Children have specific problems of general application to all societies, varying only in magnitude and character. This fact is lent credence by international legal instruments such as the Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1990). These instruments have set the standards for national legislation in the area of children’s rights. Realizing the rights of adults depend to a large extent on realizing the rights of children. Indeed a commentator has written that ‘the way a society treats children reflects not only its qualities of compassion and protective caring but also its sense of justice, its urge to enhance the human condition for coming generations. In its 54 articles, the Convention on the Rights of the Child provides for matters of child survival, protection and development. In so far as child survival is concerned, it lays out in detail the fundamental rights and freedoms of the child such as the right to life, equality, name, nationality, conscience, expression, religion, non-discrimination and the principle of concern for the best interests of the child in public decision-making.
The United Nations Convention on the Rights of the Child (UNCRC) is an international human rights treaty, which grants all children and young people aged 17 and under a comprehensive set of rights. These include the right to: special protection measures and assistance; access to services such as education and health care; develop their personality, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and be informed about and participate in achieving their rights in an accessible and active manner.
Article 3 of the UN Convention on the Rights of the Child requires that the best interests of the child be a primary consideration in all actions concerning him/her. Article 12 gives all children the right to freely express their views in all matters affecting them, and due weight must be given to these views in accordance with the child’s age and maturity. Within child protection, this part of the treaty is reflected in the Children Act 1989 (as amended by the Children Act 2004), which places a duty on local authorities to ascertain a child’s wishes and feelings and give them due consideration when making decisions during the child protection process. Local authorities should also act in accordance with the European Convention on Human Rights with regards to adapting decision-making procedures to make effective participation possible for children.
Article 12 of the UNCRC, provides that, before making any decision with respect to a child whom the local authority are looking after or proposing to look after, the authority must, so far as reasonably practicable, ascertain the wishes and feelings of the child. Section 22(5) provides that, in making any decision in relation to the child, it should give due consideration to those wishes and feelings, having regard to the child’s age and understanding.
Children should feel that they are active participants and engaged in the process when adults are trying to solve problems and make decisions about them. When plans are being made for the child’s future, s/he is likely to feel less fearful if s/he understands what is happening and has been listened to from the beginning. Close involvement will make it more likely that s/he feels some ownership of what is happening and it may help him/her understand the purpose of services or other support being provided to him/her, his/her family and carer. Where a child has difficulty in expressing his/her wishes and feelings about any decisions being made about him/her, consideration must be given to securing the support of an advocate.
In accordance with the law, the decisions made about a child should be based on the best interests of the child. Custody is used to mean “personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child’s age and maturity.” In some jurisdictions, the term ‘guardianship’ is used to describe the fundamental legal relationship between an adult and a child. In most situations, the parents or primary carers of the child will be the child’s guardians. The guardian has the responsibility to make day-to-day decisions about the child and to supervise the child’s activities.
Child custody or guardianship is the term used by most legal systems to describe the bundle of rights and responsibilities that parents have regarding their biological or adopted children under the age, usually, of eighteen. Custody includes the right to have the child live with the parents and to make decisions about the health, welfare, and lifestyle of the child. Issues about custody arise in three distinct contexts: when government deems it necessary to interfere with parental custody in an intact family; when parents live separately and a decision about custody must be made between them; and when third parties seek custody in preference to parents.
Child custody, access, parenting and contact law and services are guided by the basic principle that all decisions must be made in the best interests of the child. This is also the standard adopted in the United Nations Convention on the Rights of the Child. All statutes governing custody, access, parenting and contact incorporate this principle by providing that the overriding consideration in making decisions is the child’s best interests. The governing principle in determining custody is “the child’s needs and wishes and the respect of his rights.” In addition to taking into consideration the moral, intellectual, emotional and material needs of the child, the child’s age, health, personality and family environment, and other aspects of his situation are also taken into account.
There are further practical reasons for ascertaining a child’s wishes and feelings during the care planning, placement and review process: many children have an understanding of what is causing their problems and what underlies their needs; they may have insight into what might or might not work in the context of their current circumstances and environment; they often know what sort of support they would most value and be able to access; and engaging children helps to recognize their difficulties, develop their strengths and promote their resilience.
The law generally provides that all decisions and actions must be in the best interests of the child. Protection of the relationship between a parent and child is recognized as a high priority and intervention should be limited to what is necessary for the safety and wellbeing of the child. The best interests of the child are, however, always to be treated as paramount. This means that in deciding whether a decision or action is in the best interests of the child, the need to protect the child from harm and to promote their rights and development (taking into account age and stage of development) must always be considered.
The law allows the court to order that an assessment be conducted of the children’s wishes, the children’s needs, and the ability of a person to meet those needs. Needs of the child assessments are helpful to the court and can be very useful when the parties are trying something other than court, like mediation, collaborative settlement processes, or arbitration. The purpose of this is to assist the court in determining the issues of what is in the best interests of the children. A “views of the child” report describes the child’s preferences about his or her custody, guardianship or adoption and living circumstances.
For example, in the landmark case of J v C [1970] AC 668, this House held that this was equally applicable to disputes between parents and non-parents. In an oft-quoted passage, at pp 710-711, Lord McDermott explained the meaning of the words “shall regard the welfare of the infant as the first and paramount consideration” thus:
“. . . it seems to me that they must mean more than that the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.”
Lord McDermott added that “In applying the law, the rights and wishes of parents, whether unimpeachable or otherwise, must be assessed and weighed in their bearing on the welfare of the child in conjunction with all other factors relevant to that issue. While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over other considerations, such rights and wishes, recognized as they are by nature and society, can be in contravention to the total welfare of the child.”
Best interests of the child means the sum total of the factors to be considered, evaluated, and determined by the court: the love, affection, and other emotional ties existing between the parties involved and the child; the capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any; the capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs; the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity; the moral fitness of the parties involved; and most important, the reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
In the matter of Ayla Mayanja (An infant) In the matter of an Application for guardianship and custody and maintenance by Griet Onsea (mother of infant) – High Court Misc.Appl. No. 20 of 2003 – 7/11/2003, High Court of Uganda held that it was in the best interest of the infant for its father (Joseph Mayanja) to keep custody and maintenance of the infant given the fact that its mother (Griet Onsea) had been convicted of a felony drug possession. Court held that such circumstances were not suitable for the proper upbringing of the infant.
Abuse and neglect situations are the most important areas in which government interferes with parental custody. Most jurisdictions authorize an agency to remove children from the custody of their parents if parents fail to meet minimal societal norms of parenting. The law authorizes intervention if and when the child is physically or sexually abused or because the parent fails to provide necessary care, food, clothing, medical care, or shelter so that the health of the child is endangered (Clark 1988).
Given the importance of a custody determination to a child, several issues arise as to the role of the child in such a proceeding. Most jurisdictions view the child’s needs and wishes as relevant to a custody decision (Scott, Reppucci, and Aber 1988). The weight to be given to the child’s wishes usually depends on the child’s age and maturity of judgment. The court must consider in determining a child’s best interests as any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes.
When making the allocation of the parental rights and responsibilities for the care of the children in an original proceeding or in any proceeding for modification of a prior order of the court making the allocation, the court shall take into account that which would be in the best interest of the children. In determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child and for purposes of resolving any issues related to the making of that allocation, the court, in its discretion, may and, upon the request of either party, shall interview in chambers any or all of the involved children regarding their wishes and concerns with respect to the allocation.
In Re K (A Minor) (Ward: Care and Control) [1990] 1 WLR 431, 434; Butler-Sloss LJ in Re H (A Minor) (Custody: Interim Care and Control) [1991] 2 FLR 109, 111. In Re K, however, Waite J pointed out, it was ruled that, “…..it is not a case of parental right opposed to the interests of the child, with an assumption that parental right prevails unless there are strong reasons in terms of the interests of the child. It is the same test which is being applied, the welfare of the child. Irrespective of other considerations, it is the best interest of the child that is of paramount importance.”
If the court determines that the child has sufficient reasoning ability to express the child’s wishes or concerns with respect to the allocation, it then shall determine whether, because of special circumstances, it would not be in the best interest of the child to determine the child’s wishes and concerns with respect to the allocation. If the court determines that, because of special circumstances, it would not be in the best interest of the child to determine the child’s wishes and concerns with respect to the allocation, it shall not determine the child’s wishes and concerns with respect to the allocation and shall enter its written findings of fact and opinion in the journal. If the court determines that it would be in the best interests of the child to determine the child’s wishes and concerns with respect to the allocation, it shall proceed to make that determination.
The court first shall determine the reasoning ability of the child. If the court determines that the child does not have sufficient reasoning ability to express the child’s wishes and concern with respect to the allocation of parental rights and responsibilities for the care of the child, it shall not determine the child’s wishes and concerns with respect to the allocation. No person shall obtain or attempt to obtain from a child a written or recorded statement or affidavit setting forth the child’s wishes and concerns regarding the allocation of parental rights and responsibilities concerning the child. No court, in determining the child’s best interest for purposes of making its allocation of the parental rights and responsibilities for the care of the child or for purposes of resolving any issues related to the making of that allocation, shall accept or consider a written or recorded statement or affidavit that purports to set forth the child’s wishes and concerns regarding those matters.
A judge has discretion to determine whether the best interests of a child would be served by the child expressing a preference. Assuming the child’s best interests would be served, the court must then consider whether the child is expressing an “intelligent preference.” There is a presumption in favor of the choice of a child of age 12 or older. If the court does not abide by the “intelligent preference” of a child of sufficient age, the court must set forth findings of fact supporting the court’s decision.
References;
Clark, H. H., Jr. (1988). The law of domestic relations in the United States, 2nd edition. St. Paul, MN: West Publishing.
Scott, E. S.; Reppucci, N. D.; and Aber, M. (1988). “Children’s preference in adjudicated custody decisions.” Georgia Law Review 22:1035–1050.
Martemson, in Preface to Derrick Sharon The UN Convention on the Rights of the child (1992), P. X.
United Nations (1989) The Convention on the Rights of the Child (UNCRC), Article 3 http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
United Nations (1989) The Convention on the Rights of the Child (UNCRC), Article 12 http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
Section 47(5A) Children Act 1989 (amended by Section 53 Children Act 2004)
Willow, C (2013) Independent Advocacy in Child Protection. Guidance for Policy Makers, National Children’s Bureau, p6