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Best interests determination

The best interests determination procedure aims at ensuring that decisions concerning the child promote the child’s holistic development and the full and effective enjoyment of all rights recognised under the Convention.

The best interests determination consists of a comprehensive case assessment and a decision-making process, as well as a process of impact evaluation, periodic review and adjustment. As a formal procedure, the best interests determination is protected by procedural safeguards, whether undertaken by social services, child protection services, guardianship authorities, immigration and asylum authorities or courts of law.

The case assessment, also referred to as best interests assessment, aims at gathering and verifying data and information on the child’s situation. The Committee on the Rights of the Child lists the criteria that need to be taken into account for the assessment:
-       the child’s views;
-       the child’s identity, including age and gender, personal history and background;
-       preservation of the family environment, maintaining relations;
-       the care, protection and safety of the child;
-       the child’s wellbeing;
-       a situation of vulnerability;
-       the child’s evolving capacities and development;
-       the child’s right to health;
-       the child’s right to education.[1]  

The Committee on the Rights of the Child provides guidance on how to balance these criteria and elements when making decisions on the best interests of the child. Decision-makers may have to assign weight to different rights, needs and legitimate interests identified during the case assessment, particularly when different rights and interests of the child, legitimate interests of the parents and third parties are in conflict. Preserving the family environment, for instance, may conflict with the need to protect the child from the risk of parental neglect or violence. In such situations, the criteria and elements will have to be weighed against each other to find a solution that is in the child’s best interests. To facilitate this balancing of rights and legitimate interests, the following guidance is available:
-       the possibility of harm outweighs other factors;
-      the child’s right to be brought up by the parents and to maintain family contact is a fundamental principle; -       matters related to health, education and vulnerability need to be assigned weight;
-       continuity and stability of the child’s situation are important.[2]  

The Committee on the Rights of the Child underlines that best interests assessments and decisions should be conducted by a multi-disciplinary team of well-trained professionals.[3]

The guardian has to assess the child’s best interests whenever decisions affecting the child are taken. These might include, for instance, decisions about the child’s accommodation, safety, education, healthcare, leisure activities and legal representation. The guardian shall hold public authorities accountable for any decisions affecting the child, intervene when the welfare of the child is in danger and challenge, within the limits of their authority, any decision that is deemed to be contrary to and/or does not promote the child’s best interests.

The guardian must participate in best interests determinations to make sure that the rights and the best interests of the child are a primary consideration in all decision-making processes and that the right of the child to be heard is respected, in accordance with Article 12 of the UNCRC.

See also: Level 1: Child rights principles Level 5: Mandate and tasks of the guardian

Reference:

EU training and learning platform for guardians of unaccompanied children
Chapter 1: Session 1.1. The human rights of the child  
Chapter 1: Session 1.2.Understanding vulnerability
Chapter 3: Supporting the child from arrival to durable solution
Handout 20: Best interests determination procedure
Handout 25: Child-sensitive procedural safeguards

Literature:

European Asylum Support Office (2019), EASO Practical Guide on the best interests of the child in asylum procedures, EASO Practical Guide Series, 2019.

FRA (European Union Agency for Fundamental Rights) (2014), Guardianship for children deprived of parental care, A handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking, Luxembourg, Publications Office of the European Union (Publications Office), pp. 72-74, 92-94.

Council of the Baltic Sea States (2015), Guidelines on the Human Rights and Best Interests of the Child in Transnational Situations, Council of the Baltic Sea States Children’s Unit and Expert Group for Cooperation on Children at Risk, Stockholm, 2015.

UN Committee on the Rights of the Child (2005), General Comment No. 6, Treatment of unaccompanied and separated children outside their country of origin, CRC/GC/2005/6, 1 September 2005.

UN Committee on the Rights of the Child (2013), General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (art.3, para. 1), CRC/C/GC/14, 2013.

UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), Joint General Comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families; General Comment No. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration, CMW/C/GC/3-CRC/C/GC/22, 16 November 2017.

United Nations High Commissioner for Refugees (UNHCR) (2021), 2021 UNHCR best interests procedure guidelines: assessing and determining the best interests of the child. United Nations High Commissioner for Refugees (UNHCR) (2008), UNHCR Guidelines on determining the best interests of the child.




[1] United Nations (UN), Committee on the Rights of the Child (2013), General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art.3, para. 1), CRC/C/GC/14, 2013, Chapter V.A.1 and para. 44. 

[2] United Nations (UN), Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art.3, para. 1), CRC/C/GC/14, 2013. United Nations High Commissioner for Refugees, United Nations Children’s Fund, Safe and Sound, What States can do to ensure respect for the best interests of unaccompanied and separated children in Europe, 2014. 

[3] United Nations (UN), Committee on the Rights of the Child (2013), General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art.3, para. 1), CRC/C/GC/14, 2013, para. 64. 

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