Human Rights Brief No. 1

Human Rights Brief No. 1

The Best Interests of the Child

The principle of 'the best interests of the child' is set out in the United Nations Convention on the Rights of the Child (CRC).

The CRC was adopted in 1989 and ratified by Australia in December 1990. It makes the best interests of the child at least 'a primary consideration', and sometimes paramount, in actions and decisions concerning children. The principle of the best interests of the child is one of the fundamental principles of the CRC underpinning the interpretation of all children's rights and freedoms.

The CRC defines 'children' as everyone under 18 years.

This Brief provides information on:

The sources of the principle of ‘the best interests of the child’

Generally the best interests of the child are a primary consideration in all actions concerning children.

A primary consideration - article 3.1
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.

In particular cases best interests may be the paramount consideration.

Child protection and custody - article 9.1
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence

Continuing contact with one or both parents - article 9.3
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

Adoption - article 21
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration.

Parental decision-making - article 18.1
States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

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Which actions are affected?

Article 3.1 applies widely to all actions concerning children. It is not confined to actions and decisions concerning the rights and freedoms set out in the CRC.

An action 'concerns' children not only when it is directly about them, or in reference or relation to them, but also when it regards or touches them. Even if the child is not the object of the decision, the principle applies if the decision affects her or him.

'A broad reading of the provisions in Art. 3, one which gives to the word "concerning" a wide-ranging application, is more likely to achieve the objects of the convention', according to Mason CJ and Deane J in Ah Hin Teoh. The decision at issue in that case concerned a father's deportation. The High Court held the authorities ought to have taken into account the effects on the children of their father's deportation.

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Whose actions are covered?

Article 3.1 covers decision-making by all three arms of government: legislative, administrative and judicial. It also governs decisions by public social welfare institutions. Government decision-making relating to custody, residence, contact, care and protection must make children's best interests the paramount consideration. In other decision-making the best interests of the child, or of children generally, must be a primary consideration.

Private social welfare organisations are also required to take the best interests of children into account (article 3.1).

Parents' decision-making in the course of the upbringing and development of their children must make the children's best interests the basic concern as set out in article 18.1.

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What are the child's best interests?

The CRC does not explicitly define a child's best interests. The term is 'imprecise, but no more so than the "welfare of the child" and many other concepts with which the courts must grapple', said the High Court majority in Marion's Case.

Even so, some points are very clear from the CRC.

  1. In the case of actions and decisions affecting an individual child, it is the best interests of that individual child which must be taken into account.
  2. It is in a child's best interests to enjoy the rights and freedoms set out in the CRC. For example, it is in children's best interests to develop respect for human rights and for other cultures (article 29.1(b) and (c)). It is in a child's best interests to maintain contact with both parents in most circumstances (article 9.3).
  3. It is in the best interests of Indigenous children to be raised in the Indigenous community (articles 5, 8.2 and 30).
  4. A child capable of forming a view on his or her best interests must be able to give it freely and it must be taken into account (article 12).
  5. Parents have primary decision-making responsibility on behalf of their children (articles 5 and 18.1) but, if they fail to make the child's best interests a basic concern, the State may intervene to protect those interests (see article 9.1 for example).

In Australia an example of a decision taken out of parents' hands altogether is whether to have a child with a disability sterilised. In Marion's Case the High Court stipulated that sterilisation is a 'step of last resort'.

In the case of a young woman, 'regard will be had to the various measures now available for menstrual management and the prevention of pregnancy'. '[I]f authorisation is given, it will not be on account of the convenience of sterilisation as a contraceptive measure, but because it is necessary to enable her to lead a life in keeping with her needs and capacities.'

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Are other considerations permitted?

Other considerations are clearly permitted by the general principle.

Article 3.1 provides for a child's interests to be among the first considerations rather than requiring them to be the first considered or favoured. There are circumstances in which the community or other parties might have equal or even superior interests so that a child's interests may not prevail.

By providing that the best interests of the child are 'a primary consideration' rather than the primary or the paramount consideration, article 3.1 allows decision-makers to balance the best interests of the child against 'equally weighty' primary considerations of their own choosing, such as religious or economic considerations.

But this discretion is restricted. The Committee on the Rights of the Child has often advised governments that they should ensure spending decisions are made with due regard for the best interests of children, particularly those from vulnerable groups.

As summarised by Mason CJ and Deane J in Ah Hin Teoh, '[A] decision-maker with an eye to the principle enshrined in the CRC would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it'.

Where the CRC makes the child's best interests the paramount consideration it would be very rare that any other could justify setting aside those interests.

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Best interests in Australian law

The CRC establishes minimum standards. Where Australian domestic law sets a higher standard it must not be diluted (article 41). If, for example, the best interests of the child are the paramount consideration when the CRC only requires primary consideration, the higher standard must be retained.

The CRC is not directly implemented in Australia; it is not part of Australian law.

But the CRC is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This gives the Commission power to investigate complaints that the CRC rights have been violated by or on behalf of the Commonwealth or a Commonwealth agency but only in the exercise of a discretion or in abuse of power.

Where legislation requires the right of the child to be set aside, the Commission can only advise the Parliament that the legislation should be amended.
Human rights complaints which cannot be resolved by conciliation do not proceed to a hearing and determination but may, after appropriate inquiry, be made the subject of a report to the Attorney-General for tabling in Parliament. The Commission has no authority over the courts.

The High Court has imposed an obligation to consider human rights in cases of discretionary administrative decision-making. In Ah Hin Teoh the majority held that, although the CRC has not been implemented in Australian law, its ratification by Australia had given rise to a legitimate expectation that decision-makers would take its provisions into account. Where legislation permits a discretion, that discretion should be exercised in conformity with Australia's international treaty obligations.

It is also now accepted 'that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law' and that 'an international convention may play a part in the development by the courts of the common law' (Mason CJ and Deane J in Ah Hin Teoh).

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Practitioner checklist

  1. Concerning a child?
    Does the action or decision complained of affect a child or children (eg denial of Parenting Payment)?
  1. Whose actions?
    a. If a child is affected, list the relevant actions and decisions and, for each, identify the decision-maker.

    b. Is the decision-maker covered by the CRC (eg Centrelink, police, education department, department of families, community services and indigenous affairs?)

  2. Best interests considered?
    a. If the decision-maker is covered by the CRC, did it take the child's best interests into account?
    b. How were best interests defined? Were the child's views taken into account (if the child is capable of forming a view)? Were the parents' views taken into account?
    c. Were the child's best interests made a primary consideration or the paramount consideration as relevant?
    d. If you are unable to judge, consider how you might find out.

  1. Challenging the decision
    a. Raise your concerns with the decision-maker or on review or appeal (eg at the Social Security Appeals Tribunal or in a bail application).
    b. If the decision breaches the child's rights, explore possible remedies. If the decision-maker is subject to the Commission's jurisdiction (discretionary decisions of federal agencies such as Centrelink or the department of families, community services and indigenous affairs), consider submitting a complaint (complaints infoline 1300 656 419).
  1. Specialist advice
    For assistance, contact a specialist youth advocacy or legal centre or your local legal aid office.

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Select bibliography

P Alston & G Brennan (eds), The United Nations Children's Convention and Australia, 1991, HREOC/ANU/ACOSS

P Alston, S Parker & J Seymour (eds), Children, Rights and the Law, 1992, Oxford Uni. Press

A Asche, 'The Best Interests Principle in Article 3(1) of the UN Convention on the Rights of the Child' in 1994 Congress Papers, First World Congress on Family Law and Children's Rights, Sydney

M Freeman, 'The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of the Children?, (1997) 11 International Journal of Law, Policy and the Family 360

J Harvey, U Dolgopol & S Castell-McGregor (eds), Implementing the United Nations Convention on the Rights of the Child in Australia, 1993, South Australian Children's Interest Bureau

Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child, 17th Report, 1998, Commonwealth of Australia
S Parker, 'The Best Interests of the Child - Principles and Problems', (1994) 8 International Journal of Law, Policy and the Family 26

D Sandor, 'How High - How Far? The Best Interests Principle in Family Law', (1998) No 19 Australian Children's Rights News

G van Bueren, The International Law on the Rights of the Child, 1995, Martinus Nijhoff Publishers

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Cases

Ah Hin Teoh: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273

In the matter of B and B: Family Law Reform Act (1997) FLC 92-755

Marion's Case: Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

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Websites

 

Disclaimer: This document provides general information only on the subject matter covered. The Human Rights and Equal Opportunity Commission does not assume a duty of care with respect to this information. It is not intended, nor should it be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice. The information contained in this document may be amended from time to time. Copyright: Copyright in this document is owned by the Human Rights and Equal Opportunity Commission, 1999. The contents may be reproduced freely with acknowledgement. Date of last amendment: March 1999. Contributing authors: Merryl Lees, Meredith Wilkie. ISSN Number: 1442-0813