The problematic implementation of ‘the best interests of the child’ in international children’s rights was a central point of concern in the case presented at this year’s Moot Court competition in Leiden. We observed teams of law students from different parts of the world advocating for Noorzai and Nursultan, two imaginary asylum seekers who conceive a child, and for Bruscium, the imaginary EU State that did not want to recognize them as a family. One of the controversial issues to be solved in this case was the legal status of the mother, Noorzai, because it had direct impact on her own status, as well as on the determination of the ‘best interests’ of her child. While the law of Bruscium recognized her as child under the UNCRC, she had been granted parental rights (adult status) over her child, Nuratdin. But what are lawyers to make of such a case when different cultures have drastically different notions of who is a ‘child’? For this reason, we are bringing you this post in two parts. Part I will challenge the universality of the concept of ‘childhood’, and Part II will relate this to the legal and linguistic issues surrounding ‘the best interests of the child’.
A quick consultation with the Oxford English Dictionary provides a variety of definitions for ‘child’, which explain the expression either based on biological characteristics or on the lack of a certain sense of responsibility or maturity. The entry for ‘adult’ tells us that its etymology stems from the Latin adultus, meaning ‘full-grown, mature, firmly established’, yet these boundaries are not symmetrically delineated from culture to culture. In some cases, gaps in cultural concepts are extreme, for instance in Iran, where the age of criminal responsibility is dictated by Shari’a law. In such cases, a child is defined as a person who has not yet reached the ‘age of maturity’, which in Islam is understood in terms of a person’s bulugh ‘physical maturity’ (i.e. puberty) and aghl ‘sanity/intellect’. The age of criminal responsibility is set at 9 for girls and 15 for boys.
In an attempt to demarcate increasingly blurry meaning, Article 1 of the UNCRC defines a child as ‘every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’. Or to simplify the requirement of the Convention in very blunt terms: you’re a child until you are eighteen, except when you’re not. Exceptions to Article 1 of the UNCRC should not be confused with those national rules which provide age limits in order to protect children from harm, such as alcohol or drug abuse, forced marriage, sexual exploitation or smoking. On the contrary, exceptions from the general age limit of 18 years are those life events, characteristics and acts of a person that constitute protection gaps with regards to the legally recognized majority. We assume that the following exceptions are related to culture and tradition rather than interests of children, and in this sense linguistic issues may be of paramount importance:
- Life events. Life events, such as marriage or childbirth, establish legal majority in many countries. At the Moot Court, we were able to see how the cultural background of the students influenced their arguments for and against Noorzai’s status. The Chinese and Indian teams, for example, argued that Noorzai should not be protected by the Convention, as the emotional maturity and responsibility she gained from being a mother are defining features of adulthood.
- Acts. It is common in Western European countries, such as the Netherlands, the United Kingdom or Belgium, for children who commit serious crimes to be placed under adult jurisdiction. This legally recognized practice suggests that children who act as ‘adults’ in a moral or physical sense shall be treated and punished as adults. However, individuals over the age of 18 may still be deemed mentally ‘infantile’ and therefore tried in juvenile court, bringing into question how international law can reconcile age as a defining feature of ‘maturity’ or adult status.
- Characteristics. Physical and intellectual capacity often shapes the perception of a child as being an adult, as seen in the case of Iran for instance. A closer look at certain linguistic cues seen in various languages of the world also offers insight into socially recognized periods of childhood versus adulthood. Linguistically, these transitions may be manifested in the switch from informal to formal pronouns, as is the case in Hungarian, the use of moiety names in Amazonia, as well as lexically encoded states of growing older, or even anecdotal evidence encountered in everyday situations. In the United States, for example, ten-year-olds are typically deemed incapable of looking after themselves for long periods of time, and therefore require the supervision of a babysitter. One of the present authors, however, when inquiring whether a Russian woman’s child needed a babysitter, was met with incredulity. “For what?” the woman scoffed. “Ему 10 лет, он уже взрослый!” (He’s ten years old, he’s already grown up!).
So how can lawyers determine ‘the best interests of the child’ when confronted with such a vast array of culturally and semantically fuzzy categories? Next time, on Part II.