Understanding the Child’s Best Interest: A Guide to Child and Adolescent Rights
The Principle of the Child’s Best Interest
With the Child and Adolescent Statute (ECA), decisions regarding children prioritize their welfare. For instance, in a divorce, custody is determined based on the best interest of the child, not the reason for the separation.
Differentiating Children and Adolescents
The ECA distinguishes between children and adolescents based on their physical and mental maturity:
- Child: Under 12 years of age
- Adolescent: Between 12 and 18 years of age
Penalties also differ:
- Children: Protection measures
- Adolescents: Socio-educational measures
Even if an adolescent turns 18 while serving a socio-educational measure, they remain under the care of the Juvenile Court until the measure is completed.
Guardianship and Custody
Guardianship refers to having physical possession of the child. In a divorce, one parent typically has custody. A parent who relinquishes custody retains the right and duty to maintain contact with the child, unless deemed harmful by an official (e.g., due to substance abuse).
Adoption
In cases like a stepfather seeking to adopt a child they’ve raised, the biological father’s consent is generally required, unless parental rights have been terminated or abandoned. Adoption transforms a socio-affective relationship into a legal parent-child relationship.
With adoption, the child loses all legal ties with their biological parents, except for marriage restrictions. Birth certificates are issued without identifying biological parents or adoption status to prevent discrimination. However, a separate file contains this information.
The Right to Life and Protection of the Unborn
Article 226 and the Rights of the Child
While Article 226 of the Statute of Children and Adolescents (ECA) enumerates children’s rights, it’s important to remember that children and adolescents, like the elderly, are in a state of vulnerability. They are often unaware of their rights and duties and are highly dependent on their caregivers. Therefore, special legislation exists to protect these groups.
Family, Society, and Government Responsibility
The family is the primary social circle responsible for ensuring the rights of all family members. Parents can be held accountable if they fail to fulfill this duty. Society and the government also share responsibility for protecting children and adolescents, with the government obligated to provide assistance to those without family support and implement policies that guarantee their rights.
Note: The right to life encompasses not only physical existence but also dignity and the right to be born (i.e., protection against pregnancy termination).
Legal Personality and the Child
Legal personality, as defined in the Civil Code, is attained upon being born alive. This grants the ability to exercise rights and participate in legal relations, including receiving donations, inheritance, and claiming alimony. Therefore, being born alive is crucial for legal recognition.
The Fundamental Role of Family and Community
The Right to a Nurturing Environment
Children and adolescents have the right not to live in neglect and the right to live and develop within a family. Providing assistance and support is both their right and the duty of their family.
Evolving Definitions of Family
The concept of family has evolved significantly. While the Civil Code of 1916 defined family based on marriage, the Constitution of 1988 recognized stable unions – public, continuous relationships with the intention of forming a lasting family – as a family unit. This signifies that legal marriage is no longer a prerequisite for family status.
Another crucial change introduced by the Constitution of 1988 is the equality among children, regardless of their origin (biological, adopted, assisted reproduction). All children are considered legitimate and possess equal rights and duties, as stated in the sixth paragraph of Article 227.
Contemporary Understandings of Family
However, what constitutes a family today? Given the evolving societal norms, a universally accepted definition remains elusive. The traditional emphasis on procreation as the primary purpose of family has shifted. The indissolubility of marriage, prevalent until the Divorce Act of 1977, has also undergone significant transformation.
The Constitution of 1988 elevated the mother’s position to equal that of the father, placing the child at the center of the family and prioritizing their interests. This shift also increased the state’s responsibility for child welfare, as outlined in the eighth paragraph of Article 226.
While previously the protection of the family unit as a whole often overshadowed the protection of individual members, the focus has now shifted towards safeguarding the rights and well-being of each individual within the family.