The development of the concept ‘best interests of the child’

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Introduction The term child has been defined by various authorities and prominent characters of the world in different ways. The international Convention on the Rights of Child has elaborated the term ‘child’ is as follows. ‘‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”.[1] The doctrine of the best interests of child When we talk about child and rights of child, we have to give our attention to the doctrine of the best interests of child due to the strong connection between them. “The doctrine of best interest of child is a concept which is used by many jurisdictions to make a variety of decisions that affect children. This doctrine is very useful when it comes to determine the issues which relates to the well-being of the child.”[2] Most of these issues relevant to the problems which arise upon the divorce or the separation of the parents of the children. For examples, placement and custody of children after the divorce or the separation, security and permanency planning, to whom and by whom the child support will paid and the amount of it and proceedings for discontinuation of parental rights can be mentioned. Whenever a court makes a decision regarding these kind of issues, it must be considered whether its decision will be in the “best interests” of the child. Although the doctrine of best interests of child cannot be given a definite meaning, the term normally refers to the deliberation that the jurisdiction undertake when deciding the types of actions and orders which serve the best for the child as well as who is most suited to take care of the child. When it comes to “the best interests”, those are generally determined by considering a number of factors which related to circumstances of child and the parent. In this process the paramount will be given to the safety and the well-being of the child. Effect of international conventions and treaties On July 1991, Sri Lanka ratified the international Convention on the Rights of the Child and adopted a Children’s Charter in 1992 to give effect to the convention on the rights of the Child within the country. This can be defined as the major turning point in legislative and administrative process of the rights of the children in Sri Lanka. Though the Children’s Charter is not a legal document which can be enforced in a court, the importance of it as a policy document guiding state policy in concern to the rights of children cannot be underestimated. The Convention on the Rights of the Child is basically concerned with the participation rights, protection rights and provision rights of children. In article 3 of the convention, it says that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”[3]. It article 12, it has mentioned that “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”[4] According to the article 157 of the 1978 constitution of Sri Lanka, duly ratified international treaties and agreements have the force of law in Sri Lanka and no written law enacted or made, and no executive or administrative action will be taken that is in contravention of the international agreement. According to that article, the doctrine of the best interests of the child will be secured and considered as primary in all aspects of Sri Lanka. Jurisdiction is also falls under that and whenever the courts of Sri Lanka have to make a judgment or a decision regarding a child, the judges have to stick to the doctrine of the best interest of the child. Contribution of Sri Lankan courts With the ratification of the international convention on the rights of the child, courts of Sri Lanka also got bound to secure the best interests of the child when making orders and judgments. But this was nothing new to the courts of Sri Lanka because they were the pioneers in the development of law on child rights in Sri Lanka from early years. Their contribution was massive specially that was happened in a time that there was no legislative intervention in setting rules and principles which relating to custodial and guardianship matters in Sri Lanka. During that period courts of Sri Lanka applied the non-statutory Roman Dutch law and developed the concept of “welfare of the child” in litigation regarding the matters we find under the best interests of the child and determined cases relating to them such as custody disputes. In Roman Dutch law there is a principle that the father has a preferential right to have a custody of a child who is in minor age when the marriage is existing and courts applied this in cases where the circumstances point out that the best interests of the child should be secured. For instance, in Ivaldy vs. Ivaldy (1956)[5] the Supreme Court held, that, under the Roman-Dutch Law, where there has been no legal dissolution of the common home, the father's right to the custody of his minor children remains unaffected by the fact of the separation of the spouses, and can only be interfered with on special grounds, such, for example, as danger to the life, health or morals of the children. The courts sometimes displaced this parental right of custody of the child when it was proved with facts that granting custody to a particular parent was prejudicial to the ‘life, health and morals of the child’ and in determining access rights. In Blanche Anley v. Herbert Bois (1945)[6] case the Supreme Court held that, “the fact that the applicant was the guilty party in the divorce case is not, per se, a good reason for refusing the application for access to the children. The paramount consideration is the interests of the children.” These case laws prove that the courts of Sri Lanka have applied the father’s preferential right to have custody of children in the context of the concept of the best interests of the child. But whenever that giving preferential right to the father of the child in custody matters does not seem in the interests of the child, the courts have disregarded that right of the father and have given the custody of the minor child to the mother. In Weragoda v. Weragoda (1961)[7] the decided to award the custody of the child to his mother due to bad past conduct of the father. Supreme Court held that, in a case like the present one, " the Court will decide who is to have the custody of the child after taking into account all the factors affecting the case and after giving due effect to all presumptions and counter-presumptions that may apply, but bearing in mind the paramount consideration that the child's welfare is the matter that the Court is there to safeguard. The rights of the father will prevail if they are not displaced by considerations relating to the welfare of the child, for a petitioner who seeks to displace those rights must make out his or her case". A similar view was expressed in Padma Fernando v. T. S. Fernando case (1956)[8]. Subair v. Isthikar (1974)[9] was a similar case when considering the incident and the facts but it was quite special because that marriage has had happened under Muslim law. The court resolved this case by considering the views of authorities in Islamic Law and applied the concept of best interests of the child. Sometimes custody of the child was awarded to a third party on the ground of the best interests of the child. In Re Evelyn v. Warnakulasuriya (1955)[10], the custody of the child was given to a third party with the consent of the child and against the wishes of the mother of the child. Courts have sometimes adopted artificial arguments to avoid very harsh rules in the Islamic law, for instance, in Ummul Marzoona v. Samad (1977)[11] which was difficult for them to order a Muslim father to pay maintenance for his child who had reached the age of puberty. As a result of these judicial developments, the courts have accepted the doctrine of the best interests of the child in practical aspect too. 1978 constitution and the chapter on fundamental rights The concept of the best interest lays the way for the recognition of other rights of the child too. The chapter on Fundamental Rights in the present constitution in Sri Lanka recognizes the child as a person who enjoys rights like any other person. This chapter has been very helpful in promoting the rights of children in court actions and in granting the justice when children’s fundamental rights have been violated. In Bandara v. Wickramasinghe (1995)[12] the Supreme Court held that, excessive use of power may become liable for infringement of fundamental rights by Executive or Administrative action. There are fundamental rights cases which filled by children against torture, inhuman and degrading treatment which given out to them by law enforcement authorities. Samanthilaka v. peiris (1990), Wijesiriwardene v. Kumara (1989)[13] are two cases which can be mentioned as the best examples for that category. There are cases brought against school authorities for violation of the right of equality. This is mostly happened in the case of school admission for grade one and six. Most of those cases get settled out of courts when school authorities agree to admit the child to the school. In the present, child abuse has become a huge problem. The same situation has arisen in Sri Lankan society too. In the aim of preventing child abuse and providing protection and treatment of children who are victims of such abuse and to co-ordinate and monitor actions against all forms of child abuse, the National Child Protection Authority was established in 1999 under the National Child Protection Act[14]. This act broadened the meaning of ‘child abuse’ by declaring that child abuse means any act or omission relating to a child which would amount to a contravention of specific provisions in the penel code, The Authority is made up of local monitoring and child protection committees.
[1] Article 1, Convention on the Rights of the Child [2] http://en.wikipedia.org/wiki/Best_interests [3] http://www.ohchr.org/en/professionalinterest/pages/crc.aspx [4] http://www.ohchr.org/en/professionalinterest/pages/crc.aspx [5] (1956) 57 N.L.R. 568 [6] 46 N.L.R. 464 [7] 66 N.L.R. 83 [8] 58 N.L.R. 262 [9] 77 N.L.R. 397 [10] 56 N.L.R. 525 [11] 79 (1) N.L.R. 209 [12] (1995) 2 Sri L.R. 167 [13] (1989) 2 Sri L.R. 312 [14] National Child Protection Act, No 50 of 1998
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