How has the European Court of Human Rights contributed to the protection of children's rights under the auspices of the European Convention on Human Rights 1951

              However, the Court scrutinises more aggressively parents’ retention of contact with children, finding Italy to be in breach recently, while not British authorities, which have done everything possible to enforce contact order. Johansen expressly recognised need to follow UNCRC standard (Art. 9) of hearing child’s own wishes on reunion with family to ascertain his best interests. This proves occasional influence of UNCRC on the Court (Arts. 7, 8 and 9), promoting maintenance of family relations. In L v. Finland father’s access to 8 and 14 year old girls was justly reduced due to their expressed refusal to see him on evidence of possible sexual abuse, and in Hokkanen v. Finland father had a right to contact with his 12 year old daughter, though not to reunite as she expressed strong desire to stay with grandparents. Indeed, the Court has progressively recognised paramountcy of children’s rights – Art. 3 UNCRC – in accordance with national laws, most recently in Yousef v. Netherlands, which the author argues was discriminative, holding that as between unmarried father and child, child’s Art. 8 rights should always prevail. This begs to question mother’s prevailing rights! The Court otherwise stressed

importance of not acting contrary to children’s interests, which made refusal of parental contact consistent with Art. 8. Generally, a growing concern to comply with UNCRC standards is recorded in European member states. While Polish family law greatly conforms with UNCRC, Dutch legislation, throughout 1990’s, did not enable children to effectively participate in family life issues under Art. 9 UNCRC, In Finland, the Child Custody and Right of Access Act 1983 allows 12-year olds to veto custody/access decisions in court and to be heard in most child welfare decisions. Fortin, however, argues that this may actually be disadvantageous to children, imposing responsibility on them, which they may not be ready for.

              A step back from such progression of child welfare was taken in Elsholz v. Germany where German laws were criticised for justifying refusal of parental contact solely by fulfilment of child’s best interests, as this infringed adults’ rights. Showing Court’s inability to fully acknowledge that children themselves have rights, this decision was, however, controversial, presenting many strong dissents. The author submits that the case was really about whether welfare principle had been applied balancing child’s and

father’s rights, rather than in defence by mother against father with her possible

indoctrination of child.

              Apparently improving on Nielsen’s failure to hear the child, above cases clearly

illustrate how the Court effects child’s right to be heard in life-significant decisions (family disputes) stressing that parents must be involved in decision-making process; McMichael v. United Kingdom interpreted Art. 8 creatively to guarantee procedural fairness, requiring child’ empowerment to influence decisions directly. In Munro v. UK, this entailed state obligation to provide solicitor for child in any serious application. This compulsory measure complies with Art. 12 UNCRC. In UK, however, one commentator states that unfortunately such Art. 8 rights are too often not respected. It is regretful that this empowerment does not apply to administrative/disciplinary procedures – ward/secure accommodation order, expulsion from school – whereas Dutch legislation provides this.

              Elsewhere, the Court has achieved remarkable results, like proclamation in

Marckx v. Belgium of child’s right to have relationship with unmarried parents protected, which promoted non-discrimination of illegitimate children before UNCRC, later extended to transsexual parent. A positive obligation was imposed on Belgium to have laws enabling practical and effective exercise of child’s Art. 8 right. This reflects Court’s awareness of contemporary concerns, also protecting gay adolescents’ sexual freedom, and progressive attitude in comparison with Convention’s drafting time. Sadly, only a negative obligation applied to unmarried father, as the Court in Marckx failed to promote automatic recognition of family life in law, and therefore parental rights, by biological tie, though it has more recently ruled that cohabitation between mother and father is not necessary to establish father/child family life. Is this not controversial and discriminative of child’s family life? In contrast, unmarried fathers’ parental rights are recognised more in many European countries.

              Regarding identity, the position in Gaskin v. UK that private life entailed right to information about oneself to understand childhood and development resembled right to identity, before UNCRC (Art. 8) came into being. This case was one of important stages in securing special right in UK by Data Protection Act 1998, just as Sutherland v. UK was in leading to Sexual Offences (Amendment) Act 2000, which shows Court’s constructive influence on national laws. Unfortunately, as a string of cases like X, Y & Z v. UK have shown, identity rights separately, like registration of father, were not guaranteed, which was consistent with European legal trend; Kilkelly views Court’s reasoning as poor in light of many complex legal and moral rights issues. There is indeed ground to criticise inadequate response to children’s identity rights along UNCRC standards.

              Some Court’s decisions reflected on importance of protecting child’s right to

physical and psychological integrity. While in X and Y v. Netherlands this was realised

by imposing positive state obligation to have laws in place to enable compensation of mentally disabled, sexually assaulted girl, other cases have emphasised an implicit in Art. 8 right to health care. On national plane, France’s, Italy’s and Sweden’s measures on Art. 24 UNCRC diminishing child mortality have been more successful than UK’s, while French legislation on female genital mutilation has worked more effectively than UK’s. A similar novel development in Art. 8 (respect for private life and home) right can be seen in Court’s decision in Lopez Ostra v. Spain that right to healthy environment is implicit and that a state is liable for risks to child’s health caused by pollution. Last, but not least, as established in non-child case Niemietz v. Germany and later elaborated in Botta v. Italy, right to private life entails establishing and developing relationships with human beings. This has been recently applied to children in Pretty v. United Kingdom in the context of their participation in community life and access to social, recreational and cultural activities.

Art. 6 – in contrast to Court’s inconsistent and unfull protection of child’s own right of

liberty and private life, if children’s rights do not potentially conflict with parents’ rights, like protection of young offenders, the Court has interpreted them vigorously, contributing to improvement in member states’ criminal justice systems.

              The right to fair trial was importantly considered in V and T v. United Kingdom where the Court stressed that inhuman treatment of two 10-11 year old boys resulted from anxiety and uncertainty before indeterminate sentence, extreme media attention and adult-type trial. The Court referred to Art. 40 UNCRC implying that child’s age, maturity, intellectual/emotional capacities should be respected and that procedure must be conducive to child’s active participation. This forced UK government to change procedures for trying very young serious crime offenders. Incidentally, England sets the youngest age amongst most European countries for criminal responsibility – 10. In Hussain v. United Kingdom, s. 53 Children and Young Persons Act 1933 regulating release of young offenders during post-tariff detention was held to have infringed Art. 5(4) ECHR denying serious offenders judicial hearing, so it was amended. Such decisions on children’s fair hearing have constructively influenced English law particularly; Dutch law similarly applied adult system to children throughout 1990’s.              

              Similarly, the Court also established that procedures for dealing with parents in

private and public law proceedings must be fair, provoking procedural changes here too More specifically, in McMichael v. UK the Court upheld all parties’ right to public hearing and disclosure of all documents in children’s cases in Scotland. Litigants must also obtain hearing within reasonable time without procedural delay, which is important for particularly young children; two years, seven months for mother’s contact with child was serious delay. Importantly, in some cases the Court positively appealed to states not to restrict child’s independent petition and rejected the argument that child must be represented by parent. In a recent case, it held that forcing a parent to represent himself in proceedings breached his Art. 6 rights, which effectively infringed child’s Art. 8 rights together with parents’. Generally, the Court has again protected children and enforced their rights to own hearing largely on UNCRC standards, contributing to improvements in protection of children’s and parents’ rights in states like, among others, Netherlands and Switzerland. However, such public hearing can still be restricted by legitimate aim and proportional actions, where protection of interests of others requires it.

Art. 9, 10 and 11 – the Court’s application of these rights to children presents a serious weakness. Not only were there few applications in these political and civil rights believed to be irrelevant to children, but where cases were brought, the Court interpreted them cautiously, demonstrating inability to envisage children as autonomous actors in freedom of expression, religion or assembly. This was so even where child’s views did not conflict

with parents’ rights, which was what usually stifled Court’s capacity for creative thinking. Art. 10 ECHR, compared to Art. 13 UNCRC, does not create positive obligation for states to provide means for exercising freedom of expression, but the real problem is that the Court has not expressly recognised right to seek information, neither is there implicit freedom of information/ideas even with UNCRC in force. This disables effective enjoyment of rights. For example, consultation with children is considered, but not made obligatory and failure to consult had never breached ECHR. This fails Art. 12 UNCRC participation rights standard, as indeed almost all European legal systems do, except perhaps Finland.  

              Handyside v. UK, though not brought by child and concerned with adult’s right

to freedom of expression, illustrated clearly how the Court read ECHR to protect children from offensive material rather than enforce their freedom to obtain relevant information, which Fortin strongly argues to be an erring interpretation. The Court upheld a book’s governmental censorship for its obscene material aimed at adolescents, justifying its decision by Art. 10(2) – protection of children’s moral development – which in itself would not totally prevent child’s right to freedom of expression, if not the fact that no consideration was made of child’s right under Art. 10(1) primarily. Effectively, child’s right was used as defence only to adult’s freedom of expression. The author alternatively submits that the case could be looked at as involving sex education issue and child’s right to education in Art. 2, Protocol 1 ECHR, regarding which the state is required to regulate information so that private distributors do not distribute pornographic material which the state would not if it was to impart sex education information. This way, children’s rights would again be interfered with by states’ right to protect them. Though Van Bueren argued this outcome may have been different if case was brought by adolescent, Kilkelly opined to the opposite and it is submitted that the latter’s view seems to be justified – in 1976, two minors’ complaints that this book’s censorship infringed their freedom of information were dismissed – even by recent post-UNCRC cases, which fail on Art. 13 standards. In UK, this is seen in restricting sex education and governmental intrusions in school curricula. However, given that the Court considers child’s right, it may be argued that its approach is not much different from UNCRC, which also provides for compromises in balancing children’s and parents’/state’s rights, like in Articles 17(e) and 34 UNCRC, aiming at protecting child from injurious information, like pornographic material. For example, a Danish 1990’s bill prohibiting possession of child pornography material was welcomed by Children’s Rights Committee. As in Handyside, child’s right to freedom of information was effectively ignored in Muller v. Switzerland because non-provision of age restriction for admission to explicit art exhibition had endangered young people’s morals. In Gaskin v. UK the Court decided that a child could seek information where it appertained to private life, restricting it to identity information (on the facts - adoption), unfortunately failing to establish general right of access to personal data and information. Meanwhile, freedom of information without positive restriction is still primarily in access to general sources of information only.              

              Perhaps one of Court’s most disappointing decisions was that there is no reason to consider child’s right to freedom of religion separately from parents’, taken in Valsamis v. Greece where a girl’s religious convictions were not considered, thereby disabling her to succeed claiming state infringement of her right by compulsory nature of military parade, for non-attendance of which she was punished. It may be arguable whether this is consistent with Art. 14 UNCRC, which recognises child’s right to religious freedom, though subjecting it to parental guidance. To the author, it looks not much different, as in practice children do not choose their own religion initially and at best their rights extend to how they manifest religious beliefs when in conflict with parent’s rights. The exact problem in this case is total inability to empower a child where his/her religious views did not even conflict with parent’s similar rights. It illuminates a clash between children’s education right, challenged by religion-offended parents (and child, on the facts), and

their own right to religious freedom, which may be infringed by education scheme. The latter failed to be protected alone without consideration of state’s right to educate children. The more specific case outcome was that the Court was unready to treat Jehovah’s

witnesses as having religious freedom, which Kilkelly thinks should have warranted protection of parents’ rights. Interestingly, a very indirect achievement can be seen in Phillip Williamson v. UK where the Court prevented parents’ use of their religious freedom rights in arguing that corporal punishment ban in private Christian schools

infringed their right of parental guidance of their children’s religious freedom.

              One other illustration of Art. 9, 10 and 11 political nature being unsuitable for

children is a case on freedom of assembly and association – Anderson & Ors v. UK, in

which the Court held that Art. 11 applied only to situations where right to demonstrate

or join trade union was involved, not any casual association with whomever. The effect was that child’s complaint that a ban on entry and use of shopping centre infringed

assembly rights was dismissed by Commission, the implication being that either state or parents can without inhibition by ECHR restrict children’s gatherings, if those do not serve a particular purpose, like attaining various ends. The author submits that this is a fair decision in view of children’s usually leisurely purposes behind their ‘assemblies’, but it is hoped it will not restrict children where they organise an adult-like assembly.

Art. 2, 1st Protocol – clearly the only child-centred right in ECHR – right to education – was still qualified by respect for parents’ religious views, resulting in much of Court’s

education rights’ caselaw being on parents’ complaints about their infringed religious and philosophical convictions. Nevertheless, the Court pronounced that child’s right to education is actually dominant. Some cases have protected children’s rights effectively; Costello-Roberts v. UK, referring to Art. 16 UNCRC, held that the right is positive, despite negative formulation, but the nature of positive steps by states is unfortunately unclear. Generally, the right is to practical and effective education – equal access to existing educational facilities – and it is believed that while nursery, primary and secondary education guarantees unrestricted access, higher education may be qualified by inadequate resources or state discretion in manner of education.

              Kjeldsen, Busk Madsen and Pedersen v. Denmark is an important example of

Court’s decision that parents’ religious/philosophical convictions were not infringed by

government’s compulsory sex education in schools, as it was balanced and objective, not

indoctrinating children, unlike in Karnell & Hardt v. Sweden where compulsory religious instruction in school infringed parents’ rights and Sweden amended its law. This makes child’s right to education strong and importantly, the case was decided long before

UNCRC came into being, though the author argues that perhaps the ‘no indoctrination’ qualification makes uncertain where exactly child’s education right stops. In comparison to Handyside, this decision upheld states’ right to impart information and knowledge and the

author asks whether it possibly indirectly protected child’s right to receive information under Art. 10 thereby? This would presumably depend on whether the child himself could choose what information to receive.

              Valsamis v. Greece was somewhat positive in that it protected child’s right to education, not allowing Jehovah’s Witness parents to argue that their traditional way of

living, which in Court’s view did not qualify as concrete religious/philosophical conviction, was infringed by compulsory military parade attendance. The curiosity was that child’s protected right to education had actually resulted in his punishment, which makes the value of such interpretation questionable, as it allowed the state to impose on child its own vision of education against his will. This shows clear inability to balance two rights of children – education and freedom of religion/non-discrimination against minorities – in one case. Unfortunately, additionally the case Eriksson v. Sweden expressly rejected child’s claim under 2nd sentence – respect for religious/philosophical convictions – of Art. 2. However, as with above-discussed Elsholz v. Germany, not only was the Court deeply concerned with penalising nature of such disciplinary measure, but it was also divided in its decision, with many dissenting judges opining that child’s Art. 9 right and parents’ Art. 2, Protocol 1 interest were infringed. Unfortunately, the Court failed to examine child’s claim separately; this is not a healthy precedent in modern days, which seems incompatible with other international standards. In Campbell & Cosans v. UK, however, though corporal punishment was integral part of school’s teaching process, related to education right, it infringed parents’ religious/philosophical convictions as well as child’s right.

              Belgian Linguistics Case (No. 2) presents another important development in

Court’s children’s rights protection, having decided that minority children could not be

excluded from mainstream publicly funded state schools, but not imposed any positive

state obligation to provide education in language of parents’ choice, while Polish law

provides the latter. The author views that this case established a realistic obligation, which had also enforced children’s right to non-discrimination under Art. 14 ECHR, which cannot be claimed alone, rather its effect is limited to Convention articles; Throughout 1990’s, Denmark, for example, has failed on ‘non-discrimination’ (UNCRC, Art. 2), particularly in relation to refugee children. Very importantly, a state is not bound however to educate disabled children in mainstream schools at parents’ wish due to policy arguments and the Court has stressed in Dahlberg v. Sweden that neither can Convention authorities assess standard of special facilities, for example for disabled children. So, in McIntyre v. UK failure to install lift for disabled child in normal school did not deny her right to education, because effective education had been secured by other arrangements and her individual right had to be balanced with other considerations. It is submitted that this development of child’s education right is reasonable and does not detract too far from UNCRC standards – Art. 28, 30 – however lack of procedural rights (Art. 6) in suspension or exclusion, like appeal, is a serious lacuna, as is indeed in English law; England actually fails on Art. 28 “equal opportunity” standard experiencing problem with increasing exclusions. The Court may be allowing too much discretion to states in adequate resources and manner of education. It is wished that cases like Valsamis and Campbell & Cosans shall be scrutinised more by the Court as they are clashing with children’s other rights as interpreted under Convention, which the Court has not reconciled satisfactorily enough.

              Children’s rights in the Court have overwhelmingly been balanced with families’ and states’ rights for purposes of proportionality. Children have been accommodated for, sometimes along UNCRC standards, but not given full autonomy; the rights have been kept within adults’ notion often to suit states’ needs. Some national laws have enforced children’s rights further along UNCRC standards after Court’s influential relatively creative tailoring of ECHR to suit children. This resulted in inconsistency between national and ECHR law. The increasing use of UNCRC to expand children’s rights’ scope is a fact. The exact effect of UNCRC against ECHR framework is arguable.

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Bibliography:

Books:

1. Jane Fortin, Children’s Rights and the Developing Law, 2nd Ed., London: LexisNexis UK (2003).
2. Ursula Kilkelly, The Child and the European Convention on Human Rights, Aldershot: Ashgate/Dartmouth (1999).
3. Children and their Families: Contact, Rights and Welfare, Edited by Andrew Bainham, Oxford: Hart Publishing (2003).
4. The New Handbook of Children’s Rights: Comparative Policy and Practice, Edited by Bob Franklin, Routledge: Taylor and Francis Group (2002).
5. Javaid Rehman, International Human Rights Law: a Practical Approach, Harlow: Longman (2003).
6. Children’s Rights: A Comparative Perspective, Edited by Michael Freeman, Dartmouth (1996).

Articles:

1. Bainham, A., “Can We Protect Children and Protect their Rights?” [2002] 32 Fam Law 279.
2. Munby, Mr. Justice, “Making Sure the Child is Heard: Part 1 – Human Rights” [2004] 34 Fam Law 338.
3. Munby, Mr. Justice, “Making Sure the Child is Heard: Part 2 – Representation” [2004] 34 Fam Law 427.

Website:

1. http://www.childrenslawcentre.org/hr.htm

                       

       

   

               

 

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