Ariticle9Keeping families together
- States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
- In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
- States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
- Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
In addition to the “no separation from his or her parents” provision, which states that parents and children shall not be separated against their will, this Article also describes the exceptions to that provision and the procedures for separating parents and children in such cases. Together with other articles such as Article 7(1) and Article 18(1), this article can be regarded as a framework that supports the definition of “family” in the preamble of the Convention as “the fundamental group of society” and “the natural environment for the growth and well-being of all its members and particularly children.”
Paragraph 1
In general, this paragraph sets forth the “prohibition against separating parents and children” and the exceptions to this prohibition. The exceptions to this prohibition have the following conditions.
② The authority must be subject to the firm oversight of the judiciary.
③ Use the laws and procedures available at the time.
④ Decisions must be made as necessary in the pursuit of the “best interests of the child.”
Only when the above four conditions are satisfied can an exception be made. In paragraph 1, the child's abuse or neglect by the parents and the separation or divorce of the mother and father are mentioned as specific examples, and in paragraph 4, various judgments made by state authorities, such as the detention or deportation of the parents or the child, are mentioned. Again, regardless of the circumstances, the “best interests of the child,” as set out in Article 3 of the Convention, should be the first priority in making such decisions.
Paragraph 2
All parties concerned are given the right to participate in the decision-making process of separating parents and the child, as well as the right to express their opinions in the process. “The parties concerned “ include not only the parents and other family members, but also the child himself/herself, who will be most affected, and Article 12 guarantees them the “right to give their opinions.”
Paragraph 3
It provides for “the right to maintain relations and direct contact with parents.” This article establishes a demand to the state to respect the right of children who are forced to separate from their parents to have and maintain regular relationships and contact with their parents. What is important here is that it is clearly stated that this contact between parents and the child is not only the right of the parent but also the right of the child. This leads to the important phrase “except if it is contrary to the child's best interests.” In other words, the “best interests of the child” are given the highest respect here as well, and the state has the responsibility to prevent or block contacts and interactions only when they are contrary to the “best interests of the child.”
Paragraph 4
Paragraph 4 provides for "the right of the remaining family members to obtain information concerning the location of the members of the family being separated by the state." This article requires that when a parent and child are separated by the state, upon request of the parties concerned, the state shall provide information on the location of the members of the family who have been separated. At the same time, the state has a responsibility to ensure that its response does not have any adverse effects on the parties involved in any way. Adverse effects refer to situations in which the parties concerned suffer a variety of detriments. For example, there are cases in which "the provision of information is detrimental to the child's well-being. This refers to cases in which providing information about the child's location to the parents may result in contact that is contrary to the “best interests of the child.” Again, the "best interest of the child is the primary consideration.