According to article 3, paragraph 1 of the UN Convention on the Rights of the Child (UN CRC), the best interests of the child shall be a primary consideration "[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies..." For the official German-language version of the UN CRC, the term Kindeswohl (often translated in other contexts as "welfare of the child") was chosen to translate the term "best interests of the child", which appears in the original English text of the Convention
Article 3, paragraph 1 of the UN CRC, which embodies one of the four general principles of the Convention, has been a focus of controversy on several occasions. Precisely what is meant by "best interests of the child" and how a child’s "best interests" should be determined are questions that often arise when this provision is being applied. There is continuing controversy as to which German translation best conveys the overall purpose of article 3, paragraph 1 of the UN CRC, assuming that children are recognised and understood as subjects of rights.
The principle of primary consideration of the best interests of the child is fully embodied in article 3 of the UN CRC and should be taken into account in all measures affecting a child. In General Comment No. 14, the UN Committee on the Rights of the Child emphasised that it is not possible to determine the best interests of the child without meeting the requirements arising from article 12 of the UN CRC (right to be heard and have their views be taken into account (participation)).
The German Institute for Human Rights spoke out in favour of incorporating children’s rights in Germany’s Basic Law early on, in November of 2016, urging the recognition of both children’s protection rights and the other basic principles of the Convention: the right of the child to be heard and have their views taken into account (participation) and the primary consideration of the child’s best interests in line with the requirements arising from article 12 und article 3 of the UN CRC. This was the first of many efforts by the National CRC Monitoring Mechanism to draw attention to the Convention’s requirements with respect to a proper assessment of the best interests of the child within the meaning of article 3 of the UN CRC while drawing a clear distinction between the notion of Kindeswohl (best interests of the child) as used in the Convention, and that of Kindeswohlgefährdung (endangerment of a child’s welfare) as used in section 1666 of the German Civil Code (Bürgerliches Gesetzbuch (BGB)). The 16th Annual German Child and Youth Welfare Congress (Deutscher Kinder- und Judendhilftag) afforded the National CRC Monitoring Mechanism one opportunity to do so – the Monitoring Mechanism having previously discussed its position with selected experts in this field in March of 2017 – as did its appearance at a hearing of the German Ethics Council in Berlin. The National CRC Monitoring Mechanism is currently working with the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth through an editorial group with selected experts to prepare a German translation of the General Comment of the UN Committee on the Rights of the Child on Article 3 of the UN CRC.