The United Nations Children’s Fund (Unicef) Malaysia appreciates the urging made by Minister in the Prime Minister’s Department YB Nancy Shukri to place the welfare of children above all, especially with regards to conversion and custody.

The ‘best interests of the child’ is a fundamental principle in the UN Convention on the Rights of the Child (as expressed in Article 3(1) of the Convention). It is a sound principle that is not just at the core of Unicef’s work for all the world’s children, but also merits utmost consideration by all state parties that have ratified the Convention.

Malaysia acceded to the Convention 21 years ago and it is now bound to apply this principle mentioned in several articles within the Convention: separation of the child from the family (Article 9), parental responsibility (Article 18), protection of children without families (Article 20), adoption (Article 21), deprivation of liberty (Article 37), and application of juvenile justice (Article 40).

Therefore, in its concluding Observations to the initial report submitted by Malaysia to the Committee on the Rights of the Child in 2006, the Committee recommended that the best interests of the child be taken into account in all areas impacting children, noting that while the provisions of Malaysia’s Child Act 2001 (Act 611) and other national laws incorporate this principle, it was not being fully applied at the time or duly integrated in the implementation of national legislation, policies and programmes or when it came to administrative and judicial decisions.

It is therefore not only important to promote and defend the application of this principle but also to be aware of the complexities involved in assessing the best interests of children.

A number of aspects need to be taken into account when aiming to determine whether an action would be in a particular child’s best interest: the child’s views, the child’s identity (religious, cultural, etc), age, maturity, the preservation of the family environment and of important relationships, the care, protection and safety of the child, the degree of vulnerability experienced by the child as well as the child’s right to health and education.

It is a holistic process, involving multiple considerations and requiring child-friendly formal processes with strict procedural safeguards. It requires the involvement of multi-disciplinary trained professionals, including with regard to providing legal counsel for the child, and the possibility to review and revise decisions regarding the child, if the best interest determination was not in accordance with the appropriate procedures.

As noted by the Committee on the Rights of the Child, while the concept of a child’s best interest is complex, it is also flexible and should be adjusted on a case by case basis, according to the specific situation of the individual child. As further explained by the Committee, this may however leave room for manipulation by parents, for example, to defend their own interests in custody cases.

We are all stakeholders for children - parents, the media, state bodies, religious authorities, civil society, members of the judiciary and concerned citizens. We must work together to ensure that every child has his or her best interests taken into account. We must ensure that administrative and judicial institutions in Malaysia listen to the views of children.

In short, the rights of children under the Convention must be upheld by all parties. As Malaysia navigates the complex waters of decision-making on behalf of children in a multicultural society, Unicef Malaysia hopes, in the interest of affected children, that these considerations will be at the forefront of all related processes.