— From the Principles of National Conventions to the Building of Adjudication Norms

 

WANG Dezhi* & WANG Bixing**

 

 

Keywords: the principle of “the best interests of the child” · The Convention on the Rights of the Child · the protection of children’s rights · the application of justice

 

 

The Convention on the Rights of the Child (hereinafter referred to as the “Convention”) is one of the most widely approved and ratified international treaties. The ethical and legal framework it provides to realize the rights of children are followed by all signatory states. Article 3 of the Convention states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This means “the best interests of the child” should be the primary consideration in the handling of judicial cases concerning children’s rights and interests in countries party to the Convention. Safeguarding “the best interests of the child” is a binding obligation for signatory states of the Convention. Their administrative authorities need to regard “the best interests of the child” as the most essential principle in handling relevant specific cases. 

 

However, from the normative perspective, “the best interests of the child” remains an abstract principle. Under different circumstances, the manifestations of the “best interests of the child” may be inconsistent. This principle requires that the governments of signatory states take into account the specific situations of individual cases and the differences between individual children to seek a balance among varying elements, so as to work out a solution that can best protect the specific rights of children. The Convention clearly states the principle of “the best interests of the child,” but it lacks terms to explicitly interpret the connotations of the principle. Therefore, this open international principle on human rights has fallen into a dilemma of value judgment. Due to the strong subjectivity of the principle, it has inevitable needs for further interpretations by applicable judges, institutions, and organizations.¹ That is to say, the application of this principle, to a large extent, depends on the value system of policymakers.² Jorge Llorens, a member of the UN Committee on the Rights of the Child, admitted that “the best interests of the child is a flexible notion that needs to take into consideration different values and changeable issues and an uncertain concept that requires balancing various elements on a case-by-case basis.”³ This seems to mean that the judge’s discretionary power replaces established norms to become the primary factor determining the final judgment. European scholars Robert Mnookin and E. Szwed frankly pointed out that “the defect of the principle of the best interests of the child lies in its uncertainty, which requires one to make a personal choice from a variety of options.”⁴ However, fear or denial of discretionary power may cause judges to fail to make effective and convincing verdicts for difficult cases. Discretionary power remains an indispensable factor in today’s judicial adjudication, and discretion itself is constantly reshaping the reasons for discretionary behaviors. For instance, Ronald Dworkin held that “the entities with discretionary power can adjudicate under certain authoritative standards.”⁵ This provides greater space for the UN Committee on the Rights of the Child to enhance the certainty of the best-interests principle and enrich its specific connotations. According to the General Comment No.14 issued by the UN Committee on the Rights of the Child in 2013, basic elements such as the child’s views, the child’s identity, preservation of the family environment and maintenance of family relations, the child’s care, protection and safety, and situations of vulnerability, and the child’s right to health, and the child’s right to education shall be taken into account when assessing “the best interests of the child.” However, the General Comment cannot stipulate how to apply this highly abstract principle in specific, diverse scenarios. The UN Committee on the Rights of the Child listed the aforesaid seven elements related to the rights of the child as the “general analysis model,” without rejecting judges from taking into account other elements. The importance of each element is defined based on relevance to other elements, and their content may vary for specific individuals and issues.⁶ Therefore, consideration of the conflict between different elements and the definition of discretion on various elements are still tough challenges in the field of judicial adjudication.

 

As an international norm of human rights, the principle of “the best interests of the child” has been incorporated into the legal systems of various countries and regions in different ways. After that, it still needs to constantly integrate with different legal traditions and be specified. Article 49 of the Constitution of the People’s Republic of China stipulates that “marriage, families, mothers and children shall be protected by the state.” “Parents shall have the obligation to raise and educate their minor children” and “mistreatment of children is prohibited.” Under the influence of the Convention, China’s Civil Code, Law on the Protection of Minors and other laws have also incorporated the principle of giving “priority and special protection” to minors.⁷ The principle of “the best interest of the child” is an integral part of China’s legal system, with binding force for adjudication in domestic courts, as well as the most cited among international human rights principles. Meanwhile, Chinese scholars’ studies on the principle of “the best interests of the child” are booming, including both the general introduction and research of its definition and evolution⁸ and studies on its application in specific fields.⁹ The Convention has become the most frequently cited international convention by courts at various levels.¹⁰ It is a pity that most studies focus on the institutional construction of the principle, and few make analysis and reflection from the perspective of judicial application.¹¹ Although some scholars have tried to conduct empirical analyses on the 199 verdicts that cited “the best interests of the child” to explore methods of Chinese courts in the application of the principle of “the best interests of the child,”¹² most of them lack identification of the function of the principle in the process of adjudication. 

 

In order to study the application of the principle of “the best interests of the child” in judgments made by Chinese courts, a fuzzy search of the keywords “the best interests of the child” on the Openlaw website shows that Chinese courts frequently cite the principle in their judgment documents, which are often in the forms of different statements such as “maximizing the interests of the child”, “the best interests of the child” and “maximizing the interests of children.” According to the results of the fulltext precise search of the aforesaid three respective keywords on China Judgements Online (wenshu.court.gov.cn) in October 2021, 227 judicial documents containing “maximizing the interests of the child,” 87 containing “the best interests of the child” and 486 containing “maximizing the interests of children” were found. Statistics of the Openlaw website indicated that the number of judgments invoking the principle from 2016 to 2020 continued to increase. So far, however, the guiding cases issued by the Supreme People’s Court have not involved judgments in which the principle is applied, and there have been only 13 typical cases and one other case published in the Gazette of the Supreme People’s Court mentioning this principle. In the bulletin case published by the Supreme People’s Court, the Court of Jiangning District, Nanjing, recognized that the defendant Xu’s behavior of publishing photos of a minor mistreated by her adoptive parents met “public interests and the best interests of the child” and rejected the plaintiff’s litigation that their privacy was violated.¹³ The Supreme People’s Court published this case, with an aim to clarify the standards on how to judge whether technical treatment of personal information infringes privacy when it concerns social media reporting cases related to public interests. The principle of “the best interests of the child” isn’t the determining factor in the adjudication of this case. 

 

Faced with this situation, we must reflect on how Chinese courts have applied this principle in their adjudications over the past 30 years since China approved the Convention, what impacts the principle has on judicial judgments during the process of adjudication, and whether it influences China’s current legal system. Some scholars worry that the introduction of the ambiguous principle of “the best interests of the child” may cause it to be misused to oppose all other rights given that it lacks tangible, operational standards.¹⁴ For this reason, Part II of this paper focuses on analyzing the features of the application of the principle of “the best interest of the child” in Chinese courts and its functions in adjudications from an empirical perspective, Part III focuses on analyzing the deficiencies of the judicial application of the principle of “the best interests of the child” from the perspective of the rule of law, and Part IV puts forward suggestions on how to improve the application of the principle of “the best interests of the child” in Chinese courts. 

 

 

 

Through reviewing previous cases, we can see that Chinese courts’ judicial documents invoking the principle of “the best interests of the child” show a significant increase in the number of disputes, types of disputes, and pronounced regional characteristics. Moreover, the courts’ application of this principle is highly consistent with the judicial interpretative documents issued by the Supreme People’s Court.

 

In terms of the number of documents, the first three judicial documents invoking this principle appeared in China in 2012, and the figure increased to seven in 2013, and has witnessed a significant increase since 2014. From 2014 to 2019, the number of judicial documents invoking the principle was 89, 166, 135, 62, 98, and 74, respectively. 

 

In terms of the types of disputes, if searching with the keyword “maximizing the interests of the child,” all judicial documents we can find are about civil cases, except for one administrative case. The overwhelming majority of those civil cases are disputes concerning marriage and family; if searching with the keyword “the best interests of the child,” the cases we can find include two criminal cases and 69 civil cases, of which half are about marriage and family disputes. The most evident manifestation of the typifying of relevant cases is that all of the 439 judicial documents searched with the keyword “maximizing the interests of children” are about civil cases concerning marriage and family disputes. 

 

Meanwhile, the application of the principle of “the best interests of the child” demonstrates distinct regional disparity. Of the 24 judicial documents searched with the keyword “maximizing the interests of the child” that concern disputes on compensation for mental loss, 10 came from Shanghai and nine from Beijing. Of the 11 judicial documents for cases of disputes related to compensation for damages from traffic accidents, seven came from courts in Shanghai. Of the eight judicial documents for cases of disputes related to compensation for personal injury, six came from courts in Beijing. In the temporal dimension, prior to 2014, most courts invoking this principle were located in Jiangsu, Zhejiang and Shanghai. Since 2014, courts in other places have begun to cite the principle in their adjudications. This shows that Chinese courts’ invocation of the principle of “the best interests of the child” demonstrates obvious regionalism. 

 

In addition, Chinese courts’ application of the principle of “the best interests of the child” is highly consistent with the judicial interpretative documents issued by the Supreme People’s Court. After the Supreme People’s Court issued relevant judicial interpretative documents, the number of judicial documents invoking the principle saw an increase. Most regional courts tend to apply the principle in accordance with the domains and methods as guided by the Supreme People’s Court. The reasoning of many judicial documents is referenced in the interpretation of the “case of Zhao’s suing Xu for the dispute over child support” published in People’s Court Daily in May 2014 (“In civil lawsuits concerning minors, the principle of child protection shall prevail, and priority shall be given to the interests of the child when considering various elements”)¹⁵ and the stipulation of “adjudicating on the attribution of child custody on the principle of maximizing the interest of children” confirmed at the 2015 National Civil Trial Work Conference. In addition, all judicial documents that cited the principle of “maximizing the interests of children” are cases related to marriage and family disputes, which is consistent with the statement at the 2015 National Civil Trial Work Conference. By combing through the time of the existing judgments and the statements of the principle in relevant judicial documents, we can find that the courts’ application of this principle is highly consistent with the judicial interpretative documents issued by the Supreme People’s Court.

 

It is an available and rational option to use the Supreme People’s Court’s judicial interpretative documents to strengthen the legitimacy of relevant adjudications.¹⁶ The restriction on the application of international human rights conventions in Chinese courts and the uncertainty of the legal principle itself make courts rely on more authoritative judicial guidance when applying the principle of “the best interests of the child”. Nevertheless, there were still a few judicial documents invoking the principle in 2013 and 2014 before the Supreme People’s Court issued relevant judicial interpretative documents. Those that were not completely consistent with the judicial interpretative documents usually occurred in regions with relatively high judicial civilization such as Jiangsu, Zhejiang, Beijing, and Shanghai. That is to say, the courts in the aforesaid regions seemed to tend to shake off their reliance on the judicial guidance of the Supreme People’s Court, and took the lead in invoking the principle of “the best interests of the child” in their judgments.

 

 

To a certain extent, legal principles offset the inevitable latency and ossification of legal rules in adjudication. The concept of the best interests of the child has a uniqueness that makes it stand out from general human rights principles and involves the trilateral relations among children, family, and the state. When a case contains elements involving the interests of children, the principle of “the best interests of the child,” which aims to protect children, shows fundamental differences from other principles. The principle of “the best interests of the child” is a basic principle that has drawn wide attention among international human rights principles. China’s judicial practice indicates that the principle has become a recognized judicial concept in the country and plays a role in judicial application distinct from other international human rights principles. The principle of “the best interests of the child” not only is declaratory and advocatory, but also plays a tangible role in interpreting the spirit of the law, the value basis of discretion, and the value orientation of shaping new rules in adjudication.

 

 

Through the invocation and logical interpretation of the principle of “the best interests of the child,” Chinese courts, to some extent, fill in the domestic void in the legislation on the rights of children, which is evidenced by some typical cases. In the aforementioned case “Zhao’s suing Xu for child support”¹⁷ published in People’s Court Daily in 2014, the defendant Xu argued that he had no marital relationship with the plaintiff Zhao, and the birth of their child was against the defendant’s will, so he refused to evenly bear the costs of supporting the child with the plaintiff. According to law, children born out of wedlock shall enjoy the same rights as children born in wedlock, the father or mother who doesn’t have physical custody of the child shall bear the child’s living and education expenses until the child comes of age and can support himself or herself.¹⁸ That is to say, the defendant Xu who didn’t have physical custody of the child shall bear the costs of supporting the child, and the specific amount of child support shall be based on the judgment made by the court. As for the question of whether the mother shall bear more responsibilities of raising the child born without the consent of the father, there are no relevant provisions in China’s existing laws. The court cited the principle of “the best interests of the child” as the proof for its judgment that such a situation shall not abate the father’s responsibility of paying child support, making up for matters that are not clarified in laws and regulations. Likewise, the adjudicating court in the “case of Xi Zichuang suing Xi Jufang for child support”¹⁹ published by the Supreme People’s Court, also cited the principle of “the best interests of the child” to justify the plaintiff’s request to increase child support. 

 

In addition to making up for the voids in legal rules, the invocation of the principle in typical cases demonstrates its dependence on legislation in China. The analysis of the typical case related to minors, i.e. the “case of Yang Jie suing Su Zhong for an alteration of child custody,”²⁰ stressed that the principle of “maximizing the interests of the child” shall always be upheld in adjudicating on cases related to the protection civil rights and interests of minors, and that the adjudication on the attribution of child custody shall be made with a focus on the physical and mental health of minors and the parent’s custody conditions and capabilities, as well as the will of minors above 10 years old. Although it highlighted the importance of the principle of “the best interests of the child” in relevant adjudications, the reasoning is identical to relevant statements in the Specific Opinions on Child Custody in Divorce Case Adjudications by People’s Courts issued by the Supreme People’s Court.²¹ In this case, the court directly cited domestic law as the basis for its adjudication, and at the same time, it used the principle of “the best interests of the child” as the foundation of its reasoning, indicating that the principle was used as a supplementary theoretical basis for the judgment. 

 

The above-mentioned three cases are typical and clearly show that the application of the principle of “the best interests of the child” in the adjudications of Chinese courts makes up for the voids in relevant legal rules, and provides theoretical support for the courts’ decision. Despite the fact that typical cases may play a guiding role in the adjudication of similar cases, courts at various levels aren’t confined to the types of disputes and the ways of application as shown in these typical cases, but give more room for the application of the principle of “the best interest of the child” in adjudication.

 

 

(1) An instrument to interpret the spirit of the law

 

First, exhorting the litigants. In 2014, the People’s Court of Changning District, Shanghai became the first to write in the verdict for the “case of the plaintiff He Jia suing the defendant Wang Jia for the dispute over child visitation”²² that it hoped “both parties eye the principles of maximizing the interests of the child, seek mutual understanding and compromise, and calmly handle their dispute over child visitation, so as to create a healthy, positive study and living environment for the minor.” The same year, the People’s Court of Dongtai City, Jiangsu province, stressed in its ruling in the “case of the divorce dispute between Kong and Xue”²³ that “in light of the principle of maximizing the interests of children, both parties shall neither regard the attribution of child custody as an indicator of winning the lawsuit nor cause mental harm to their underage child due to dispute over child custody; otherwise, it will exert negative impact on the healthy growth of their child.” As of 2016, many people’s courts in places such as Henan, Beijing, and Shandong have expounded on the concept of “the best interests of the child” as the basic principle in handling family disputes to litigants for the purpose of exhorting them to put the child’s interests first.²⁴

 

Second, interpreting provisions of the law. In 2014, the People’s Court of Yingzhou District in Fuyang City, Anhui province, wrote in its verdict in the “case of Wu and others suing Wang and others for the dispute over the right to health”²⁵ that “considering that the child is in the period of growth and development… the Tort Liability Law has different stipulations on persons without the capacity for civil conduct and persons with a limited capacity of civil conduct who get injured on campus. The school shall take greater responsibility in case a person without the capacity for civil conduct gets injured in the campus. Such a stipulation fully manifests the special protection for children according to Chinese laws and the implementation of the internationally recognized principle of the best interests of the child.” This is the first judicial document that mentioned the implementation of the principle of “the best interest of the child” in Chinese laws. Afterward, when explain the reasoning for their verdicts in lawsuits concerning infringement disputes and divorce disputes, many courts around China have mentioned the principle of “the best interests of the child” manifested in China’s Tort Liability Law and the judicial interpretative documents issued by the Supreme People’s Court. 

 

While performing their duty to adjudicate disputes, the courts also have the obligation to spread the spirit of the law among the public. Through invoking the principle of “the best interests of the child” in judgments, the courts, on the one hand, expound on the importance of the principle to litigants, and on the other hand, clarify the concept of the best interests of the child manifested in Chinese laws from the perspective of domestic legislation analysis. The commonality of the two lies in the fact that the courts don’t take the principle of “the best interests of the child” as the basis for adjudication, but spread the concept of “the best interests of the child” among the public in their exhortation of litigants to uphold the principle and interpretation of legal interests manifested in laws. This conforms to the statement on “the best interests of the child” manifested in Chinese laws in the report that China submitted to the United Nations Committee on the Rights of the Child as a signatory state. Therefore, with the help of existing laws and the government’s representation in relevant international authorities, it skillfully avoids the risk of making the Convention gain the status of domestic law and the risk of the courts exceeding their authority to interpret laws. 

 

(2) Value basis of discretion

 

First, assisting legal rules in reasoning. When adjudicating the “case of the divorce dispute between Zhang and Zhu,”²⁶ the court explained that “their child born in the wedlock is less than 5 years old and has been taken care of by and lived with the plaintiff, and they have established a deep mother-son relationship, and the alteration of custody is likely to cause a negative impact on the healthy growth of the child,” so it would be better to adjudicate that the plaintiff have physical custody of the child. Doubtless this explanation conforms to Item 2 of Article 3 of the Specific Opinions on Child Custody in Divorce Case Adjudications by People’s Courts,²⁷ and is thus well grounded in accordance with relevant domestic laws. Likewise, when adjudicating in the “case of the dispute over child custody between Li and Zhang who cohabitate with each other,” the “case of the dispute over child custody between Lyu and Chen who cohabitate with each other,” and similar cases,²⁸ the courts all took into account the principle of “maximizing the interests of the child” and made judgments on the ground of “not changing the living environment of the child” based on the current living environment being more conducive to the child’s healthy development than the proposed alternative. The legal basis derives from Item 2 of Article 2 of the Specific Opinions on Child Custody in Divorce Case Adjudications by People’s Courts.

 

Second, filling in the void in legal rules. For example, the written judgment for the “case of the dispute over child support between Hu 1 and Hu 2”²⁹ first cited stipulations in the Marriage Law as the legal basis, which stated that “after divorce… the agreement or court judgment on the payment of a child’s living and educational expenses shall not prevent the child from making a reasonable request, when necessary, to either parent for an amount exceeding what is decided upon in the said agreement or judgment.” Then, they explained the rationality of increasing the amount of child support borne by the plaintiff from the perspective of the best interests of the child. The “case of the dispute over child custody between Zhang Guimei and Lin 2 who cohabitated with each other”³⁰ is a similar example. Pursuant to the Marriage Law and other relevant laws, the court also held that the attribution of child custody shall be solved for the purpose of safeguarding the physical and mental health of the child while taking into account specific circumstances. Accordingly, the principle of “the best interests of the child” became the crucial value basis when the court considered whether the specific conditions and behaviors of the plaintiff and the defendant are conducive to the physical and mental health of the child. It isn’t hard to conclude that the justification and application of the principle of “the best interests of the child” happened to make up for the unreachable domains of relevant legal rules.

 

Third, serving as theoretical support for responsibility allocation. As for the “case of the dispute over the rights to life, health, and body between Wang Jinshuo and Sanming New Huadu Supercenter Co., Ltd,”³¹ the court adjudicated that the custodian shall take principal responsibility for the minor’s injury arising from a fall in the supermarket, and based on the principle of “the best interests of the child,” the supermarket operator shall be responsible for 30 percent of the losses resulting from the minor’s injury. In the “case of the dispute over compensation liability between Feng and Xinmiao Kindergarten in Longli County,”³² which also involved compensation for injury caused by a fall, the judge determined that the minor’s custodian and the kindergarten shall be respectively responsible for 20 percent and 80 percent of the losses in accordance with the principle of “the best interests of the child” and the extent of the faults of the two parties. Similar judgments may also occur in cases related to the determination of the amounts of child support, nutrition costs, and nursing fees as well as compensation for mental impairment and disputes related to personal injury. Although the courts expounded on the obligations of custodians and the defendants to ensure the safety of minors when reasoning the judgments in both of the aforesaid two cases, such interpretation was obviously not enough to prove the correlation between the distribution of the responsibility adjudicated by the courts and the best interests of the child. It isn’t difficult to conjecture that although the courts exceeded the types of disputes in typical cases when invoking the principle of the best interests of the child, such invocation was easier to lead to uncertain results due to the lack of authoritative argumentation and guidance, which also lacked interpretation on the correlation between the principle and the judgments. 

 

When adjudicating the famous “case of the divorce dispute between Fu-Di and Dong,”³³ the court’s behavior to preferentially cite the Convention to reason its judgment was highly controversial at the time. However, the principle of “the best interests of the child” didn’t play a unique role in the adjudication of the case. Evidently, prior to the issuance of relevant typical cases, the court adjudicating the case boldly broke the restriction on the legal status of international conventions in China by directly invoking the Convention and made the judgment on child custody with the best interests of the child as the basis. However, speculating from the angle of the court’s attempt to seek legitimate space for its application of the Convention by invoking stipulations on law application in the Law of the Application of Law for Foreign-related Civil Relations and the General Principles of the Civil Law, we can conclude that its aim wasn’t to challenge the limitations of the current legal system, but an attempt to make a more comprehensive analysis of all elements concerning the interests of the child (including care accessible to the child, health condition, ethnicity, nationality, living and education environment, parents’ incomes, and protection of the child’s rights) by invoking the principle of “the best interests of the child”. In accordance with the Specific Opinions on Child Custody in Divorce Case Adjudications by People’s Courts, the courts shall properly adjudicate the attribution of child custody for the purpose of guaranteeing the physical and mental health as well as legitimate rights and interests of the child while taking into account specific elements such as either parent’s ability and condition to support the child. As for that case, the court cited the principle of “the best interests of the child” to evaluate the specific conditions to support the child from the perspective of the principle, which made up for the over-abstract legislation on the attribution of child custody in China. The only problem was that it couldn’t justify its behavior to preferentially apply the Convention in adjudication. 

 

Whether to assist the reasoning of legal rules and filling in the voids in legal rules or as the theoretical basis for responsibility allocation, the adjudicating courts further correlated the principle of “the best interests of the child” with relevant judgments. This at least pushed the principle to evolve into the value basis of adjudication of Chinese courts, and its application even showed the tendency to exceed certain domains. Nevertheless, the courts still took a fairly prudent attitude toward the application of the principle in adjudication. As they cited the principle of “the best interests of the child” to assist the reasoning of legal rules and filling in the voids of legal rules, their adjudicative logic dovetailed with the aforesaid typical cases perfectly. 

 

(3) Value orientation of shaping new rules

 

As judicial authorities of a state, the courts exercise the power of the application of law in adjudications, instead of the power of legislation. It is highly risky for them to use the principle of “the best interests of the child” as the value orientation for shaping new rules. Therefore, few courts do so. 

 

First, shaking established rules. When adjudicating the “case of the custody of the child born through surrogacy in Shanghai,”³⁴ the court of second instance directly cited the Convention and used the principle of “the best interests of the child” as the value basis to analogize “the child born out of wedlock” through surrogate maternity as a “stepchild”, thus enabling the surrogate mother Ms. Chen to gain legitimate identity and the custody of the child despite the fact that her surrogacy was deemed illegal. In addition to questioning the legitimacy of the invocation of the Convention, some scholars believe that the judgment violates the principles of “prohibiting the justification of illegal behaviors” and “legal identity,” and argue that the judgment on their “step-parent-child relationship” goes against the logic of legislation.³⁵ The court publicly used the Convention and the principle of “the best interests of the child” as the primary basis for the adjudication on the attribution of the custody of the child born through surrogacy, and further interpreted the law by analogizing the child born through surrogacy in this case as a “stepchild.” Such actions not only violated the primary stipulations related to “the determination and alteration of the scope of stepchildren” in Chinese laws,³⁶ but de facto shook the belief on the illegal nature of surrogacy. It is evident that the principle of “the best interests of the child” served as an important basis for the court to change established rules in the process of arguing about the attribution of the custody of the child born through surrogacy and then bestow upon the surrogate mother the right to establish affection and have custody of the child. 

 

Likewise, in the “case of the dispute over child visitation between Xie and Gao,”³⁷ the court of first instance adjudicated that the surrogacy agreement was invalid because it violates the law and social ethics, but at the same time, it confirmed the identity of Ms. Tao, the wife of Gao, as the “stepmother” of the child born through surrogacy on the basis of “her will and de facto behavior to raise the child.” Similar to the “case of the custody of the child born through surrogacy in Shanghai,” elements such as “complete family” with de facto support relationship became significant value orientation for the courts to confirm the identity of “stepparent/stepchild.” Clearly, the court played the role of legal interpretation in defining the scope of “stepchild” in this case. 

 

Second, renewing legal rules. In the adjudication of the “case of Xu suing Li for a divorce,”³⁸ the court admitted that the marital relationship between the plaintiff and the defendant fell into a severe crisis, but rejected the plaintiff’s petition for a divorce on the grounds that the defendant and relatives of both parties had the willingness to seek reconciliation and the divorce might threaten the best interests of the child. Eventually, the court cited the Marriage Law’s stipulations on marital discord, and adjudicated not to support the plaintiff’s petition for a divorce on the grounds that mutual affection still exists. It is evident that the reasoning given by the court is inconsistent: On the one hand, the court admitted that their marriage faced a severe crisis, implying that it already acknowledged marital discord between the two parties, but its judicial reasoning focused on the fact that the custody of their underage child hadn’t been properly handled; on the other hand, the reasons that the court rejected the petition for divorce didn’t include the dispute over the custody of the child. It isn’t hard to conclude that the court made “maximizing the interests of the children” a tangible element that supported the rejection of divorce. The court resorted to legal rules related to statutory causes for divorce just to avoid the controversy over the legitimacy of invoking the principle of “the best interests of the child” as a reason to reject the plaintiff’s divorce petition. 

 

This adjudication isn’t unique. For instance, when handling the “case of the divorce dispute between Zhang and Chi,”³⁹ because neither the plaintiff nor the defendant wanted to support their child, the court rejected the plaintiff’s petition for a divorce on the grounds of the best interests of the child. Other examples are the “case of the divorce dispute between Shi and Yang”⁴⁰ and the “case of the divorce dispute between Zhang and Dou.”⁴¹ In both cases, the courts cited the provision on marital discord and rejected the plaintiff’s petition for a divorce for the reason that the two parties failed to reach an agreement on the custody of their child. Especially in the “case of the divorce dispute between Shi and Yang,” both the plaintiff and the defendant agreed to divorce, but the court still used the principle as the basis for rejecting the petition for a divorce based on both parties’ negative attitude toward supporting their child. Of course, we cannot deny the rationality of the courts’ citation of the provision on marital discord because they have the discretion to judge whether such a situation exists or not. However, in accordance with Article 1079⁴² of the Civil Code of the People’s Republic of China, the grounds on which marital discord is identified shall be either the husband and the wife or either party commits acts that harm mutual affection, and the attribution of child custody after divorce is a matter to be discussed and agreed by the two parties, which is non-homogeneous to the aforesaid element in terms of precondition and behavioral mode. 

 

 

 

The application of the principle of “the best interests of the child” by Chinese courts demonstrates a typified mode. Considering the restrictive status of international human rights conventions in China, the application of the principle by Chinese courts, to a large extent, relies on guidance from existing laws and judicial interpretative documents. However, the lack of such guidance has resulted in an ossified, formalized application of the principle. This prevents the principle from playing a deserved role in the courts’ adjudications. 

 

In terms of legislation, especially civil legislation, stipulations manifesting the concept of “the best interests of the child”⁴³ often end up with abstract principles and lack practical guiding function. To a large extent, this makes the courts skirt around the correlation between the principle of “the best interests of the child” and the cases when invoking the principle in adjudication. 

 

Judicial interpretative documents provide “safe havens”⁴⁴ for courts at various levels, enabling judges to evade the risk of exceeding their scope of authority arising from the exercise of discretion. For example, in cases like the “case of the divorce dispute between Zhang and Zhu”⁴⁵ and the “case of the dispute over child custody between Li and Zhang who cohabitate with each other”⁴⁶, the courts conducted judicial reasoning for the attribution of child custody on the basis of the principle of “the best interests of the child,” but their reasoning still conformed to the provisions of the Specific Opinions on Child Custody in Divorce Case Adjudications by People’s Courts. However, considering that China’s judicial interpretative documents lack a clear definition, terminological interpretation or judicial framework for the principle of “the best interests of the child,” judges have to rely on the typical cases and meeting minutes unveiled by the Supreme People’s Court to evade risks arising from invoking the principle. Due to the lack of typical cases and guiding cases, however, the connotation of the abstract principle of “the best interests of the child” hasn’t been specified yet. In this context, it becomes hard to standardize judges’ individual active interpretation of the principle. 

 

Meanwhile, although the “child-first” principle⁴⁷ emphasized in China’s laws and policies has some similar attributes to the principle of “the best interests of the child,” the two have essential differences in terms of conceptual values. Although the “childfirst” principle highlights the child-centered concept of rights, it is a choice made after taking into consideration the parents’ rights and other related rights; on the contrary, the concept of “the best interests of the child” places greater emphasis on treating the child as a “person” with individual value, instead of regarding the child’s rights as favors bestowed upon children.⁴⁸ The partial and biased understanding of the principle of “maximizing the interests of the child” manifested in the policy that serves as a basis for the courts to perform their adjudicating function makes it hard to guide the courts to achieve the value of the best interests of the child in adjudication. 

 

 

The law gives the courts extensive discretion, resulting in different understandings of the concept of “the best interests of the child” and the elements to be considered in adjudication. For this reason, the final judgment is often unpredictable. For instance, the US best-interests standard doesn’t give the courts specific guidance on adjudicating disputes related to child custody. As a result, judges demonstrate high flexibility in adjudications, and the final judgments are primarily reliant on the judge’s character, beliefs, values, and even prejudice. ⁴⁹

 

Chinese courts have yet to form a systematic judicial adjudication concept related to the best interests of the child. The ambiguous definition and judgment standards of “the best interests of the child” leave huge room for judges’ discretion. Therefore, the adjudication is inevitably affected by the judge’s personal values, will and prejudice. Take the “case of the divorce dispute between Zhang and Dou”⁵⁰ as an example: Zhang initiated a lawsuit to ask for a divorce with Dou on the excuse of marital discord. However, the court rejected the plaintiff’s petition on the grounds of the best interests of the child and argued that divorce isn’t conducive to maintaining ethical and familial relations. When analyzing the case, the court neglected the possible psychological impact of the quarrels between the two parties during the marriage and the plaintiff’s doubts about the parent-child relationship on the underage child. Research shows that children may learn how to get along with others through observing the relationship between their own parents.⁵¹ From the perspective of “the best interests of the child,” whether long-term discord between parents can exert a negative impact on the underage child’s psychological state is also an element that should be taken into account when it concerns the interests of the child. However, the courts tend to make judgments in light of social concepts frequently invoked in adjudications such as “maintaining the marital relationship and ethical affinity” as tangible elements. This is what happened in the “case of the divorce dispute between Zhang and Lou.”⁵² The written judgment stated that, “in the principle of the best interests of the child, the court shall evaluate the impact of the divorce on the underage child.” Meanwhile, the judgment stated that “it isn’t improper that the court of initial trial rejected the plaintiff Lou’s petition for a divorce in hopes that Zhang and Lou could maintain the integrity of marriage, which is more conducive to the growth and development of their child.” In fact, whether “maintaining the integrity of marriage” is more conducive to the underage child’s growth shall be considered an element to evaluate the divorce’s impact on the child. The court unthinkingly accepted it as an established conclusion, which actually went against the statement that it shall “evaluate the impact of the divorce on the underage child.”

 

In both of the two aforementioned cases, the courts considered maintaining the integrity of marriage as a standard meeting the best interests of the child, but ignored other elements affecting the interests of the child. The logic behind this coincides with the adjudication of the two cases⁵³ that first invoked the principle of “the best interests of the child” in 2012. In both cases, the judges rejected the plaintiff’s petition for a divorce on the grounds that divorce goes against the best interests of the child. Thus, there is reason to conclude that the courts have formed an inherent logic in adjudicating this type of cases. The principle of “the best interests of the child”, to some extent, is subject to the judge’s will.

 

 

As mentioned above, when adjudicating the attribution of child custody in cases related to marital and family disputes, the courts tend to consider the completeness of the family structure an element conducive to the interests of the child when invoking the principle of “the best interests of the child.” After long-term judicial practice, this idea has evolved into an inherent experience of the courts in adjudication. Indeed, the integrity of marriage is important for the growth of underage children. However, there are multiple elements affecting the interests of the child throughout their childhood, including interactions between family members. For instance, in the “case of the divorce dispute between Zhang and Dou,”⁵⁴ the divorce between parents would undoubtedly bring harm to the underage child, but is it definitely true that an unhealthy marital relationship may cause less damage to the child’s psychological and mental interests than divorce? Obviously, the court didn’t take this question into account when making the aforesaid judgment. 

 

Besides, although the courts tried to expound on various elements affecting the interests of the child in adjudication, they failed to shake off the shadow of the past stereotypical experience. As for the “case of the divorce dispute between Fu-Di and Dong,”⁵⁵ without any scientific support, the court arbitrarily deemed that the child “is timid and unwilling to communicate with others, has abnormal early language evolution, and needs a stable, familiar environment, companion and custodian that can bring him a sense of security” although it noticed the mental health of the child. In fact, childhood is a period vulnerable to both active and negative impacts. The state of the child is inseparable from the surrounding relationship network.⁵⁶ Whether the familiar environment led to the abnormal state of the child in this case was debatable. In this context, it is hard to conclude how to improve his state. Likewise, in the “case of the dispute over the alteration of child custody between Liang and Huang,”⁵⁷ the court rejected the plaintiff’s petition for an alteration of child custody on the excuse that the plaintiff was mentally impaired and thus such alteration was not in the best interests of the child. However, the judgment failed to manifest its relation with the interests of the child. On the one hand, even if the plaintiff had no proof to verify that the defendant’s behavior was not conducive to the growth of the child, the evidence provided by the defendant proving that the plaintiff was mentally impaired could not directly verify that her mental impairment was so severe that the plaintiff was unable to bring up the child. On the other hand, the child spent more time living with the plaintiff, who provided him with a more stable living environment, and at the same time, the defendant didn’t show a strong willingness to support the child. However, the court ignored the aforesaid element and arbitrarily deemed the plaintiff’s mental impairment as a reason that the alteration of custody would meet the best interests of the child. Obviously, it didn’t take all influencing elements into consideration. The judge didn’t comprehensively analyze and consider various elements affecting the interests of the child, resulting in the lack of rationality in the invocation of the principle of “the best interests of the child.” 

 

 

 

The assessment of “the best interests of the child” lacks a consistent standard due to differences in the legal system and values, but it has been a mainstream trend to form a set of detailed elements for consideration and reference in the field of judicial practice. In terms of international universal practices, countries including the United Kingdom and the United States have confirmed the elements and standards for assessing and determining “the best interests of the child” within the framework of the law.⁵⁸ The General Comment No.14 adopted by the UN Committee on the Rights of the Child in 2013 holds that the concept of the child’s best interests includes three domains: tangible rights, interpretive legal principles, and behavioral rules, and basic elements such as “the child’s views, the child’s identity, preservation of the family environment and maintenance of family relations, the child’s care, protection and safety, and situations of vulnerability, and the child’s right to health, and the child’s right to education” shall be taken into account in assessing the best interests of a child. In recent years, many countries have provided relatively clear adjudicative standards for courts by means such as clarifying a series of elements for consideration.⁵⁹ The inevitable ambiguity of legal rules makes the principle of “the best interests of the child” highly controversial in practice. The legal framework and adjudicative experience gained through long-term judicial practice promote the specification of “the best interests of the child” among judicial practitioners and researchers.

 

In China, the courts show an ossified, improper tendency in the application of the principle of “the best interests of the child.” This is because Chinese laws lack a clear stipulation on the concept of “the best interests of the child.” As a result, there is no authoritative, accurate legal framework to guide the invocation of the principle. Considering the abstractness and ambiguity of this principle in statutory laws, we need to forge a complete set of legal assessment standards in line with the value of the child’s best interests to confirm and deepen the original connotation of the principle and make up for the limitations of statutory laws, so as to promote the value realization of the principle of “the best interests of the child” in judicial adjudication. 

 

Based on the reality of China’s legal system, we need to explore elements concerning “the best interests of the child” that conform to our country’s primary stance. China should, pursuant to its Constitution, formulate clear stipulations on the concept and value connotation of “the best interests of the child” on the basis of drawing lessons from the practice of protecting the rights and interests of children while learning from the General Comment No.14 of the UN Committee on the Rights of the Child and successful experiences of other countries. China’s Constitution provides value guidance for the specification of the principle of “the best interests of the child.” Therefore, reviewing the basic value definitions of the Constitution is the logical starting point to clarify the connotations of “the best interests of the child.” The constitutional basis for the principle of “the best interests of the child” is Article 46 and Article 49 of the Constitution. According to the theory that the state has the obligation to protect its people, the protection of “the best interests of the child” by the state shall meet the needs of children’s all-round development, including ethical, intellectual, physical, and other aspects, and guarantee children’s rights to education, be maintained, and be free from maltreatment. In addition, another element that needs to be taken into account is the child’s opinion because “the best interests of the child” is closely related to the child’s independent personality. Personal dignity is the foundation of the basic rights system and the fundamental value theory of China’s Constitution.⁶⁰ The purpose of China’s Constitution with regard to protecting the interests of the child is to cultivate children into independent individuals who enjoy all-round development. Thus, respecting the child’s opinion and guaranteeing the child’s right to participation are integral parts of “the best interests of the child.” Article 4 of China’s Law on the Protection of Minors clarifies six requirements for handling the matters related to minors.⁶¹ However, these standards eye on the big picture of the protection of minors and are too abstract. We need to further specify standards on “the best interests of the child” for handling disputes over child custody, property, and visitation in judicial practice. 

 

 

As mentioned above, the changes in the invocation of the principle of “the best interests of the child” by Chinese courts are highly consistent with the guidance from the Supreme People’s Court. In the context of lacking a formal legal judgment framework, the Supreme People’s Court plays a positive role in pushing courts at various levels to invoke the principle of “the best interests of the child” through acknowledging the principle in typical cases, meeting minutes, and work reports.⁶² In June 2018, the Supreme People’s Court issued Guidelines on Strengthening and Standardizing Interpretation and Reasoning of Law in Judicial Documents, which stipulates the normative requirements for the courts to invoke guiding cases to strengthen the interpretation and reasoning of law. ⁶³ That means guiding cases will play a more important role in determining elements to be considered in the application of the principle of “the best interests of the child” and standardizing the invocation of the principle.

 

However, none of the guiding cases unveiled by the Supreme People’s Court so far mentions how to apply this principle in adjudication, and there have been only 13 typical cases and one other case published in the Gazette of the Supreme People’s Court mentioning this principle. Considering that there are hundreds of cases invoking the principle of “the best interests of the child” and tens of thousands of cases related to the protection of children’s rights each year, such guiding cases invoking the principle fail to take the heavy responsibility of serving as normative standards for the application of the principle in adjudication. Only when the Supreme People’s Court strengthens the work of constantly publishing certain amounts of guiding cases, bulletin cases and typical cases invoking the principle of “the best interests of the child” while maintaining authority can it respond to the plethora of thorny and complicated problems arising from the protection of the child’s interests in judicial practice. Moreover, China needs to expand and reform the publishing entities and reference scope of guiding cases, improve the understanding of courts at various levels on the status, function and importance of guiding cases, and encourage judges to invoke guiding cases more frequently and train them to better apply guiding cases, so as to guide courts at various levels in the proper application of the principle of “the best interests of the child.”

 

 

The primary matter faced by judges in judicial practice is about facts, rather than law.⁶⁴ There is a wide range of elements concerning the interests of the child, which involve various fields of social sciences and the balance among them. It is impossible for a judge to have a mastery of all professional knowledge in various fields of social sciences, and inherent personal values and personal experiences may profoundly affect the judicial decision made on matters related to the best interests of the child.⁶⁵ The protection of the child’s interests is a highly socialized matter, and thus depends on social resources beyond the judicature. The practices of other countries show that in addition to clarifying the connotations of “the best interests of the child” with laws and legal interpretations, formulating professional standards for the assessment of the child’s interests plays a positive role in the application of the principle of “the best interests of the child.”⁶⁶ Therefore, the State Council of China and other relevant authorities should organize child protection associations, child development experts, and law experts to formulate professional standards and guidelines for assessing the interests of the child in family disputes. Such professional standards will help eliminate the judges’ cognitive biases and prevent them from unilaterally sticking to their own experience in adjudication, so as to enhance the accurate application of the principle of “the best interests of the child.” 

 

Professional standards for assessing “the best interests of the child” can, to some extent, provide guidance for judges, so as to ensure their professionalism in considering the child’s best interests. However, considering the diversity and complexity of the cases related to the child’s interests, we need to provide judges with training on knowledge about the protection of the child’s interests. Through training combining theory and practice and integrating knowledge and abilities, judges’ judicial thinking and vocational skills to determine facts meeting the interests of the child can be improves, and reinforce the law-based cognition that “children have independent legal status.” 

 

In addition, child development experts recognize the uniqueness of the child’s physical and mental development, so improving the expert advisory system in cases related to the protection of the child’s interests can effectively bridge the gap between judges’ legal knowledge and professional knowledge about the child’s interests. After the implementation of the Civil Code, the focus of China’s family procedure rules has shifted from the settlement of disputes to the protection of rights.⁶⁷ That means that the judges should use the doctrine of function and power to explore various elements related to the best interests of the child. Establishing an expert system in the judicial procedure for cases related to children and listening to the opinions of child development experts can clarify all elements concerning the child’s interests in relevant cases. Moreover, the experts’ opinions shall be written in the reasoning of the adjudication to support facts. All of these provide effective approaches for judges to accurately invoke the principle of “the best interests of the child,” avoid biases in judicial reasoning, and make the right choices among facts and standards, thus helping them make an optimal judgment meeting “the best interests of the child.”

 

 

“The best interests of the child” is an important principle for protecting the rights of the child. However, its high abstractness and ambiguity make the invocation of the principle subject to judges’ subjective interpretation. The conflict between different elements of the principle and the definition of the scope of discretion on these elements remain great challenges for judicial adjudication in countries around the world. In recent years, the number of judicial documents invoking the principle has seen a continuous increase in China. In the context of lacking normative guidance, however, the application of the principle falls into formality to some extent. The improvement of the application of the law is a systematic project. With a focus on the establishment of normative standards for the invocation of the principle of “the best interests of the child,” improving the judicial application of the principle is a law-based approach to enhance care for minors and protect the rights of children. 

 

(Translated by LIU Haile)

 

* WANG Dezhi ( 王德志 ), Professor and Doctorial Supervisor at the Law School of Shandong University.

 

** WANG Bixing ( 王必行 ), Doctoral Candidate at the Law School of Shandong University. This paper is a phased result of the research project “Studies on the Relationship Between the Constitution and International Law” (18BFX034) backed by the National Social Science Fund of China.

 

1. Lin Jing, “Misconceptions on the Application of the Principle of the Best Interests of the Child,” Gansu Social Sciences 3 (2011): 123-124.

 

2. Wang Xuemei, “Studies of the Best-Interests Principle in the Protection of Children’s Rights (2),” Global Law Review 1 (2003): 109.

 

3. Jorge Cardona Llorens, “Presentation of General Comments No. 14: Strengths and Limitations, Points of Consensus and Dissents Emerging in its Drafting,” in The Best Interests of the Child–A Dialogue between Theory and Practice, Council of Europe, 2016, page 12.

 

4. Robert H. Mnookin and E. Szwed, “The Best Interest Syndrome as the Allocation of Power in Child Care,” in Providing Civil Justice for Child (London: Edward Arnold, 1983), 8.

 

5. Ronald M. Dworkin, “The Model of Rules,” University of Chicago Law Review 1 (1967): 32.

 

6. General Principle No. 14 (2003), para. 80.

 

7. In its response to the UN Committee on the Rights of the Child in 2012, the Chinese government pointed out that “in 2006, the Standing Committee of the National People’s Congress revised China’s Law on the Protection of Minors, in which basic principles such as ‘the best interests of the child’ and ‘the child’s rights to subsistence and development’ are manifested.” Committee on the Rights of Child, Response of the Chinese Government to Questions concerning Combined 3rd and 4th Periodic Reports on the Implementation of the Convention on the Rights of Child, 10 September 2013, UN doc. CRC/C/ CHN/Q/34/Add.1, para. 2.

 

8. Wang Xuemei, “Studies of the Best-Interests Principle in the Protection of Children’s Rights (1),” Global Law Review 4 (2002); Wang Xuemei, “Studies of the Best-Interests Principle in the Protection of Children’s Rights (2),” Global Law Review 1 (2003).

 

9. Scholars mainly conduct research on the application of the principle in cases related to divorce, child visitation rights, (cross-border) adoption, sex relations, etc.. Chen Wei and Xie Jingjie, “On the Establishment of the Principle of ‘Prioritizing the Best Interests of the Child’ in China — Analysis on the Defects and Improvement of the Marriage Law and Other Relevant Laws,” Studies in Law and Business 5 (2005); Zhang Wei, “On the Principle of the Best Interests of the Child — From the Perspective of the Protection of the Best Interests of Minors in Divorce Cases,” Contemporary Law Review 6 (2008); Jing Chunlan and （Continued on Next Page）（Continued）Yin Zhaoxian, “Reflection on the Legislation of the Visitation Right and the Expansion of Its Entities — From the Perspective of the Principle of the Best Interests of the Child,” Law Science Magazine 8 (2011); Zhu Lina, “Analysis on the Rationality and Subordination of Cross-border Adoption,” People’s Tribune 29 (2012); Wang Shunshuang, “On the Application of the Best-Interests Principle in Laws Concerning the Protection of Children’s Sexual Rights,” Theory Monthly 2 (2014); Guo Shiwen and Yu Xun, “The Application of the Principle of the Best Interests of the Child in China’s Child Criminal Laws,” Contemporary Youth Research 3 (2019).

 

10. Dai Ruijun, “Studies on the Judicial Application of International Human Rights Conventions in China,” Human Rights 1 (2020): 139.

 

11. For example, Wang Mengqi mentioned a judicial verdict for a case when studying the legislation on maximizing the interests of children and the freedom of divorce. Wang Mengqi, “Limitation of the Principle of the Best Interests of the Child on the Freedom of Divorce — Theoretical Justification and Institutional Design,”Journal of Lanzhou University (Social Sciences) 4 (2020): 151. 

 

12. Huang Zhenwei, “On the Application of the Principle of the Best Interests of the Child in Judicial Adjudication—Based on Empirical Analysis of 199 Judgment Verdicts,” Journal of Law Application 24 (2019): 58-62.

 

13. “The case of Shi X, Zhang X, and GuiX suing Xu X for violating their rights of portrait, reputation, and privacy,” Gazette of the Supreme People’s Court 4 (2016).

 

14. Lin Jing, “Misconceptions on the Application of the Principle of the Best Interests of the Child,” 123-124.

 

15. Sun Xin, “Unilateral Decision of the Wife Not to Have Child Doesn’t Violate the Husband’s Reproductive Right,” People’s Court Daily, May 29, 2014. 

 

16. Peng Zhongli, “Research on the Legal Status of the Judicial Interpretative Documents Issued by the Supreme People’s Court,” Science of Law 3 (2018): 

27.

 

17. Sun Xin, “Unilateral Decision of the Wife Not to Have Child Doesn’t Violate the Husband’s Reproductive Right,” People’s Court Daily, May 29, 2014.

 

18. Article 1071 of the Civil Code of the People’s Republic of China stipulates: “Children born out of wedlock have equal rights as children born in wedlock, and no organization or individual may harm or discriminate against them. A natural parent who does not have physical custody of his out-of-wedlock child shall pay child support for such child who is a minor or who is an adult but incapable of supporting himself.”

 

19. No.86 of the 98 typical judicial cases related to minors published by the Supreme People’s Court: the case of Xi Zichuang suing Xi Jufang for the dispute over child support.

 

20. No.93 of the 98 typical judicial cases related to minors published by the Supreme People’s Court: the case of Yang Jie suing Su Zhong for an alteration of child custody.

 

21. Article 16 of the Specific Opinions on Child Custody in Divorce Case Adjudications by People’s Courts stipulates that “under any of the following circumstances, either party’s claim for an alteration of child custody shall be supported,” including the circumstance stated in Item 3: “A minor above the age of 10 who is willing to live with a divorced parent, and the parent has the ability to support the child.”

 

22. the (2013) C.S.M.C.Z. No.146 Civil Judgment in the case of plaintiff He Jia suing the defendant Wang Jia for child visitation rights,” issued by the People’s Court of Changning District, Shanghai, March 12, 2014.

 

23. the (2014) D.C.M.C.Z. No. 0028 Civil Judgment issued by the People’s Court of Dongtai City, Jiangsu Province.

 

24. the (2016) Y. 1481 M.C. No.1014 Civil Judgment issued by the People’s Court of Yongcheng City, Henan Province; (2015) Y.M.C.Z. No.07502Civil Judgment issued by the People’s Court of Yanqing County, Beijing; (2016) L.01 M.Z. No.3675 Civil Judgment issued by the Intermediate People’s Court of Ji’nan City, Shandong Province.

 

25. the (2013) Z.M.Y.C.Z. No.01699 Civil Judgment issued by the People’s Court of Yingzhou District in Fuyang City, Anhui Province.

 

26. the (2016) Y.1324 M.C. No.515 Civil Judgment issued by the People’s Court of Longmen County, Guangdong Province. 

 

27. Article 3 of the Specific Opinions on Child Custody in Divorce Case Adjudications by People’s Courts stipulates: For an underage child above age 2, if both of the divorced parents request the right of custody, preference shall be given to either party who meets any of the following conditions: (2) The child has lived with the parent for a long time, and an alteration of the living environment is obviously non-conducive to the healthy development of the child.

 

28. the (2015) S.S.M.C.Z. No. 94 Civil Judgment issued by the People’s Court of Shangcai County, Henan Province; the (2014) S.S.M.C.Z. No.18 Civil Judgment issued by the People’s Court of Shangcai County, Henan Province.

 

29. the (2019) L.1332 M.C. No.4411 Civil Judgment issued by the People’s Court of Tancheng County, Shandong Province.

 

30. the (2019) M.0425 M.C. No.1518Civil Judgment issued by the People’s Court of Datian County, Fujian Province.

 

31. the (2015) Y.S.M.C.Z. No.4 Civil Judgment issued by the People’s Court of Yong’an City, Fujian Province.

 

32. the (2016) Q.2730 M.C. No.7 Civil Judgment issued by the People’s Court of Longli County, Guizhou Province.

 

33. (33) the (2013) H.E.Z.M.Y.(M) Z.Z. No.1661 Civil Judgment issued by the Intermediate People’s Court of Shanghai. 

 

34. (2015) H.Y.Z.S.M.Z. No.56 Civil Judgment issued by the No.1 Intermediate People’s Court of Shanghai.

 

35. Li Fan and Fan Jizeng, “Hidden Constitutionality Review: The Juridical Path and Judicial Implication of the Case on the Custody of the Child Born through Surrogacy,” Journal of Sichuan Normal University (Social Sciences) 3 (2019).

 

36. Article 1 of the Resolution of the Standing Committee of the National People’s Congress on Improving Legal Interpretation Work: In the event that laws and decrees and their provisions need to be further defined or supplemented, the Standing Committee of the National People’s Congress shall make interpretation on them or make stipulations in the form of decrees. 

 

37. the (2018) Y.05 M.Z. No. 3328Civil Judgment issued by the No.5 Intermediate People’s Court of Chongqing.

 

38. the (2016) X.0422 M.C. No.571 Civil Judgment issued by the People’s Court of Hengnan County, Hunan Province.

 

39. the (2015) X.S.M.C.Z. No.1011Civil Judgment issued by the People’s Court of Laixi City, Shandong Province.

 

40. the (2016) Y.1626 M.C. No.1251 Civil Judgment issued by the People’s Court of Huaiyang County, Henan Province.

 

41. the (2016) E.0602 M.C. No.1726 Civil Judgment issued by the People’s Court of Xiangcheng District in Xiangyang City, Hubei Province.

 

42. Article 1079 of the Civil Code of the People’s Republic of China stipulates: “Where the husband or the wife unilaterally petitions for divorce, a relevant organization may offer mediation, or such person may file for divorce directly with the people’s court. The people’s court shall, during the divorce trial, offer mediation, and grant divorce if mutual affection no longer exists between the two parties and mediation fails. A divorce shall be granted when mediation fails under any of the following circumstances:(1) one spouse commits bigamy or cohabitates with another person; (2) one spouse commits domestic violence or maltreats or deserts a family member; (3) one spouse habitually commits acts such as gambling, drug abuse, or likewise, and refuses to correct such behavior despite of repeated warnings;(4) the spouses have been separated for no less than two full years due to marital discord.”

 

43. For instance, Item 1 of Article 4 of the Law on the Protection of Minors stipulates that “giving special and preferential protection to minors.”

 

44. Sun Xin, “Unilateral Decision of the Wife Not to Have Child Doesn’t Violate the Husband’s Reproductive Right,” People’s Court Daily, May 29, 2014.

 

45. Article 3 of the Specific Opinions on Child Custody in Divorce Case Adjudications by People’s Courts stipulates.

 

46. the (2015) S.S.M.C.Z. No.94 Civil Judgment issued by the People’s Court of Shangcai County, Henan Province.

 

47. The third and fourth reports submitted by China as a signatory state to the UN Committee on the Rights of the Child state: The Chinese government has always upheld the child-first principle, spared no efforts to implement the strategy of prioritizing the development of children, and fully safeguarded children’s rights to survival, development, participation, and be protected; Both the Outline for Children’s Development in China (2001-2010) and the 11th Five-Year Plan for National Economic and Social Development have clearly stipulated the child-first principle, and the principle is also reiterated in the outlines for children’s development formulated by various provinces, municipalities and autonomous regions in China; In the field of civil adjudication, when hearing and dealing with civil cases involving minors, the juvenile court put forward the judicial concepts of “activeness, priority, affinity, care” for the purpose of meeting the practical needs for the protection of the rights of minors. 

 

48. Wang Xuemei, “Studies of the Best-Interests Principle in the Protection of Children’s Rights (1),” Global Law Review 4 (2002): 495.

 

49. Janet L. Dolgin, “Why Has the Best Interest Standard Survived?: The Historic and Social Context,” Children’s Legal Rights Journal 2 (1996): 2-10.

 

50. Article 1079 of the Civil Code of the People’s Republic of China stipulates.

 

51. Shreya Atrey, “Divorcing Parents, Alienating Children: Devising a Constructive Theory of Child Rights in Case of Divorce,” Whittier Journal of Child and Family Advocacy 10 (2010): 184.

 

52. the (2016) H.02 M.Z. No.5108 Civil Judgment issued by the No.2 Intermediate People’s Court of Shanghai.

 

53. the (2012) W.S.M.C.Z. No.0239 Civil Judgment issued by the People’s Court of Wuzhong District in Suzhou City, Jiangsu Province; the (2012) W.S.M.C.Z. No.0307 Civil Judgment issued by the People’s Court of Wuzhong District in Suzhou City, Jiangsu Province.

 

54. Article 1079 of the Civil Code of the People’s Republic of China stipulates.

 

55. (2015) H.Y.Z.S.M.Z. No.56 Civil Judgment issued by the No.1 Intermediate People’s Court of Shanghai.

 

56. Lynne Bowyer, “The Ethical Grounds for the Best Interest of the Child,” 25 Cambridge Quarterly of Healthcare Ethics 1 (2016): 63-69.

 

57. the (2015) J.M.Y.C.Z. No.1017 Civil Judgment issued by the People’s Court of Jiangnan District in Nanning City, Guangxi Zhuang Autonomous Region.

 

58. For instance, the judicial authorities in the United Kingdom and the United States hold that the participation of both parents is crucial to the underage child’s mental health, and they thus presume that maintaining certain interactions between divorced parents meets the interests of the child, and considering that family breakup and the divorce of parents will definitely cause a certain degree of psychological distress for the child, they tend to choose the “alternative solution with the minimum damage” in adjudication.

 

59. Ding Qiming, “Reviewing the Principle of the ‘Best Interests of the Child’ in Divorce Cases Involving Child Custody — From the Perspective of the General Comment No. 14 of the UN Committee on the Rights of the Child,” Southeast Justice Review (2016), (Xiamen: Xiamen University Press, 2016), 361.

 

60. Lin Laifan, “Human Dignity and Personal Dignity — Analysis on the Interpretations of Article 38 of China’s Constitution,” Zhejiang Social Sciences 3 (2008): 53. 

 

61. The six requirements include: giving special and preferential protection to minors; respecting the personal dignity of minors; protecting the privacy and personal information of minors; following the law and characteristics of minors’ physical and mental development; considering the opinion of minors; combining protection with education.

 

62. For instance, the Supreme People’s Court’s acknowledgement of the judgment for the “case of the custody of the child born through surrogacy in Shanghai” indicates that a special case becoming the paradigm of adjudication in the relevant realm plays a crucial role in promoting the courts’ effective invocation of the principle of “the best interests of the child.”

 

63. Article 13 of the Guidelines on Strengthening and Standardizing Interpretation and Reasoning of Law in Judicial Documents stipulates that “apart from laws, regulations, and legal interpretations, judges may use the following arguments as adjudicative reasons to enhance the legitimacy and acceptability of relevant judgments: guiding cases issued by the Supreme People’s Court; non-interpretative normative documents for judicial practices issued by the Supreme People’s Court; axioms, reasons, empirical rules, transaction routines, folk norms, and vocational ethics; legislative documents such as legislative interpretations; materials used to interpret laws in historical, institutional, and comparative ways; juridical logic and universally accepted academic viewpoints; other arguments not conflicting with existing normative legal documents such as laws and judicial interpretations.”

 

64. Hou Meng, “Judgment from the Perspective of Social Sciences in Judicial Practice,” China Legal Science 3 (2015): 45.

 

65. Susan Beth Jacobs, “The Hidden Gender Bias behind the Best Interest of the Child Standard in Custody Decisions,” Georgia State University Law Review 3 (1997): 845-901.

 

66. The American Psychological Association and the American Academy of Child and Adolescent Psychiatry formulated professional standards and guidelines for judging the child’s psychological interests and mental status related to the assessment of child custody, visitation, etc. Moreover, various states in the United States have also formulated their own standards in this regard. For example, the Parenting Time Guidelines issued by Indiana in 2008 provides guidance on matters such as the way of contact and the attribution of parenting time that meet the best interests of the child. Wenmay Rei, “In the Name of ‘the Best Interests of the Child’: Research on Divorced Parents’ Exercise of Rights and Obligations and Burdens Related to Underage Children,”National Taiwan University Law Journal 3 (1999): 285-295; Takao Tanase, “Divorce and the Best Interest of the Child: Disputes over Visitation and the Japanese Family Courts,” translated by Matthew J. McCauley, 20 Pacific Rim Law & Policy Journal 3 (2011): 563-588.

 

67. Hao Zhenjiang, “Construction of China’s Family Procedure Rules in the Post-Civil Code Era,” Nanjing University Law Journal 1 (2020): 136.