"The Best Interests" of a Child"
The most serious and discounting contingent factor that "overrides" this list of child-rights,
#3 "the care, protection and safety". Adoption is considered
superior and "permanent" to the foster family placement, but in reality, permanency is not guaranteed to this child but assumed by the court. (Regardless of current stability, adjustment and years of content in the foster placement) Is the unfulfilled promise that child adoption guarantees in a percentage of child adoptions. Where a happy, well adjusted and thriving child living as a member of the foster parent's family. Removing this child from their established foster family situation is guaranteed damaging, regress and produce emotional strife for the foster child being removed and placed with strangers in the new adoption placement that is considered "In the child's best interest".
- The child’s views and aspirations;
- The identity of the child, including age and gender, personal history and background;
- The care, protection and safety of the child;
- The child’s well-being;
- The family environment, family relations and contact;
- Social contacts of the child with peers and adults;
- Situations of vulnerability, i.e. the risks that the child is facing and the sources of protection, resiliency and empowerment;
- The child’s skills and evolving capacities;
- The rights and needs with regard to health and education;
- The development of the child and her or his gradual transition into adulthood and an independent life;
- Any other specific needs of the child.
Procedural safeguards in best interests’ determinations
- The right of the child to express her or his views and to have them taken into account: In a judicial or administrative procedure, children have the right to be heard and to have their views taken into account.
- The process of hearing the child needs to be documented, with a clear description of how the child’s views are balanced against other views and other information sources. The communication with the child has to be effective and child-sensitive and might require quality interpretation and cultural mediation. 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.
- The child has a right to a hearing when the decision making body is a court. The hearing should be held without delay in a child-sensitive way and prevent secondary victimisation of child victims and witnesses in judicial proceedings.
- The child’s age, gender and background, the child’s level of development and evolving capacities should be considered.
- Child-friendly information in a language that the child understands, enabling the child to form an opinion and to express her or his views should be provided.
- In transnational cases, children who do not speak the language of the country of destination have a right to translation and interpretation. Interpretation should be made available free of charge and with a neutral bearing when interpreters are directly involved.
- Guardianship and representation: children have a right to an independent representative or guardian who is competent and equipped to represent and promote the best interests of the child.
- Legal representation: When the best interests of a child are formally decided by a court or other competent body, the child is entitled to legal representation, legal information and defence, including for children applying for asylum or special protection as victims of crime.
- Legal reasoning: Decisions need to be documented, motivated in detail, justified and explained, including how the decision is considered to relate to the best interests of the child and how the underlying considerations have been balanced to arrive at the decision.
- Mechanisms to review or revise decisions: Formal mechanisms have to be in place to reopen or review decisions on the best interests of a child. Children need access to support in accessing and using these mechanisms. It has to be clearly established when a case or decision can be reopened or reviewed, as for instance when there is new evidence or when the authorities have not been able to implement the first decision.
- Right to appeal: Best interests’ determinations are subject to legal remedies. Children need to have access and support, such as legal assistance and representation, to appeal a decision. During the appeal procedure the implementation is suspended. For decisions concerning transfer or return of a child to another county, sufficient time must be available between the decision and the execution of the decision, to enable the child to hand in an appeal or request a review of the decision.
Balancing rights and interests in best interests’ determinations
- The possibility of harm outweighs other factors;
- The child’s right to be brought up by her or his parents is a fundamental principle;
- A child’s best interests can generally best be met with her or his family, except where there are safety concerns;
- The survival and development of the child are generally ensured best by remaining in or maintaining close contacts with the family and the child’s social and cultural networks;
- Matters related to health, education and vulnerability are important factors; and
- Continuity and stability of the child’s situation are important.