Best Interests of the Child – the Legal Determination of the Principle

Abstract

When referring to children, we must admit that they are not just physical existences whose stages of development participate in determining the concept of legal capacity. Children are natural persons who, until the age of majority, are protected by the law, precisely because of their insufficient psychological maturity. In particular, we are referring to legal protection of the child in civil matters, subject to civil law, but also to legal protection of the child in general, which goes beyond the civil support given to the individual, legally called a natural person, within the general legal framework which safeguards the fundamental social values of the individual, by including a special legal protection regime on the child. Therefore, the child is no longer an identity substitute for the parents, but needs to be treated according to what it is and not what it will become, as he is the holder of his or her own rights, having a legal status in his or her own right, while also interacting with the rights and obligations of others (extended nuclear family or third-party relationships), as well as society as a whole, which has structured the status of the child according to its values. This is the ideology of the rights of the child, as a result of its development, centered on the recognition of the child as holder of related rights of indivisibility, interdependence and interrelation, the respect, protection and enforcement of which are bound by the States signatory to the Convention on the Rights of the Child. This legal instrument is a probable consequence of the equalitarian dynamics of human rights, on the one hand, and, on the other, based on the discovery of psychology by highlighting children's ability to understand and feel.