The Best Interest of the Child under International Law : The Right to Respect for Private and Family Life in the Formation, Malfunctioning, and Disruption of a Family

Sammanfattning: This thesis will examine issues of international human rights law. Children’s rights and specifically the best interest of the child is a complex principle and is often overseen. Therefore, this thesis will examine how the European Court of Human Rights (ECtHR) can rely on international instruments outside its jurisdiction and how the Court has used the child's best interest in its jurisprudence. Further, the aim will also be to investigate the best interest of the child in relation to the formation, malfunctioning, and disruption of a family as issues under the right to respect for private and family life (Article 8) in the European Convention on Human Rights (ECHR). The thesis will be permeated by the doctrinal method and will consequently rely on the sources recognized in the Statute of the International Court of Justice (ICJ Statute). The thesis will begin to examine fragmentation, systemic integration, and rules of interpretation under the Vienna Convention on the Law of Treaties (VCLT). It will further provide the relevant legal framework from the Convention on the Rights of the Child (CRC) and define childhood, the principle of the best interest of the child, and state obligations under the Convention. The thesis will further present Article 8 ECHR and the prohibition of discrimination (Article 14) ECHR as well as obligations for contracting states. Additionally, the Court’s jurisprudence on adoption, child abuse, and divorce will be scrutinized. The Court’s interpretation of the best interest of the child and the CRC will also be addressed. Later, an analysis of certain issues encountered during the thesis will be presented, including the threefold concept and systemic integration. At last, the thesis will conclude that the ECtHR can rely on the CRC and the best interest of the child due to systemic integration and Article 31(3)(c) VCLT. However, how the Court referred to these concepts will differ, and the reason will be indeterminate. Moreover, the thesis will assert that the best interest of the child has a vital role in the protection of Article 8 ECHR and can be applied as a substantive right, a rule of interpretation, or a rule of procedure. Furthermore, the thesis will note that the best principle of the child will have a role in cases of adoption, child abuse, and divorce, but the principle will be interpreted differently.