The Legal Protection of Children in Contemporary Family Law: Reconciling Parental Rights, Best Interests, and Human Rights

Abstract

Contemporary family law is increasingly required to reconcile three normative claims that do not always point in the same direction: the autonomy traditionally accorded to parents over the upbringing of their children, the best interests of the child as the paramount consideration in custody, protection, and welfare decisions, and the growing recognition of children as independent holders of human rights under instruments such as the United Nations Convention on the Rights of the Child. This article examines how domestic and regional legal systems attempt this reconciliation, drawing on doctrinal and comparative analysis of statutory frameworks, constitutional provisions, and case law from Europe, the post-Soviet space, Africa, and the common law world. It argues that the best interests principle, despite persistent criticism for its indeterminacy, remains the most workable mediating standard between parental rights and children’s rights once it is understood not as unstructured judicial discretion but as a substantive and procedural right that requires the child’s own voice to be heard. The analysis further shows that state intervention in family life is most consistent with human rights obligations when it is proportionate, evidence-based, and oriented toward supporting rather than displacing parental capacity. The article concludes that coherent child protection law requires embedding participatory rights, procedural safeguards, and a relational understanding of the family within the best interests framework, rather than treating parental authority and children’s rights as inherently and permanently opposed.