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


The term kid has been defined by assorted governments and outstanding characters of the universe in different ways. The international Convention on the Rights of Child has elaborated the term ‘child’ is as follows.

‘‘For the intents of the present Convention, a kid means every human being below the age of 18 old ages unless under the jurisprudence applicable to the kid, bulk is attained earlier” .[ 1 ]

The philosophy of the best involvements of kid

When we talk about kid and rights of kid, we have to give our attending to the philosophy of the best involvements of kid due to the strong connexion between them. “The philosophy of best involvement of kid is a construct which is used by many legal powers to do a assortment of determinations that affect kids. This philosophy is really utile when it comes to find the issues which relates to the wellbeing of the child.” [ 2 ] Most of these issues relevant to the jobs which arise upon the divorce or the separation of the parents of the kids. For illustrations, arrangement and detention of kids after the divorce or the separation, security and permanence planning, to whom and by whom the kid support will paid and the sum of it and proceedings for discontinuance of parental rights can be mentioned. Whenever a tribunal makes a determination sing these sort of issues, it must be considered whether its determination will be in the “best interests” of the kid.

Although the philosophy of best involvements of kid can non be given a definite significance, the term usually refers to the deliberation that the legal power undertake when make up one’s minding the types of actions and orders which serve the best for the kid every bit good as who is most suitable to take attention of the kid. When it comes to “the best interests” , those are by and large determined by sing a figure of factors which related to fortunes of kid and the parent. In this procedure the paramount will be given to the safety and the wellbeing of the kid.

Consequence of international conventions and pacts

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 consequence to the convention on the rights of the Child within the state. This can be defined as the major turning point in legislative and administrative procedure of the rights of the kids in Sri Lanka. Though the Children’s Charter is non a legal papers which can be enforced in a tribunal, the importance of it as a policy papers steering province policy in concern to the rights of kids can non be underestimated. The Convention on the Rights of the Child is fundamentally concerned with the engagement rights, protection rights and proviso rights of kids. In article 3 of the convention, it says that “in all actions refering kids, whether undertaken by public or private societal public assistance establishments, tribunals of jurisprudence, administrative governments or legislative organic structures, the best involvements of the kid shall be a primary consideration” [ 3 ] . It article 12, it has mentioned that “States Parties shall guarantee to the kid who is capable of organizing his or her ain positions the right to show those positions freely in all affairs impacting the kid, the positions of the kid being given due weight in conformity with the age and adulthood of the kid. For this intent, the kid shall in peculiar be provided the chance to be heard in any judicial and administrative proceedings impacting the kid, either straight, or through a representative or an appropriate organic structure, in a mode consistent with the procedural regulations of national law.” [ 4 ] Harmonizing to the article 157 of the 1978 fundamental law of Sri Lanka, punctually ratified international pacts and understandings have the force of jurisprudence in Sri Lanka and no written jurisprudence enacted or made, and no executive or administrative action will be taken that is in dispute of the international understanding. Harmonizing to that article, the philosophy of the best involvements of the kid will be secured and considered as primary in all facets of Sri Lanka. Legal power is besides falls under that and whenever the tribunals of Sri Lanka have to do a judgement or a determination sing a kid, the Judgess have to lodge to the philosophy of the best involvement of the kid.

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Contribution of Sri Lankan tribunals

With the confirmation of the international convention on the rights of the kid, tribunals of Sri Lanka besides got bound to procure the best involvements of the kid when doing orders and judgements. But this was nil new to the tribunals of Sri Lanka because they were the innovators in the development of jurisprudence on kid rights in Sri Lanka from early old ages. Their part was monolithic specially that was happened in a clip that there was no legislative intercession in puting regulations and rules which associating to tutelary and guardianship affairs in Sri Lanka. During that period tribunals of Sri Lanka applied the non-statutory Roman Dutch jurisprudence and developed the construct of “welfare of the child” in judicial proceeding sing the affairs we find under the best involvements of the kid and determined instances associating to them such as detention differences. In Roman Dutch jurisprudence there is a rule that the male parent has a discriminatory right to hold a detention of a kid who is in minor age when the matrimony is bing and tribunals applied this in instances where the fortunes point out that the best involvements of the kid should be secured. For case, in Ivaldy vs. Ivaldy ( 1956 ) [ 5 ] the Supreme Court held, that, under the Roman-Dutch Law, where there has been no legal disintegration of the common place, the male parent ‘s right to the detention of his minor kids remains unaffected by the fact of the separation of the partners, and can merely be interfered with on particular evidences, such, for illustration, as danger to the life, wellness or ethical motives of the kids.

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The tribunals sometimes displaced this parental right of detention of the kid when it was proved with facts that allowing detention to a peculiar parent was damaging to the ‘life, wellness and ethical motives of the child’ and in finding entree rights. In Blanche Anley v. Herbert Bois ( 1945 ) [ 6 ] instance the Supreme Court held that, “the fact that the applier was the guilty party in the divorce instance is non, per Se, a good ground for declining the application for entree to the kids. The paramount consideration is the involvements of the children.” These instance Torahs prove that the tribunals of Sri Lanka have applied the father’s discriminatory right to hold detention of kids in the context of the construct of the best involvements of the kid.

But whenever that giving discriminatory right to the male parent of the kid in detention affairs does non look in the involvements of the kid, the tribunals have disregarded that right of the male parent and hold given the detention of the minor kid to the female parent. In Weragoda v. Weragoda ( 1961 ) [ 7 ] the distinct to present the detention of the kid to his female parent due to bad past behavior of the male parent. Supreme Court held that, in a instance like the present one, “ the Court will make up one’s mind who is to hold the detention of the kid after taking into history all the factors impacting the instance and after giving due consequence to all givens and counter-presumptions that may use, but bearing in head the paramount consideration that the kid ‘s public assistance is the affair that the Court is at that place to safeguard. The rights of the male parent will predominate if they are non displaced by considerations associating to the public assistance of the kid, for a suppliant who seeks to displace those rights must do out his or her instance ” . A similar position was expressed in Padma Fernando v. T. S. Fernando instance ( 1956 ) [ 8 ] . Subair v. Isthikar ( 1974 ) [ 9 ] was a similar instance when sing the incident and the facts but it was rather particular because that matrimony has had happened under Muslim jurisprudence. The tribunal resolved this instance by sing the positions of governments in Islamic Law and applied the construct of best involvements of the kid.

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Sometimes detention of the kid was awarded to a 3rd party on the land of the best involvements of the kid. In Re Evelyn v. Warnakulasuriya ( 1955 ) [ 10 ] , the detention of the kid was given to a 3rd party with the consent of the kid and against the wants of the female parent of the kid. Courts have sometimes adopted unreal statements to avoid really rough regulations in the Islamic jurisprudence, for case, in Ummul Marzoona v. Samad ( 1977 ) [ 11 ] which was hard for them to order a Muslim male parent to pay care for his kid who had reached the age of pubescence. As a consequence of these judicial developments, the tribunals have accepted the philosophy of the best involvements of the kid in practical facet excessively.

1978 fundamental law and the chapter on cardinal rights

The construct of the best involvement lays the manner for the acknowledgment of other rights of the kid excessively. The chapter on Fundamental Rights in the present fundamental law in Sri Lanka recognizes the kid as a individual who enjoys rights like any other individual. This chapter has been really helpful in advancing the rights of kids in tribunal actions and in allowing the justness when children’s cardinal rights have been violated. In Bandara v. Wickramasinghe ( 1995 ) [ 12 ] the Supreme Court held that, inordinate usage of power may go apt for violation of cardinal rights by Executive or Administrative action. There are cardinal rights instances which filled by kids against anguish, inhuman and degrading intervention which given out to them by jurisprudence enforcement governments. Samanthilaka v. peiris ( 1990 ) , Wijesiriwardene v. Kumara ( 1989 ) [ 13 ] are two instances which can be mentioned as the best illustrations for that class. There are instances brought against school governments for misdemeanor of the right of equality. This is largely happened in the instance of school admittance for class one and six. Most of those instances get settled out of tribunals when school governments agree to acknowledge the kid to the school.

In the present, kid maltreatment has become a immense job. The same state of affairs has arisen in Sri Lankan society excessively. In the purpose of forestalling kid maltreatment and supplying protection and intervention of kids who are victims of such maltreatment and to coordinate and proctor actions against all signifiers of kid maltreatment, the National Child Protection Authority was established in 1999 under the National Child Protection Act [ 14 ] . This act broadened the significance of ‘child abuse’ by declaring that kid maltreatment means any act or skip associating to a kid which would amount to a dispute of specific commissariats in the penel codification, The Authority is made up of local monitoring and kid protection commissions.