「他者」としての子どもの最善の利益 : 「最も害悪の少ない選択肢」の基準をめぐって

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書誌事項

タイトル別名
  • The Best Interests of the Child as “the Other”
  • 「 タシャ 」 ト シテ ノ コドモ ノ サイゼン ノ リエキ : 「 モットモ ガイアク ノ スクナイ センタクシ 」 ノ キジュン オ メグッテ

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抄録

The United Nations Convention on the Rights of the Child（ UNCRC）, while recognizing the best interests of the child as its most important objective, also respects the child as an entity that has an independent personality and can exercise its rights. However, according to children’s rights scholar Anne Smith, children are invisible, mute objects of social concern and have not been understood as subjects with a unique perspective on the world. As a result, the principle of the best interests of the child is contrary to its literal meaning and relies almost entirely on what adults believe to be true, rather than on the views of children themselves. The concept of the best interests of the child itself was invented by adults. Furthermore, there are no articles defining its contents, nor are there any guidelines that serve as standards of judgment. Under such circumstances, if the best interests of the child are unilaterally determined by adults while excluding the views of the child himself/herself, a fundamental question arises as to how much meaning this can really have. In this regard, UNCRC guarantees the right to express opinions as a procedural right to determine the best interests of the child. However, in many countries, the participation of children in these proceedings has in fact become a mere formality. What is required, then, to avoid a situation in which adult decisions are imposed against the will of the child in the name of the best interests of the child ? This paper examines a position that attempts to determine the nature of the best interests of the child based on the criteria of “The Least Detrimental Alternative”（ LDA standard）. This paper first examines Smith’s critical position against the best interests of the child principle, and then, based on this, considers what significance the LDA standard may have in attempting to overcome the problems associated with the application of the best interests principle.

収録刊行物

  • 一橋法学

    一橋法学 22 (3), 41-58, 2023-11

    一橋大学大学院法学研究科

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