CRC/C/GC/14
full and effective enjoyment of the rights recognized in the Convention and the holistic
development of the child. Consequently, elements that are contrary to the rights enshrined
in the Convention or that would have an effect contrary to the rights under the Convention
cannot be considered as valid in assessing what is best for a child or children.
1.
Elements to be taken into account when assessing the child's best interests
52.
Based on these preliminary considerations, the Committee considers that the
elements to be taken into account when assessing and determining the child’s best interests,
as relevant to the situation in question, are as follows:
(a)
The child's views
53.
Article 12 of the Convention provides for the right of children to express their views
in every decision that affects them. Any decision that does not take into account the child’s
views or does not give their views due weight according to their age and maturity, does not
respect the possibility for the child or children to influence the determination of their best
interests.
54.
The fact that the child is very young or in a vulnerable situation (e.g. has a disability,
belongs to a minority group, is a migrant, etc.) does not deprive him or her of the right to
express his or her views, nor reduces the weight given to the child’s views in determining
his or her best interests. The adoption of specific measures to guarantee the exercise of
equal rights for children in such situations must be subject to an individual assessment
which assures a role to the children themselves in the decision-making process, and the
provision of reasonable accommodation9 and support, where necessary, to ensure their full
participation in the assessment of their best interests.
(b)
The child's identity
55.
Children are not a homogeneous group and therefore diversity must be taken into
account when assessing their best interests. The identity of the child includes characteristics
such as sex, sexual orientation, national origin, religion and beliefs, cultural identity,
personality. Although children and young people share basic universal needs, the
expression of those needs depends on a wide range of personal, physical, social and cultural
aspects, including their evolving capacities. The right of the child to preserve his or her
identity is guaranteed by the Convention (art. 8) and must be respected and taken into
consideration in the assessment of the child's best interests.
56.
Regarding religious and cultural identity, for example, when considering a foster
home or placement for a child, due regard shall be paid to the desirability of continuity in a
child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background
(art. 20, para. 3), and the decision-maker must take into consideration this specific context
when assessing and determining the child's best interests. The same applies in cases of
adoption, separation from or divorce of parents. Due consideration of the child's best
interests implies that children have access to the culture (and language, if possible) of their
country and family of origin, and the opportunity to access information about their
biological family, in accordance with the legal and professional regulations of the given
country (see art. 9, para. 4).
9
See Convention on the Rights of Persons with Disabilities, art. 2: "Reasonable accommodation"
means necessary and appropriate modification and adjustments not imposing a disproportionate or
undue burden, where needed in a particular case, to ensure […] the enjoyment or exercise on an equal
basis with others of all human rights and fundamental freedoms.
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