INTRODUCTION
Would it be fair to grant the custody of a child to his abusive father, him being the legal guardian as prescribed by the personal laws, even though abuse is the primary cause of separation? Would that be in the best interest of the child?
The United Nations Convention on the Rights of the Child, 1989, in its Article 3, paragraph 1 states that, ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’ This is the ‘Best Interest of the Child’ principle.
The Constitution of India[1] provides certain rights to guardianship to parents in cases of separation. These rights back the personal laws and declare the mother or father as the legal guardian in custody, guardianship, and divorce. The issue is one of the parents is declared the de facto and de jure guardian irrespective of the facts of the case and the child’s interests. The Supreme Court, adopting the BIC principle put forward by the UNCRC, has emphasized, on various occasions that while deciding cases related to custody, it is not the rights of the parents but the welfare of children that should be given priority. However, it must be noted that the consideration of the child’s best interests has evolved and is not limited to cases of conflicting rights of parents and children in modern times.
When and how did this principle come up? What areas does it cover? In what ways has India adopted the principle? What constitutes its core fundamentals? How precisely is it defined? What are the consequences of the imprecision in the definition? This blog aims to answer all these questions and provide a holistic and objective understanding of the principle.
JUDICIAL EVOLUTION
The birth of this concept can be traced to the evolution of the West’s perception of children. Until the 16th century, there existed an indifference towards children which changed with the increasing concern and responsibility towards their futures, education, and legal protection. The Hague Conference, commonly called the ‘Guardianship Convention’ placed the BIC principle in the foreground[2].
Further, in 1924, the Geneva Declaration of the League of Nations, proclaimed that it was the duty of the adults to protect children. It aimed to bring about measures against slavery, child labour, child trafficking, and prostitution among children[3]. The restoration of all rights that had been violated in World War I was one of the primary goals it came forward with. This was to be accomplished by providing emotional, mental, physical as well as legal support to sick, disabled, and helpless children.
The Declaration of the Rights of the Child, 1959 affirmed the principle in the Geneva Declaration that, ‘mankind owes to the child the best it has to give.’ It highlighted that the BIC principle is not only limited to custody but shall aim to ensure that the child receives physical, mental, moral, spiritual, and social health and freedom in all aspects[4]. Also, it asserted that the BIC principle is not just one of the many factors to be considered in cases relating to children but one of paramount importance.
Lastly, the United Nations Convention on the Rights of the Child, 1989, put forward the BIC principle in Article 3 and replaced the word ‘paramount’ with ‘primary.’ It is evident how the role of the principle has expanded over time which is reflected through the various arenas regarding children it covers. State practices all over the world are displaying a uniform practice of requiring the court to give the best interests of the child either primary or paramount consideration when making custody decisions[5]. Also, international treaties and law have not objected to this requirement.
CORE FUNDAMENTALS
The most important value the principle attaches to itself is being ‘child-centric’. Its theme is due focus and priority to a child’s political, social, and economic interests in any political or legal decision that can directly or indirectly affect him. It intends to promote the means for a child to grow in an environment that proves to be favourable to his mental and physical health. It has been successful in bringing about a deviant perspective that a mother or a father should not be granted custody simply because they can provide affection or financial stability respectively, owing to the notions revolving around their gender.
However, there have been questions regarding the absence of a universally accepted definition of the principle of BIC. It is obvious that based on the circumstances, the best interests of one child are bound to differ from those of another. This renders the core of the principle rather vague and subjective. Numerous criteria have been put forward owing to an increased usage of the principle that provides a base for what should be considered while determining a child’s best interest. Some are age, gender, medical requirements, views and aspirations, financial and economic stability, reasonable love, care, affection, protection, etc. Nevertheless, the provision of these criteria does not alter the fact that these cannot be the only touchstones to be referred to while looking at all cases concerning the welfare of children.
Ultimately, the idea that underlies the principle can be characterized by two fundamentals: child protection and gender-neutral laws.
CONCLUSION
Upon considering all the facts, it can be concluded that the BIC principle provides a lens through which all proceedings concerning children are to be viewed. While the personal laws in India have specific regulations about guardianship, statutes that apply to all, irrespective of religion, caste, or creed, such as the Guardianship and Wards Act, of 1890[6] and the Special Marriage Act, of 1954[7] provide for gender-neutral recommendations about guardianship that prioritize the welfare of the child and hence inculcate the spirit of the BIC principle.
The principle has gained acceptance and recognition in almost all parts of the world, however, the issues that come forward due to the imprecision in the definition cannot be ignored. A lack of definition and provision of precise criteria led to case-by-case interpretations of the principle that are highly dependent on the facts and the deciding authority. The possibility of the decision-maker imposing his understanding of the principle which may not necessarily be favourable to the child must be kept in mind while evaluating the merit of this principle.
The recognition and promotion of the rights that a child possesses is a noble cause that the principle aims to achieve. Certain alterations that deal with the subjectivity of the principle can prove to be a wonderful means to ensure a secure and settled future for all children who have fallen victim to violations of their rights.
Author(s) Name: Suhaani Bajpai (ILS Law College)
Reference(s):
[1] The Constitution of India 1950
[2] Melanie Chatenoud ‘The Child’s Best Interest’ (Humanium, 2 March 2021) <www.humanium.org/2021/03/index.html> accessed 7 May 2024
[3] Aron Degol and Shimelis Dinku, ‘Notes on the Principle “Best Interest of the Child”: Meaning, History, and its Place under Ethiopian Law’ (2011) 5(2) AJOL <https://www.ajol.info/index.php/mlr/article/view/145487> accessed 7 May 2024
[4] Ibid
[5] Dina Imam Supaat, ‘Establishing the Best Interests of the Child Rule as an International Custom’ (2014) 5(4) IJBEL <https://ijbel.com/wp-content/uploads/2014/12> accessed 8 May 2024
[6] Guardian and Wards Act 1890
[7] Special Marriage Act 1954
