Office of the United Nations

High Commissioner for Human Rights

L egislative H istory of the

C onvention on the r ights of the c hild

V olume I

United Nations
New York and Geneva, 2007
Article 3 (Best interests of the child)
A. Final text adopted by the General Assembly (1989)
The following text is that approved by the General Assembly in its resolution 44/25 of 20 November 1989.

1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child
shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or
her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other
individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and
administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or
protection of children shall conform with the standards established by competent authorities, particularly
in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

B. First Polish draft convention and comments (1978)

1. The first Polish draft

Article II of the Polish draft is most closely related to the substantive concerns covered under present article 3. The
following text is taken from the 1978 report of the Commission on Human Rights (thirty-fourth session, document E/
CN.4/1292, p. 124).

Article II
The child shall enjoy special protection and shall be given opportunities and facilities, by law and by other
means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal
manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests
of the child shall be the paramount consideration.

2. Comments on the first Polish draft

Article II of the draft gave rise to the following comments.

(a) Dominican Republic

The following is taken from document E/CN.4/1324.

1. We consider it appropriate to add, after the word “dignity” at the end of the first sentence of
article II, the words “Children of working mothers shall enjoy, from the time of their birth until they reach
school age, the assistance of centres or day nurseries which guarantee the care and assistance necessary for
their full development during these early years of their life.”

2. The last part of this article could constitute a final clause for the operative part of the convention,
contained in a separate article reading as follows:

“In order to achieve the purposes of the present Convention, the States Parties thereto shall, when
enacting laws governing this subject in their respective countries, give paramount consideration to
the best interests of the child”.

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(b) France
The following is taken from document E/CN.4/1324/Add.1.

See paragraph 4 (a), France, under General Comments.

Subparagraph 4 (a), which also appears in document E/CN.4/1324/Add.1 reads as follows.

The provisions that would constitute a recommendation, such as article II, the first sentence of article VI and
article X, might be included in a preliminary declaration or a recommendation annexed to the convention[.]

(c) Federal Republic of Germany

The following is taken from document E/CN.4/1324.

See paragraph 6, Federal Republic of Germany, under General Comments.

Paragraph 6, which also appears in document E/CN.4/1324, is reproduced below.

6. Unlike the series of measures on the rights of the individual, article II, article IV (first and second
sentences), article V, article VI (fourth sentence), article VII, paragraph 1 (second sentence), article VII, paragraph
3, article IX and article X (first sentence) can be considered only as undertakings on the part of States.

(d) New Zealand

The following is taken from document E/CN.4/1324/Add.5.

We accept the general intent of article II. However, we presume that key phrases such as “special protection”,
“healthy and normal manner” and “the best interests of the child” will be open, through the general terms in
which they are couched, to varied interpretations and will in fact be defined nationally in terms of the laws
and the child‑rearing practices which are adopted and acceptable in that nation.

(e) Spain
The following is taken from document E/CN.4/1324.

Between the words “normal manner” and the words “and in the conditions of freedom and dignity” insert
the words “avoiding anything that damages or may impair his physical or mental health, especially drugs in
any of their forms”.

(f) Food and Agriculture Organization of the United Nations (FAO)

The following is taken from document E/CN.4/1324.

There is no mention in the article of the emotional development of the child. Statements referring to his/her
overall growth and development refer instead to moral and spiritual development, supposedly to cover this
important area of development.

(g) United Nations Educational, Scientific and Cultural Organization (UNESCO)

The following is taken from document E/CN.4/1324.

Alongside physical, mental, moral, spiritual and social development, an explicit reference should be made to
“cultural development with due regard for national or regional realities”.

(h) World Health Organization (WHO)

The following is taken from document E/CN.4/1324.

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 Article II, first line:

It is not clear against what the “special protection” is to be provided. Would it be against harmful
social environment, against disease, against abuse, etc.? Perhaps this point should be clarified.

Article II, second line:

It is not clear what the term “other means” is meant to cover. Is it intended to refer to measures
which are not law in the strict sense, such as administrative acts or practical measures? This needs
to be clarified.

(i) Society for Comparative Legislation

The following is taken from document E/CN.4/1324. Paragraph 2 below appears elsewhere in the first Polish draft as
paragraph 2 of article VII, which concerns the rights of the child to education and recreation.

1. The child shall enjoy special protection and shall be given opportunities and facilities, by law and by
other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and
normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best
interests of the child shall be the paramount consideration.

2. The best interests of the child shall be the guiding principle of those responsible for his education
and guidance; that responsibility lies in the first place with his parents.

C. First reading (1979-1988)

The text of article 3, which was based on article 3 of the revised Polish draft, was discussed and adopted by the Working
Group in 1981. This article was referred to as article 3 throughout the first and second readings.

1. Proposal submitted to the Working Group (1979)

(a) France and Federal Republic of Germany

The following is taken from paragraph 23 (e) of the 1979 report of the Working Group to the Commission on Human
Rights (E/CN.4/L.1468), which is reproduced in paragraph 244 of the 1979 report of the Commission on Human Rights
(E/CN.4/1347).

The following provisions of the draft convention should not be included in the convention itself but set out
in the preamble or in an annexed recommendation of a pedagogical nature:

Article II;
Article VI (first sentence);
Article VII (paragraph 2, from “The best interests” to “guidance”);
Article VIII;
Article X (second sentence).

2. Revised Polish draft (1979)

The following text is taken from Commission on Human Rights document E/CN.4/1349, which was reissued for technical
reasons.
Article 3

1. In all actions concerning children, whether undertaken by their parents, guardians, social or State
institutions, and in particular by courts of law and administrative authorities, the best interest of the child
shall be the paramount consideration.

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 2. The States Parties to the present Convention undertake to ensure the child such protection and care
as his status requires, taking due account of the various stages of his development in family environment and
in social relations, and, to this end, shall take necessary legislative measures.

3. The States Parties to the present Convention shall create special organs called upon to supervise
persons and institutions directly responsible for the care of children.

3. Proposals submitted to the Working Group (1980)

(a) Australia
For the text of this proposal, see paragraph 21 in section 4 below.

(b) United States of America

For the text of this proposal, see paragraph 20 in section 4 below.

4. Discussion and adoption by the Working Group (1981)

The following is taken from the 1981 report of the Working Group to the Commission on Human Rights (E/CN.4/
L.1575, paras. 19-38), which is reproduced in paragraph 289 of the 1981 report of the Commission on Human Rights (E/
CN.4/1475).

19. Article 3 of the revised Polish draft was as follows:

“1. In all actions concerning children, whether undertaken by their parents, guardians, social or
State institutions, and in particular by courts of law and administrative authorities, the best interest
of the child shall be the paramount consideration.

2. The States parties to the present Convention undertake to ensure the child such protection
and care as his status requires, taking due account of the various stages of his development in family
environment and in social relations, and, to this end, shall take necessary legislative measures.

3. The States parties to the present Convention shall create special organs called upon to
supervise persons and institutions directly responsible for the care of children.”

20. The representative of the United States of America reintroduced a new article 3 which had been
submitted by his delegation the year before but had not been considered owing to lack of time. The new
article read as follows:

“1. In all official actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, or administrative authorities, the best interests of the child shall
be a primary consideration.

2. In all judicial or administrative proceedings affecting a child that has reached the age
of reason, an opportunity for the views of the child to be heard as an independent party to the
proceedings shall be provided, and those views shall be taken into consideration by the competent
authorities.

3. Each State party to this Convention shall support special organs which shall observe and
make appropriate recommendations to persons and institutions directly responsible for the care of
children.

4. The States parties to this Convention undertake, through passage of appropriate legislation,
to ensure such protection and care for the child as his status requires.”

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21. The delegation of Australia also had submitted in 1980 the following text to replace paragraphs 2
and 3 of article 3:

“2. The States parties to the present Convention undertake to ensure the child such protection
and care as is necessary for his well‑being, taking into account the rights and responsibilities of his
parents and the stage of the child’s development towards full responsibility and, to this end, shall
take all necessary legislative and administrative measures.

3. The States parties to the present Convention shall ensure competent supervision of persons
and institutions directly responsible for the care of children.”

This proposal was reintroduced at the 1981 session of the Working Group.

Paragraph 1

22. A number of speakers agreed that the Polish version of this paragraph was wider and better protected
the child, but in search for compromise it was agreed to take as a basis for discussion the proposal of the
United States delegation.

23. A discussion ensued as to whether, on general humanitarian grounds, the best interests of the child
should be the pre‑eminent consideration in actions undertaken by his parents, guardians, social or State
institutions. The imposition of obligations on parents and guardians by an international convention was
questioned, but the inclusion of obligations in this provision was felt by some delegations to provide greater
protection for the child. Moreover, the word “paramount” used in the revised Polish draft to qualify the
consideration to be given to the interests of the child was considered too broad by some delegations which
felt that the best interests of the child should be “a primary consideration”.

24. In the course of the discussion a speaker stated that the interests of the child should be a primary
consideration in actions concerning children but were not the overriding, paramount consideration in
every case, since other parties might have equal or even superior legal interests in some cases (e.g. medical
emergencies during childbirth). He also pointed out that his delegation did not attempt to regulate private
family decisions but only official actions. The view was also expressed by some representatives that paragraph
1 did not need to have a reference to specific obligations of States parties in respect of the best interests of
the child; paragraph 1 enunciated general principles while the specific obligations of States parties would be
listed in the following provisions which would also take into consideration actions concerning children and
undertaken by their parents or guardians.

25. After further discussion, agreement was reached to delete the word “official” from the first line of
the proposal made by the representative of the United States of America.

26. The Working Group adopted by consensus paragraph 1 as proposed by the delegation of the United
States of America, with the deletion of the word “official”.

Paragraph 2

27. One representative suggested that the Working Group consider paragraph 2 as proposed by the
delegation of the United States of America, since it made reference to judicial and administrative proceedings.
The representative of the United States explained that paragraph 2, as submitted by his delegation, contained
concepts that were missing in the draft convention.

28. Some speakers indicated that the opportunity for the views of the child to be heard, mentioned
in the amendment proposed by the delegation of the United States, was also mentioned in article 7 of the
revised Polish draft, but others pointed out that the amendment by the United States delegation to paragraph
2 of article 3 made specific reference to all judicial or administrative proceedings affecting a child in this
respect and followed logically from paragraph 1 of article 3 as a means by which judicial or administrative
authorities could ascertain a child’s best interests in a given case.

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 29. One delegate stated that although the idea contained in the paragraph under consideration was
correct, the characterization of “the age of reason” was very difficult. He also believed that views of children
could be expressed in court through their legal guardians. The observer of the International Association of
Penal Law suggested that language should be borrowed from article 7 to replace the phrase “has reached the
age of reason”. The Working Group agreed to replace the words “the age of reason” by the following words
of article 7: “is capable of forming his own views”.

30. The representative of Brazil said that it would be preferable to insert the words “shall be provided”
after the words “an opportunity”. A further suggestion, made by the representative of the Netherlands, was
that in the [second] line of the paragraph, the phrase “either directly or indirectly through a representative”
should be inserted after the word “heard”. In addition, proposals were made to delete the word “independent”
from the [second] line of the paragraph and to add the following phrase at the end of that paragraph: “in a
manner consistent with the procedures followed in the State Party for the application of its legislation”.

31. One representative stated that, because no provision had yet been made for determining the best
interests of a child not capable of forming his own views, the Working Group might need to revert to that
point at a later stage.

32. The paragraph as revised and adopted by the Working Group read as follows:

“In all judicial or administrative proceedings affecting a child that is capable of forming his own
views, an opportunity shall be provided for the views of the child to be heard, either directly or
indirectly through a representative, as a party to the proceedings, and those views shall be taken into
consideration by the competent authorities, in a manner consistent with the procedures followed in
the State Party for the application of its legislation.”

Paragraph 3

33. The Working Group considered the proposal submitted by the delegation of Australia to replace
paragraph 2 of article 3 of the revised Polish draft. The representative of Australia pointed out that his
proposal took into account a basic aim of the Conference on the Legal Protection of the Rights of the Child
held in Warsaw on 16‑19 January 1979, namely the need to secure the rights of the child through support to
the family in need.

34. After an exchange of views, it was agreed to insert, in the third line of the text, the phrase “legal
guardians” after the word “parents”. Further to the Chairman’s request that a compromise text be elaborated
following consultations, the delegation of the United States submitted a text that read as follows:

“The States Parties to the present Convention undertake to ensure the child such protection and
care as is necessary for his well‑being, taking into account the rights and duties of his parents, legal
guardians, or other individuals legally responsible for him and, to this end, shall take all appropriate
legislative and administrative measures.”

35. That text of paragraph 3 was adopted by consensus by the Working Group.

Paragraph 4

36. The amendment put forward by the Australian delegation to replace paragraph 3 of article 3 was
considered by the Working Group.

37. There was a discussion on the word “persons”. The representative of Norway suggested that the word
“persons” be replaced by the word “personnel”. The representative of the United States proposed that the
word “persons” be replaced by the word “officials” or by the phrase “officials and personnel of institutions”
and explained that the term “officials” would cover, for example, the board of directors of a hospital or an
orphanage; he indicated that if those amendments were accepted by the Working Group, paragraph 3 of
article 3 submitted by his delegation would be withdrawn in favour of the Australian amendment.

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 38. After discussion, the Working Group adopted the proposed amendments. The paragraph, as adopted,
reads as follows:

“The States Parties to the present Convention shall ensure competent supervision of officials and
personnel of institutions directly responsible for the care of children.”

The Working Group later decided that text should become paragraph 4 of article 3.

5. Proposal submitted to the Working Group (1983)

(a) Belgium
The following is taken from document E/CN.4/1983/WG.1/WP.21.

Article 3

[...]

3. The States parties to the present Convention undertake to ensure the child the right to physical and
moral integrity, as well as such protection and care as is necessary for his well-being, taking into account the
rights and duties of his parents, legal guardians, or other individuals legally responsible for him, and, to this
end, shall take all appropriate legislative and administrative measures.

6. Proposals submitted to the Working Group (1984)

(a) International Federation of Women in Legal Careers and the International Abolitionist Federation
The following is taken from document E/CN.4/1983/NGO/33, which appeared after the 1983 session of the Working
Group.

Article 3 (Rights of children)

We support the amendment proposed by the Belgian delegation [concerning paragraph 3.]

[...]

We would also suggest that paragraph 4 of the article read:

“The States Parties to the present Convention shall ensure that children are placed in institutions
only in exceptional cases and that the officials and personnel of such institutions are properly
qualified and subject to regular supervision.”

(b) International Federation of Human Rights, International Federation of Women in Legal Careers, Pax
Romana
The following is taken from document E/CN.4/1984/WG.1/WP.6.

[...]

B. CONCEPT OF THE BEST INTERESTS OF THE CHILD (art. 3 of the draft convention)

It would appear essential to stipulate in the draft convention that the authorities which will be called upon to
rule on the best interests of the child should take their decisions in the light of “all national and international
elements of the personal and family situation of the child”.

Because of its general nature, there is a danger that the concept of the best interests of the child as recognized
in article 3 of the draft convention may induce States, when children are of dual origin, to give this concept a
purely nationalist content and interpretation.

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 Whereas this concept of the best interests of the child should in principle bring the legislations of the
various States closer together, in this instance there is a possibility that it may drive them further apart. The
convention would thus be in danger of losing its universal character and its role as a reference instrument.

7. Statements made to the Working Group (1984)

(a) United Kingdom of Great Britain and Northern Ireland

The following is taken from the 1984 report of the Working Group to the Commission on Human Rights (E/CN.4/1984/71,
para. 9).

9. The representative of the United Kingdom stated that, even as a State participating in the work
of the open‑ended Working Group, his delegation continued to have difficulties with some of the articles
already adopted (e.g. articles 2, paragraph 1, 3, paragraph 1, 4, paragraph 1, 6 and 8, paragraphs 1 and 2). Article
2, paragraphs 1 and 2, caused difficulties in relation to United Kingdom nationality law. Article 6, paragraph 1,
as currently drafted was not compatible with United Kingdom immigration legislation because the parents of
a child who did not have rights of residence in the United Kingdom could not determine that he should live
there unless he qualified for residence under United Kingdom immigration rules. In addition, draft articles 3,
paragraph 1, 4, paragraph 1, 6, paragraphs 2 and 3, 6 bis, paragraphs 2 and 3, and 8, paragraphs 1 and 2, all posed
problems in relation to United Kingdom immigration law. Certain of those draft provisions were difficult or
even impossible to reconcile with his country’s law and practice. Nevertheless, his delegation had joined the
consensus at the Working Group in recognition of the efforts made by other delegations to get an acceptable
draft completed and available for comment by Member States with as little delay as possible. However,
the United Kingdom thought it important that all States, including those which had not participated in the
Working Group, should have an opportunity to consider and comment on those articles after the current
drafting exercise was concluded. If, after the drafting was completed and notwithstanding that certain parts
of the text remained substantially as they were now, the United Kingdom authorities were nevertheless to
consider that they could proceed to signature and ratification, his delegation foresaw that there would be a
need to enter reservations and declarations, in particular to deal with the aforementioned difficulties over
immigration and nationality.

(b) Federal Republic of Germany

The following is taken from the 1984 report of the Working Group to the Commission on Human Rights (E/CN.4/1984/71,
para. 11)

11. The representative of the Federal Republic of Germany stated that his delegation shared the concerns
of the United Kingdom delegation particularly with regard to article 2, paragraph 2, and article 6, paragraphs 1
and 2. Article 2, paragraph 2, posed problems with regard to his country’s nationality law. As in the case of the
United Kingdom, the provisions of draft article 6, paragraphs 1 and 2, were not compatible with the Federal
Republic’s immigration legislation. Should article 2, paragraph 2, and article 6, paragraphs 1 and 2, be retained
in their present form during the forthcoming deliberations in spite of the concerns of some delegations, and
should the draft convention be opened for signature and ratification in that form, his Government might feel
obliged to enter reservations to both articles. The representative of the Federal Republic of Germany also
expressed his support for the United Kingdom proposal that all States be given an opportunity to comment
on the Working Group’s completed draft before its submission to the Commission on Human Rights.

8. Comment submitted to the Working Group (1986)

(a) Bangladesh
The following comment regarding article 3 is contained in a paper submitted by the Permanent Representative of
Bangladesh to the United Nations Office in Geneva in connection with the draft convention on the rights of the child

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with the request that the paper be annexed to the 1986 report of the Working Group. For the complete text, including
general comments on the draft convention, see document E/CN.4/1986/39, annex IV.

The mandatory nature of article 3 (2) requires to be modified by substituting the word “shall” after the words
“an opportunity” in line 2 by “should”.

9. Text as adopted at first reading

The following is taken from document E/CN.4/1988/WG.1/WP.1/Rev.1.

Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions,
courts of law, or administrative authorities, the best interests of the child shall be a primary consideration.

2. In all judicial or administrative proceedings affecting a child that is capable of forming his own
views, an opportunity shall be provided for the views of the child to be heard, either directly or indirectly
through a representative, as a party to the proceedings, and those views shall be taken into consideration by
the competent authorities, in a manner consistent with the procedures followed in the State Party for the
application of its legislation.

3. The States Parties to the present Convention undertake to ensure the child such protection and
care as is necessary for his well‑being, taking into account the rights and duties of his parents, legal guardians,
or other individuals legally responsible for him and, to this end, shall take all appropriate legislative and
administrative measures.

4. The States Parties to the present Convention shall ensure competent supervision of officials and
personnel institutions directly responsible for the care of children.

D. Technical review (1988)

1. Comment by the International Labour Organization (ILO)

The following is taken from document E/CN.4/1989/WG.1/CRP.1, page 13.

In paragraph 4, the following words (italics) might be added:

“... shall ensure appropriate training, qualifications and competent supervision of ...” the staff of
childcare institutions. A parallel may be drawn with article 8, paragraph 4 of which refers to “standards
established ... in the number and suitability” of the staff of childcare institutions and services.

2. Comment by the World Health Organization (WHO)

The following is taken from document E/CN.4/1989/WG.1/CRP.1, page 13.

Paragraph 3 of this article refers to the undertaking of the States Parties to the draft convention “to ensure
the child such protection and care as is necessary for his well‑being”. This provision echoes article 2,
paragraph 1 of the World Health Organization Constitution, whereby it is stated that one of the functions of
the Organization shall be “to promote maternal and child health and welfare”. The same applies to a certain
extent to article 8 bis, paragraph 1, article 14, paragraph 1 and article 18, paragraph 1.

3. Comment by the United Nations Children’s Fund (UNICEF)

The following is taken from document E/CN.4/1989/WG.1/CRP.1, pages 13-14.

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 Paragraph 1

This provision reads:

“In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, or administrative authorities, the best interests of the child shall be a
primary consideration.”

By stating that the child’s best interest shall be “a primary consideration” this provision uses what amounts to
a twofold qualification. The word “primary” implies that other considerations, although not deemed primary,
may nevertheless be taken into account. The article “a” indicates that there may be several considerations,
each of which is primary. The issue which arises by virtue of standards incorporated in other widely accepted
human rights instruments is whether a single qualification is not sufficient. If this were considered to be
the case, the wording could be changed to indicate that the child’s best interests would be “the primary
consideration”.

In this regard, note might be taken of article 5 of the Convention on the Elimination of All Forms of
Discrimination Against Women which obligates States Parties to take all appropriate measures:

“(b) To ensure that family education includes a proper understanding of maternity as a social
function and the recognition of the common responsibility of men and women in the upbringing and
development of their children, it being understood that the interest of the children is the primordial
consideration in all cases.”

Similarly article 5 of the Declaration on Social and Legal Principles relating to the Protection and Welfare of
Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally, provides
that:

“In all matters relating to the placement of a child outside the care of the child’s own parents,
the best interests of the child, particularly his or her need for affection and right to security and
continuing care, should be the paramount consideration.”

Paragraph 2

The reference to a child “capable of forming his own views” is presumably intended to refer to a child capable
of “expressing” those views since even very young children, who are not able to talk, can still “form” views and
communicate them in one way or another.

Gender Neutrality

Paragraph 2. The first part of the paragraph might be reformulated as follows:

“In all judicial or administrative proceedings affecting a child who is capable of forming his or her
own views...”

Paragraph 3. A possible reformulation of the article is:

“The States Parties to the present Convention undertake to ensure such protection and care as are
necessary for the child’s well‑being, taking into account the rights and duties of his or her parents,
legal guardians, or other individuals legally responsible for the child...”.

4. Additional comments and clarifications by the Secretariat

The following is taken from document E/CN.4/1989/WG.1/CRP.1/Add.1, paragraph 10.

10. The draft convention contains numerous clauses requiring or calling for legislative measures for
ensuring various rights of the child. The Working Group may therefore wish to insert in paragraph 1, together
with the other institutions listed, a reference to “legislative bodies”.

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E. Second reading (1988-1989)

1. Proposal submitted to the Working Group at second reading

(a) Latin American meeting

By note verbale to the Centre for Human Rights, the Permanent Mission of Argentina requested that the report and
recommendations of the Latin American meeting [of NGOs] in support of the United Nations draft convention on the
rights of the child be circulated as an official information document at the Working Group. The meeting took place in
Buenos Aires from 29 September to 2 October 1988. The following is taken from document E/CN.4/1989/WG.1/WP.1.

In article 3, paragraph 4:

“... shall ensure training and supervision ...”.

2. Discussion and adoption at second reading

The following discussion is taken from the 1989 report of the Working Group to the Commission on Human Rights
(E/CN.4/1989/48, paras. 117-145).

Paragraph 1

117. The Working Group had before it a text (contained in document E/CN.4/1989/WG.1/WP.2) of the
paragraph as adopted during the first reading incorporating suggested revisions by UNICEF and the technical
review carried out by the Secretariat. The text read as follows:

“1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be the (a) primary consideration.”

118. The observers for Kuwait, Portugal and Australia expressed support for the revised text as contained
in document E/CN.4/1989/WG.1/WP.2. The latter did so because the revised text reflected existing
international standards, for instance as contained in article 5 of the Convention on the Elimination of All
Forms of Discrimination against Women.

119. The observer for the Netherlands expressed general satisfaction with the revised text but suggested
that the word “primary” be replaced by the word “paramount”.

120. The representative of Venezuela suggested that, although her delegation was not opposed to the
phrase “best interests of the child” being included in the final text, she however wished to draw attention to
the subjectivity of the term, especially if the convention contained no prior stipulation that the “best interests
of the child” were his all-round ‑ in other words, physical, mental, spiritual, moral and social ‑ development.
That would mean leaving the interpretation of the “best interests of the child” to the judgement of the
person, institution or organization applying the rule. In the ensuing debate a number of delegations expressed
satisfaction with the phrase and the representative of Venezuela therefore withdrew her suggestion.
121. With regard to the revised text as contained in document E/CN.4/1989/WG.1/WP.2, a number
of delegations questioned whether the best interests of the child should be the primary consideration in
all actions. It was generally noted that there were situations in which the competing interests, inter alia, of
justice and of the society at large should be of at least equal, if not greater, importance than the interests of
the child.
122. In an effort to allay such concerns the observer for Canada suggested that, as adopted during the
first reading, the paragraph should make the interests of the child “a” primary consideration, noting that
other instruments making the interests of the child the primary consideration were directed to more limited
circumstances than those provided for in this paragraph. The observer for Canada otherwise expressed

345
 support for the revised text. A similar position was taken by the representatives of the United States of
America, Japan and Argentina.

123. The observer for Finland suggested that the interests of the child should be “the” primary
consideration only in actions involving his or her “welfare”. Although the proposal was supported by the
observer for the Netherlands, it was opposed by the delegations of Portugal, Australia, Canada and Senegal
because it sought to narrow the scope of protection the paragraph afforded to children.

124. The representative of the United Kingdom suggested that either the word “all” should be deleted or
the interests of the child should only be “of” primary consideration. The latter proposal was also made by the
representative of Norway. The observer for Australia questioned whether the meaning of the latter proposal
differed from “a” primary consideration, as adopted during the first reading.

125. In view of the strength of reservations voiced about making the interests of the child “the” primary
consideration in all situations and taking into account the fact that the delegations which felt that it should
be did not insist on this revision, consensus was reached to make the interests of the child only “a” primary
consideration in all actions, as it had been in the text adopted during the first reading.

126. The Working Group then proceeded to adopt the text of paragraph 1 of article 3 as follows:

“1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.”

Paragraph 2 [later deleted; see paragraph 140 below]

127. The Working Group had before it a text (contained in document E/CN.4/1989/WG.1/WP.2) of
the paragraph as adopted during the first reading incorporating a suggested revision as to gender‑neutral
language. The text read as follows:

“2. In all judicial or administrative proceedings affecting a child that is capable of forming his
or her own views, an opportunity shall be provided for the views of the child to be heard, either
directly or indirectly through a representative, as a party to the proceedings, and those views shall be
taken into consideration by the competent authorities, in a manner consistent with the procedures
followed in the State Party for the application of its legislation.”

128. The observer for Finland suggested that the scope of this paragraph overlapped with the scope of
article 7 and therefore proposed that discussion be postponed until the consideration of that article.

129. Consideration of the paragraph was suspended pending the outcome of the deliberations of a
drafting group set up to resolve the issue. As indicated below, upon the proposal of the drafting group,
paragraph 2 was deleted from draft article 3 in order to discuss it under article 7. The delegate of Portugal
reserved her position on paragraph 2 for discussion in connection with article 7.

Paragraph 3 [new paragraph 2 after the deletion of former paragraph 2]

130. The Working Group had before it a text (contained in document E/CN.4/1989/WG.1/WP.2) of the
paragraph as adopted during the first reading incorporating suggested revisions on gender‑neutral language
and a reference to States Parties. The text read as follows:

“3. (The) States Parties (to the present Convention) undertake to ensure the child such
protection and care as is necessary for his or her well‑being, taking into account the rights and duties
of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to
this end, shall take all (appropriate) legislative and administrative measures.”

131. Paragraph 3 was adopted taking into account the suggested revisions and removing the brackets
around the word “appropriate”. The text as adopted reads as follows:

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 “3. States Parties undertake to ensure the child such protection and care as is necessary for
his or her well‑being, taking into account the rights and duties of his or her parents, legal guardians,
or other individuals legally responsible for him or her, and, to this end, shall take all appropriate
legislative and administrative measures.”
Paragraph 4 [new paragraph 3 after the deletion of former paragraph 2]
132. The Working Group had before it a text (contained in document E/CN.4/1989/WG.1/WP.2) of
the paragraph as adopted during the first reading including suggested revisions by the International Labour
Organization and regarding a reference to States Parties. The text read as follows:
“4. (The) States Parties (to the present Convention) shall ensure (appropriate) training,
qualifications and competent supervision of officials and personnel of institutions directly
responsible for the care of children.”
133. The observer for Canada, supported by the observer for New Zealand, suggested there was a
growing tendency in many countries to move away from institutionalized care of children and therefore
proposed the inclusion of such words as “programmes” or “organizations” in addition to, or with the deletion
of, “institutions”.
134. The representative of Venezuela proposed that the idea of technical supervision for children
in institutions until they rejoin their families should be included in the paragraph. After a discussion, the
representative of Venezuela withdrew the proposal.
135. The representative of India expressed a preference for the text of the paragraph as adopted during
the first reading, without revisions. He did so because he felt that it was enough to supervise institutions
run by volunteer organizations without imposing unnecessary bureaucratic requirements. The observer for
Kuwait agreed with the representative of India as to his concerns and suggested that the new idea from the
ILO in the revised text was already covered in article 8, paragraph 4.
136. In the ensuing debate the representatives of Canada, Norway and Australia proposed that since
the idea contained in article 3 (4) was covered in article 8 (4) it should be deleted from article 3 and left
only in article 8. The observer for New Zealand indicated that he had no strong views on the placement of
the substance contained in the paragraph as long as it was left in either article. The representative of India
noted that the paragraphs in articles 3 and 8 were different in scope because the latter covered only children
with parents or guardians whereas the former concerned children generally, and would therefore include
such children as destitutes who would otherwise be excluded from the protection afforded by article 8.
The observer for the ILO indicated that in submitting its suggested revisions the ILO took the view that the
paragraphs in articles 3 and 8 were different in scope. The observer for the ILO did not however insist on the
adoption of its suggested revisions and withdrew its proposal.
137. The representative of Senegal suggested that the idea of supervising childcare institutes and
monitoring the children in them be separated from article 3 and be incorporated in an article 3 bis.
138. It was then suggested by the Chairman that discussion of paragraph 4 should be suspended and that
the same drafting group considering paragraph 2 should also discuss and try to resolve any possible overlap
between article 3 (4) and article 8 (4).
139. On behalf of the special drafting group composed of Canada, Finland, Morocco and the Union of
Soviet Socialist Republics, the delegate of Finland stated that their proposal was to delete paragraphs 2 and
4 from article 3 and incorporate them in, respectively, articles 7 and 8.
140. The Working Group decided to delete paragraph 2 from article 3 in order to discuss it under article 7.
Former paragraph 3 thus became new paragraph 2.
141. With regard to the proposed deletion of paragraph 4, the delegate of India expressed his concern since
that paragraph was the logical continuation of the preceding paragraph (new 2, former 3). He consequently

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 objected to its removal to article 8 and proposed it be maintained under article 3, since the two articles did
not deal with the same type of institution. Canada drew the Working Group’s attention to another article
dealing with institutions, namely article 10. The representative of the ILO stated her understanding that
different institutions were dealt with under articles 3 and 8.

142. The delegation of Finland proposed to postpone the discussion on paragraph 4, so that the drafting
group could decide on its placement; article 8, article 10, or a new article were mentioned as possibilities for
placing this paragraph. Upon the request made by Finland and then by the Federal Republic of Germany, the
Chairman adjourned the discussion on paragraph 4 and decided that India should join the drafting group.

143. The observer for Finland introduced a proposal submitted by the drafting group with regard to a
new paragraph 3 of article 3. The proposal read as follows:

“3. States Parties shall ensure that the institutions, services and facilities responsible for
the care or protection of children shall conform with the standards established by competent
authorities, particularly in the areas of safety, health, in the number and suitability of their staff as
well as competent supervision.”

144. In introducing this proposal, the observer for Finland pointed out that this text repeated to some
extent the provisions of article 8, paragraph 4 of the draft convention as adopted at first reading. He suggested
that the working group should decide what to do with this paragraph later on when it came to article 8.
He also mentioned that the amendments proposed by the ILO (E/CN.4/1989/WG.1/WP.2, p. 15) were not
included in the text. In the view of the drafting group the purpose of these amendments which related
to appropriate training and qualification of officials and personnel of childcare institutions was adequately
covered by the inclusion of the words “suitability of their staff”.

145. The Working Group then adopted paragraph 3 of article 3 as proposed by the drafting group which
reads as follows:

“3. States Parties shall ensure that the institutions, services and facilities responsible for
the care or protection of children shall conform with the standards established by competent
authorities, particularly in the areas of safety, health, in the number and suitability of their staff as
well as competent supervision.”

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