The term best interest is a standard for legal decisions concerning children. This notion originated from the concept that children need protection in areas where they lack the maturity to make decisions themselves. It also acts as a check on those who have the authority to ensure that their responsibilities are carried out in the child's interests, states Mitchell Woolf (European Human Rights Law Review 2003, 208). Sometimes this is referred to as "paramount" and at other times as "primary"; however, although they might seem similar, the two adjectives are certainly not the same.
Article 3(1) of the UN Convention on the Rights of the Child (UNCRC) states that "...the best interests of the child shall be of a primary consideration" and article 21 lays down that "...the best interests of the child shall be the paramount consideration". Paramount means of overriding supreme importance while primary implies being first or highest in rank or importance. Thus, it seems that paramount is of much more significance than the term primary. Therefore, when the legislators chose to use the term "paramount" and, at other times, "primary" they wanted to differentiate between the two. They meant that, in certain occasions, the best interests of the child has overriding importance. However, the best interests of the child can be abused because of conflicting interests. Sometimes, parents have other interests that conflict and peril their children's best interests.
Abusive parents certainly do not have their child's best interests at heart and, sometimes, nor do parents undergoing separation proceedings who use children as leverage by withholding parental access, thus ignoring the child's best interests. Therefore, as the European Court of Human Rights noted in Nielsen vs Denmark (1989), the, "rights of the holder of parental authority cannot be unlimited and that it is incumbent on the state to provide safeguards against abuse".
Best interests place an amount of responsibility on adults for decision-making with regard to the welfare of children. However, best interests must not be abusively used simply to over-ride children's decisions if said children have sufficient maturity and understanding to be able to contribute to the decision-making process since children, as per article 12 of the UNCRC, have the right to "...express those views freely in all matters..." and such view "...shall be given due weight in accordance with the age and maturity of the child".
The protection offered by best interests can be reached by ensuring that the children are given adequate information, thus being well equipped to make informed decisions.
In Maltese legislation, the term "best interests" is varied. Sometimes, the term is downgraded to the simple term of "interests". An example of such is in the Children and Young Persons (Care Orders) Act where an interim order is issued if the minister is satisfied that it is in the interests of the child to be taken in care. However, in the same Act, article 9 stipulates that, where a child is under the care of the minister responsible for social welfare, it is the duty of the minister to oversee the child's care and custody and to ensure they are carried out in pursuance of the child's best interests.
Article 11 of the same Act empowers the Children and Young Advisory Board to advise the minister on the best methods in dealing with children committed to or taken into his/her care and to promote their welfare. Therefore, the adjective "best" is used once again.
In the Children and Young Persons (Care Orders) Regulations there is the use of the terms "best interests" and the plain term "interests". Was this done to differentiate between different levels of interests?
In article 10 of the Commissioner for Children Act, one of the general principles is that "the best interests of the child and the family are paramount". Here, the interests of the child should not only be the best but they should also be paramount, therefore, they must be the overriding principle in every decision concerning children.
The Constitutional Court, in Bounab Lanouar noe vs Attorney General et (February 27, 2004), noted that where there is conflict of interest between the right of the parents and the interests of the children, it is the latter that will prevail. This reflects the paramount status given to the notion of best interests.
This approach is also reflected in the case of Magro vs Bonnett decided by the First Hall of the Civil Court (December 11, 2003) where the court ruled that parental interests as regards custodial rights are subservient to the interests of the children.
In another case, Schembri vs Schembri (March 8, 2001), the same court said that in separation proceedings the minors' interests should be supreme.
It seems that the Maltese courts took the just approach that minors' interests are not merely best interests but must be paramount and supreme in all cases and where there are conflicting interests, the minors' best interests should prevail.
Dr Mangion is a lawyer with a special interest in family and child law.