Approaching the best interests of the child from the

During the course of the research, I aimed to remain open to different possibilities for interpreting the evidence I studied. Nevertheless, certain central premises affected my perspective and the research design and shaped the research questions.

In this section, I describe the four central premises of the study: first, approaching the concept of the best interests of the child from the perspective of human rights law; second, seeing human rights as an agreement; third, building on the findings of previous research regarding the interactions of different systems for the protection of human rights; and, fourth, following the idea that legal reasoning should reflect the underlying reasons for reaching an outcome.

The first premise relates to the angle from which I approach the best interests concept. This thesis belongs to the fields of constitutional law and human rights law. Studying the best interests concept from a human rights perspective is not the only possible angle, of course; children’s legal status and rights can be approached from various perspectives. Research concerning the legal status of children has commonly been conducted in the field of family law as children have traditionally been regarded as belonging primarily to the family.¹⁸⁸ Today, the understanding of relevant questions related to children is wider, and children’s legal status can be studied in the fields of migration and refugee law, private international law, public international law, tort law and criminal law, to mention just a few.

Human rights law seemed the most fitting approach for this study for four reasons. Firstly, my interest in the best interests concept arises from the discrepancy between the central status of the concept in the CRC and the insecurities regarding how the concept should be understood and how it is being applied in practice. As the CRC is an international human rights convention, it is logical to analyse this discrepancy from the perspective of human rights law. From this perspective, the best interests concept became interesting when it was included in the CRC.

Secondly, I find the broad scope of the concept – that is, its applicability in all actions concerning children – particularly salient. The perspective of human rights law provided me with the tools to grasp the comprehensive nature of Article 3(1) CRC and the obligation to apply it in all contexts, not only in the family sphere.

188 For an overview of how the thinking has changed, see eg John Eekelaar, ‘The Emergence of Children’s Rights’ (1986) 6 Oxford Journal of Legal Studies 161; Fortin, Children’s Rights and the Developing Law, chapter 1.

Thirdly, a human rights law approach enables to analyse the interaction between the international, regional and national, highlighting how international norms are visible in national systems and how the local and regional affect the international.

Fourthly, the human rights framework offers tools to analyse issues that are crucial to the best interests concept, such as limiting best interests.

This thesis can be classified as belonging to different research traditions depending on which aspects one pays attention to. The brief literature overview in section 1.1 illustrates the links of this study to previous research on the best interests concept. Many scholars treat children’s rights research – a relatively young research area that saw rapid growth from the 1990s¹⁸⁹ – or children’s rights law¹⁹⁰ as a field in its own right. I situate this thesis primarily in the broader ‘global human rights landscape’.¹⁹¹ Children have rights as children but also as human beings; as a general rule, all rights enshrined in human rights treaties belong to children, too.¹⁹² Critics such as Cantwell have been concerned that referring to

‘children’s rights’ instead of ‘children’s human rights’ may contribute to isolating these rights and diminishing their importance. It is important to keep in mind that even though research on children’s rights – including this thesis – often focuses on the distinct features of children’s rights, there are more similarities than differences between the rights of children and adults.¹⁹³ However, perceiving (international) children’s rights as a distinct field has value in that it directs the formulation of research questions to cover areas that might otherwise be left unexamined. Moreover, recognising children’s vulnerability and dependency is important as these are reasons behind the special treatment of children in human

189 Ann Quennerstedt, ‘Children’s Rights Research Moving into the Future – Challenges on the Way Forward’

(2013) 21 The International Journal of Children’s Rights 233, 234-235; the finding is based on a search in published peer-reviewed articles on children’s rights.

190 Jonathan Todres and Shani M. King, ‘Introduction’ in Jonathan Todres and Shani M. King (eds), The Oxford Handbook of Children’s Rights Law (Oxford University Press 2020); Ursula Kilkelly and Ton Liefaard,

‘International Children’s Rights: Reflections on a Complex, Dynamic, and Relatively Young Area of Law’

in Ursula Kilkelly and Ton Liefaard (eds), International Human Rights of Children (Springer 2018).

191 Eva Brems, Ellen Desmet and Wouten Vandenhole (eds), Children’s Rights Law in the Global Human Rights Landscape: Isolation, Inspiration, Integration? (Routledge 2017).

192 See eg Article 1 ECHR according to which the contracting states ‘shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’. ‘Everyone’ includes children.

Article 14 provides that the rights guaranteed in the ECHR shall be secured without discrimination on any ground.

193 Brems, Desmet and Vandenhole (eds), Children’s Rights Law in the Global Human Rights Landscape:

Isolation, Inspiration, Integration?

rights law. While a broader discussion of vulnerability falls outside the scope of this thesis, it should be remembered that vulnerability is a contested concept.¹⁹⁴

While this thesis clearly belongs to human rights law, the research questions also have relevance from the perspective of constitutional law. There are different national understandings of what a constitution is,¹⁹⁵ but it is evident that constitutional law and human rights law are closely interlinked. Interaction and dialogue between national, international and regional actors, one of the central premises of the study addressed in section 3.3, strengthens the link between constitutional and human rights law. It has been claimed that it is not possible to consider constitutional, European and international protection systems as sets of differentiated norms,¹⁹⁶ and in several countries, human rights treaties have had a major influence on domestic constitutional reforms.¹⁹⁷ This thesis draws on constitutional law in its interest in constitutional dialogue¹⁹⁸ and cross-references between human rights monitoring bodies or organs. Finnish constitutional law, for example, has become more international and European since the 1990s, after the ratification of several human rights treaties and the strengthening of ‘rights-based judicial review’.¹⁹⁹ Regional and international human rights treaties are part of Finland’s constitutional order and applicable in courts of law, which formed the rationale of Article I. The findings of this thesis, therefore, are relevant from the perspective of constitutional law as the thesis is situated at the crossroads of national, regional and international norms.

While this thesis primarily focuses on the international and regional levels, it also belongs to the Finnish legal research tradition, the fundamental and human rights research tradition in particular. In the Finnish context, research focusing on children’s rights is a relatively new phenomenon. Nieminen published the first

194 Several authors have argued that the concept of vulnerability creates and reproduces hierarchies. Herring, for example, claims that everyone is vulnerable, see Jonathan Herring, Vulnerable Adults and the Law (Oxford University Press 2016). At the same time, it has been argued that vulnerability – especially group vulnerability – can be useful in furthering substantive equality, provided that the concept is not used in a way that assumes that everyone else is fully autonomous and independent, see Lourdes Peroni and Alexandra Timmer, ‘Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law’ (2013) 11 International Journal of Constitutional Law 1056.

195 See eg Ingolf Pernice, ‘Multilevel constitutionalism in the European Union’ (2002) 27 European Law Review 511, 513.

196 Ojanen, ‘Human Rights in Nordic Constitutions and the Impact of International Obligations’ 165.

197 See eg ibid 143.

198 Cheryl Saunders, ‘Judicial Engagement with Comparative Law’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Research Handbooks in Comparative Law series, Edward Elgar Publishing 2011).

199 Juha Lavapuro, Tuomas Ojanen and Martin Scheinin, ‘Rights-based constitutionalism in Finland and the development of pluralist constitutional review’ (2011) 9 International Journal of Constitutional Law 505;

see also Juha Lavapuro, Uusi perustuslakikontrolli (Suomalainen Lakimiesyhdistys 2010).

domestic monograph on children’s fundamental rights in 1990.²⁰⁰ After that, it took approximately twenty years until the issues incited broader interest,²⁰¹ though studies addressing the legal status of children were published in the field of family law²⁰² but also, for example, migration law.²⁰³ Currently, there is an emerging community of researchers analysing questions relevant to children’s rights from different angles.²⁰⁴