Prioritising the Child's Best Interests: Mixed Messages in the International Human Rights Arena

Abstract

European jurisdictions accept a role in protecting children by supporting families generally, usually providing additional, voluntary assistance to those in difficulty. Controversy arises, however, over the criteria applied under domestic law to justify mandatory state intervention in the family to protect children. One way to assess the legitimacy of mandatory state interventions is to test it against human rights norms. In Europe, these norms are articulated primarily in the European Convention on Human Rights, as interpreted by the European Court of Human Rights, and the United Nations Convention on the Rights of the Child, as amplified by the United Nations Committee on the Rights of the Child. A difficulty arises, however, if the norms themselves – or the way they have been interpreted and amplified – are inconsistent, since states may be left unclear about what is required of them and it may be impossible for them to comply with all of the norms simultaneously. This chapter examines the priority accorded to the child’s best interests in the child protection context when weighed against the rights and interests of others, particularly the child’s parents. It evaluates whether states are being sent mixed messages and, if so, how that might be addressed.