In Part I of this post, we challenged the universality of the concept of ‘childhood’, which, despite the global recognition of its importance, appears to be strongly influenced by local traditions and values. In Part II we will reflect on a few of the linguistic issues surrounding ‘the best interests’ of the child and the legal problems that may follow from these.
The UNCRC does not offer a universally applicable legal definition for determining the best interests principle, but rather leaves room for interpretation in individual cases. According to the Oxford English Dictionary, a person’s ‘best interests’ refers to the scenario that is “most beneficial or advantageous to a person”. This definition suggests that a given scenario shall be determined based on knowledge of an individual’s needs and/or desires. As one of the key concepts in the field of children’s rights, it is essential that this expression be translated appropriately into other languages and interpreted according to the world-views of different cultures. In the 1990s, ‘the best interests’ expression was translated into Hungarian as mindenek felett álló érdek ‘all-NOM.PL above stand-PRS.PTC interest’ (lit. ‘all above standing interest’), and is still written as such in the official legislation. However, in the opinion of some professionals, this translation is incorrect; they therefore tend to use the unofficial legfőbb érdek ‘main interest’ instead.
The difference is that the latter expression requires a different legal test on the nature of the ‘interests’. While according to the first expression one should consider the child’s interests as being in conflict with the interests of others, the second expression requires the individual (the child) and their circumstances to be taken into consideration when determining the right solution, while respecting the reasonable interest of others. This is a crucial difference in understanding, because it changes the underlying problem and therefore the dynamics of the legal examination. In the case in which mindenek felett álló érdek is applied, the law in force suggests that a specific set of interests are the ‘best’ when the interests of all parties involved are considered, and the primary consideration is given to the child’s interests. However, the second expression, legföbb érdek, observes the problem from the child’s viewpoint, encouraging the court or authority to review all scenarios that may be in the child’s interests as well, and to choose the ‘best’ solution from all the legally possible outcomes affecting the child.
Let’s take the case presented in Part I as an example, focusing on the interests of baby Nuratdin.
Scenario I: the ‘best interests’ are determined on the basis of mindenek felett álló érdek
In this scenario, there are four parties involved whose rights must be considered: baby Nuratdin, Noorzai, Nursultan and the State of Bruscium. It may be in the best interests of Nuratdin to remain in Bruscium with his whole family. However, the State must then provide adequate resources, which in this particular case is made even more difficult by the fact that an unprecedented number of asylum seekers have entered Bruscium, and the state does not have sufficient capacity to accommodate everyone. If the judges make a ruling based on mindenek felett álló érdek, the interests of Nuratdin will prevail over all relevant parties’ interests, regardless of the refugee situation in Bruscium.
Scenario II: the ‘best interests’ are determined on the basis of legfőbb érdek
In this scenario, the best solution will be determined taking into consideration the respectable interests of Bruscium, as well as the interests of Nuratdin’s parents. This means that the judges must consider the best possible scenario for Nuratdin, bearing in mind the financial and material capacity of Bruscium and the interests of other refugees who fled there, as well as the potential opportunity for the parents to eventually reunite the family in one of their home countries in order to provide healthy family life for Nuratdin.
This case highlights the importance of the right translation of the ‘best interest of the child’, and the need for consistent legal examination in order to ensure that children’s interests will be judged according to the universal values of the UNCRC around the world.