The Best Interests Principle and The Evolution of International Human Rights Law

Summary

1. INTRODUCTION

Eekelaar’s work on children’s rights has, among other things, provided one of the keystone analyses of how the best interests principle and the right of children to be heard should interact. Much of this work was written when the UN Convention on the Rights of the Child (CRC) was in its infancy. His influential 1994 article ‘The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determination’ considered how making decisions that accorded with children’s best interests might be reconciled with treating children as rights-holders. He proposed a ‘dynamic self-determinism’ model that envisaged scope for the child him/herself to determine those interests.

Since that work was written, the CRC has become an important international human rights treaty, influencing policy, practice and legal systems around the world. The monitoring body for the Convention – the Committee on the Rights of the Child – has developed a vast body of work elaborating on CRC principles, most notably its General Comments. In this chapter, we revisit Eekelaar’s model in light of modern developments in international human rights law, particularly concerning Articles 3 (best interests), 12 (the right to be heard and to have due weight accorded to views) and 5 (the principle of the evolving capacities of the child) of the UN Convention on the Rights of the Child. We draw, in particular, on developments in three areas – court decisions, child protection and the digital environment and youth justice – to illustrate contemporary issues in light of Eekelaar’s approach.

2. EEKELAAR’S THEORY OF ‘DYNAMIC SELF-DETERMINISM’

The CRC entered into force in 1991; it is the most ratified international human rights law treaty, pointing to the impressive levels of consensus about its core principles. The CRC enshrines an impressive breadth of rights, and four provisions have been identified by the Committee on the Rights of the Child as ‘general principles’ of the Convention, to guide its implementation in all areas.