Best Interests of a Child


Best Interests of Children in Separated and Divorced Families

The Best Interests of a Child

Matters involving children from separated or separating parents

The “Best interests of a child” is term used all over the world and is considered to be the paramount consideration in matters involving children.  You may have heard of the principle being referred to as the paramount consideration or primary consideration.

In all actions concerning children (whether it is undertaken by a private or public social welfare institution, administrative body, legislative body, or court of law), the best interests of the child is the paramount consideration for all of the countries that have signed up to the Convention of the Rights of the Child and ratified the convention.  All members nations of the United Nationals have signed the Convention except for one country.

Who does the “best interest principle” apply to?

The principle applies to children.  A child is any human being under the age of 18.  It applies across all race, all religion, all sex, all political or other opinion, all ethnicities no matter how much wealth or property they have.  It is supposed to be universal across all children (at least for all signatory countries, nearly 200 (including Australia, United Kingdom, Afghanistan, Australia, Bangladesh, New Zealand, Canada).  The United States has signed the Convention but has not ratified the convention.  There are only a couple of countries in the world that not introduced into their domestic law.

Separation, Divorce and the application of the Best Interests of the Child

The application of best interests of a child can come up a lot in family and divorce matters where parents have separated or divorced and where they have not been able to reach agreement about what arrangements should be in place for their child or children.

The decision maker (if the matter goes to court) is obliged, under the convention and through the local law that has introduced the convention into their country, to make decisions that are in the best interests of a child. 

Many people, when they separate, can reach agreement that it is important for the child or children to have a relationship with both parents.  That is not always the case and that might be okay in certain situations, however, in most matters, most people can agree that it is in the best interests of a child to have a relationship with both parents. 

The issue becomes more complex when applying this into practice and sorting out the practicality of arrangements and the time that the child or children spend with those parents.  For example, would it be week alternating with the parents or living primarily with one parent and spending time with the other parent.

United Nations Convention of the Rights of the Child.

It can sometimes be helpful to turn to convention in understanding the pointers for what is in the best interests of a child.

Pointers to the Best Interests of a Child

One of those pointers is in Article 7 of the Convention.  Children have a right to know their parents and as far as possible, be cared for them.  That is not always possible and certainly not possible in separated families for the children to always or usually be cared for by both of the parents at the same time for most of the time.

Article 9 talks about children not being separated from their parents unless for their own good.  The intention is that the children would spend time with their parents, even if not living with the parent, unless there is a really good reason that they should not, for example, if there was serious mistreatment or neglect.

And specifically, even where parents are separated or divorced, this right remains.  Children of separated parents still have the right to have contact with the other parent, unless that might cause them harm.

Article 8 also talks about their right to family ties.  That is also incredibly important when making decisions about children.  Not just considering children’s familial ties to their parents but also siblings (eg living with another parent), cousins, aunts, uncles, grandparents and other people that form part of the family.

Children also have the right to think and believe what they want and practice religion as long as they are not stopping other people from enjoying their rights.  

One of the issue that sometimes arises is what religion a child will be following the separation of their parents.  This might not be an issue if the parents were in agreement during the relationship and practiced their religion together, however, sometimes this can become an issue after separation when parents practice other religions or begin practising new religions.  Or it could be that the parents are of the same religion but have decided not to continue at the same church, temple, synagogue or other community that they were a part of when they were together.

Another important facet is their right to have an opinion or view.  There is no requirement that children have to have or express an opinion or a view but they have the right for that to be considered and taken into account.  It is not the view that a child’s view will necessarily be in their best interests.  Depending on their level of understanding and maturity will probably influence the weight that should be given to that view. 

Children also have a right to an education, article 28.  That may be matter if dispute between parents – that is, where they attend school.  It could be a dispute about public school v private school or which public school or which religious school.

Article 30 talks about children having the right to learn and to use the language and customs of their families and that is important when considering arrangements for the children because it may be that one side of the family has a certain type of language and customs and the other side have different language and culture.  Children have the right to access and immerse themselves and learn about their cultures and this is particularly important for indigenous people.  There are some additional protections and principles that are applied, at least within Australia, and in some other countries as well, about principles and rights of indigenous people.

So, these are just some of the things that come up when considering the best interests of a child.  There is no formula where you can plug in the facts and know what arrangements a child should have.  Even within a family, siblings may require arrangements that are different in order to promote their best interests.

 ” Every child is unique, every family matter is different and it is important to consider a range of different factors that all feed into what should be considered when thinking about arrangements for children and what is in their best interests.” – Claire Naidu

Sometimes, it can be difficult to separate what people consider are the ‘parental rights’ from really what are ‘parental responsibilities and children’s rights.”

If you would like to read the convention, it is available on the United Nations Website.  It is called the Convention on the Rights of the Child.  And depending on which country you are from, there are different laws about the applicably of the principle.  There is often quite specific guidance about what are the considerations.  Some could be taking into account their views, taking into account the wishes a child has expressed, their relationships with family members, and culture and other indigenous links.

Note: This blog does not constitute legal advice and Claire Naidu & Co is not responsible for any reliance upon its contents. 

You can contact Claire Naidu & Co who have family mediators, arbitrators, collaborative family lawyers and negotiators. Click here for our contact details.

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