We start this short study by bringing into light the provisions of article 3 point (1) of the UN Convention on the rights of the child[1] according to which “in all actions concerning children, undertaken by public or private social assistance institutions, courts, administrative authorities or legislative bodies, the interests of the child shall prevail.”
In 2013, the Committee on the Rights of the Child issued its general comment[2] no. 14 on the principle of the best interests of the child (hereinafter referred to as “the comment”).
This general comment clarifies the concepts of higher interest assessment, those related to its determination and makes clarifications regarding the relevant procedures. The commentary also provides guidance on how to understand, interpret and apply this principle[3]. The general commentary presents the principle of the best interests of the child as a three-fold concept:
– a subjective right of the child;
– a fundamental, interpretative legal principle; and,
– a rule of procedure.
As an substantive right of the child, article 3 point (1) is considered self-enforceable, self-executing, directly applicable and can be invoked independently in a court of justice. Every child has the right to evaluate and take into account their interests, to express their opinions, thus substantiating a primary source of consideration.
As a fundamental, interpretive legal principle, the principle of best interests of the child provides guidance for law enforcement – when there is room for interpretation and discretion in the decision-making process, the interpretation that is in the best interests of the child will always be applied.
As a rule of procedure, the principle implies that procedures relating to children, in particular those aimed at assessing and determining the best interests of a child or group of children, must be documented and the child must have all his or her rights[4] respected. This applies to the child personally or to groups of children or issues related to children in general, and involves an assessment of the possible positive or negative impact of a decision on the child.
We consider that the tripartite nature of the principle of the superior interest of the child was legislated at the infraconstitutional level by the Romanian legislator through the provisions of article 2 point (1) of Law no. 272/2004 on the protection and promotion of the rights of the child[5], of which we quote “this law, any other regulations adopted in the field of respect and promotion of the rights of the child, as well as any legal act issued or, as the case may be, concluded in this field shall be subordinated with priority to the principle of the best interests of the child.”
[1] The U.N. Convention on the rights of the child was ratified by Romania by Law no. 18/1990 for the ratification of the Convention on the Rights of the Child (republished as a result of the finding of differences in translation from English into Romanian in the content of the Convention), issuer – Romanian Parliament, published in the Official Gazette of Romania no. 314 of June 13, 2001.
[2] Committee on the Rights of the Child, General Comment No. 14 (2003) on the right of the child to have his or her best interests taken as a primary consideration, CRC /C/GC/14, May 29, 2013, par. 6.
[3] For an additional study it is recommended to access https://rm.coe.int/cj-enf-ise-2021-08b-feasibility-study-best-interests-care-proceedings-/1680a342d3, p.17.
[4] Handbook on European law relating to the rights of the child, available at https://fra.europa.eu/sites/default/files/fra_uploads/fra-ecthr-2015-handbook-european-law-rights-of-the-child_ro.pdf.
[5] Law no. 272/2004 on the protection and promotion of children’s rights, issued by the Romanian Parliament, republished in the Official Gazette of Romania no. 159 of March 5, 2014.
PhD-student Paul-Augustin Puşcaş
