Ugandan and Canadian legislation, as well as international legal frameworks considering children, highlight the common law principle that the “best interests of the child” must be at the forefront of any decision
By Anna Du Vent
THE small child I see as I pick my way through the crowds of Kampala sits silently, cross-legged in the middle of the sidewalk, with his hands cupped in front of him. The crowds part around him, but no one, including myself, stops. He appears to be alone. He looks to be no more than two years old.
I have been living in Kampala, Uganda for two months. As a CBA Legal Intern, I am developing a manual of child-friendly legal aid practices. My work is complex, but, on a daily basis, my deeper challenges come from being confronted by scenes such as the small child begging on the sidewalk. What is in this child’s best interests?
Ugandan and Canadian legislation, as well as international legal frameworks considering children, highlight the common law principle that the “best interests of the child” must be at the forefront of any decision regarding a child’s welfare. Therefore, lawyers working with children must consider how courts will interpret the best interests of their clients.
The “best interests of the child” principle is found in Uganda’s Children’s Act, which incorporates its international commitments, including Article 3(1) of the UN Convention on the Rights of the Child, which describes the “best interests of the child” as a basic consideration in all decisions related to children.
However, despite having a strong legal framework, Uganda struggles to balance its legal commitments with social and economic disparities as well as with cultural practices that can be inconsistent with its law.
The “best interests of the child” principle must be applied on a case-by-case basis. When considering situations such as street children in Uganda, how should the legal system balance the child’s interests to live with his relatives, who are likely nearby, with his interests to education and a safe environment?
Layered on top of these questions are issues of cultural relativity. For example, as a Canadian, how do my personal views of family and childhood impact how I understand the best interests of the Ugandan child and how do these views impact my work with Canadian children?
In Uganda, 58 percent of the population are children, yet child justice issues are often poorly understood. In my work, I have interviewed many stakeholders involved in child justice, who often state that the “best interests of the child” is the most important element in children’s law.
However, it is usually difficult to extract further commentary about how to apply the principle. I have been told that this gap exists because of a lack of relevant training. However, the answer may not be so simple.
Despite the fact that Canadian lawyers may have additional training, we should ask ourselves whether we could provide specific commentary about the “best interests of the child.” Lawyers in many practice areas, including family and child-protection law, as well as criminal law, wills and estates, and immigration and refugee law, should engage with this question.
Further, although my struggles with cultural relativity in Uganda may seem far away, culture also impacts how the Canadian legal system engages with the “best interests of the child,” particularly amongst Aboriginal and immigrant communities.
The legal system cannot forget the nuanced interplay between a child’s age, stage of development, and family and cultural circumstances. Whether in Uganda or in Canada let us remain challenged, but also cognizant of this relationship.
Writer is a Legal Intern at the Legal Aid Service Providers’ Network, supported by the Canadian Bar Association’s Supporting Access to Justice for Children in East Africa (SAJCEA) project
Culture and the best interests of the child