The “Best Interests” of the Child Principle: Looking Beyond the Aspirations of Universal Embrace


Whilst the child population of the People’s Republic of China has been declining in recent years,[1] it still has the largest population of children in the world.[2]  The size of the child population, combined with factors such as its vast, varying geography and its economic development, means that children’s lives vary enormously within China.  Thinking about how the law should regulate decisions affecting children’s lives within a Chinese context highlights the difficulties of being able to generalise even for a single jurisdiction, let alone globally.  Yet, that is ostensibly what the United Nations’ Convention on the Rights of the Child, the CRC, purports to do.

But what does this mean?  Imagine a common situation:

A married couple have young children, say a two-year-old boy and a five-year-old girl.  The wife had worked prior to the first child but, after the birth of the first child, she stayed home to raise them.  The husband has a good job, but he works long hours to provide financially for the family.  For this reason, he does not have much of a relationship with the children, but it is clear that he loves them.  Their marriage breaks down and they divorce. 

Does the universality of the CRC mean that the answer as to how the children should be raised now needs to be the same in every country?  If so, what is the right answer?  Or do local considerations matter?  And, if so, how?  What if the absence of a strong welfare state means that the financial means of the household raising the children are critical to those children’s life opportunities?  Does this suggest that the father alone should raise the children?  If we focus on the emotional bond the children have developed with their mother, are we punishing the father for showing his love and commitment to the children through paid work?  What if, when he was working those long hours, he viewed it as a short-term sacrifice of time with his children in order to be able to provide them a better future, when he would be able to spend more time with them?

Whilst simply dividing the children’s time evenly between both parents might appear to do what is in the children’s “best interests”, might this be more about parents’ rights than children’s “best interests”?  Of course, there will be many cases where parents will be able to decide themselves to divide their children’s time between their two homes but those cases in which the law, via a court order, has to step in, are the very cases in which such division is least likely to be successful.  Hong Kong is in the midst of considering this issue again, with proposals to move from the language of ‘custody’ to ‘parental responsibility’ and from ‘residence’ and ‘contact’ to ‘child arrangements orders’ as in England and Wales.  But much of the potential for the success of such reform will turn on the availability of state services to support non-intact families in working together.  What if a court knows that state resources are inadequate for this purpose in any particular jurisdiction?  Can that serve as an argument against such an order?  Or should they make it anyway because of the children’s (or parent’s) entitlements?

The ‘best interests’ of the child is now a universal principle globally applicable to the treatment of children, whether as a result of a particular state’s domestic law or international legal obligations.  All countries except the United States have ratified the United Nations’ Convention on the Rights of the Child, hence owe obligations under it.  Numerous countries have further entrenched their obligations by incorporation and even constitutionalisation.  This relationship to international law is often further complicated by earlier or independent (non-incorporating) use of the ‘best interests’ principle directly in domestic law, as in the English ‘welfare principle’.  Yet, the principle is also commonly subject to significant criticism such as that it is ‘indeterminate’ and has too narrow a focus.

Outline for the Lecture

In this lecture, I will draw on recent court decisions to examine the value of the ‘best interests’ principle in practice beyond the aspiration expressed by its adoption.  Whilst the ‘best interests’ principle has been universally embraced, to what extent can it offer a universal understanding of what is ‘best’ for children?  Should individual countries contextualise universal concerns or should there be truly local approaches to ‘best interests’?  Does it matter whether any particular country’s obligations under the ‘best interests’ principle are grounded in international law, domestic law, or both?  This issue turns at least in part on how courts in any particular jurisdiction understand the relationship between ‘best interests’ and children’s rights.  In individual cases, how can and should we determine by which criteria to determine the ‘best’ outcome for any child involved in a legal dispute?  In particular, how do children’s ‘best interests’ relate to parents’ interests?  What is the appropriate role for well-being indicators?  Could or even must a court be free to determine that it is ‘best’ for a child to cry in a BMW car, rather than laugh on the back of a bicycle?

Whilst the following discussion asks general questions, I necessarily cannot draw on the full range of jurisdictions in my discussion.  I include examples from English, Canadian, and European law to demonstrate contrasting perspectives on similar issues in different jurisdictions.  In the discussion that will follow my presentation, I look forward to audience members sharing their perspectives on the Chinese approach, as well as how the Chinese approach compares to that in other jurisdictions.

[1] The China Internet Information Center reports that the 2000 census found that there were 290 million children under 14 years old (22.89 percent of the population), which was 4.8 percent less than in 1990.  See China Internet Information Center, ‘China Has 290 Million Children’, online: <> (18 March 2016).  Evidencing a further decline, Naftali reports that the Sixth National Census in 2010 found that there were 279 million children under the age of 18 years (21 percent of the population).  See Orna Naftali, Children in China (Polity Press, 2016) 1.

[2] Naftali, ibid.


A copy of the powerpoint presentation is available here.

Elusive or Illusive? Fairness, the Family, and Family Law

Presentation to the International Academy of Matrimonial Lawyers’ 2015 annual conference.  (Full paper forthcoming):

The Commission on European Family Law grounds its 2013 Principles Regarding Property Relations[1] most fundamentally in equality,[2] expressed in terms of ‘equal rights and duties’.[3]  In terms of the underlying normative basis of the principles, Boele-Woelki, the Chair of the CEFL’s Organising Committee reasons:

In addition to equality between the spouses, the principles of sharing and fairness, solidarity, flexibility, legal certainty, protection of the weaker spouse, and the promotion of party autonomy are likewise of fundamental importance in this area of the law.[4]

Whilst recognising that the principles relate to matrimonial property, rather than also maintenance, pension sharing, and so forth, it is nevertheless noteworthy that Boele-Woelki positions ‘fairness’ as no more foundational than the other principles and sitting alongside concerns such as legal certainty.  But is this right?  Perhaps more critically as lawyers, (why) does it matter whether this posited hierarchy is correct or not?  Should we concern ourselves whether ‘equality’ or ‘fairness’ is the singular fundamental principle?

Answers to such questions turn on a better understanding of the concept of ‘fairness’ itself.  Yet, are any answers readily to be found?  The CEFL notes the need for ‘fairness’, amongst other aims, in relation to both of its proposed default regimes, participation in acquisitions and community of acquisitions.[5]  No definition of ‘fairness’ is provided.  In 1989, the Council of Europe placed economic independence at the core of the financial consequences of relationship breakdown.  The first way in which this was to be achieved was by using matrimonial property regimes to ‘grant[.] to a former spouse the right to obtain a fair share in the property of the other’.[6]  This itself is question-begging as ‘fairness’ is here proposed as a means to upholding respect for autonomy.  Is it ‘fair’ to impose autonomy on weaker spouse, particularly at the cost of another, who is also more commonly in straightened rather than prosperous circumstances?

There is a sense in which both the CEFL and the Council of Europe treat the concept of ‘fairness’ as self-explanatory.  In struggling to either refute or substantiate such proposals for the place and purpose of ‘fairness’, however, we may well ask if it has any conceptual core.  What does the reference to ‘fairness’ achieve or seek to achieve in this context?  Doubts over its usefulness might be heightened by noting that a number of IAML fellows’ responses to the circulated conference questionnaire indicated that their understanding of ‘fairness’ in practice differed from the law as expressed in their jurisdictions.[7]


Argument and Outline

In what follows, I examine from a comparative perspective the strategies adopted in various jurisdictions to embody ‘fairness’.

I begin by discussing strategies systems make about how to incorporate ‘fairness’ – whether to crystallise in legislation or judicial pronouncement; and what evidence, if ‘fairness’ is not explicitly incorporated, we may draw to suggest ‘fairness’ may nevertheless have been incorporated.  I discuss how ‘fairness’ relates to default matrimonial property regimes and how that compares to its place in the common law (non-)regime.

I disagree with the recent trend of drawing on outcomes alone to argue that the “pillarised”[8] civil law approach is not so dissimilar from the “holistic”[9], discretionary, and fact-based common law approach.  Central to this argument is the suggestion that ‘fairness’ is intimately connected to understanding ‘family law’ in an attitudinal sense, rather than in the conventional sense of the substantive legal domain covered.  I argue that a ‘family law’ attitude means treating the relationship under consideration as special.  Specialness necessitates that the relationship itself or aspects thereof ground a response that would be unavailable in the general law.  The uniqueness of the response may relate to the process of reasoning or the outcome reached, whether in terms of the outcome having a unique normative basis or being a substantive outcome otherwise unavailable.  This attitudinal understanding of ‘family law’ has consequences for which relationships should be viewed through the lens of ‘fairness’.

After discussing four facets of ‘fairness’ – rhetoric, process, outcomes, and institutional ‘fairness’ – I proceed to examine how we might evaluate the ‘fairness’ of individual systems.  This entails brief consideration of three values which inform ‘fairness’ – equality, autonomy, and vulnerability.  I conclude that responding to vulnerability via provision for ‘needs’ represents a baseline for the content of ‘fairness’, though I raise doubts about the implication that all jurisdictions that theoretically allow provision for ‘needs’, no matter how limited, should be seen as adopting a ‘fair’ approach.

I conclude by highlighting that the search for ‘fairness’ is fundamentally concerned with how we conceptualise disputes, such that there may be a ‘right’ cluster of values to guide decision-making, but no ‘right’ answer, no single better weighting of those values in practice.  Jurisdictional context is critical, and entails fit with underlying social, cultural, political, and economic norms.

[1] Katharina Boele-Woelki et al, Principles of European Family Law Regarding Property Relations between Spouses (Cambridge, UK: Intersentia, 2013).

[2] Katharina Boele-Woelki, ‘General Rights and Duties in the CEFL Principles on Property Relations between Spouses’ in Katharina Boele-Woelki, Nina Dethloff, and Werner Gephart, eds, Family Law and Culture in Europe: Developments, Challenges and Opportunities (Cambridge, UK: Intersentia, 2014) 3-12, 6.

[3] Boele-Woelki et al (n 1) Principle 4.2.

[4] ibid 6.

[5] ibid 147 (Principle 4.17) and 220 (Principle 4.34).

[6] Council of Europe, Recommendation No R (89) 1 (18 January 1989), Principle 1.

[7] Personal communications from IAML fellows in response to the ‘Fair is foul’ survey, circulated July 2015.

[8] Dutta, cited in Jens M Scherpe, ‘Towards a Matrimonial Property Regime for England and Wales’ in Rebecca Probert and Chris Barton, eds, Fifty Years in Family Law: Essays for Stephen Cretney (Cambridge, UK: Intersentia, 2012) 133-146, 138.  In addition to matrimonial property, the other critical ‘pillars’ are maintenance and pension-sharing.  Scherpe also mentions the allocation of the use of the matrimonial home.

[9] Scherpe, ibid 138.


A copy of the powerpoint presentation is available here.