El principio de los mejores intereses versus el bienestar del niño en la investigación biomédica
| Autor | Prof. Dr. Cristina Elías Méndez |
| Cargo | Professor (Titular) of Constitutional Law |
| Páginas | 31-50 |
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The “best interests of the child” is a concept of Anglo-American juris-prudential origin. The first decisions on record referring to this concept were those handed down by Lord Mansfield, Lord Chief Justice of England in the 18th century, who acted early in taking the innovative step of questioning the paternal right over children in a case where a child’s wellbeing might be endangered by his/her parents.1
In 18th-century England, the paternal right over children was almost absolute and akin to an owner’s right over his property.2Hence, these were the first known cases in which the court, basing itself on what it deemed “best for the child”, was to deny the father’s “natural” rights (in contrast to the mother’s claim in a matrimonial separation, in which the judge deemed that the children, and the youngest in particular, would be better off with their mother; or the claim of children who were themselves seeking emancipation because of their father’s maltreatment).
Issues relating to minors then began to enter the legal debate from the stance of the best interests of the child. By the beginning of the 19th century, this line of jurisprudence had made its way over to the USA, affecting family law in particular, and becoming increasingly consolidated and widely applied in that field.
At an international level, concern for the child was set down in the 1924 Declaration of the Rights of the Child, inspired in this case by the horrors suffered by children in the First World War.
In the aftermath of the Second World War, this conviction about the special need for protection of childhood was decisively reflected in subsequent international treaties, at a time when heightened awareness about and great concern for human rights emerged in the wake of the disasters occasioned by this second great war. In this context of a drive for positivi-
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sation and strengthening of rights, special attention was paid to children, not only in rights-related texts in general (Article 25 of the 1948 Universal Declaration of Human Rights (UDHR), Article 24 International Covenant on Civil and Political Rights (ICCPR), and Article 10 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), among others), but specifically in the 1959 Declaration of the Rights of the Child, Principle II of which embodies the Anglo-American doctrine of the “best interests” in the following sense, “In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration”. One can see that the principle is now not confined solely to the field of family law and the regulation of custody of children, but that it pursues a generalist mission in the overall protection of the child. Hence, when it comes to education, Principle VII of this same text adds, “The best interests of the child shall be the guiding principle of those responsible for his education and guidance (…).”
Subsequently and even more significantly, the principle is again found to be entrenched in the currently prevailing 1989 United Nations Convention on the Rights of the Child, the reference text on protection of children, by now with binding effect but with significantly different wording. Article 3 thus reads, “In all actions concerning children, whether undertaken by public or private social wellbeing institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”, thereby diluting the principle with respect to the 1959 text, in that it ceases to be “the fundamental consideration”. Nevertheless, the principle’s importance to the Convention is highlighted by its reiteration throughout the text and its generalised application.3
This is also the formula incorporated by Article 24.2 of the Charter of Fundamental Rights of the European Union, which, as is known, is likewise binding on Spain by virtue of the Lisbon Treaty,4“In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.”
We agree with other authors5in regarding these texts as a source of a general principle of interpretation, one that should also impregnate legisla-
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tive activity and the action of government authorities, as shown by the literal tenor thereof. In the context of the United Nations, the interpretation placed on the child’s best interests by the Committee on the Rights of the Child deems it to be a substantive right of the child, a fundamental, interpretative legal principle, and a rule of procedure, inasmuch as it must be taken into account in any decision-making process, something that in turn requires procedural guarantees.6At all events, as will be seen below, the principle’s fundamental characteristic is its open and dynamic nature, which should be applied to the case in point.
There can be no doubt that the principle of the child’s best interests pursues a protective goal, which is justified by the special vulnerability of minors under the age of 18 years, by reason of their limited physical and mental capacity which, under normal conditions, is in a constant process of development. This principle is not only a binding legal mandate, but is also an ethical principle, which means that everything referring to the child must be analysed in accordance with his/her best interests, thereby binding any agent who applies a rule to take the child’s best interests into account.7
Hence, it is not only the courts but also government authorities and private agents that are bound by the scope of this interpretation.
On a day to day basis, it is parents or guardians who are responsible for applying the principle and ensuring that it is complied with in all dealings between the child and the public authorities. If necessary, and depending on the pertinence of the particular case, application of the principle will come within the purview of the tutelary authorities, the judges and the legislature. In addition to this, there is the State’s obligation to answer internationally for any failure to ensure that the principle is observed.8
The principle of the best interests of the child is thus characterised by being an essential principle, one that is interdependent, exclusive to the child, harmonising and dynamic. When it comes to its application, however, it is a concept that is not free of difficulties, in that it is a legally indeterminate concept which is very difficult to encapsulate in a specific, unique and useful definition. Not only is there no closed definition of the principle or one that is compatible with it, but we have no generally applicable criteria to determine it, since neither international nor national texts have categorically established these.
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Some guiding criteria are, for instance, those that were laid down in the context of the United Nations by the Committee on the Rights of the Child in 2013, which cites the following as the elements to be taken into account when assessing the child’s best interest: the child’s views; the child’s identity; preservation of the family environment and maintaining relations; care, protection and safety of the child; situation of vulnerability; and the child’s right to health and to education. Torrecuadrada states that what is relevant is not so much “the concept per se but rather the end-purpose pursued (protective) and the criteria that are to guide the body tasked with its application”.9
The indeterminate nature of the principle gives rise to both positive and negative consequences, one example being the dynamism of the concept which allows for and necessitates its adaptability and applicability to different situations.
Nonetheless, alerts have been sounded regarding the risks which such a peculiarity entails, since, while it is possible to decide on the basis of justified principles, it is equally possible to fall into the temptation of deciding on the basis of interests or motivations that are extraneous to the child’s wellbeing, by taking personal convictions (moral, ethical or religious) into account.10Even so, the margin of discretion works in favour of the principle’s adaptability to the specific case, which will have to be decided on the basis of objective evidence of the negative consequences or non-excessive consequences for the child’s wellbeing.
The best interests of the child is thus a concept derived from Anglo-American law which has been introduced into our legal system through ratification of certain international instruments, but which is not expressly
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included in the Spanish Constitution...
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