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United Nations

CRC/C/GC/14

Convention on the
Rights of the Child

Distr.: General
29 May 2013

Original: English


Committee on the Rights of the Children

General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1) *

Contents

I. Introduction 1-9 3
A. The best interests of the child: a right, a principle and a rule of procedure 1-7 3
B. Structure 8-9 4
II. Objectives 10-12 4
III. Nature and scope of the obligations of States parties 13-16 5
IV. Legal analysis and links with the general principles of the Convention 17-45 7
A. Literal analysis of article 3, paragraph 1 17-40 7
1. “In all actions concerning children” 17-24 7
2. “By public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies” 25-31 8
3. “The best interests of the child” 32-35 9
4. “Shall be a primary consideration” 36-40 10

1. The child’s best interests and the right to non-discrimination (art. 2) 41 11
2. The child’s best interests and the right to life, survival and development (art. 6) 42 11
3. The child’s best interests and the right to be heard (art. 12) 43-45 11
V. Implementation: assessing and determining the child’s best interests 46-47 12
A. Best interests assessment and determination 48-84 12
1. Elements to be taken into account when assessing the child’s
best interests 52-79 13
2. Balancing the elements in the best-interests assessment 80-84 17
B. Procedural safeguards to guarantee implementation of the
child’s best interests 85-99 18
VI. Dissemination 100-101 20

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.
Convention on the Rights of the Child (art. 3, para. 1)
I. Introduction
A. The best interests of the child: a right, a principle and a rule of procedure

(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.
(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation.
(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees. Furthermore, the justification of a decision must show that the right has been explicitly taken into account. In this regard, States parties shall explain how the right has been respected in the decision, that is, what has been considered to be in the child’s best interests; what criteria it is based on; and how the child’s interests have been weighed against other considerations, be they broad issues of policy or individual cases.

B. Structure

II. Objectives

(a) The elaboration of all implementation measures taken by governments;
(b) Individual decisions made by judicial or administrative authorities or public entities through their agents that concern one or more identified children;
(c) Decisions made by civil society entities and the private sector, including profit and non-profit organizations, which provide services concerning or impacting on children;
(d) Guidelines for actions undertaken by persons working with and for children, including parents and caregivers.

(a) The obligation to ensure that the child's best interests are appropriately integrated and consistently applied in every action taken by a public institution, especially in all implementation measures, administrative and judicial proceedings which directly or indirectly impact on children;
(b) The obligation to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child's best interests have been a primary consideration. This includes describing how the best interests have been examined and assessed, and what weight has been ascribed to them in the decision.
(c) The obligation to ensure that the interests of the child have been assessed and taken as a primary consideration in decisions and actions taken by the private sector, including those providing services, or any other private entity or institution making decisions that concern or impact on a child.

(d) Upholding the child’s best interests in the allocation of national resources for programmes and measures aimed at implementing children’s rights, and in activities receiving international assistance or development aid;

(a) The universal, indivisible, interdependent and interrelated nature of children’s rights;
(b) Recognition of children as right holders;
(c) The global nature and reach of the Convention;
(d) The obligation of States parties to respect, protect and fulfill all the rights in the Convention;
(e) Short-, medium- and long-term effects of actions related to the development of the child over time.

Thus, in relation to measures that are not directly aimed at the child or children, the term “concerning” would need to be clarified in the light of the circumstances of each case in order to be able to appreciate the impact of the action on the child or children.

(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.

* Adopted by the Committee at its sixty-second session (14 January – 1 February 2013).

2 The Committee’s general comment No. 5 (2003) on the general measures of implementation of the Convention on the Rights of the Child, para. 12; and No. 12 (2009) on the right of the child to be heard, para. 2.

3 The Committee expects States to interpret development as a “holistic concept, embracing the childīs physical, mental, spiritual, moral, psychological and social development” (general comment No. 5, para. 12).

4 General comment No. 13 (2011) on the right to protection from all forms of violence, para. 61.

5 General comment No.11 (2009) on indigenous children and their rights under the Convention, para. 30.

6 General comment No. 10 (2007) on children’s rights in juvenile justice, para. 10.

7 General comment No. 5 (2003) on general measures of implementation of the Convention on the Rights of the Child, para. 45.

8 General comment No. 12, paras. 70-74.

9 Ibid., para. 84.

10 See Convention on the Rights of Persons with Disabilities, art. 2: "Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure […] the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

11 General Assembly resolution 64/142, annex.

12 Convention on the Rights of Persons with Disabilities, art. 23, para. 4.

13 These include No. 28 on the Civil Aspects of International Child Abduction, 1980; No. 33 on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993; No. 23 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, 1973; No. 24 on the Law Applicable to Maintenance Obligations, 1973.

14 See recommendations of the Day of general discussion on children of incarcerated parents (2011).

15 General comment No. 13 (2011) on the right of the child to freedom from all forms of violence.

16 General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), para. 31.

17 General comment No. 4 (2003) on adolescent health and development in the context of the Convention on the Rights of the Child.

18 General comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, paras. 78-81.

19 States may draw guidance from the Report of the Special Rapporteur on the right to food on Guiding principles on human rights impact assessments of trade and investment agreements (A/HRC/19/59/Add.5).