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III. Obligations Arising from the Human Rights of Particular Groups

1.3 Protection in the context of parental drug dependence

Every child has the right to such care and protection as is necessary for their well-being, including where the child’s parents use drugs or are drug dependent.

In accordance with this right, States shall:

i. Ensure that the best interests of the child are a primary consideration in decisions regarding their care, including in the context of parental drug dependence.

In addition, States should:

ii. Ensure that a parent’s drug use or dependency is never the sole justification for removing a child from parental care or for preventing reunification. Efforts should be directed primarily towards enabling the child to remain in or return to the care of their parents, including by assisting drug-dependent parents in carrying out their child care responsibilities.

Commentary:

The Convention on the Rights of the Child reaffirms the special role of the family for the optimal development of the child[657] and provides that children have the right to know and be cared for by their parents.[658] The Convention includes the obligation to assist parents in carrying out their child care responsibilities when needed.[659] As stated in the UN Guidelines for the Alternative Care of Children, ‘efforts should primarily be directed to enabling the child to remain in or return to the care of his/her parents …’.[660] The Guidelines further state that ‘States should seek to ensure appropriate and culturally sensitive measures … [t]o support family caregiving environments whose capacities are limited by factors such as … drug and alcohol misuse …’.[661] Where a child is removed, temporarily or otherwise, the State has an obligation to provide alternative care that is in line with the child’s best interests.[662]

Removal from parental custody is an extreme step and must not be done ‘except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child’.[663] Such determination may be necessary ‘in a particular case such as one involving abuse or neglect of the child …’.[664] Parental drug use or dependence should not be equated with neglect or abuse. In some countries, however, a parent’s inclusion in a drug user registry is sufficient to challenge that person’s custody rights without the need for evidence of actual neglect or abuse.

  • 657. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), preamble.

  • 658. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 7(1).

  • 659. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 18(2).

  • 660. ^

    UN General Assembly, Resolution 64/142: Guidelines for the Alternative Care of Children, UN Doc. A/RES/64/142 (2010), para. 3.

  • 661. ^

    UN General Assembly, Resolution 64/142: Guidelines for the Alternative Care of Children, UN Doc. A/RES/64/142 (2010), para. 9.

  • 662. ^

    UN General Assembly, Resolution 64/142: Guidelines for the Alternative Care of Children, UN Doc. A/RES/64/142 (2010), para. 5; Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 20.

  • 663. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 9(1).

  • 664. ^

    Convention on the Rights of the Child, G.A. Res. 44/25 (1989), art. 9(1).

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