of guiding principles, including notably the principles of exceptional diligence and speed, 113 which will be
examined in the following sections.
The best interests of the child or adolescent
107.
The right of children or adolescents to protection of their best interests is enshrined in the Convention
on the Rights of the Child,114 Article 3 of which establishes that:
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.
108.
For its part, in General Comment No. 14 on the on "the right of the child to have his or her best interests
taken as a primary consideration,"115 the United Nations Committee on the Rights of the Child considered that
the best interests of the child is a triple notion: a substantive right, an interpretative legal principle, and a rule of
procedure. It also considered that, under Article 3 of the Convention on the Rights of Child, three types of
obligation arise for States parties, 116 and that among the measures that States must adopt to guarantee
compliance with those obligations, is the duty to adopt a series of measures related to the best interests of the
child, such as reviewing and, where necessary, amending domestic legislation and other sources of law so as to
incorporate article 3, paragraph 1, and ensure that the requirement to consider the child's best interests is
reflected and implemented in all national laws and regulations, provincial or territorial legislation, rules
governing the operation of private or public institutions providing services or impacting on children, and judicial
and administrative proceedings at any level, both as a substantive right and as a rule of procedure.117
109.
In addition, pursuant to General Comment No. 14, the courts must provide for the best interests of the
child to be considered in all such situations and decisions, whether of a procedural or substantive nature, and
must demonstrate that they have effectively done so. The Committee has held that "The evolving capacities of the
child (...) must be taken into consideration when the child's best interests and right to be heard are at stake. (...)
As the child matures, his or her views shall have increasing weight in the assessment of his or her best
interests."118 Finally, the fact that the child is very young or in a vulnerable situation (...) does not deprive him or
her of the right to express his or her views, nor reduces the weight given to the child’s views in determining his
or her best interests.119
March 8, 2018. Series C No. 350, par. 155; I/A Court H.R. Rights and Guarantees of Children in the Context of Migration and/or in Need of
International Protection, Advisory Opinion OC-21/14 of August 19, 2014. Series A No. 21, paragraph 69.
113 The Right of Boys and Girls to a Family. Alternative care. Ending Institutionalization in the Americas. OEA/Ser.L/V/II. Doc. 54/13.
October 17, 2013
114 Convention on the Rights of the Child, Adopted and opened for signature and ratification by the General Assembly in its resolution 44/25
of 20 November 1989.
115 General Observation No. 14 of the Committee on the Rights of the Child on "the right of the child to have his or her best interests taken
as a primary consideration." May 29, 2013.
116 Article 3, paragraph 1, establishes a framework with three different types of obligations for States parties: (a) The obligation to ensure
that the child's best interests are appropriately integrated and consistently applied in every action taken by a public institution, especially
in all implementation measures, administrative and judicial proceedings which directly or indirectly impact on children; (b) The obligation
to ensure that all judicial and administrative decisions as well as policies and legislation concerning children demonstrate that the child's
best interests have been a primary consideration. This includes describing how the best interests have been examined and assessed, and
what weight has been ascribed to them in the decision. (c) The obligation to ensure that the interests of the child have been assessed and
taken as a primary consideration in decisions and actions taken by the private sector, including those providing services, or any other
private entity or institution making decisions that concern or impact on a child. General Observation No. 14 of the Committee on the Rights
of the Child on "the right of the child to have his or her best interests taken as a primary consideration." May 29, 2013, par. 13)
117 Par. 15.
118 General Observation No. 14 of the Committee on the Rights of the Child on "the right of the child to have his or her best interests taken
as a primary consideration." Wednesday, May 29, 2013, par. 44.
119 General Observation No. 14 of the Committee on the Rights of the Child on "the right of the child to have his or her best interests taken
as a primary consideration." May 29, 2013, par. 54.