BEST INTERESTS OF THE CHILD
- The Divorce Act amendment of 1986 elevated the ‘best interest of the child’ from the ‘paramount’ to the ‘only’ relevant consideration in child custody (Gordon v Goertz). The determination of the ‘best interest of the child’, as important as it is, is a difficult one. As per Mclachlin J in Young v Young it is a legal test, albeit a flexible one, and is to be applied according to the evidence of the case, viewed objectively. There is no room for the Judge’s personal predictions and prejudices. Owning to this flexibility and the notions significance in divorce, custody and access proceedings it is recommended that the services of a reputable family, divorce or custody lawyer are obtained in order to best reflect how the parent’s position in the divorce best achieves the ‘interests of the child(ren))
The Convention on the Rights of Children (2013) Comment # 14 (CRC) describes the concept as a three dimensional one; 1) a Substantive right, b) an interpretative legal obligation, c)A procedural rule.
The ‘best interests of the child’ principle as a substantive right holds that the child has a positive right 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 such as custody, 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. By virtue of Article 3, paragraph 1 (CRC) creates an intrinsic obligation for States, is directly applicable (self-executing) and can be invoked before a court.
(b)INTERPRETATIVE LEGAL PRINCIPLE / OBLIGATION:
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.
Child, Youth and Family Services Act 2017, brought into force in April 2018, the following considerations to be made for a ‘child in need of protection’ when determining the best interest of such a Child, or such Children:
S.74(3) of the Child, Youth and Family Services Act 2017 states that:
(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall,
(a) consider the child’s views and wishes, given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained;
(b) in the case of a First Nations, Inuk or Métis child, consider the importance, in recognition of the uniqueness of First Nations, Inuit and Métis cultures, heritages and traditions, of preserving the child’s cultural identity and connection to community, in addition to the considerations under clauses (a) and (c); and
(c) consider any other circumstance of the case that the person considers relevant, including,
(i) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs,
(ii) the child’s physical, mental and emotional level of development,
(iii) the child’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression,
(iv) the child’s cultural and linguistic heritage,
(v) the importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family,
(vi) the child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community,
(vii) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity,
(viii) the merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent,
(ix) the effects on the child of delay in the disposition of the case,
(x) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent, and
(xi) the degree of risk, if any, that justified the finding that the child is in need of protection.
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