those risks. How do we implement such new knowledge in the laws and in the application of the laws? Should the findings of new research influence the application of the laws - and thereby the concept of the best interests of the child - all over the world, or only where the research is known and accepted?
Research and new knowledge also add to the changes through the fact that experts in other fields than law become increasingly more important in establishing the best interests of a child.
These are a few examples of the changes which influence or should influence the concept of ”the best interests of the child”. The concept must take on new situations and new challenges all the time, and it must adapt to new knowledge attained through research and experience.
4 How should the legislator react?
Some of the problems and changes mentioned are important for the legislator to note and react to. Others are less important, or next to impossible to do anything about. We believe the following to be the most important advice to the legislators in dealing with the principle of the best interests of the child in laws on custody of children and contact.
4.1 The national legislators
4.1.1 General recommendations
The national legislators need to be aware of the difficulties which exist when applying a concept such as this one. In drafting the law the problems should be tackled.
What is probably the most important measure in this respect is that the legislators give reasonable guidance for the application of the law and not only refer the courts or other relevant authorities to ”the best interests of the child”.
Further, the best interests of the child must be seen in different time perspectives. What is good for the child in the next few months may not be the best in the long run. The legislator should give guidance as to how the different time perspectives should be dealt with in an assessment of what is best for the child.
Also, the legislator should make sure that important and relevant new knowledge is implemented in the law when needed. This may require recurrent adjustments in the law.
The national legislator should also make sure that other concerns than ”the best interests of the child” are given due consideration and that, thus, the notion of the best interests does not become excessively dominant. The best interests of the child should always be a primary concern, but not always the only concern.
Giving guidance for the application is important because it helps the court and other relevant authorities to assess the individual cases and to take all adequate factors into account. But it is also important because two different judges may have entirely different ideas about how to balance opposing interests against each other and how to assess what is best for a child.
The guidance should be as practical and concrete as possible. Much is known about children’s needs and reactions and the legislator should forward this knowledge to the courts and others who apply the law. It is obvious, for example, that a child normally needs access to both its parents. It is also clear that a child suffers from being exposed to deep and violent conflicts between its parents. Important aspects like these should be considered actively in the law or its preparatory works.
To some extent national legislation could operate with presumptions. These make judgments easier for the court. It is often difficult to conclude what is best for the child, but some answers are almost always right. In general, for example, it is better for the child to stay with a parent with whom it has spent all its life, as compared to moving to a parent who just showed up. And normally sole custody is better than joint custody when the parents have clearly demonstrated that they are not able to cooperate in matters concerning the child. For such cases the law could state, for example, that the conflict should be resolved in a certain way, unless it is obvious/clear, for other reasons, that another arrangement is better for the child.[2]
Another example: If the legislator believes that the child should in almost all cases be kept away from difficult conflicts between the parents, it may be stated in the law that when such conflicts exist there should not be joint custody unless this is for other reasons clearly/obviously in the best interests of the child.
Giving presumptions like these in the law is in our mind not contrary to the principle of the best interests of the child.
The national legislator could also use checklists as a means of giving directions on how – by which procedure – the conclusion should be reached and what factors in particular should be taken into consideration.[3]
4.1.2 Substantive recommendations
The best interests principle should be balanced against other important interests, such as the interests of parents, brothers and sisters. Here the legislator has an important role to play.
The establishment of joint custody should be promoted
It is well known that, in most cases, joint custody is in the best interests of the child and preferable to sole custody. Joint custody often promotes a good relationship between the child and both parents. At the same time joint custody takes on board both parents’ right to a family life.[4]
One way to promote joint custody is to give parents joint custody by operation of law and when disputed have provisions that provide for joint custody unless there are special circumstances to the contrary.
Another way is to make sure that opposition or lack of consent on the part of the custodial parent will not as such be considered an obstacle to the establishment of joint custody.
Yet another way is to let joint custody continue automatically after a divorce or a separation, provided that this is not contrary to the best interests of the child.
In case of family breakdown, siblings should not be separated unless a separation is deemed necessary with regard to the needs of each child
To most of us it would not be acceptable if, following a divorce or a separation, the children were divided up between the parents in order to achieve a balance between the parents. As a general rule, siblings should be kept together after the parents’ divorce or separation. This can be promoted by a provision stating that siblings should have the same custodian unless there are particular circumstances warranting another solution. Such circumstances could be, for instance, that the bonds between the children are weak or that the bond between one child and the other parent is considerably stronger than that between the siblings.[5]
Should the need arise to place a child with other people than its parents, the child should normally be placed in its natural network
Research has shown that, in general, it is better for an orphaned child to be placed in the care of a relative or another person belonging to its ”natural network” than to be placed with people unknown to the child. To ensure that this factor is duly considered in the decision-making process, the law could provide that, in the first instance, it should be considered to entrust custody to – or to place the child with – such a person. As always, however, the best interests of the child must be taken into account, and if the child cannot be guaranteed good care by people belonging to its natural network, the child should be placed elsewhere.
Undesirable behaviour on the part of one of the parents must be taken into account by the court when deciding cases on custody and contact
Needless to say, it is important for children to have a close and good relationship with both parents. At the same time, children must be protected from being abused, unlawfully removed or detained, or from otherwise suffering harm. This means, for instance, that the conditions under which contact takes place must be secure for the child and that, in exceptional situations, no contact at all should take place, at least not until the child has grown older. It also means that if one of the parents deliberately, and as a means of sabotage, prevents the child from having contact with the other parent, that parent should not be awarded custody unless there are very special reasons to justify a decision to that effect.
Problems pertaining to breach of contact orders and enforcement of contact orders must be addressed
Occasionally, a child’s custodian refuses to comply with a contact order. In so doing, the custodian prevents the other parent and the child from having or establishing a family life. How should obstructions like these be addressed by the legislator? One solution that comes to mind is forcing the custodian into compliance by imposing a fine or by requesting that the police or other competent authority be instructed to transfer the child to the other parent so as to allow for contact to take place. One could also consider other ways of punishing the custodian for his or her contempt. As previously indicated, another solution might be to transfer custody from the obstructive custodian to the other parent or to require that the obstructionist attend an educational programme on the importance of allowing contact between the child and the other parent. Yet another solution might be to order the parents to attend mediation sessions or counselling, the purpose of which should be to make the obstructive custodian allow contact.
Of course, we do realize that it is highly unlikely that all of these sanctions and measures would prove to be efficient. Some of them tend to be either ineffective or not at all in keeping with the best interests of the child.
Nevertheless, it is important to discuss what should be done to solve this problem.
In case the law provides for the possibility of issuing contact orders in favour of other adults than parents, such an order must not amount to an unwarranted intrusion into the life of the child and its parents [6]
It is usually in keeping with the best interests of the child to have contact on a regular basis with persons other than the parents, such as former stepparents, foster-parents, grandparents, other relatives or other persons particularly close to the child. On the other hand, there is a risk that applications for contact orders lodged by these people could amount to an intrusion into the life of the child and the parent, or parents, with whom the child resides.[7] Also, if a court order is required to bring about such contact, one might fear that the positive effects of contact will be hampered.
In this case, the interests of the child to know and to be able to relate to, for instance, its grandparents and those of the grandparents to have contact with their grandchild must be balanced against the right of parents to raise their children and have their custodial decisions respected.
One way to strike a fair balance between the various interests and to avoid unnecessary and unmeritorious legal proceedings – which in the end might harm the child – may be to introduce a filtering system, a barrier, depriving relatives and others of direct access to the courts. That could be done by introducing a rule stating that non-parents have to obtain leave to make an application for a contact order[8] or by entrusting a specific body with the power to institute proceedings[9].
Other ways of limiting parents’ exposure to third-party contact petitions might be to restrict the group of permissible petitioners, for instance to grandparents, or by requiring petitioners to show a substantial relationship with the child, or by permitting contact petitions only when there has been a change in circumstances such as divorce or death of a parent.[10] [11]
4.2 The international legislator
The international legislator – the United Nations or some other appropriate global or regional body – should at least consider moving a step further and to start work on a new instrument. In assessing whether this is appropriate, the organisation should analyse confronting interests better than has been done so far. One issue which seems to need some analysis on the international arena is the relation between the principle of the best interests of the child and the adult’s right to a family life. These two can easily interfere with each other, and there seems to be a need for the legislator to confront this tension better. This issue will be addressed in the second part of this paper.
Another factor which can sometimes interfere with the best interests of the child is the child’s own views. It may be a good idea if the international legislator gave some thought to the question of how the views of the child should be taken into account. In this respect it must be noted that ”the views of the child” is in itself a difficult notion.
It would also be valuable if the concept were filled with more substance and thereby secured and developed. This could include addressing such difficulties as the balancing of short term interests against long term interests, the possible need to take the gender of the child into account, the need to sometimes question agreements between the parents from the child’s standpoint and, as mentioned, the relation between the best interests of the child and adults’ right to a family life.
As research sheds new light on difficult issues it should be considered to implement this new knowledge already on the international level. If, for example, research can establish with certainty that it is hazardous to a small child to live with the mother half of the time and with the father the other half, then it should be considered to let such knowledge be mirrored in international law. This would enrich the concept of the best interests of the child and make it more homogeneous.
II THE BEST INTERESTS OF THE CHILD AND THE ADULT’S RIGHT TO A FAMILY LIFE
As already pointed out in the previous part of this paper, there is a risk that the effort to identify ”the best interests of the child” becomes so dominant that other interests will fail to attract the attention they deserve. One example of an important competing interest founded in international law is everyone’s right to respect for his or her family life, as provided for in Article 8 of the European Convention on Human Rights. That article reads:
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the protection of the rights and freedoms of others.
A parent who is not allowed any or very little contact with his child could well argue that he has been deprived of his family life. A well founded question is therefore: Is it always possible to apply both the principle of the best interests of the child and that of the right to respect for family life? Or is there in fact sometimes a real legal conflict between the two? How should a possible conflict be dealt with? Is there a need for legislative action?[12]
6 Illustration: The Söderbäck case
What inspired us to this particular part of the paper is, inter alia, a judgment of the European Court of Human Rights in the case of Söder-bäck against Sweden, involving the interpretation of Article 8 of the Convention.[13] The case concerned adoption.
The circumstances of the case were the following: The man bringing the complaint before the European Court of Human Rights, Mr Söderbäck, was the natural father of a child. He had never lived with the child or its mother and the mother had sole custody. Some eight months after the birth, the mother had married another man and since that age the child had a stepfather. Initially, contacts were scarce between Mr Söderbäck and the child. Allegedly, this was due to the fact that the mother refused him to have contact with the child. But it was also clear that he had personal problems at the time. Eventually, he contacted the social authorities and asked for help in arranging contact with the child. However, some time later – and before contact proceedings had been instituted – the child’s stepfather lodged an application with the court to adopt the child. Mr Söderbäck objected to this, but as he did not have custody of the child he could not block the adoption. However, according to national legislation the court was obliged to hear Mr Söderbäck before deciding on the application. Following such a hearing and finding the adoption to be in the best interests of the child, the courts granted the stepfather’s application to adopt the child. As a consequence, Mr Söderbäck could no longer obtain a contact order and he was totally deprived of family life with the child.
The European Commission of Human Rights – the first instance of the then two-tier system – had found that the decision to grant the adoption did in fact amount to a violation of Mr Söderbäck’s right to a family life. But the European Court of Human Rights decided otherwise.
In its judgment, the Court found that the decision to grant the adoption was in accordance with the law (which of course it was) and that it pursued the legitimate aim of protecting the rights and freedoms of the child (which of course it did, since the best interests principle had been expressly quoted in the decision). But the more complicated question was if the decision to grant the adoption was ”necessary in a democratic society”. The court found that this was the case, invoking – among other things – the limited relations that the natural father had had with the child. Accordingly, the effects of the decision on his family life were not disproportionate and there had been no violation of Article 8 of the Convention.
Of course, we have no reason to oppose the outcome of this case. Never-theless, the question lingers on: Was the decision to grant the stepfather’s application for adoption really motivated by an overriding requirement pertaining to the best interests of the child, bearing in mind the drastic effects of the adoption on the natural father’s family life? – This serves as a good starting point for our further discussion.
7 Discussion
It could be argued that, during the last decades, society has gone from being parent oriented to becoming child oriented. Nowadays, it has become increasingly rare to speak of ”parental rights” and ”parents’ interests” when determining disputes on custody and contact. The view that parents, too, have interests and needs that should be protected is often considered old-fashioned and based on a view that children are the property of their parents.
Needless to say, there have to be limits set out within which parental rights and interests may be taken into account when determining questions of custody and contact. Thus, should there be a serious conflict between the interests of the child and one of its parents, which can only be resolved to the disadvantage of one of them, the interests of the child must prevail. Far be it from us to suggest anything else. But it is too easy to say that we can dispense altogether with parental interests. When deciding less clear-cut cases on custody, residence, contact or adoption, the best interests of the child should be the primary consideration, but it should not always be the only one. The legislator, as well as judges and others involved in dispute resolution, need to consider how to take the interests of both parents and children into account and – when possible – how to strike a fair balance between those interests.
To be sure, it is a difficult task to determine the extent to which priority should be given to the interests of the child. Coming back to the Söderbäck case, it might well have been that allowing the adoption was slightly more in keeping with the best interests of the child than not allowing it. It is probably fair to say, however, that a refusal on the part of the Swedish courts to allow the adoption would have had only a very nominal impact on the interests of the child, since there already existed a stable and harmonious relationship between the stepfather and the child, whereas the effects of the decision on the family life of the natural father were extremely drastic. In such cases, not really involving a serious conflict between the interests of the child and one of its parents, one has to consider accepting an outcome that is not absolutely and formally in the best interests of the child. One also has to accept – and that is what we have been trying to convey here – that in some instances the best interests principle is a fairly blunt instrument.
III SUMMARY AND CONCLUSIONS
There is a danger that a concept as dominating as ”the best interests of the child” becomes its own worst enemy and actually sometimes harms the children more than it helps them. Why? Because it tends to stop critical and creative thinking, thus causing a situation where the actual conflicts on custody and contact are solved in too primitive a manner. But also because it involves a lot of pressures and difficulties in application which could make it so shallow that in the end it turns out to be no more than a phrase. And finally because there is a risk that it does not develop as it should along with changes in society, modernised values and new knowledge.
There is also a danger that the notion of ”the best interests of the child” becomes excessively dominant and that, as a consequence, other well founded interests are not at all taken into account or at least not duly so. The adult’s right to respect for family life is one such interest. Where there is a serious conflict between the interests of the child and one of its parents, then the interests of the child must of course be allowed to dominate. In cases involving a less serious conflict, however, regard should also be had to the adult’s interest of maintaining or establishing a family life with the child.
Legislators must be aware of the dangers and challenges and act to make sure that the concept of ”the best interests of the child” develops in a mode which is in fact in the interest of children. Also, legislative measures should be taken with a view to facilitating the application of the principle. This requires an active attitude especially among national legislators. Such action could include, inter alia, the provision of reasonable guidance for the application of the law and the incorporation of important and relevant new knowledge in the law. The international legislator should at least consider whether it would be appropriate to take action to secure and enrich the concept in a new convention.
The law of the child is an area of law where the legislator needs to be active. It is clear that much progress is still to be made. The legislator must make sure that the law is effective, that it is updated with new, important and relevant knowledge and that it does give the best possible protection and assistance to the children concerned.
[1] It may be noted that the problem mentioned in this paragraph is not mainly a problem of the concept losing its substance. Instead it is a problem of the concept having obvious limitations to its effectiveness. – Besides, the fact that in some jurisdictions the court may refrain from assessing the particulars of an agreement need not necessarily mean that the best interests principle plays a secondary role in such cases. It could be argued that parents are not usually prone to opt for solutions which would in any way be detrimental to their children and that parents usually know what is in the best interests of their children. It may also be noted that an agreement may be the best solution for the child even if the agreement could be questioned in substance. The reason would be that the fact that the parents have actually been able to reach an amicable agreement could very well be the most important factor of all for the child’s wellbeing.
[2] See also below, 4.1.2
[3] Checklists are used in, e.g., the United Kingdom (see section 1[3] of the Children Act) and, to some extent, Sweden (see chapter 6 sections 1, 2 a and 2 b of the Children and Parents Code). – Inevitably, a checklist would have to reflect what is long-standing practice in courts, and for the majority of practitioners the significance of the factors mentioned therein would be obvious. For others, however, it could prove to be a valuable compilation of factors which must not be overlooked when deciding on issues of, i.a., custody and contact.
[4] See Draft Report of 24 November 2000 on Principles Concerning the Establishment and Legal Consequences of Parentage, Council of Europe, Committee of Experts on Family Law, Working Party on the Legal Status of Children (CJ-FA-GT2 [2000] RAP7).
[5] See ”The Principles of Good Child Care Practice” (taken from The Care of Children, Department of Health, United Kingdom, 1989).
[6] Under the European Convention on Human Rights see, Eur. Court HR Boyle v. United Kingdom, judgment of 28 March 1994, Series A no. 282-B (uncle and nephew, the latter having been placed in the care of the authorities) and Eur. Comm. HR Fidler v. Austria, no. 24759/94, Dec. 4.9.96 (grandparent and grandchild). The question is also at present being discussed within the Council of Europe, in the Committee of Experts on Family Law. – See also Eur. Court HR Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31 (grandparent and grandchild) and Eur. Comm. HR Price v. United Kingdom, no. 12402/86, D.R. 55 p. 224 (grandparent and grandchild, the latter having been placed in the care of the authorities).
[7] See Troxel et vir v. Granville. The US Supreme Court held that a broad Washington State statute permitting any person to petition the court for visitation rights at any time was unconstitutional and infringed on the parents’ fundamental right to rear their children (judgment of 5 June 2000).
[8] Such a system exists in the United Kingdom, see Section 10(2)(b) of the Children Act.
[9] Such a system exists in Sweden, see chapter 6, Section 15 a of the Children and Parents Code.
[10] Such a system exists in Norway, see Section 45 of the Children Act.
[11] If legal proceedings are allowed and an application for a contact order is made, then another question has to be addressed. Should the fact that contact is in the best interests of the child constitute sufficient grounds for the court to order contact, thereby overruling the custodial decision, or should the law require the applicant to demonstrate additional reasons for ordering contact, for instance that a refusal on the part of the court to arrange for contact would mean that psychological harm came to the child?
[12] We have not overlooked the fact that the right to respect for family life may be invoked by children as well as adults. However, the relationship between the best interests of the child and the child’s right to respect for family life could hardly be labelled as a conflict. Instead, the latter right must form part of the assessment of what is deemed to be in the best interests of the child. Thus, for present purposes we will confine ourselves to examining the possible conflict between the best interests of the child and the adult’s right to respect for family life.
[13] Eur. Court HR, judgment of 28 October 1998, case no. 113/1997/897/1109.