The analysis of the legislation showed that the best interest principle is worded in various ways. Nine of the 14 countries used the term ‘best interest’ in the text, whereas England and Ireland used the wording ‘the welfare of the child’. Similarly, Austria and Switzerland refer to ‘the child’s well-being’ in a literal sense, and Finland uses the term ‘the interest of the child’. Each country has chosen different strategies for approaching the principle, with eight of the 14 countries providing rather broad descriptions of the material content on how the principle is to be understood.
Overall, eight main material considerations are represented in the legislation analysed, as well as one category for the weight of the principle and procedural aspects. Table 4.4 presents an overview of the findings and shows how some themes are present in almost all legislation, whereas others are only of concern for a few countries.
5.1 Child’s Participation
Twelve of the 14 countries (the exceptions are Germany and Switzerland) require the child’s view, opinion, wishes, feelings or meanings to be considered (cf. Table 4.4). The formulation in Australian law is illustrative:
(1) For the care and protection chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that are relevant to the child or young person:
… (b) any views or wishes expressed by the child or young person. (#1.b)
The instructions in the legislation vary in both strength and content. Only Australia, Finland and Norway do not mention any caveats in relation to hearing the child’s opinion. The others point out that the weight of the child’s opinion depends on the child’s age, understanding, abilities, maturity and/or competency. For example, ‘5. the consideration of the child’s opinion in accordance with his/her understanding and ability to form an opinion’ (Austria, #5). Only US
legislation mentions age (12 years) as a presumption of competency. Denmark, Estonia and Spain have a broader approach to children’s participation, including their resources and emotions, as in the Spanish legislation:
b) Consideration of the desires, feelings and opinions of the child, as well as their right to progressively participate, according to their age, development and personal development, in the process of determining their best interests. (#2.b)
The law in Estonia stipulates that ‘If the best interests of a child differ from the child’s opinion or if a decision which does not coincide with the child’s opinion is made on other grounds, the reasons for not taking the child’s opinion into account must be explained to the child’ (#2.3).
5.2 The Child’s Needs
Ten of the 14 countries include some wording regarding the needs of the child, whereas the legislation in Estonia, Ireland, Norway and Switzerland does not explicitly mention needs. The child’s need is a contested concept. Although most of the considerations around best interest are directly or indirectly about the needs and care of the child in the wider sense, here we focus on direct mention of particular needs in relation to the child, such as physical, emotional, intellectual and educational needs. Thus, we do not include statements that focus on aspects such as the need for parental care or protection from harm, or any other consideration that is included in the other seven categories that we identified in the material.
Although the legislation from Australia, Austria, Canada, Denmark, England, Finland, Spain and the USA varies in its characterizations of needs, most of the countries cite both emotional and basic physical needs. Finland serves as an example of the latter, with an extensive description of needs on both general and specific levels:
(1) Child welfare must promote the favourable development and well-being of the child. … 1) balanced development and well-being, and close and continuing human relationships; 2) the opportunity to be given understanding and affection, as well as supervision and care that accord with the child’s age and level of development … (#1, 2.1, 2.2)
The USA and Denmark emphasize both care and affection as well as the impact of upbringing on the child’s adult life: ‘The health and safety of the child shall be of paramount concern, and shall include the long-term well-being of the child’ (USA #1, para. 3).
Nine of the countries (Australia, Austria, Canada, Denmark England, Germany, Norway, Spain and the USA) cite factors related to the importance of permanency and stability of emotional and/or physical living conditions and the upbringing of the child. Permanence is essential for structure, strength and consistency to support children’s development (Skivenes and Thoburn 2017), and in the US legislation it is formulated as follows: ‘The department’s considerations of appropriate services and placement decisions shall be made in a timely manner in order to facilitate permanency planning for the child’ (#1, para. 5).
Several of the countries have a focus on stability in relation to the birth family or a change to an established living arrangement. Australia, Denmark, Spain and the USA are all in this category: ‘(d) the likely effect on the child or young person of changes to the child’s or young person’s circumstances, including separation from a parent or anyone else with whom the child has been living’ (Australia #1.d). Canada, England and Norway have chosen a neutral formulation of stability, here illustrated by Norway: ‘When applying the provisions of this chapter, decisive importance shall be attached to finding measures which are in the child’s best interests. This includes attaching importance to giving the child stable and good contact with adults and continuity in the care provided’ (4-1, para. 1).
Nine of the 14 countries include consideration of the child’s safety or risk factors, and the five countries that do not explicitly mention this are Denmark, Estonia, Ireland, Norway and Switzerland. The focus is on two types of risk: (a) the potential harm unnecessary removal or intervention may have on the child, and/or (b) the risks of abuse, neglect or harm to the child if he or she remains in a potentially dangerous situation. The Austrian, Canadian and Swedish legislation includes both dimensions: ‘In the assessment of what is best for the child, particular focus must be placed on—the risk of the child or other family member being subjected to abuse or the child being illegally removed or retained or otherwise treated badly’ (Sweden #2.a).
The legislation can reference protection broadly or be more detailed (but yet far-reaching), like the English legislation, which includes both past and present risks, in that ‘(e) any harm which he (the child) has suffered or is at risk of suffering’ (#3.e). The legislation from Australia, Austria, Spain and the USA lists both physical and psychological (or emotional or spiritual) harm or abuse. Harm or violence against another family member is mentioned in the legislation from Australia, Austria, Canada and Sweden. The Austrian legislation highlights the negative impact a decision made against the child’s wishes may have: ‘6. the prevention of an adverse effect on the child due to the taking of action against his or her will’ (#6).
5.5 The Child’s Relationships
The legislation in eight of the 14 countries includes various forms of consideration of the child’s relationship with a caregiver or other significant others. The legislation in England, Estonia, Finland, Ireland, Switzerland and the USA does not refer to this consideration. This code does not include text that relates to the parent’s or caregiver’s care of the ‘child’s needs’ intended to conserve ‘permanency/stability’ for the child. Amongst the eight countries that mention the child’s relationships, most emphasize both the relationship to the caregivers or parents and the child’s relationship with other family members. This is illustrated by the Canadian legislation, which expresses that the decision-maker shall take into consideration ‘6. 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’ (#3.6). The legislation also emphasizes the child’s place in the family and the importance of a positive relationship with a parent for development. Only the Swedish legislation in this sample defines the relationship with the natural parents: ‘the child’s need for close and good contact with both parents’ (#2.a).
5.6 The Child’s Identity
Considerations that focus on the child’s individuality in terms of cultural inheritance or other aspects important to the child’s identity are mentioned in six of the 14 countries: Australia, Austria, Canada, England, Finland and Spain. The legislation that requires that the child’s identity, individuality or culture be considered varies in the comprehensiveness and details of the wording/text. The Austrian, Canadian, English and Finnish legislation are brief, for example: ‘7) the need to take account of the child’s linguistic, cultural and religious background’ (Finland #2.7). By contrast, the Australian and Spanish legislation elaborates: ‘d) Preservation of the identity, culture, religion, convictions, sexual orientation and identity of the minor, as well as non-discrimination against same for these reasons or any other conditions, including disability, guaranteeing the harmonious development of their personality’ (Spain #2.d).
The Australian legislation has a specific focus on Aboriginal or Torres Strait Islander children or young people, stating that it is a high priority to protect and promote the child’s cultural and spiritual identity. ‘[M]aintaining and building the child’s or the young person’s connections to the family, community and culture’ (#1.g) are also emphasized.
5.7 Parents’ Perspective
Four countries mention the parents’ or caregivers’ capacity to care for the child, or their opinion about the child—that is, the legislation from Australia, Austria, England and Ireland. English law illustrates this, referring to ‘(f) how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs’ (#1.f). The focus is on parents’ abilities to meet the child’s needs (Australia and England), their acceptance of the child (Austria) and the ‘rights and duties of parents’ (Ireland).
Three countries—Denmark, Finland and Spain—include considerations of the child’s future life or adulthood, as the legislation from Spain illustrates: ‘e) Preparation for transition to adulthood and independence, in accordance with their personal capacities and circumstances’ (#3.e).
5.9 Weight and Procedures
Although the interpretation of the best interest principle varies considerably, all 14 countries specify how factors should be ranked or the best interest principle weighted against other principles or mention a timeline. The role of the principle in relation to other principles and rights is foregrounded by eight countries—England, Estonia, Finland, Ireland, Norway, Sweden and Switzerland—and they include terms such as the best interest being paramount, a primary consideration or a priority. For example, ‘the child’s welfare shall be the court’s paramount consideration’ (England #1.b). Although many countries include specific material factors to be considered, as we have shown above, seven countries—Australia, Canada, Denmark, Estonia, Germany, Spain and the USA—have an unspecified caveat that ‘any other fact or circumstance’ (Australia #2) considered relevant should be included in the decision-making process. Four countries—Australia, Canada, England and Finland—mention the importance of making the decision without delay, for example, in the English act ‘any delay in determining the question is likely to prejudice the welfare of the child’ (#2).
5.10 Summary Findings
In sum, the findings show that there are different understandings between the 14 countries of the principle of the child’s best interest, as well as differences in delegation by the government to the professional decision-maker of authority to exercise discretion. All countries have some reference to weighting, timelines and/or procedural requirements. Regarding the material content of the principle, we identify clear distinctions between the legislative interpretations of the child’s best interest principle. It is clear that depending on the specific country, these considerations represent zero to seven material themes that professionals are instructed to consider. Ten of the 14 countries have four or more material themes reflected in the child’s best interest principle, whereas the other four have zero to three material themes to consider. The principle’s foundation as a right for children is evidently a right that is open to interpretation and degrees of implementation by the ratifying states.