The Best Interests of the Child. More than a Right, a Principle, a Rule of Procedure of International Law

The best interests of the child is frequently, and with much justification, perceived as a very broad concept, and, to paraphrase Hilary Clinton, it is a concept in search of a definition. This timely and well-researched monograph on the concept of the best interests of the child, which underlines the rights and well-being of children, offers a valuable comparison between the jurisprudence of two of the three regional human rights systems, as well as the European Union and a range of sources from the United Nations. Lorubbio’s goal is, through the clinical analysis of the dicta on the best interests of the child from all these institutions, to arrive at the core meaning which has emerged. If the essence of international human rights law can be reduced to two words, dignity and equality, then children’s rights can be reduced to six: the best interests of the child. Evidence of this can be seen in the absence of reservations to the best interests principle by any state party to the UN Convention on the Rights of the Child 1989. This is not surprising, because such a reservation would lead to objections by other states parties and by the UN Committee on the Rights of the Child as being contrary to the ‘object and purposes’ of the treaty. The absence of reservations and the widespread global acceptance of the principle of best interests of the child are historically traced back to a wide range of secular and religious laws, which provides conclusive evidence that the best interests of the child has attained the normative status of jus cogens. Hence, it is not open for states to undermine best interests in the present or the future. However, simply concluding that the best interests of the child is jus cogens offers only limited assistance, because, as Lorubbio observes, over time the best interests of the child has led to ‘diametrically opposite conclusions’. There are very few such legal rules, if any, which have been universally adopted but which provide such a range of content. Even within one continent, Europe, there have been different interpretation of best interests by the European Court of Justice of the European Union and the Council of Europe’s European Court of Human Rights. Lorubbio’s approach is through the lens of comparative international law. The focus of this monograph is how international law has been interpreted by both national and international actors. The author’s important goal is to determine whether there are, buried within this range of different approaches, shared facets and premises which can be identified and thus help improve the lives of the globe’s children. This monograph has the advantage of elegant writing. In a witty and fresh approach, which the author describes as ‘towards a (non) definition of the concept’ of best interests, Lorubbio seeks to identify the core content of the definition of this diamond international legal concept. The first facet of the diamond of the child’s best interest, is the child’s right to maintain a relationship with both parents, because, as the author argues, it is the family which, for those children who have families, is the primary environment for the exercise and protection of their rights. According to the best interests of the child, where family unity is in peril, it is the application of the best interests which safeguards these significant relationships. The author also identifies a second facet of the diamond of best interests. There is a shared approach to the fundamental importance to the healthy development of children, that the best interests of the child is universally agreed to include the child’s right to establish, develop and maintain ties with other human beings. This is reflected in the provisions on deprivation of liberty, which, if it occurs at all, is only adopted by the State as a measure of last resort and only for the shortest possible time. States are guarantors to ensure that that such measures are only justified for the child’s reintegration into the community, and in ways which respect the dignity of the child. Another facet of the best interests of children concerns the deportation of children, and Lorubbio argues, with much jurisprudential justification, that deportation should not result in the risk of serious psychological harm or violate what he describes as the ‘fundamental rights’ of the child. This shared approach also brings up the recognition of the right of the child to be heard in proceedings. Interestingly, Lorubbio distinguishes the general right to be heard, enshrined in article 12, and argues that the consensus with regard to best interests is in relation to be heard in more limited proceedings, albeit a wide range of proceedings. The author suggests that there is value in conceptualising the best interests of the child at an international level as ‘the protection of a “common good”’, in the same way that the intergenerational approach for preserving the environment is regarded. In other words, minimising damaging climate change and reductions of biodiversity requires a unified approach, and a fragmented approach would be self-defeating. The same conceptualisation to avoiding fragmented approaches to the best interests of the child is the most effective method for protecting children’s rights. Whether there is consensus by all readers as to the extent of the shared core to the lesser or the greater, it is clear that the evidence and analysis which Lorubbio has brought together in this valuable text will prove of great benefit to national and international fora considering the application of the best interests of the child. His common good approach and his warning about fragmentation should not be ignored.