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Best Practices to
Achieve Best Interests
in Child Care and
Placement Planning
Puja Kapai
Associate Professor
Director, Centre for Comparative and Public Law
Faculty of Law, The University of Hong Kong
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Content
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 UNCRC
Provisions in
UNCRC
Provisions
 Preamble
 Key provisions
Imperatives for
Incorporation
of CRC
 Imperatives
Children in
institutional care
 Major
Best Interest
Principle
for the incorporation of Children’s
rights in Practitioner’s work
gaps in provisions for children in
institutional care
 The
“best interest principle”
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United Nations Convention on the
Rights of the Child (UNCRC)
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Key dates
Provisions in
UNCRC
2 Sept 1990
Imperatives for
Incorporation
of CRC
UNCRC came into
force
Children in
institutional care
Best Interest
Principle
Status
: Signatories : 140. Parties : 196
7 Sept 1994
Hong Kong became a
party by extension of
UK’s signatory status
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Provisions of the
UNCRC
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UNCRC
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Preamble
In accordance with the principles proclaimed in the UN Charter
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recognition of the inherent dignity AND
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of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world,
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determined to promote social progress and better standards of life
in larger freedom,
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everyone is entitled to all the rights and freedoms set forth
therein, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status,
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Universal Declaration of Human Rights has proclaimed that
childhood is entitled to special care and assistance.
Children in
institutional care
Best Interest
Principle
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
Preamble
Convinced that the family, as the fundamental group of
society and the natural environment for the growth and
well-being of all its members and particularly children,
should be afforded the necessary protection and
assistance so that it can fully assume its responsibilities
within the community,
Recognizing that the child, for the full and harmonious
development of his or her personality, should grow up in a
family environment, in an atmosphere of happiness, love
and understanding,
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
Preamble
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Bearing in mind that, "the child, by reason of his
physical and mental immaturity, needs special
safeguards and care, including appropriate legal
protection, before as well as after birth",
in all countries in the world, there are children living
in exceptionally difficult conditions, and that such
children need special consideration,
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UNCRC
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
UNCRC
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Provisions in
UNCRC
Key Provisions
The ”3 Ps” framework
Promotion
Imperatives for
Incorporation
of CRC
UNCRC
Children in
institutional care
Best Interest
Principle
Protection
Participation
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Key Provisions
4 Guiding Principles:
Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
Nondiscrimination
(Art. 2)
The best interest
of the child
(Art. 3)
Rights to life,
survival and
development
(Art. 6)
Right to have their
views heard and
given due weight
in all issues
affecting them
(Art. 12)
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
“The best interest” principle
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No specific definition of “best interest” in CRC in general
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Lack of universal definition
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Allows for balancing of different considerations within a well
defined procedural framework
Does not mean that
children’s interests
always come first
Aim: to facilitate an
examination of the
interests of children
against a framework of
considerations
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Imperatives for the
incorporation of Children’s
rights in Practitioner’s work
Recent high-profile incidents
involving children
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Child neglect
Provisions in
UNCRC
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A 6-year-old girl fell from the window of her 37th floor home
in Fanling and died, when her mother went shopping and left
her alone (Aug 2010)
Imperatives for
Incorporation
of CRC
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A mother was found guilty of child neglect after feeding her
baby diluted formula, leaving the boy’s appearance at death
“worse than the starving children in Africa” (Oct, 2012)
Children in
institutional care
Best Interest
Principle
Recent high-profile incidents
involving children
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Child abuse
Provisions in
UNCRC
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A father put his 7-year-old son into the trunk of his car as
a punishment for bad behavior (March, 2015)
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Father (when interviewed by Apple Daily): “It’s no big deal putting
him inside the trunk. What was I supposed to do? He wouldn’t listen
to me.”
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Non-custodial sentence (Reported in June, 2015)
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
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The Challenges of
Institutionalised Child Welfare
Foster Care system at breaking point
Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Some children trapped in the residential care system
permanently, exiting only at 18
“The best interest of the child” principle (Art.3)
Children in
institutional care
Best Interest
Principle
• What are the physical, emotional and educational
needs, and the likely effect of change in circumstances
on children? What are THEIR rights?
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Major gaps in provisions for
HK’s children in institutional
care
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
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Participation
Right to have their views heard and given
due weight in issues affecting them (Art. 12)
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Based on Concluding Observations (Reporting Cycle I – III):
• Appreciate the efforts made to support organizations representing
children like Children’s Council Working Committee
• Note the establishment of child participation forums
• Remain concerned that children’s views are not sought
systematically on all policies affecting them due to lack of
effective mechanism
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Put more emphasis on protection of
children’s rights in government policies
and legislation
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Provisions in
UNCRC
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Establish effective consultative mechanisms to ensure
respect for children’s views and participation in matters
affecting them
Imperatives for
Incorporation
of CRC
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Make the “best interest principle” and standards of UNCRC
part of a checklist in policy-making
Children in
institutional care
Best Interest
Principle
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
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How to realize the
“best interest principle”?
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Challenge:
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Lack of universal definition of “best interest”
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Lots of society’s moral judgment which is highly diversified in a
society with different backgrounds
Practical examples:
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Encourage different stakeholder groups to come up with a systematic
set of indicators or framework
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Implement a Child Impact Assessment system that compares the
“Before and After” effects of a policy
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UN’s guidelines:
factors to consider under the
“best interest principle”
Physical,
emotional,
education
needs
Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
Age, sex,
background
Range of
powers
available to
the court
Likely effect
of change in
circumstance
s
Child’s
own voice
Capability of
parents
Harm or risk
of suffering
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
Address problems faced by
children of minorities,
with disabilities and asylum-seekers
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Identify and timely remove discriminatory policies
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Abolish system of designated schools for children of ethnic
minorities, and promote access to mainstream schools
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Implement policies on bilingual education at all levels of
education
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
Address problems from a
multidisciplinary frame rather than a
uni-dimensional lens to achieve
enriched outcomes
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
Situation of domestic violence,
child abuse and neglect
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Provisions in
UNCRC
Imperatives for
Incorporation
of CRC
Children in
institutional care
Best Interest
Principle
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