Elaine E. Sutherland is Professor of Child and Family Law at the Law School, University of Stirling, Scotland, and Distinguished Professor of Law at Lewis & Clark Law School, Portland, Oregon, USA, spending six months of the year researching, writing and teaching at each. She has lectured on child and family law around the world and, in addition to her work in the Scottish and US domestic contexts, has long pursued her interest in the comparative dimensions of child and family law. One aspect of that was establishing the United Nations Convention on the Rights of the Child Implementation Project (CRC-IP) which brings together an invited group of respected child law scholars from around the world each year to offer critical analysis of the implementation of the Convention, one article at a time.
The author of some 90 articles and book chapters, she contributes the chapter on Scotland to the International Survey of Family Law. Her books reflect the spectrum of her child and family law interests, as well as concern for wider legal developments in her native Scotland, and include Child and Family Law, 2nd edn (2008); Children’s Rights in Scotland, 3rd edn (2009) (with Cleland); Scots Law Tales (2010) (with Grant); Law Making and the Scottish Parliament: The Early Years (2011) (with Goodall, Little and Davidson); The Future of Child and Family Law: International Predictions (2012); Pronounced for Doom: Early Scots Law Tales(2013) (with Grant) and Family LawBasics, 3rd edn (2014).
(Working) Title: Article 3 of the UN Convention on the Rights of the Child: The Challenges of Vagueness and Priorities
Abstract: As one of the four general principles of the United Nations Convention on the Rights of the Child, article 3, is of pervasive application. Article 3(1) imposes on States the comprehensive obligation to make the best interests of the child the primary consideration in all actions concerning the child. Long before the drafting of the Convention, the ‘best interests’ test had been ascribed a Janus-like quality, exemplifying the virtue of flexibility and the vice of vagueness. The implications of these facets, along with the equally long-standing ‘rights v welfare’ debate and the level of priority to be accorded to best interests, dominated discussions during the drafting of the Convention and have continued ever since. In 2013, in one of its strongest General Comments to date, General Comment 14, the UN Committee on the Rights of the Child sought to address a wide range of concerns and to offer concrete guidance on article 3(1).
Sometimes overshadowed by their omnipresent sibling, articles 3(2) and 3(3) address the State’s obligations to ensure the care and protection of children and its standard-setting and oversight role in respect of institutions, services and facilities designed to meet that end, introducing another somewhat-ambiguous term, ‘well-being’.
This paper sets the scene for those that follow by highlighting the goals of the drafters of the Convention and issues that generated debate during their deliberations on article 3; exploring how the content of the obligations has been interpreted, particularly by the UN Committee on the Rights of the Child; and assessing the progress made in implementing the provision. In the course of that exercise, the extent to which the key concepts of ‘best interests’ and ‘well-being’ have been clarified is evaluated.