Best Practices to Achieve Best Interests in Child

+ Best Practices to Achieve Best Interests in Child Care and Placement Planning Puja Kapai Associate Professor Director, Centre for Comparative and Public Law Faculty of Law, The University of Hong Kong 1

+ Content 2 n UNCRC Provisions in UNCRC Provisions § Preamble § Key provisions Imperatives for Incorporation of CRC n Imperatives Children in institutional care n Major Best Interest Principle for the incorporation of Children’s rights in Practitioner’s work gaps in provisions for children in institutional care n The “best interest principle”

+ 3 United Nations Convention on the Rights of the Child (UNCRC)

+ 4 Key dates Provisions in UNCRC 2 Sept 1990 Imperatives for Incorporation of CRC UNCRC came into force Children in institutional care Best Interest Principle Status : Signatories : 140. Parties : 196 7 Sept 1994 Hong Kong became a party by extension of UK’s signatory status

5 Provisions of the UNCRC

+ 6 UNCRC

+ Provisions in UNCRC Imperatives for Incorporation of CRC Preamble In accordance with the principles proclaimed in the UN Charter - recognition of the inherent dignity AND - of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, - determined to promote social progress and better standards of life in larger freedom, - everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, - Universal Declaration of Human Rights has proclaimed that childhood is entitled to special care and assistance. Children in institutional care Best Interest Principle 7

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle Preamble Convinced that the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, 8

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle Preamble 9 Bearing in mind that, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth", in all countries in the world, there are children living in exceptionally difficult conditions, and that such children need special consideration,

+ 10 UNCRC

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle UNCRC 11

+ Provisions in UNCRC Key Provisions The ” 3 Ps” framework Promotion Imperatives for Incorporation of CRC UNCRC Children in institutional care Best Interest Principle Protection Participation 12

+ Key Provisions 4 Guiding Principles: Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle Nondiscrimination (Art. 2) The best interest of the child (Art. 3) Rights to life, survival and development (Art. 6) Right to have their views heard and given due weight in all issues affecting them (Art. 12) 13

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle “The best interest” principle n No specific definition of “best interest” in CRC in general n Lack of universal definition n Allows for balancing of different considerations within a well defined procedural framework Does not mean that children’s interests always come first Aim: to facilitate an examination of the interests of children against a framework of considerations 14

15 Imperatives for the incorporation of Children’s rights in Practitioner’s work

Recent high-profile incidents involving children + 16 Child neglect Provisions in UNCRC n A 6 -year-old girl fell from the window of her 37 th floor home in Fanling and died, when her mother went shopping and left her alone (Aug 2010) Imperatives for Incorporation of CRC n A mother was found guilty of child neglect after feeding her baby diluted formula, leaving the boy’s appearance at death “worse than the starving children in Africa” (Oct, 2012) Children in institutional care Best Interest Principle

Recent high-profile incidents involving children + Child abuse Provisions in UNCRC n A father put his 7 -year-old son into the trunk of his car as a punishment for bad behavior (March, 2015) § Father (when interviewed by Apple Daily): “It’s no big deal putting him inside the trunk. What was I supposed to do? He wouldn’t listen to me. ” § Non-custodial sentence (Reported in June, 2015) Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle 17

+ The Challenges of Institutionalised Child Welfare Foster Care system at breaking point Provisions in UNCRC Imperatives for Incorporation of CRC Some children trapped in the residential care system permanently, exiting only at 18 “The best interest of the child” principle (Art. 3) Children in institutional care Best Interest Principle What are the physical, emotional and educational needs, and the likely effect of change in circumstances on children? What are THEIR rights? 18

19 Major gaps in provisions for HK’s children in institutional care

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle 20 Participation Right to have their views heard and given due weight in issues affecting them (Art. 12) ✖ Based on Concluding Observations (Reporting Cycle I – III): • Appreciate the efforts made to support organizations representing children like Children’s Council Working Committee • Note the establishment of child participation forums • Remain concerned that children’s views are not sought systematically on all policies affecting them due to lack of effective mechanism

+ Put more emphasis on protection of children’s rights in government policies and legislation 21 Provisions in UNCRC n Establish effective consultative mechanisms to ensure respect for children’s views and participation in matters affecting them Imperatives for Incorporation of CRC n Make the “best interest principle” and standards of UNCRC part of a checklist in policy-making Children in institutional care Best Interest Principle

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle 22 How to realize the “best interest principle”? n n Challenge: § Lack of universal definition of “best interest” § Lots of society’s moral judgment which is highly diversified in a society with different backgrounds Practical examples: § Encourage different stakeholder groups to come up with a systematic set of indicators or framework § Implement a Child Impact Assessment system that compares the “Before and After” effects of a policy

+ UN’s guidelines: factors to consider under the “best interest principle” Physical, emotional, education needs Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle Age, sex, background Range of powers available to the court Likely effect of change in circumstance s Child’s own voice Capability of parents Harm or risk of suffering 23

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle Address problems faced by children of minorities, with disabilities and asylum-seekers 24 n Identify and timely remove discriminatory policies n Abolish system of designated schools for children of ethnic minorities, and promote access to mainstream schools n Implement policies on bilingual education at all levels of education

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle Address problems from a multidisciplinary frame rather than a uni-dimensional lens to achieve enriched outcomes 25

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle Situation of domestic violence, child abuse and neglect 26

+ Provisions in UNCRC Imperatives for Incorporation of CRC Children in institutional care Best Interest Principle 27