Principle Of Best Interests Research Articles

Interpretation of Exercising Rights to Rescind Voluntary Guardianship Agreements under the Chinese Civil Code

The Article 33 of the Chinese Civil Code provides written voluntary guardianship agreements and the Article 11 of the newly issued Interpretation provides arbitrary rescission rights and statutory rescission rights concerning the agreements. Some aspects related to exercising the rescission rights including fiduciary relationship, time limit, legal effects and circumstances, are interpreted in detail in this paper firstly and then rescission rights by agreement stipulated in the Article 562 of the Chinese Civil Code are discussed in terms of connotation and civil subjects. There after, the two principles including the principle of best interests and the principle of protecting self-determination rights for exercising rescission rights are examined in theory and in practice. In the end, in terms of practical application of rescission rights, it is pointed out that some problems regarding possible abuse and time limit of rescission rights remain to be solved for the future interpretation of the Chinese Civil Code.

LEGAL PROTECTION OF CHILDREN IN CONTACT WITH THE LAW BASED ON THE PRINCIPLE OF BEST INTEREST FOR THE CHILD

Legal protection for children who are in conflict with the law in Indonesian legislation is the result of the Ratification of the United Nations (UN) Convention on the Rights of the Child in 1989, which in one of the principles in the convention is the principle of the best interests of the child. Ratification is carried out by incorporating and making the basis for the formation of laws involving children. The principle of best interest for children is the main reference. This study used the Juridical-Normative Research Method with a Descriptive Analysis Approach, with the aim of analyzing Legislation Related to Children in Conflict with the Law and then to look at the essence and objectives of the Principle of Best Interests for Children. So that this research results in that Law Number 11 of 2012 concerning the Juvenile Criminal Justice System (UU SPPA) is the Main Law being studied, in that Law provides Legal Protection for children who are dealing with the Law with Three Classifications, children as perpetrators prioritizing restorative justice and diversion, children as victims receive special medical treatment, and children as witnesses are facilitated by electronic recording media to reduce trauma. This is given as an effort to protect the law against children who are in conflict with the law according to the status of children in criminal acts, in addition to obtaining rights that are general in nature, children who are positioned as perpetrators, victims and witnesses still get special rights. under legal protection.Keywords: Legal Protection, Children Against the Law, The Best Interests of Children.

PERAN JAKSA PENUNTUT UMUM DALAM PROSES DIVERSI TERHADAP ANAK BERHADAPAN DENGAN HUKUM (Studi Kasus No. 8/Pid.Sus-Anak/2015/PN.Sda)

Prosecutors are Functional officials who are authorized by the Act to conduct prosecutions. In the Law of the Republic of Indonesia Number 11 of 2012 concerning the Juvenile Criminal Justice System, that at every level of diversion is sought for diversion, the concept of diversion is the transfer of the settlement of children's cases from the criminal justice process to processes outside the criminal justice system. The application of the concept of diversion has an influence on the role of the prosecutor in performing and carrying out his duties. Attorney General Regulation No. 006/A/J.A/2015 on diversion guidelines at the prosecution level requires law enforcement officials, especially the Public Prosecutor, to handle children's cases using a restorative justice approach and seeking d iversion. Similarly kasus No. 8/Pid.Sus-Anak/2015/PN. Natural resources need to carry out a diversion process, the purpose of this study is to make the public understand more, about diversion of cases of children facing the law, because so far there are many cases of children facing the law, who do not use diversion in solving children's cases. The research methods used by normative juridical and empirical approaches, based on the results of research at the Sidoarjo District Attorney's Office regarding the diversion process are not fully in accordance with the provisions of the law, but have attached importance to the principle of best interests for children.

Legal Protection for Children Out of Wedlock: Ensuring the Best Interests of Children Through Judge Decisions

This article examines the protection of the rights of children out of wedlock in the Religious Courts. The ambiguity of the concept of the best interests of the child has prompted judges to interpret this concept to realize legal protection for children out of wedlock. This study reveals the application of the principle of best interests for children by Religious Court judges in protecting children out of wedlock. This study uses a case approach and legal philosophy. The results of this study indicate that the Religious Courts, in determining the origin of children, generally protect the rights of children out of wedlock proportionally. In the best interests of the child, the judges grant recognition of the child and provide a limited legal relationship for an illegitimate child with his biological father. The existence of this legal relationship has provided legal certainty regarding the status of children out of wedlock as biological children of both parents; so that the children have human dignity (hifẓ al-‘irḍ). In addition, judges have realized distributive justice that provides benefits for children out of wedlock, without ignoring the norms of Islamic law regarding the purity of lineage, through the granting of living rights for the survival of children (hifẓ al-nafs), spiritual development (hifẓ al-din), education a proper will (hifẓ al-'aql), and a mandatory will from his father (hifẓ al-māl).

The Admissibility of the Detention of Minors in Guarded Centers for Refugees in the Context of the Principle of Best Interests of the Child

The glossed ECHR judgment concerns the extension of detention in a guarded center of an Armenian family seeking international protection. The Court has found that Poland breached art. 5 par. 1 (f) of the Convention for the Protection of Human Rights and Fundamental Freedoms. It has upheld its position expressed in the case of Bilalova and Others v. Poland (application no. 23685/14), that “Various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate the immigration detention of children. The Court has found that the presence in a detention centre of a child accompanying its parents will comply with art. 5 par. 1 (f) only where the national authorities can establish that such a measure of last resort was taken after verification that no other measure involving a lesser restriction of their freedom could be implemented […]”. Therefore, the “rule of no recollection” operating in Polish legislation may be an additional test verifying the admissibility of minors’ detention in guarded centers.

The Adverse Effect of Immigration Laws on a Migrant Child’s Right to Family Life: A Reminder of the South African Nandutu Case

ABSTRACT A child’s right to grow up with its parents is presented in articles 9 and 25 of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of a Child, respectively. South Africa has ratified both treaties, and thus has a duty under international children’s law to protect children’s rights in domestic South African law. At the national level, section 28 of the Constitution of the Republic of South Africa, 1996, contains a variety of rights of children. Particularly, section 28(1)(b), akin to international children’s law, protects a child’s right to family or parental care. Using a child-rights-based approach, guided by the rationality of the principle of best interests of the child and a child’s right to life, this article seeks to appraise the 2019 judgment of the South African Constitutional Court in Nandutu v the Minister of Home Affairs, in which the Court declared reg 9(9)(a) of South Africa’s Immigration Regulation of 2014 inconsistent with the Constitution. In analysing this decision, legislation, and case law, this article further aims to highlight the significance of Nandutu, through the lens of a migrant child’s right to family life.

Diversion As A Crime Solution Towards Child Crime Prepertrator

Diversion efforts is an alternative solution for the sake of realizing children's interests and protecting the future of children from the destructive effects of imprisonment, which stigmatize criminals in the eyes of the community, but all of these have not been maximally realized because there is a court decision in the Lampung region itself which still applies sanctions punishment as an effective method of providing a deterrent effect on children. Based on this, this research's main problem focuses on implementing diversion for children as a criminal solution for juvenile offenders and whether diversion is an instrument in realizing the best interests of children. This research uses a juridical empirical, and normative juridical approach. The results of the discussion are in this research, namely that in the principle of the best interests of children as a criminal solution for child offenders, diversion is one of the instruments in realizing the best interests of the child considering that diversion instruments for children can improve the child's image from the impression of a criminal. The advice that can be given is that law enforcers should prioritize the principle of the child's best interests in every legal process rather than prioritizing repressive actions that lead to imprisonment sanctions and eliminating children's rights such as protection of their future.

Treatment of Children as Adults under India’s Juvenile Justice (Care and Protection of Children) Act, 2015

This article examines whether international human rights law (ihrl) allows States to make exceptions based on the serious nature of the crime alleged and the age of a child accused of an offence. It specifically analyses the compatibility with ihrl of India’s Juvenile Justice (Care and Protection of Children) Act, 2015, which allows children 16 or above and accused of heinous offences to be tried as adults. The central argument is that trial and punishment of children as adults, for any offence, violates the right to non-discrimination recognised under ihrl as well as the principle of best interest, reintegration objective of juvenile justice and rights of juveniles provided in the UN Convention on Rights of the Child, 1989 and other international instruments.

The Best Interest of The Child Principle in The Juvenile Justice System

Children are Nation Assets who have limitations in understanding and protecting themselves from the various influences of the existing system, therefore protection efforts are needed. Research Objectives analyze the concept of the best interests of children in the juvenile criminal justice system, the application of the principle of best interest for children in sexual abuse cases in the Central Lombok Police Station. Empirical legal research methods. Results of research Setting the principle of best interest for children in Law Number 11 of 2012 concerning the Child Judicial System in the provisions of Article 2 letter d. The application of the principle of best interest for children in the Central Lombok Resort Police, suspects are not treated the same as adults, given the opportunity to go to school, be examined in a special room that is a PPA unit room, a PPA special investigator and dressed non-official.

Withdrawal of treatment from critically ill children: legal and ethical issues.

Withdrawal of treatment from critically ill children is a contentious and ethically difficult area. The principle of best interests was central to three recent high-profile legal cases and raised questions about how this is demonstrated in healthcare for children whose treatment may be of no benefit to them. This article discusses the legal and ethical aspects of caring for such children. Nurses are important advocates and should balance their obligation to deliver holistic and family-centred care with that of keeping the child as the central focus, particularly with decision-making. In cases of disagreement between families and clinicians, children's voices are particularly vulnerable to being lost. Pre- and post-registration education, research and a higher profile for nurses in multidisciplinary decision-making are suggested as ways to improve the nursing contribution to this important debate.

Protecting the Children’s Right to Nationality in Malaysia: An Appraisal

Article 7 of the Convention on the Rights of the Child 1989 (CRC) obliges states to realize every child‘s right to acquire a nationality. Even though most human rights should be enjoyed by all persons, regardless of whether they have a nationality or not, in our modern world, nationality often operates as a legal or practical gateway to the enjoyment of other rights. Where a child lacks a nationality, this creates a situation of severe disadvantage and vulnerability. Statelessness undermines the enjoyment of childhood and the child‘s opportunity to develop to his or her full potential. Many stateless children are excluded from the benefits of education and are denied equal access to other rights. Such situation is definitely in contravention with the basic principle of best interest of the child as promulgated in Article 3 of the CRC. This paper addresses the extent of the rights of children in Malaysia to acquire nationality particularly in cases involving unregistered birth, illegitimate, foundling or abandoned child and where the immigration status of the parents is uncertain. This paper uses a qualitative data collection method where in-depth document analysis is carried out. Primary sources such as the Acts, Regulations, court orders and decision are scrutinized. On the other hand, secondary sources that are studied include international document reports from relevant websites, law reports, law reviews, legal periodical articles and newspaper reports. The paper is significant as it addresses crucial concerns raised in reference to the current laws relating to the protection of these children in Malaysia. The paper ends with some possible recommendations that may spur improvement to the present legislations towards achieving a sustainable future for the best interest of these children.

Clinical Opinion Letters Regarding Breastfeeding and Neonatal Abstinence Syndrome for Child Apprehension Family Court Proceedings.

The accelerating reach of opioid use disorder in North America includes increasing prevalence among pregnant people. In Canada, the rate of Neonatal Abstinence Syndrome (NAS) rose 27% between 2012-2013 and 2016-2017, and it is estimated that 0.51% of all infants now experience NAS after delivery. Pregnant people are a priority population for access to opioid replacement therapy programs. Participation in such programs demonstrates significant commitment to self-care among pregnant people and concern for fetal and infant wellbeing. Participation in opioid replacement therapy often results in family surveillance by Child Protection Services and infant apprehension. Children of Indigenous descent are held in foster care at high and disproportionate rates.The Convention on the Rights of the Child principle of Best Interests of the Child governs family law and child access decisions. The value of breastfeeding for all children and in particular for children recovering from NAS can be a consideration in the Best Interest of the Child. Clinicians with expertise in lactation may support the breastfeeding dyad to remain together by preparing Clinical Opinion Letters for the court. This Insights into Policy presents a how-to description of the content of clinical opinion letters in such cases, including context and process considerations, client background, breastfeeding science, and factors specific to neonatal abstinence syndrome.

Children’s Rights and the Juvenile Justice System in Estonia

Approaching from the UN Convention of the Right of the Child (UNCRC) and the principle of best interest of the child is mandatory in all decision-makings in all EU countries. However, we can see notable contradictions between the articles of UNCRC, the best interest principle and the practice of juvenile justice systems almost in every EU member state. International organisations and national states make efforts to cross the contradictions and to guarantee the rights stated in the UNCRC. In this paper, we present some attempts to enhance the juvenile justice systems while focusing on Estonian case. Participation in two international action research projects enables authors to give an overview about the situation how the rights of Estonian children in detention are followed and what are the main tendencies in everyday practice.

Developing a new justification for assent.

BackgroundCurrent guidelines do not clearly outline when assent should be attained from paediatric research participants, nor do they detail the necessary elements of the assent process. This stems from the fact that the fundamental justification behind the concept of assent is misunderstood. In this paper, we critically assess three widespread ethical arguments used for assent: children’s rights, the best interests of the child, and respect for a child’s developing autonomy. We then outline a newly-developed two-fold justification for the assent process: respect for the parent’s pedagogical role in teaching their child to become an autonomous being and respect for the child’s moral worth.DiscussionWe argue that the ethical grounding for the involvement of young children in medical decision-making does not stem from children’s rights, the principle of best interests, or respect for developing autonomy. An alternative strategy is to examine the original motivation to engage with the child. In paediatric settings there are two obligations on the researcher: an obligation to the parents who are responsible for determining when and under what circumstances the child develops his capacity for autonomy and reasoning, and an obligation to the child himself. There is an important distinction between respecting a decision and encouraging a decision. This paper illustrates that the process of assent is an important way in which respect for the child as an individual can be demonstrated, however, the value lies not in the child’s response but the fact that his views were solicited in the first place.SummaryThis paper demonstrates that the common justifications for the process of assent are incomplete. Assent should be understood as playing a pedagogical role for the child, helping to teach him how specific decisions are made and therefore helping him to become a better decision-maker. How the researcher engages with the child supports his obligation to the child’s parents, yet why the researcher engages with the child stems from the child’s moral worth. Treating a child as having moral worth need not mean doing what they say but it may mean listening, considering, engaging or involving them in the decision.

A Life Below the Threshold?: Examining Conflict Between Ethical Principles and Parental Values in Neonatal Treatment Decision Making.

Three common ethical principles for establishing the limits of parental authority in pediatric treatment decision-making are the harm principle, the principle of best interest, and the threshold view. This paper considers how these principles apply to a case of a premature neonate with multiple significant co-morbidities whose mother wanted all possible treatments, and whose health care providers wondered whether it would be ethically permissible to allow him to die comfortably despite her wishes. Whether and how these principles help in understanding what was morally right for the child is questioned. The paper concludes that the principles were of some value in understanding the moral geography of the case; however, this case reveals that common bioethical principles for medical decision-making are problematically value-laden because they are inconsistent with the widespread moral value of medical vitalism.

10.5937/zrpfns48-6765 = On the need of regulating surrogacy: Recent case law and activities in 2014

The paper discusses three important events for a future possible international instrument on surrogacy with cross-border effects. The Hague Conference document 'The desirability and feasibility of further work on the Parentage / Surrogacy Project', the first two judgments of the European Court of Human Rights on the effects of cross-border surrogate motherhood and two judgments of the Court of the European Union on the right of intended mothers to maternity leave suggest that international regulation of the issues is desirable, but large differences between internal laws of states require further study on the possibility of reaching a consensus to draw up and accept a binding or not-binding multilateral instrument on the subject matter. The Mennesson v France ECHR judgment is particularly important, because it establishes violation of the right to respect private life of children who were given birth by a surrogate mother, and creates by this a contradiction between the margin of appreciation of a respective State and the principle of best interests of the child.

Resilience in the context of child maltreatment: Connections to the practice of mandatory reporting

A human rights perspective places the care for children in the obligation sphere. The duty to protect from violence is an outcome of having a declaration confirming inalienable human rights. Nationally, rights may be reflected in constitutions, charters, and criminal codes. Transnationally, the United Nation's (UN) Convention on the Rights of the Child (CRC) prioritizes a child's basic human rights, given their dependent status. UN CRC signatory countries commit to implementing minimal standards of care for minors. Laws requiring professionals to report child maltreatment to authorities is one practical strategy to implement minimal child protection and service standards. Mandatory reporting laws officially affirm the wrong of maltreatment and the right of children. Mandatory reporting can be conceptualized as part of a resilience process, where the law sets the stage for child safety and well-being planning. Although widely enacted law, sizeable research gaps exist in terms of statistics on mandatory reporting compliance in key settings; obstacles and processes in mandatory reporting; the provision of evidence-based training to support the duty to report; and the training-reporting-child outcomes relationship, this latter area being virtually non-existent. The fact that mandatory reporting is not presently evidence-based cannot be separated from this lack of research activity in mandatory reporting. Reporting is an intervention that requires substantial inter-professional investment in research to guide best practices, with methodological expectations of any clinical intervention. Child abuse reporting is consistent with a clinician's other duties to report (i.e., suicidality, homicidality), practice-based skills (e.g., delivering “bad” news, giving assessment feedback), and the pervasive professional principle of best interests of the child. Resilience requires the presence of resources and, mandated reporting, is one such resource to the maltreated child. Practice strategies identified in the literature are discussed.

Rethinking the “Best Interests” of the Child: Voices from Aboriginal Child and Family Welfare Practitioners

In Victoria, recent reforms to the child and family welfare system, through the introduction of the Children Youth and Families Act (2005), have significantly strengthened the principle of the “best interests” of the child. Giving substance to the principle, this legislation defines a set of standards and a practice framework to guide its application. How this is to be applied is of particular interest to the Aboriginal child and family welfare sector, given that the principle of best interests has historically underpinned the removal of thousands of Aboriginal and Torres Strait Islander children from their families on the basis of their race (Bamblett, 2006). This paper presents the findings of a qualitative research study that aimed to identify an Aboriginal perspective on the best interests principle as it applies to Victorian Aboriginal children. In-depth interviews were conducted with six experienced Aboriginal child and family welfare practitioners. The outcomes of this study highlight the distinct cultural perspectives that inform Aboriginal child and family welfare practice and raise a number of concerns in regard to an ongoing ethnocentric application of the principle by mainstream service providers. Key findings of the study are discussed, including the importance of increasing understanding of Aboriginal child-rearing practices, recognising that there is a distinct Aboriginal understanding of what constitutes a best interests framework, and the implications of this for both Aboriginal and mainstream child and family welfare practice. The paper discusses these findings within the context of recent Victorian legislative reform, which promotes Aboriginal self-determination, and argues that more work is needed to ensure Aboriginal perspectives are incorporated into service provision to Aboriginal children and families if we are truly to meet the best interests of Aboriginal children.

Respecting the principle of best interests of the child in Canadian monitoring

This paper considers the relationship between the procedural concern of monitoring international child rights and the general principle of best interests of the child. Canadian monitoring processes to determine the situation of child rights are analysed using the best interests principle as a lens. It is argued that despite the importance of the best interests principle in relation to monitoring, many Canadian actors or processes continue to reflect their priorities, preoccupations or authority—despite their limitations— because they know best or have authority to do so. This approach mirrors the traditional, outdated understanding of best interests of the child principle. In contrast, the best interests of the child principle in child rights sense demands recognition, reorientation and commitment to progress so that monitoring is guided and influenced by child rights. The paper concludes with a number of recommendations to advance the best interests principle in monitoring.

The Mental Capacity Act 2005 in practice: best interests

In this second article on the use of the Mental Health Capacity Act in practice, the principle of best interest in discussed. Any decision taken on behalf of a person who lacks capacity must be in their best interests. The article expains that the Mental Capacity Act 2005 provides a checklist of factors to be followed when determining whether a decision is in the best interest of a person without capacity. It is a more holistic approach than was previously required by the common law balance sheet approach.