Article 3: The best interests of the child

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.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

– UN Convention on the Rights of the Child

Overview of Article 3

Article 3(1) introduces a fundamental principle into international human rights treaties’ provisions. It attributes to the child “the right to have their best interests assessed and taken into account as a primary consideration in all actions or decisions that concern them, both in the public and private sphere”[1]. At the international level, this principle made its first appearance in the 1959 Declaration of the rights of the child (Principle 2), but its inclusion in national legislation pre-dates the adoption of the CRC. However, if in the 1959 Declaration the child’s best interests are to be “the paramount consideration”, so they are determinant in the decision process, in the CRC Article 3(1) they are only “a primary consideration”, so one of the possible determinant factors [2]. The first draft of this article reproduced the same wording of Principle 2 of the 1959 Declaration, but some delegations were uncomfortable about it and an alternative draft was submitted in 1980. In it, the ‘the’ was replaced with ‘a’ in qualifying the ‘primary consideration’. However, considered the complexity of the concept ‘best interests’ it did not give rise to lengthy debate at the drafting stage and only in 1988 a second and last amendment was agreed to integrate a reference to ‘legislative bodies after ‘administrative authorities’’. This intervention broadened the scope of the article stating that also legislative measures should be “accompanied by ‘child impact’ statements” [2].

Article 3(1) is regarded by the CRC Committee as one of the four general principles [3]. Although no one of them is more “important than any of the other three” it had been argued that it underpins all the other provisions of the CRC. It is probably one of the most complicated concepts to define and the Committee defines it as “a dynamic concept that requires an assessment appropriate to the specific context”. What it is encompassed by the best interests depends on how the concept is understood. For example, different culture’s approaches will inevitably outline different understanding of what is in a child’s best interests [2]. However, the Committee has frequently addressed such structural problems by maintaining that the obligation to consider the children’s best interest requires the assessment of the impact of the decision on the child and that its implementation should always lead to the respect of the other CRC rights. The “adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention” [4]. In other words, “the rights of the child precede the ‘best interests’ standard” and whose implementation cannot be done without reference to the rights of the child [2]. Furthermore, as clarified in the Committee General Comment no. 14 in 2013 “no right could be compromised by a negative interpretation of the child’s best interests” [5].

The other two paragraphs of Article 3 are also particularly relevant. Article 3(2), pertains to the well-being of the child in all circumstances while respecting the rights and duties of parents. Article 3(3) concerns the obligation of States Parties to ensure that institutions, services and facilities for children “comply with the established standards,” and that mechanisms are in place to ensure that the standards are respected.

Core attributes of Article 3

The core attributes of Article 3 are:

The best interests of the child as a primary consideration
Care and protection: safety net
Adequate Standards for institutions, services and facilities dedicated to the care and protection of the child

Each of these attributes can be measured in terms of structural or process implementation or in terms of outcomes achieved through implementation as outlined in the table below. Some indicators, for instance the structural ones, may be common to all attributes. Others are common to two or more attributes while some could be specific to one attribute only. An attempt has been made to balance the use of objective and subjective data indicators as well as qualitative and quantitative ones.

What did children say?

These are some ideas that children from around the world shared with us during the Global Child Rights Dialogue (GCRD) project:

Relevant provisions within the SDGs

No relevant SDG provisions have been identified for this article.

Potential sources of data for users of the indicators sets

Data from municipalities
Government laws and regulations
Local authority data
Monitoring reports of IHRIC
National constitution and legislation
Primary research by National Human Rights Institutions for Children
Qualitative research with children
Research undertaken by academic institutions or non-governmental organisations

References used for the overview

United Nations 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 interest taken as a primary consideration (CRC/C/GC/14), (para. 1-4). Retrieved from https://www.refworld.org/docid/51a84b5e4.html
Freeman, M. (2007). Article 3: The best interest of the child. In A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, & M. Verheyde (Eds.), A Commentary on the United Nations Convention on the Rights of the Child (pp. 1-26). Leiden, The Netherlands: Martinus Nijhoff Publishers.
United Nations Committee on the Rights of the Child. (2003). General comment No. 5 (2003) on the general measures of implementation of the Convention on the Rights of the Child (CRC/C/GC/2003/5), (para. 12). Retrieved from https://www.refworld.org/docid/4538834f11.html
United Nations Committee on the Rights of the Child. (2011). General Comment No. 13: The right of the child to freedom from all forms of violence (CRC/C/GC/13), (para. 61). Retrieved from https://www.refworld.org/docid/4e6da4922.html
United Nations Committee on the Rights of the Child. (2009). General Comment No.14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art.2, para. 1) (CRC/C/GC/12), (para. 4). Retrieved from https://www.refworld.org/docid/51a84b5e4.html

References used to create indicators

Council of Europe. (n.d.). Child Participation Assessment Tool. Retrieved from https://www.coe.int/en/web/children/child-participation-assessment-tool
Freeman, M. (2007). Article 3: The best interest of the child. In A. Alen, J. Vande Lanotte, E. Verhellen, F. Ang, E. Berghmans, & M. Verheyde (Eds.), A Commentary on the United Nations Convention on the Rights of the Child. Leiden, The Netherlands: Martinus Nijhoff Publishers.
United Nations Committee on the Rights of the Child. (2005). CRC General Comment No.7 (2005), Implementing child rights in early childhood (CRC/C/GC/7). Retrieved from https://www.refworld.org/docid/460bc5a62.html
United Nations Committee on the Rights of the Child. (2011). General Comment No. 13: The right of the child to freedom from all forms of violence (CRC/C/GC/13). Retrieved from https://www.refworld.org/docid/4e6da4922.html
United Nations 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 interest taken as a primary consideration (CRC/C/GC/14). Retrieved from https://www.refworld.org/docid/51a84b5e4.html
United Nations Committee on the Rights of the Child. (2016). General Comment No. 19 (2016) on public budget for the realization of children’s rights (art.4) (CRC/C/GC/19). Retrieved from https://resourcecentre.savethechildren.net/node/10121/pdf/g1616231.pdf
United Nations Children’s Fund (UNICEF). (2007). Implementation handbook for the Convention on the Rights of the Child (Fully rev. 3rd ed.). Geneva, Switzerland: UNICEF.

Glossary/key words

Child Rights Impact Assessment (CRIA)
Child Rights Impact Assessments (CRIA) predict the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights (General Comment No. 5, 2003).

Article 3 Indicator Tables