Office of the United Nations

High Commissioner for Human Rights

L egislative H istory of the

C onvention on the r ights of the c hild

V olume I

United Nations
New York and Geneva, 2007
Article 20 (Children deprived of a family)
A. Final text adopted by the General Assembly (1989)
The following text is that approved by the General Assembly in its resolution 44/25 of 20 November 1989.

1. A child temporarily or permanently deprived of his or her family environment, or in whose own
best interests cannot be allowed to remain in that environment, shall be entitled to special protection and
assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or, if necessary,
placement in suitable institutions for the care of children. When considering solutions, due regard shall be
paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and
linguistic background.

B. First Polish draft convention and comments (1978)

1. The first Polish draft

Article VI of the first Polish draft is most closely related to the substantive concerns under present article 20. The
following text is taken from the 1978 report of the Commission on Human Rights (E/CN.4/1292, p. 124).

Article VI
The child, for the full and harmonious development of his personality, needs love and understanding. He
shall, wherever possible, grow up in the care and under the responsibility of his parents and, in any case,
in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in
exceptional circumstances, be separated from his mother. Society and the public authorities shall have the
duty to extend particular care to children without a family and to those without adequate means of support.
Payment of State and other assistance towards the maintenance of children of large families is desirable.

2. Comments on article VI of the first Polish draft

Article VI of the draft convention gave rise to the following comments.

(a) Barbados
The following is taken from document E/CN.4/1324.

The payment of State and other assistance towards the maintenance of children of large families is desirable
but it is suggested that a family should be encouraged to limit its size especially where it becomes difficult
to provide adequately for these children.

(b) Bulgaria
The following is taken from document E/CN.4/1324.

Add the words: “and children from incomplete families (children of unmarried mothers, widows, divorced
parents) or children who have been abandoned by their parents” to the penultimate sentence of article VI.

(c) Finland
The following is taken from document E/CN.4/1324.

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 “Where necessary, Governments should, by economic or other arrangements, ensure the possibilities for
parents to take care of their children” (to be inserted after the first sentence);

The wording “be separated from his mother”, at the end of the second sentence to be replaced by the
wording “be separated from his parents”;

The last sentence to be replaced by the following sentence: “Governments shall ensure the livelihood of
families with children and provide the necessary family counselling and domestic services”.

(d) France
The following is taken from document E/CN.4/1324/Add.1.

1. In the light of the comments made in paragraph 4 (a) above under “General Comments”, the first
sentence of this article should be included in a preliminary declaration or a recommendation.

2. Article VI could be improved in two other respects. While a young child should not be separated
from his mother, it is equally important that his ties to his father should not be jeopardized. The article might
also be completed by a special reference to the situation of children belonging to an international family that
has split up. These two points might be worded as follows:

(a) Add at the end of the second sentence, after the words “A child of tender years shall not,
save in exceptional circumstances, be separated from his mother”, the words “but neither shall his
ties with his father be jeopardized or severed”.

(b) Add at the end of the third sentence the following words: “Children who belong to an
international family that has split up shall, so far as possible, preserve their ties with both parents
even if they are of different social origin, nationality or religion.”

(e) Federal Republic of Germany

The following is taken from document E/CN.4/1324.

See paragraphs 3, 6 and 7, Federal Republic of Germany, under General Comments.

Paragraphs 3, 6 and 7, which appear elsewhere in E/CN.4/1324, read as follows.

3. Without prejudice to a final assessment, we consider that articles I, III, IV (understood as the right of
the child to have his needs provided for in the broadest sense), the first and second sentences of article VI,
the first sentence of article VII, paragraph 1 (right to education), and the second part of article VII, paragraph 2
(primary right of parents), should be grouped together in a separate section as rights of the individual.

[...]

6. Unlike the series of measures on the rights of the individual, article II, article IV (first and second
sentences), article V, article VI (fourth sentence), article VII, paragraph 1 (second sentence), article VII,
paragraph 3, article IX and article X (first sentence) can be considered only as undertakings on the part of
States.

7. Conversely, the provisions of the draft relating to objectives, content and methods of education
cannot be considered as either rights of the individual or undertakings on the part of States. The provisions in
question are contained in the first sentence of article VI, the first part of article VII, paragraph 2, [article VIII]
and the second sentence of article X of the draft. It is the responsibility and duty of the parents whose
rights are also recognized in the draft to take binding decisions in this regard. The provisions referred to can
more appropriately be made the subject of a recommendation to be incorporated in the preamble to the
convention.

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(f) Greece
The following is taken from document E/CN.4/1324.

1. The Greek Government considers that the role of the father for the normal development of children
has been so far underestimated and should be stressed in the future. It suggests the following alteration
starting as from the middle of the paragraph.

“... a child of tender years shall not, save in exceptional circumstances, be separated from his
parents.”

2. Because of the growing problem of child abuse (non‑accidental injury) by one or both of his parents
or his caretakers, the Greek Government feels that special mention should be made of the problems of these
children. It suggests the following rewording:

“... society and the public authorities shall have the duty to extend particular care to children not
only without a family, but also those whose families are evaluated as unable to care for the child in
the present and future, regardless of support from public authorities. The child in that case deserves
to grow up in an environment which can guarantee his optimal development. Payment of State and
other assistance ...”

(g) New Zealand

The following is taken from document E/CN.4/1324/Add.5.

Sentences 1 and 2 are generally acceptable. However, the phrase “separated from his mother” requires
qualification. It appears to preclude the choice available to many parents at present to place “the child of
tender years” in the daycare or childcare situation where the quality of care is judged to be equivalent to or
even better than that provided by the family and the mother. There is now a considerable body of evidence
which indicates that such practices are not detrimental to the best interests of the child and may in fact be
positively in the child’s best interests. Moreover there is no principle in New Zealand law whereby a child of
“tender years” shall not, save in exceptional circumstances, be separated from his mother. Both parents are
entitled to custody of their child and in the event of a dispute over custody, the court is bound to treat the
welfare of the child as the first and paramount consideration (Guardianship Act 1968, S. 23). Thus it would be
possible for a small child to be separated from his mother if the court thought this was in the best interests
of the child. In addition the Family Proceedings Bill would give equal rights to parents in custody disputes,
where the paramount consideration is still the welfare of the child. To that extent our law accords with the
principle of article II, rather than article VI.

The last sentence of the article as stated is highly debatable. We would prefer that all children, without
discrimination according to size of family, were given the same financial benefits by the State. The equalization
of family circumstances would be carried out through the taxation structures of the country. We would
therefore suggest an alternative wording along the lines of: “Payment of State and other assistance towards
the maintenance of all children should be of such a nature that no child is placed at a disadvantage because
of the size of the family”.

(h) Norway
The following is taken from document E/CN.4/1324.

1. Delete the following phrase:

“a child of tender years shall not, save in exceptional circumstances, be separated from his mother.”

2. Amend the last sentence to read as follows:

“Economic support for families with children, through appropriate mechanisms, is desirable.”

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(i) Spain
The following is taken from document E/CN.4/1324.

1. After the words “children without a family” insert the words “arranging for them to be placed,
wherever possible, in the most appropriate family environment and, with respect to those without means of
support, supplying them with the necessary assistance and preventing them from being uprooted from the
family environment”. The words “and to those without adequate means of support” would accordingly be
deleted.

2. The purpose of this is to avoid the effects of being placed in institutions and, so far as possible, to
encourage acceptance in families and adoption.

(j) Suriname
The following is taken from document E/CN.4/1324.

See paragraph 2, Suriname, under General Comments.

Paragraph 2, which appears elsewhere in E/CN.4/1324, reads as follows.

2. In this connection the Government of the Republic of Suriname wishes to state that it attaches
particular importance to the articles VI, VII sub[paragraph] 3 and IX sub[paragraphs] 1 and 2 of the above-
mentioned draft convention.

(k) Sweden
The following is taken from document E/CN.4/1324.

The child’s need of close contacts with both parents ‑ and not only with the mother ‑ is a fact which ought
to be adequately reflected in the convention. Generally, the equality of children with respect to education,
social and health care is a fundamental element.

(l) World Health Organization (WHO)

The following is taken from document E/CN.4/1324.

Article VI, [third] line:

We have some difficulties with the reference to “moral security” and would prefer the deletion of “moral”.
The provision would thus read: “... in an atmosphere of affection and security; ...”

(m) International Council of Women

The following is taken from document E/CN.4/1324.

Article VI seems to us to be ambiguously formulated. It is obviously aimed at providing the child with optimum
conditions for the harmonious development of his personality but the juxtaposition, in one and the same
article of the convention, of love and family allowances is not felicitous. There seems to be a problem of
drafting, if not of substance.

(n) Society for Comparative Legislation

The following is taken from document E/CN.4/1324.

The child, for the full and harmonious development of his personality, needs love and understanding. He
shall, wherever possible, grow up in the care and under the responsibility of his parents and, in any case,
in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in
exceptional circumstances, be separated from his mother, although his ties with his father shall not thereby

525
 be weakened or broken, and a child belonging to a divided international family shall, so far as possible,
maintain his ties with both his parents. Society and the public authorities shall have the duty to extend
particular care to children without a family, to those belonging to a divided international family and to those
without adequate means of support. Payment of State and other assistance towards the maintenance of
children of large families is desirable.

(o) International Humanist and Ethical Union

The following is taken from document E/CN.4/1324.

In the light of other world problems, especially the population problem, we doubt whether it is desirable
to include in article VI the sentence “payment of State and other assistance towards the maintenance of
children of large families is desirable”. This, in effect, nullifies efforts to decrease population in the world. We
agree that States should be encouraged to achieve an adequate standard of living for their citizens and feel
that it might be better to replace the above‑mentioned sentence by a sentence to that effect.

C. First reading (1979-1988)

The text of article 20, which was based on article 11 of the revised Polish draft, was discussed and adopted by the Working
Group in 1982. An additional paragraph was adopted in 1987. This article was referred to as article 10 throughout the first
and second readings following its adoption in 1982. The unofficial heading for this article, “special protection measures
for parentless children”, was reformulated by the Committee on the Rights of the Child at its first session (1991). The
reporting guidelines of the Committee (CRC/C/5) refer to the article as “children deprived of a family environment”.

1. Proposal submitted to the Working Group (1979)

(a) Norway and Sweden

The following is taken from paragraph 23 of the 1979 report of the Working Group to the Commission on Human
Rights (E/CN.4/L.1468), which is reproduced in paragraph 244 of the 1979 report of the Commission on Human Rights
(E/CN.4/1347).

23. In addition, the working group had before it the following amendments which were not discussed
owing to lack of time:

[...]

(d) Amendments to articles II and IX of the draft convention proposed by the representatives of Norway
and Sweden which read as follows:

Article II

Add the following:

“If a child’s parents, or one of them, is imprisoned, taken into custody, exiled or deported, or by any
other judicial or administrative action prevented from caring for the child, it is the duty of the State
Party to secure to the child adequate care and fostering, if necessary by support to the other parent,
relatives or foster-parents.”

2. Revised Polish draft (1979)

The following text is taken from Commission on Human Rights (E/CN.4/1349), which was reissued for technical
reasons.

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 Article 11
1. A child deprived of parental care shall be entitled to the protection and assistance provided by the
State.

2. The States Parties to the present Convention shall be obliged to provide appropriate educational
environment to a child who is deprived of his natural family environment or, on account of his well‑being,
cannot be brought up in such environment.

3. The States Parties to the present Convention shall undertake measures so as to facilitate adoption
of children and create favourable conditions for establishing foster-families.

3. Proposals submitted to the Working Group (1981)

The following States submitted written proposals for consideration by the Working Group.

(a) Australia
The following is taken from paragraph 125 (b) of the 1981 report of the Working Group to the Commission on Human
Rights (E/CN.4/L.1575), which is reproduced in paragraph 289 of the 1981 report of the Commission on Human Rights
(E/CN.4/1475).

[...] amend article 11 as follows:

Replace paragraph 2 with:

“The States parties to the present Convention shall provide an appropriate environment for
the upbringing of a child who is deprived of his natural family environment or who, for reasons
concerning his welfare, cannot be brought up in such an environment.”

Replace paragraph 3 with:

“The States Parties to the present Convention shall take measures to facilitate adoption of children
where appropriate and shall ensure favourable conditions for establishing foster-families.”

(b) Denmark
The following is taken from paragraph 125 (c) of the 1981 report of the Working Group to the Commission on Human
Rights (E/CN.4/L.1575), which is reproduced in paragraph 289 of the 1981 report of the Commission on Human Rights
(E/CN.4/1475).

[...] amend article 11 as follows:

Replace paragraph 2 with:

“The States parties to the present Convention shall ensure that a child who is deprived of his natural
family environment or on account of his well‑being, cannot be brought up in that environment shall
be provided with a guardian.”

Add to paragraph 3 the following:

“The child shall not, however, be adopted unless there has been a serious attempt to investigate and
elucidate his status concerning parents, guardians, relatives and other biological and stable social
relations.”

(c) Norway
The following is taken from paragraph 125 (d) of the 1981 report of the Working Group to the Commission on Human
Rights (E/CN.4/L.1575), which is reproduced in paragraph 289 of the 1981 report of the Commission on Human Rights
(E/CN.4/1475).

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 [...] add to article 11 a new paragraph 4 to read as follows:

“If a child’s parents, or one of them, is imprisoned, taken into custody, exiled or deported, or by any
other judicial or administrative action prevented from caring for the child, it is the duty of the State
party to secure to the child adequate care and fostering, if necessary by support to the other parent,
relatives or foster-parents.”

4. Modified proposal submitted by Poland (1982)

The following text is taken from document A/C.3/36/6, part II.

Article 10
1. A child deprived of parental care shall be entitled to the protection and assistance provided by the
State.

2. The States Parties to the present Convention shall be obliged to provide appropriate educational
environment to a child who is deprived of his natural family environment or, on account of his well‑being,
cannot be brought up in such environment.

3. The States Parties to the present Convention shall take measures, where appropriate, to facilitate
adoption of children, and shall provide favourable conditions for establishing foster-families.

4. The provisions of the preceding paragraphs apply accordingly if the parents or one of them cannot
provide the child with appropriate care because of imprisonment or another similar judicial or administrative
action.

5. Proposal submitted to the Working Group (1982)

(a) Joint NGO proposal

(Co-sponsors: International Council of Women, Friends World Committee for Consultation, International Association
of Penal Law, International Catholic Child Bureau, International Catholic Union of the Press, International Commission
of Jurists, International Council of Jewish Women, International Federation of Women in Legal Careers, International
Federation of Women Lawyers and the World Jewish Congress). The following is taken from document E/CN.4/1982/
WG.1/WP.1.

1. The States parties to the present Convention shall ensure that a child who is deprived of his natural
family environment, or on account of his well-being cannot be brought up in that environment, shall be
provided with a guardian.

2. The States parties to the present Convention shall take measures, where appropriate, to facilitate
adoption of children, and shall provide favourable conditions for establishing foster-families.

3. The child shall not, however, be adopted unless there has been a serious attempt to investigate and
elucidate his status concerning parents, guardians, relatives and other biological and stable social relations.

4. (new) Adoption can only be decided by a competent body set up in accordance with principles of
national law.

5. The provisions of the preceding paragraphs shall also apply if the parents or one of them, because
of imprisonment or any other judicial decision or administrative measure, cannot provide the child with
appropriate care.

6. Discussion and adoption by the Working Group (1982)

The following is taken from the 1982 report of the Working Group to the Commission on Human Rights (E/CN.4/1982/90/
Add.7, paras. 42-63).

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42. Paragraphs 1 and 2 of article 10 of the revised Polish draft read as follows:

“1. A child deprived of parental care shall be entitled to the protection and assistance provided
by the State.

2. The States Parties to the present Convention shall be obliged to provide appropriate
educational environment to a child who is deprived of his natural family environment or, on account
of his well‑being, cannot be brought up in such environment.”

43. The representative of Denmark reintroduced the following amendments to article 11 submitted by
her delegation in 1981:

“Replace paragraph 2 by:

‘The States Parties to the present Convention shall ensure that a child who is deprived of his natural
family environment or on account of his well‑being, cannot be brought up in that environment shall
be provided with a guardian.’”

44. The representative of Norway also reintroduced the proposal submitted last year by her delegation
to add to article 11 a new paragraph 4 that read as follows:

“If a child’s parents, or one of them, is imprisoned, taken into custody, exiled or deported, or by any
other judicial or administrative action prevented from caring for the child, it is the duty of the State
Party to secure to the child adequate care and fostering, if necessary by support to the other parent,
relatives or foster-parents.”

45. At the Working Group’s session of 1981, the representative of Australia made the following proposal
to amend article 11:

“Replace paragraph 2 by:

‘The States Parties to the present Convention shall provide an appropriate environment for the
upbringing of a child who is deprived of his natural family environment or who, for reasons concerning
his welfare, cannot be brought up in such an environment.’”

46. The above‑mentioned Australian and Norwegian proposals were reintroduced almost in their entirety
at the 1982 session of the Group by Poland, as contained in document A/C.3/36/6 and noted hereunder:

“A child deprived of parental care shall be entitled to special protection and assistance provided by
the State.

The States Parties to the present Convention shall provide appropriate environment for the
upbringing of a child who is deprived of his natural family environment or who, on account of his
well‑being, cannot be brought up in such an environment.

The provisions of the preceding paragraphs apply accordingly, if the parents or one of them cannot
provide the child with appropriate care because of imprisonment or another similar judicial or
administrative sanction.”

47. The representative of Australia suggested the addition at the end of the Danish proposal of the
following words: “or shall otherwise insure the provision of an appropriate environment for the upbringing of
a child”. This proposal was supported by certain delegations.

48. Some speakers indicated their preference for the new paragraph 1, as contained in document A/
C.3/36/6 proposed by Poland, as the introductory paragraph for the article under consideration by the
Working Group.

49. After an exchange of views, the Working Group adopted the first paragraph of the article under
discussion, which read as follows:

529
 “A child deprived of parental care shall be entitled to special protection and assistance provided by
the State.”
50. In the opinion of one speaker, the words “natural family environment”, contained in the revised
Polish draft and in the Australian and Danish proposals, were too loose for use in a convention; he suggested
that they should be replaced by the term “biological family”. The same speaker also referred to the word
“well‑being”, which appeared both in the revised Polish draft and in the new Polish proposal as well as in the
Danish proposal, and suggested that it be replaced by the words “best interests”.
51. Yet another speaker expressed a preference for the formulation “natural family environment”
considering that it included the “biological family”. Within this framework the delegation of India made the
following proposal for paragraph 2 of the article under consideration:
“The States Parties to the present Convention shall ensure that a child deprived of his natural family
environment or who for reasons of his well‑being cannot be brought up in that environment shall
be provided with alternative family care which would include, inter alia, foster placement, and
placement in community and State childcare institutions.”
52. The representative of the United States proposed that paragraph should read:
“In cases where a child cannot be cared for by his parents or other members of his biological family,
the competent authorities of States Parties shall take appropriate measures to facilitate permanent
adoption of the child, including appropriate financial assistance to adopting families.”
53. Some speakers fully supported the wording suggested by the delegation of India for paragraph 2,
pointing out that provision had not been made in the text for the concept of adoption. In reference to the
proposal by the representative of the United States those speakers considered that it was not right to present
adoption as the only solution in cases when a child cannot be cared for by his biological family. They also
queried the advisability of introducing the concept of providing financial assistance to adopting families as a
measure to facilitate permanent adoption of the child.
54. Following the Chairman’s request that a compromise text be elaborated after consultations, the
delegations of India and the United States submitted a text that read as follows:
“The States Parties to the present Convention shall ensure that a child permanently or temporarily
deprived of his normal family environment or who in his best interests cannot be allowed to remain
in that environment shall be provided with alternative family care which could include, inter alia,
adoption, foster placement, or placement in community or State childcare institutions.”
55. Several speakers expressed their approval in general terms of the joint proposal submitted by the
delegations of India and the United States. Nevertheless, the representative of Australia said that it would be
preferable to insert the word “suitable” before the words “community or State childcare institutions”, and this
suggestion met with the approval of the Working Group. A further suggestion, made by the representatives
of Brazil and of the Byelorussian Soviet Socialist Republic, was that the word “normal” as applied to family
environment, be deleted from the text in order to avoid conceptual difficulties arising from the use of this
term.
56. Some speakers called for amendments to paragraph 1 already adopted. The representative of France
indicated his preference for the words “deprived of his family environment” rather than the words “deprived
of parental care”. The representative of the United States suggested the addition of the words “for any reason”
after the words “deprived of his family environment” proposed by the French delegation.
57. After an exchange of views, it was agreed to use the formulation “permanently or temporarily”,
which appeared in paragraph 2, after the words “A child” in paragraph 1. In addition, it was proposed that
the words “community or State” at the end of paragraph 2 should be deleted and that the words “childcare
institutions” at the very end of the paragraph should be replaced by the words “institutions for the care of
children”.

530
 58. The Working Group adopted by consensus, in their revised versions, paragraphs 1 and 2 of the article
under consideration which, it was decided should become article 10.

59. Article 10 as adopted read as follows:

“1. A child permanently or temporarily deprived of his family environment for any reason shall
be entitled to special protection and assistance provided by the State.

2. The States Parties to the present Convention shall ensure that a child who is parentless,
who is temporarily or permanently deprived of his family environment, or who in his best interests
cannot be brought up or be allowed to remain in that environment shall be provided with alternative
family care which could include, inter alia, adoption, foster placement, or placement in suitable
institutions for the care of children.”
[...]

61. The Working Group also started consideration of the question of a child who cannot be afforded
adequate care by his parents because of imprisonment, exile, deportation or another similar judicial or
administrative sanction.

62. A brief discussion ensued during which one speaker felt that acknowledgement must be made of
the fact that imprisonment or other similar judicial or administrative sanctions are not the only reasons that
would prevent children from receiving appropriate care from their parents. The same speaker maintained that
focusing only on judicial or administrative sanctions as reasons for children being deprived of parental care
would thus create a false emphasis.

63. The Working Group postponed its discussion of this topic to a later stage of its work.

7. Proposal submitted to the Working Group (1985)

(a) Four Directions Council

The following is taken from document E/CN.4/1985/WG.1/NGO.1, page 2.

[...]

In procedure terms, then, the “best interests of the child” rule in child custody determinations must be
balanced with respect for the equality of all cultures. While it is far from perfect, such an approach to this
problem deserves emulation, particularly with highly vulnerable indigenous populations. We accordingly
suggest that article 10 of the draft convention be amended to include the following additional concern:

3. No separation of the child from his parents or community, or alternative family care, shall
have as its objective or effect the denial of the child’s right to have, learn, or adopt the culture of his
parents.

8. Proposals submitted to the Working Group (1987)

The following States submitted written proposals for consideration by the Working Group.

(a) Austria
The following is taken from document E/CN.4/1987/WG.1/WP.27.

Article 10

Add to paragraph 2 the following sentence:

“When considering the best interests of the child, particular regard shall be paid to the child’s ethnic,
religious or linguistic origin.”

531
(b) Netherlands and United Kingdom
The following is taken from document E/CN.4/1987/WG.1/WP.24.

Article 10, new paragraph 3

Where it is necessary to provide a child with alternative family care, States Parties shall have due regard to the
desirability of continuity in a child’s upbringing, and shall seek so far as possible, when it is in the best interests
of the child, to avoid placing the child outside his own ethnic, religious, or linguistic group.

9. Comment submitted to the Working Group (1987)

(a) Morocco
The following is taken from the 1987 report of the Working Group to the Commission on Human Rights (E/CN.4/1987/25,
para. 2).

2. [...] By a note verbale of 30 January 1987, the Permanent Representative of Morocco asked that their
observations on the draft convention be brought to the attention of the Working Group; those observations
were contained in E/CN.4/1987/WG.1/WP.35.

The following is taken from document E/CN.4/1987/WG.1/WP.35.

ARTICLE 10 - Paragraph 2 and ARTICLE 11: Protection of children and adoption.

Children deprived of their family environment may receive the same social protection but they do not
enjoy the same rights of succession as legitimate children. Children permanently deprived of their family
environment may be the subject of other appropriate measures if the law precludes their adoption.

10. Discussion and adoption by the Working Group (1987)

The following is taken from the 1987 report of the Working Group to the Commission on Human Rights (E/CN.4/1987/25,
paras. 24-27).

24. The representative of Austria proposed that an additional sentence be added to paragraph 2 of
article 10 to read: “When considering the best interests of the child, particular regard shall be paid to the
child’s ethnic, religious or linguistic origin.”. The wording “the best interest of” was subsequently amended by
the delegations of Austria and the Netherlands to read instead “alternative family care for”.

25. The observer for Canada was in favour of this proposal, but suggested that the word “particular” be
replaced by “due”. The observer for Finland supported the Canadian amendment. The representative of the
United Kingdom proposed the addition of the following phrase between the words “shall be paid” and “to
the child’s ethnic”: “the desirability of continuity in a child’s upbringing and”, as well as the replacement of the
word “origin” by “background” at the end of the sentence. The representative of the Soviet Union proposed
the addition of the following sentence: “In all cases, a decision on this issue shall be taken with due regard
for the best interests of the child.”

26. While the representative of Italy supported the Soviet proposal, the delegation of the Netherlands
found difficulty in accepting it, but the impasse was surmounted by a compromise proposal put forward by
the representative of the United States, namely to add “and the best interest of the child” after the phrase
“alternative family care for the child”. He explained that although those placing a child in alternative family
care should consider factors of continuity in the child’s upbringing and background, the best interests of
the child should always be the primary concern. This proposal met with the approval of the delegations of
Australia, Norway, the USSR and Yemen. The delegation of the USSR expressed its concern that the provision
as a whole, and as thus far amended, could pose difficulties in situations such as war, when parentless children
often cannot feasibly be returned to families of the same ethnic, religious or linguistic background also

532
 wished to introduce the wording “where possible,” after the words “shall be paid”. This proposal was not
entirely satisfactory to the Finnish delegation which suggested an amendment to read: “States Parties shall,
where appropriate, have due regard to the child’s ethnic, religious or linguistic background”.

27. Following a statement by the Four Directions Council and some further exchanges of views, the
delegations of Finland and the USSR withdrew their proposals, and the Working Group proceeded to adopt
the following additional sentence to paragraph 2 of article 10:

“When considering alternative family care for the child and the best interests of the child, due
regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic,
religious or linguistic background.”

11. Text as adopted at first reading

The following is taken from document E/CN.4/1988/WG.1/WP.1/Rev.1.

Article 10
1. A child permanently or temporarily deprived of his family environment for any reason shall be
entitled to special protection and assistance provided by the State.

2. The States Parties to the present Convention shall ensure that a child who is parentless, or who
is temporarily or permanently deprived of his family environment, or who in his best interests cannot be
brought up or be allowed to remain in that environment shall be provided with alternative family care which
could include, inter alia, adoption, foster placement, or placement in suitable institutions for the care of
children. When considering alternative family care for the child and the best interests of the child, due
regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious
or linguistic background.

D. Technical review (1988)

1. Comment by the United Nations Children’s Fund (UNICEF)

The following is taken from document E/CN.4/1989/WG.1/CRP.1, pages 26-27.

Paragraph 1

In order to ensure consistency with existing standards and particularly those contained in the Declaration
on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference
to Foster Placement and Adoption Nationally or Internationally (especially article 3) consideration might
be given to prefacing this article with a new paragraph to be inserted before paragraph 1, reading as
follows:

“The States Parties to the present Convention recognize that the first priority for a child is to be
cared for by his or her own parents.”

Paragraph 2

The final sentence provides that:

“When considering alternative family care for the child and the best interests of the child, due
regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic,
religious or linguistic background.”

The reference to “ethnic, religious or linguistic” background would seem to be inspired by article 27 of the
International Covenant on Civil and Political Rights which uses those three adjectives, in that order, to define
the types of minority groups to which its provisions apply. However, article 27 also recognizes, inter alia, the

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 rights of persons belonging to such groups “to enjoy their own culture”. Similarly, article 15, paragraph 1 (a)
of the International Covenant on Economic, Social and Cultural Rights provides for “the right of everyone”
“to take part in cultural life”. And, article 24 of the Declaration on Social and Legal Principles relating to the
Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and
Internationally provides that, in cases of prospective adoption involving differing nationalities, “due regard
shall be given to the child’s cultural and religious background and interests.”

The Working Group might therefore wish to consider adding the word “cultural” after the word “religious” in
order to ensure consistency with existing standards. In addition, the word “or” should be changed to “and” so
that consideration may be given, if appropriate, to more than one of the factors listed.

Gender neutrality

Paragraph 1. This paragraph could be reformulated as follows:

“A child permanently or temporarily deprived of his or her family environment...”

Paragraph 2. The middle part of the first sentence could read:

“... a child who is parentless, or who is temporarily or permanently deprived of his or her family
environment, or in whose own best interests cannot be brought up or be allowed to remain in that
environment...”

2. Additional comments and clarifications by the Secretariat

The following is taken from document E/CN.4/1989/WG.1/CRP.1/Add.1, paragraph 24.

24. In the last sentence of paragraph 2, it would seem that the reference to “the best interests of the
child” is superfluous in light of article 3, paragraph 1, of the draft convention. The Working Group may thus
consider the deletion of the reference.

E. Second reading (1988-1989)

1. Proposals submitted to the Working Group at second reading

(a) Algeria, Egypt, Iraq, Jordan, Kuwait, Libyan Arab Jamahiriya, Morocco, Oman, Pakistan and Tunisia
The following text is taken from document E/CN.4/1989/WG.1/WP.4.

[...]

Article 10

The word “guardianship” should be inserted after the word “adoption” in the middle of paragraph 2.

(b) Latin American meeting

The following is taken from document E/CN.4/1989/WG.1/WP.1.

In article 10, paragraph 2: “... placement within a substitute family, ... placement ...”

2. Discussion and adoption at second reading

The following is taken from the 1989 report of the Working Group to the Commission on Human Rights (E/CN.4/1989/48,
paras. 339 to 348).

339. The observer for Egypt introduced the proposals with regard to article 10 submitted by the drafting
group on adoption and family issues, composed of Argentina, Australia, Brazil, China, France, Italy, the

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Netherlands, Pakistan, Sweden, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain
and Northern Ireland and Portugal (E/CN.4/1989/WG.1/WP.63). The proposals read as follows:

“1. A child permanently or temporarily deprived of his or her family environment, or in whose
own best interests cannot be allowed to remain in that environment shall be entitled to special
protection and assistance provided by the State.

2. The States Parties to the present Convention shall in accordance with their national laws
ensure alternative care for such child.

3. Such care could include, inter alia, “kafalah”, foster placement, adoption, or if necessary
placement in suitable institutions for the care of children. When considering solutions due regard
shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious,
cultural and linguistic background.”

340. In introducing this proposal, the observer for Egypt mentioned that the drafting group, which
worked as an open‑ended body, had tried to incorporate into the proposed text the principal features of all
legal systems, including the concept of “kafalah” from Islamic law. It was indicated that the second part of the
original version had been divided into two paragraphs and simplified. The expression “alternative family care”
was changed to “alternative care”.

341. Many speakers expressed their appreciation for the work done by the drafting group. The
representative of Iraq drew the attention of the Working Group to the El Dham system of care for children
which existed in his country and which was different from all those mentioned in paragraph 3 of the article.

342. The representative of the United States of America proposed some editorial changes to the article,
including the deletion of “The” before and of the words “to the present Convention” after the words “States
Parties” in paragraph 2. The changes were accepted by the Working Group.

343. The representative of the Netherlands suggested that a reordering of the examples of childcare
should be made in paragraph 3, so that the term “kafalah” is placed after “foster placement”. The Working
Group accepted this proposal.

344. The representative of Norway proposed to use in paragraph 3 the expression “kafalah of Islamic law”
which is contained in the Declaration on Social and Legal Principles relating to the Protection and Welfare of
Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally of 1986.
The Working Group agreed with this proposal.

345. The representative of Venezuela proposed to exchange the order of words “permanently” and
“temporarily” in the first paragraph. The proposal was accepted by the Working Group.

346. The observer for the Inter‑American Children’s Institute, in this connection, suggested a separate
consideration by the Working Group of children temporarily or permanently deprived of their environment.

347. The representative of Venezuela proposed the insertion of the following words, after inter alia: “daily
care, foster placement in its various forms, suitable institutions for the care of children, kafalah and adoption”.
She stated that she was making this proposal in the light of the logical order of measures to be taken for
the different degrees of family deprivation: starting with measures for children temporarily deprived of their
family and ending with kafalah and adoption, for children permanently and lawfully deprived of their family
environment.

348. The Working Group then adopted article 10 as proposed by the drafting group and as revised in the
course of discussion. It reads as follows:

“1. A child temporarily or permanently deprived of his or her family environment, or in whose
own best interests cannot be allowed to remain in that environment, shall be entitled to special
protection and assistance provided by the State.

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 2. States Parties shall in accordance with their national laws ensure alternative care for such a
child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption, or if
necessary placement in suitable institutions for the care of children. When considering solutions,
due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s
ethnic, religious, cultural and linguistic background.”

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