(5) Given her expertise and her central concern, Estin recommends infusing all the different areas of law pertinent to child migrants with due regard for family law's ubiquitous "best interests principle." (6)
This response examines whether the best interests principle is up to the job, in light of lessons learned from child custody disputes and controversies about child migrants, past and present.
THE PROMISE AND PERILS OF THE BEST INTERESTS PRINCIPLE
The application of the
best interests principle to all judicial and administrative decisions concerning the child, when combined with the clearly stated human rights of the child as set out in the CRC, can be used to prevent the deportation of a child who may not qualify for refugee protection.
The indeterminacy of the
best interests principle and the associated transaction costs have been widely noted.
This is also part and parcel of the best interests principle. It is axiomatic that a child benefits from continued contact with both parents and those extended family members who are interested in that child's well-being.
Tiffs is again part of the best interests principle. Children suffer harm when they are in the middle of a bitter dispute between adults.
Alberta already has in place a mandatory education program which attempts to focus parents on the best interests principle and on parenting plans.
Thus in the absence of any express provision to limit the application of the best interests principle to matters of direct concern to children, there appears to be no basis upon which to adopt such a restrictive approach.
Although the best interests principle is enshrined in the CRC, this is also the central principle of the welfare model that emerged in the mid to late nineteenth century and has dominated the social, legal and thus judicial treatment of children ever since.