scholarly journals Do Parents Know Best?

2020 ◽  
Vol 28 (3) ◽  
pp. 613-631
Author(s):  
John Eekelaar
Keyword(s):  
Public Expenditure ◽  
Best Interests ◽  
Legal Aid ◽  
Rights Of The Child ◽  
The Law ◽  
Court Involvement ◽  
Best Interests Standard ◽  
Article 5 ◽  
Children's Interests

Abstract While Article 5 of the UN Convention on the Rights of the Child requires states to respect parents’ responsibilities to provide ‘appropriate’ direction and guidance to their children, Article 18 also proclaims that ‘the best interests of the child will be [the parents’] basic concern’. But how can this be done if, as is widely accepted, the “best interests” standard is too indeterminate safely to allow courts to substitute their assessment of children’s interests for those of a child’s parents? This reason for privatising such decisions has been reinforced by concerns over the extent of public expenditure on court involvement in and legal aid for such issues, with the possible result of withdrawal of the law from this process. This article argues that there are inherent risks in leaving the arrangements for children of separating parents entirely in the hands of the parents, and considers various ways in which such risks might be reduced.

“Evolving Capacities” and “Parental Guidance” in The context of Youth Justice

2020 ◽  
Vol 28 (3) ◽  
pp. 500-520
Author(s):  
Ursula Kilkelly
Keyword(s):  
Parental Support ◽  
Criminal Responsibility ◽  
Children's Rights ◽  
Children’S Rights ◽  
Youth Justice ◽  
Rights Of The Child ◽  
Parental Guidance ◽  
The Law ◽  
Role Of Parents ◽  
Article 5

Abstract Article 5 of the United Nations Convention on the Rights of the Child (uncrc) is a pivotal children’s rights provision, which recognises the ‘responsibilities, rights and duties of parents’ to provide ‘appropriate direction and guidance’ to the child in the exercise of his/her rights, in a manner consistent with ‘the evolving capacities of the child’. Underpinning children as holders of rights, Article 5 bridges the gap between children who require parental support to exercise their rights and those who are capable of exercising them on their own behalf. There has been limited consideration of Article 5 to date and even less in specific contexts like juvenile justice. The uncrc has particular relevance to children in conflict with the law where issues of criminal responsibility, capacity and the role of parents are central. This article explores the application of Article 5 by querying the relevance of the principle of “evolving capacities” to children in conflict with the law and to the exercise of children’s rights in the criminal justice system. It considers what role, if any, ‘the responsibilities, rights and duties’ of parents have in such proceedings while addressing, more generally, whether Article 5 adds value to the child’s rights approach to youth justice.

Custody and Access: are children's interests being protected?

1990 ◽  
Vol 15 (4) ◽  
pp. 13-20 ◽  
Author(s):  
J. Neville Turner
Keyword(s):  
Well Being ◽  
Periodical Literature ◽  
Child Abduction ◽  
Rights Of The Child ◽  
Global Issue ◽  
The World ◽  
The Law ◽  
Children's Interests ◽  
Custody And Access ◽  
Accurate Reflection

All who work with broken families know that disputes as to custody and access of children are the most difficult of all cases to resolve and often create great bitterness. Yet the law relating to them is exceedingly simple. It can be expressed in nine words: “The welfare of the child is the paramount consideration.”Despite its apparent simplicity though, the law and practices relating to custody and access are undergoing a great deal of heart-searching. If legal periodical literature of other countries is an accurate reflection of concern, it seems that very radical re-thinking is occurring abroad. Some of this is likely to rub off on this country. For, whether we like it or not, the world is getting smaller and the welfare of children is becoming more and more an international concern. The ratification by Australia of the UN Convention on the Rights of the Child is a timely reminder of this. The incidence of child abduction, kidnapping and inter-country marriages, and of course, inter-country adoption, surely testifies to the fact that we should now be looking at the care and well-being of children as a global issue.

scholarly journals The best interests of the child in international law: conceptual framework

Legal Ukraine ◽  
2020 ◽  
pp. 14-23
Author(s):  
Vasyl Datsenko
Keyword(s):  
International Law ◽  
Fundamental Principle ◽  
Best Interests ◽  
Systematic Analysis ◽  
Rights Of The Child ◽  
Legal Principle ◽  
International Legal Order ◽  
The Law ◽  
The Individual ◽  
The Right

On today’s international law, there is a broad consensus on the idea of ​​those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child «On the right of a child to receive respect for the rest of the world». Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child’s best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.

scholarly journals MENCARI HUKUM YANG BERKEADILAN BAGI ANAK MELALUI DIVERSI

2019 ◽  
Vol 18 (2) ◽  
pp. 175
Author(s):  
Rr. Putri A. Priamsari
Keyword(s):  
New York ◽  
Juvenile Justice ◽  
Restorative Justice ◽  
Social Services ◽  
Child Protection ◽  
Best Interests ◽  
Legal Counsel ◽  
Rights Of The Child ◽  
Judicial Proceedings ◽  
The Law

<p><em>According to UNICEF, no less than 4000 Indonesian children are brought </em><em> </em><em>to court every year with reports of relatively minor crimes such as theft, persecution, spreading hoaxes and others. Where children who are faced with the law generally are not accompanied by legal counsel or social services. Indonesia has had a umbrella </em><em>act </em><em>in protecting children's welfare, namely Law Number 4 of 1979 concerning Child Welfare which was then followed by Law Number 23 of 2002 concerning Child Protection which has now been replaced with Law Number 35 of 2014 concerning Child Protection as implementation of the Convention on the Rights of the Child (Convention on the Rights of the Child, 1989, New York). Taking into account that the handling of child cases dealing with the law must really guarantee the protection of the best interests of the child and must aim at the creation of Restorative Justice, both for Children and Victims of Children and to create Restorative Justice, before resorting to judicial proceedings at the prosecution level General must strive for Diversion. Provisions regarding this diversion are also regulated in Supreme Court Regulation Number 4 of 2014 concerning Diversion. The enactment of the 2014 PERMA is intended so that juvenile justice in Indonesia can be carried out more efficiently, while still considering its welfare.</em></p><p><em> </em><em></em></p>

Huseini v. Ministry of Justice and Public Security

2019 ◽  
Vol 181 ◽  
pp. 419-435
Keyword(s):  
Human Rights ◽  
Migrant Children ◽  
Best Interests ◽  
European Convention ◽  
Detention Centre ◽  
Rights Of The Child ◽  
Societal Needs ◽  
European Court ◽  
Degrading Treatment ◽  
Article 5

Aliens — Asylum seekers — Detention of migrant children — Family detained in detention centre — Conditions in detention centre — European Convention on Human Rights, 1950, Articles 3, 5 and 8 — Jurisprudence of European Court of Human Rights — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Whether detention of migrant children and their parents illegal — Whether Norway violating international obligations and Constitution of Norway — Whether damages appropriateHuman rights — Prohibition of torture and inhuman or degrading treatment or punishment — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Age of children — Length and conditions of detention — Whether violation of Article 3 of European Convention on Human Rights, 1950Human rights — Right to freedom and security — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Whether detention of family measure of last resort with no possible alternative — Whether violation of Article 5(1) of European Convention on Human Rights, 1950Human rights — Right to respect for private and family life — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Whether detention justified — Whether compelling societal needs — Whether proportionate — Whether violation of Article 8 of European Convention on Human Rights, 1950Human rights — Rights of the child — Whether detention of children illegal — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Interpretation of Article 3 — Best interests of the child — Prohibition of torture and inhuman or degrading treatment or punishment — Whether measure strictly necessary — Whether violation of Articles 3 and 37 of Convention on the Rights of the Child, 1989Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950, Articles 3, 5 and 8 — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Constitution of Norway — Jurisprudence of European Court of Human Rights — 2015 report by UN Special Rapporteur on Torture — Whether detention of migrant children and their parents illegal — Whether damages appropriate — The law of Norway

The Lost Children: When the Right to Children Conflicts with the Rights of Children

2014 ◽  
Vol 8 (2) ◽  
pp. 219-270 ◽  
Author(s):  
Pamela Laufer-Ukeles
Keyword(s):  
Civil Rights ◽  
Assisted Reproductive Technologies ◽  
Reproductive Technologies ◽  
Best Interests ◽  
Narrow View ◽  
Failure To Protect ◽  
Best Interests Standard ◽  
The Right ◽  
The Cost ◽  
Children's Interests

Abstract In this essay, I consider the tension between the drive toward the use of assisted reproductive technologies (ART) and the state’s failure to protect interests of children born of ART. I ask the question whether ART should be regulated for the sake of future children’s interests. Taking a narrow view of rights, this essay argues that despite the considerable obstacles posed by Derek Parfit’s non-identity problem and the ambiguity surrounding how to optimize and identify what is “best” for children under the “best interests” standard, there are still basic civil rights of children born of ART that must be ensured in ART regulation. Therefore, regulation of ART for the sake of children is justifiable and necessary but in a limited manner. To demonstrate how conflict can arise between the use of ART and the basic rights of children born of ART I first turn to the example of Israel where the use of ART can affect the resulting child’s personal status, which can affect a person’s ability to marry. This tension is particularly stark in Israel, where procreative support from the state is extreme, and relatively easy fixes could relieve much of the problem. But, the same tension plays out in other nations in which the use of ART leads to the creation of children whose basic needs are not sufficiently addressed. In particular, I discuss the lack of access to health information from gamete donors in the U.S. and the failure to provide citizenship and legal parenthood to children born of international surrogates in a number of other countries. I argue that while procreation is a valid goal it cannot come at the cost of the social and basic civil rights of children. State policy and laws must ensure that children born of ART will be full citizens upon their birth. In sum, regulating ART can be justified for the sake of future children but I suggest that such regulation be drawn narrowly and only to ensure children’s basic civil rights.

JUVENILE JUSTICE SYSTEM THROUGH DIVERSION AND RESTORATIVE JUSTICE POLICY

2017 ◽  
Vol 2 (1) ◽  
pp. 168
Author(s):  
Dyah Listyarini
Keyword(s):  
Restorative Justice ◽  
Juvenile Justice System ◽  
Legal Protection ◽  
Law Enforcement Officers ◽  
Children's Rights ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
The Law ◽  
The Right

Indonesia as a state of law has ratified several international human rights instruments, especially the Convention on the Rights of the Child, in which the state should ensure the protection, respect, fulfillment, promotion, and enforcement of children's rights. In fact, many children have been treated unjustly in the fulfillment of their rights when conflicting with the law.  Methods of legal protection of the rights of children conflicting with the law are based on the provision that “every child has the right to survive, grow and develop as well as the right to protection from violence and discrimination”. Other ways to protect children’s rights may also include the policy that children conflicting with the law should be treated humanely in accordance with their dignity and rights; special personnel should be provided for their companion and counseling; sanctions should be appropriated for the best interests of the children; and special facilities and infrastructure for children should be equally provided. This means that appropriate sanctions should hence be supported through the process of resolving cases using the principle of “diverse and restorative justice  The concept of diverse and restorative justice can be applied to the crime of under 7th-year punishments and non-repeated crime. Methods for handling children who have conflicts with the law have hitherto emphasized on normative juridical processes such as investigation, prosecution, and examination of the case by the judge (in court). The processes, however, have not guidelines or technical manuals for law enforcement officers to implement the non-litigation settlement for children cases

scholarly journals Conceptual framework for the best interests of the child in international law

2020 ◽  
pp. 51-62
Author(s):  
Vasyl DATSENKO
Keyword(s):  
International Law ◽  
Fundamental Principle ◽  
Best Interests ◽  
Systematic Analysis ◽  
Rights Of The Child ◽  
Legal Principle ◽  
International Legal Order ◽  
The Law ◽  
The Individual ◽  
The Right

On today’s international law, there is a broad consensus on the idea of those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child “On the right of a child to receive respect for the rest of the world”. Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child's best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.

scholarly journals Child-Friendly Legal Aid and Individual Assessment of Children in Conflict with the Law: Building the Basis for Effective Participation

2021 ◽  
Vol 19 (1) ◽  
pp. 17
Author(s):  
Agnė Limantė ◽  
Rūta Vaičiūnienė ◽  
Jolanta Apolevič
Keyword(s):  
Public Institutions ◽  
Best Interests ◽  
Legal Aid ◽  
Youth Justice ◽  
Individual Assessment ◽  
Child Friendly ◽  
The Law ◽  
The Right ◽  
Relationship Of

This article focuses on the importance of the right to effective participation of children in conflict with the law in criminal (youth justice) proceedings. In particular, it explores two procedural aspects which are closely related to the right to child-friendly legal aid and the role of individual assessment. The authors claim that qualitatively identifying the needs of the child (through the instrument of individual assessment) and establishing a relationship of trust with a specifically trained legal aid lawyer is critical in raising the child’s status to that of an active participant in the proceedings and ensuring that the best interests of the child are observed. The authors also suggest that such an initial encounter within the justice system forms an attitude (of either confidence or rejection) of the child towards public institutions and, accordingly, directly affects the effectiveness of further interventions. To support their position, the authors of the paper bring several examples from the comparative research carried out in two European projects, noting, regretfully, that the initial interventions often suffer from formal implementation and lack a systemic approach.

scholarly journals PRIORITIZING CHILDREN’S BEST INTERESTS IN CANADIAN YOUTH JUSTICE: ARTICLE 3 OF THE UN CONVENTION ON THE RIGHTS OF THE CHILD AND CHILD-FRIENDLY ALTERNATIVES

2018 ◽  
Vol 34 (2) ◽  
pp. 209-233
Author(s):  
Étienne F Lacombe
Keyword(s):  
Criminal Policy ◽  
Best Interests ◽  
Youth Justice ◽  
Canadian Youth ◽  
Public Sentiment ◽  
Rights Of The Child ◽  
Societal Actors ◽  
The Face ◽  
Child Friendly ◽  
Children's Interests

The UN Convention on the Rights of the Child confers on children a number of rights, not the least of which is the guarantee that their best interests shall be a primary consideration in all actions that concern them. This article applies the Best Interests of the Child [BIC] principle—a widespread concept in family law—to the context of criminal policy. It calls for a rebalancing of Canadian youth justice so as to prioritize children’s best interests. As marginalized societal actors, children are at risk of seeing their interests increasingly overlooked if they are not brought to the fore.      Once a defining feature of Canada’s response to juvenile delinquency, the BIC principle has waned in the face of sweeping penal populism. Examples from Scotland, Scandinavia and Washington reveal means by which child-friendly justice systems can withstand the influence of punitive public sentiment. Mirroring such approaches in Canada would require repurposing the deeply engrained concept of proportionality and viewing children’s interests as inherent to advancing public safety.

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