Quick answer
No. Under Article 3(1) of the UN Convention on the Rights of the Child (CRC), 1989, the best interests of the child must be "a primary consideration" in all actions concerning children, not the only consideration. Other lawful interests may also be weighed, but the UN Committee on the Rights of the Child explains that the child's interests have high priority and must carry larger weight. Article 12 adds that a child who can form his or her own views has the right to express them, and those views get due weight according to age and maturity.
The law
- Article 1 CRC: a child is every human being below 18 years, unless majority is attained earlier under the law applicable to the child.
- Article 3(1) CRC: in actions by social welfare institutions, courts, administrative authorities or legislative bodies, the best interests of the child shall be "a primary consideration".
- Article 12 CRC: a child capable of forming views may express them freely in all matters affecting the child. The child must have a chance to be heard in judicial and administrative proceedings, directly or through a representative.
- Article 21 CRC (adoption) is stronger. There the best interests must be "the paramount consideration".
The CRC was adopted by UN General Assembly resolution 44/25 on 20 November 1989 and entered into force on 2 September 1990. India acceded to it on 11 December 1992.
What "a primary consideration" means
General Comment No. 14 (2013) of the UN Committee on the Rights of the Child describes best interests as a threefold concept:
- A substantive right: the child's interests must be assessed and given primary weight whenever a decision affects the child.
- An interpretative principle: if a legal provision has more than one meaning, choose the meaning that best serves the child.
- A rule of procedure: the decision-making process must assess the impact on the child, and the reasons must show how the child's interests were weighed.
Where a child's interests conflict with the rights of others, decision-makers balance them case by case, but the child's interests are not "just one of several considerations".
| Standard | Where it applies | Effect |
|---|---|---|
| "A primary consideration" | All actions concerning children (Article 3(1)) | High priority and larger weight, but other interests may still be weighed |
| "The paramount consideration" | Adoption (Article 21) | The child's best interests decide the matter |
Example
Armaan, a 14-year-old orphaned student, is claimed by both his aunt Renu and his uncle Farhan. The authority deciding where he lives must look at his safety, schooling, emotional ties and well-being, not only at which adult has the stronger claim. Armaan is old enough to have a view, so he must be heard, and his preference gets weight suited to his age and maturity. He is a rights holder, not property to be divided between adults.
The position in Indian law
Indian child law reflects the same idea. Under the Juvenile Justice (Care and Protection of Children) Act, 2015, a "child" is a person who has not completed 18 years (Section 2(12)). "Best interest of child" is defined in Section 2(9) as the basis for any decision taken about the child. Section 3 makes participation (the child's right to be heard) and best interest (a primary consideration in all decisions) general principles. For the wider treaty framework, see Human Rights Law: Complete Notes.
Exam point
Article 3(1) CRC: the best interests of the child are "a primary consideration", not the sole one. In adoption (Article 21) they are "the paramount consideration". Article 12 gives the child a right to be heard.
Sources and further reading
- Convention on the Rights of the Child, 1989 (official text), OHCHR
- Status of the Convention on the Rights of the Child, UN Treaty Collection
- Committee on the Rights of the Child, General Comment No. 14 (2013), CRC/C/GC/14, OHCHR
- Juvenile Justice (Care and Protection of Children) Act, 2015 (full text), Indian Kanoon
