The Legal Interpretation of the Principle of Superior Welfare of Children

Abstract

Biolaw (Valdés and Brena, 2020) is a new science in legal application and understanding; Social progress, technological and scientific advances force human beings to make the necessary adaptation to continue in human evolution. In this sense, Law as a science includes Biolaw in its advanced rights, which, although it develops in a trend towards the themes of reproduction, the issue of surrogacy, the issue of euthanasia, cloning, genetic manipulation, also contemplates psychological issues and in particular Mexico is in the process of constructing regulations that have the capacity to fulfill the essential rights to which is committed to signing various treaties and conventions that make up the extensive catalog of human rights, which according to the United Nations Organization (UN), has already classified three generations, which oblige the state parties to safeguard the rights at all times. as the minimum of citizens to live in society.

Biolaw takes as rights the main values that are discussed and proposed by classical Mexican jurists, such as Eduardo García Maynes and Luis Recansés Siches, which are: 1. common good, 2. legal security, 3. freedom and 4. justice and takes as referential framework developed the human rights indicated by the United Nations Organization UN up to the third generation that we translate into rights of quality of life and we mention rights such as the environment, quality education, decent health, work and decent housing. The Biolegal principles are the following: 1. human dignity, 2. decisional autonomy, 3. consent, 4. social responsibility, 5. limited research, 6. restricted experimentation, 7. multidisciplinarity, 8. confidentiality, based on the Nuremberg Code (Márquez Romero, 2019), and the Universal Declaration on Bioethics and Human Rights (Universal Declaration on Bioethics and Human Rights, 2005).

The intention to care for children and provide the best of our humanity in their formation obviously makes reference, rhetoric and exaltation to the care of their psyche and this is precisely the core theme of the construction of the principles of the Convention on the Rights of Children. Children, due to their participation in society, even more so in the case of their most basic human rights that they can elucidate in any type of process or procedures in which they have an interest or impact.

In family matters currently on the issue of the payment of alimony, custody and cohabitation, where their participation in psychological tests, studies or testing by health professionals authorized by the same state courts, are generating violations at the beginning of the Higher Welfare of Children, due to the way in which they are executed, the private form of payment for services that becomes a privilege for a few or the lack of institutional linkage to make children's rights effective when they participate in processes and judicial procedures.

One of the international interests of the United Nations Organization UN through its body called the United Nations Children's Fund UNICEF, with the intention of guaranteeing the rights of a group considered unprotected and systematically violated, such as are girls, boys and adolescents, in its second attempt it promulgates and promotes the Convention on the Rights of the Child, which enshrines four fundamental principles: 1. principle of non-discrimination, 2. principle of the best interests of the child, 3. principle of life , survival and development and 4. Principle of inclusion and participation.
The interpretation of application in procedural practice of the concept of the Best Interest of the Child in our legislation takes as sources the criteria issued by the Inter-American Court of Human Rights, the provisions of the Convention on the rights of the child (Spanish Committee, 2006) , which was adapted to this in the issuance of the Law for the Protection of Girls, Boys and Adolescents (General Law of the Rights of Girls, Boys and Adolescents, 2022), at the federal level in April 2000, the jurisprudence criteria issued by the Supreme Court of Justice of the Nation, what is provided in the Family Code for the State of Michoacán de Ocampo (Supreme Court of Justice of the Nation, 2020), and the Law on the Rights of Girls and Children of the State of Michoacán de Ocampo (Supreme Court of Justice of the Nation, 2020), in light of the legal interpretative theory of Ricardo Guastini (Guastini, 2001).

The theory of interpretation of Ricardo Gustini (Guastini, 2001), philosopher and jurist, regarding the legal norm is an adequate theory to appreciate any legal norm in the time and space of current application, the application of the law in legal practice and power break down the errors of legal procedural practice. In the science of Law, unlike the exact or medical sciences, and because Mexico belongs to the German-Romanic legal system, we continue to work with principles, dogmas and theories of more than one hundred years, it is enough to review the fundamental principles or values that are taken up from the jurist Eduardo García Maynes and Luis Recensés Siches to support Biolaw (Valdés and Brena, 2020), from the jurists of the National Autonomous University of Mexico who set the national legal dogmatic guideline in Mexico, the procedural foundation will be taken from the proceduralist José Ovalle Favela.