The best interests of the child in the case law of the Court of Justice of the European Union
| Author | Luigi Lonardo |
| DOI | http://doi.org/10.1177/1023263X221144829 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
The best interests of the child in
the case law of the Court of
Justice of the European Union
Luigi Lonardo*
Abstract
The principle that ‘in all actions relating to children (…) the child’s best interests must be a primary
consideration’(Article 24(2) EU Charter of Fundamental Rights) is widely applied by the Court of
Justice of the European Union (CJEU). This article considers preliminary rulings in which the CJEU
had recourse to the best interests of the child as the criterion for settling the dispute in the main pro-
ceeding. For analytical purposes, these cases may be grouped in two clusters: cases resembling child cus-
tody disputes, and other cases. It is argued that, in the light of the varied factual circumstances of the
judicial disputes, the application of the criterion of best interests of the child as primary consideration
warrants further scrutiny. To this end, this article identifies and assesses a practical and a conceptual
challenge to the widespread application of the criterion. The former posits that the criterion is indeter-
minate, and this article considers whether drawing from Article 3 of the Convention on the Right of the
Child may help in solving the uncertainty; the latter maintains that the test is unjust and self-defying, a
critique that this article finds only partially founded, for cases resembling child custody disputes.
Keywords
Best interests of the child, EU law, EU Charter of Fundamental Rights, Court of Justice of the
European Union, family law
1. Introduction
The primacy of the interests of the child is ‘one of the principles permeating the EU legal
order’.
1
It is the most well-established principle in international and national legislation on
*
University College Cork, College Road, Cork, Ireland
Corresponding author:
Luigi Lonardo, University College Cork, College Road, T12 K8AF, Cork, Ireland.
E-mail: llonardo@ucc.ie
1. Opinion of the Advocate General Szpunar in Case C-335/17 Valcheva, EU:C:2018:359; Case C-133/15 Chavez-Vilchez,
EU:C:2017:354, para. 42.
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(5) 596–614
© The Author(s) 2022
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DOI: 10.1177/1023263X221144829
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childhood.
2
As noted with regard to child custody disputes, the idea that decisions ought to be
settled exclusively or nearly exclusively according to what is in the child’s best interests
derives from the intuition, reminiscent of a Kantian imperative, of treating persons as ends
in themselves, not merely as means for other people.
3
Perhaps with similar optimism, the pro-
tection of children’s interests may be explained by time preferences, in this case valuing the
welfare of future generations more than the welfare of the present one.
4
Amorecritical
approach
5
would instead emphasize the negative aspects in the fact that certain decisions
are taken ‘because children are children –adults would decide such matters for themselves.’
6
These explanations might be relevant as meta-criteria for evaluating the desirability of the
principle.
The principle is codified in Article 24(2) of the EU Charter of Fundamental Rights (the
‘Charter’), which states that ‘in all actions relating to children, whether taken by public authorities
or private institutions, the child’s best interests must be a primary consideration’. All the Member
States are bound by the United Nations Convention on the Rights of the Child (CRC), whose Article
3(1) has almost identical wording to Article 24(2) Charter.
7
Moreover, the objectives of the EU in
Article 3(3) TEU are to promote, inter alia,‘solidarity between generations and protection of the
rights of the child’. From the principle, no right follows automatically. In EU secondary law,
Article 23(2) of the Return directive
8
and of the Reception directive
9
give expression to the prin-
ciple, stating that, in assessing the best interests of the child, national authorities shall take into
account family reunification possibilities, the child’s well-being and social development, safety
and security, and the views of the child in accordance with his or her age and maturity. Article
6(1) Dublin III Regulation and Article 25(6) Procedures directive
10
establish that the best interests
of the child shall be a primary consideration for Member States when an unaccompanied child
makes an application for international protection.
11
In addition, the European Court of Human
2. Examples of the former are discussed in this article. For the latter, see for example ‘Judicial Implementation of Article 3
of the Convention on the Rights of the Child in Europe: The Case of Migrant Children Including Unaccompanied
Children’,UNICEF (2012), p. 26 and T. Haugli et al. (eds.), Children’s Constitutional Rights in the Nordic
Countries (Brill, 2019).
3. J. Elster, ‘Solomonic Judgments: Against the Best Interest of the Child’,54Chicago Law Review (1987), p. 5.
4. For a survey of motivations for this principle, M. Freeman, Article 3. The Best Interests of the Child (Martinus Nijhoff
Publishers, 2007), p. 40.
5. Reference could be made to so-called ‘childism’, which denounces ‘the automatic presumption of superiority of any
adult over any child’, see C. Pierce and G. Allen, ‘Childism’,15Psychiatric Annals (1975).
6. A. Daly, Children,Autonomy and the Courts. Beyond the Right to be Heard (Brill, 2018), p. 72.
7. The CRC specifies that the best interests of the child shall be a primary consideration in actions taken by ‘public or
private social welfare institutions, courts of law, administrative authorities or legislative bodies’. The European Court
of Justice found that it is ‘necessary, when interpreting [Article 24(2) Charter], to take due account of the provisions
of that convention’C-112/20 État belge (Return of the parent of a minor), EU:C:2021:197, para. 37.
8. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and
procedures in Member States for returning illegally staying third-country nationals [2008] OJ L 348/98.
9. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the
reception of applicants for international protection (Reception directive) [2013] OJ L 180/96.
10. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for grant-
ing and withdrawing international protection [2013] OJ L180/60.
11. See ‘EASO Practical Guide on the Best Interests of the Child in Asylum Procedures’,European Asylum Support Office
(2019), https://euaa.europa.eu/sites/default/files/Practical_Guide_on_the_Best_Interests_of_the_Child_EN.pdf.
Lonardo 597
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