Surrogacy Arrangements and the Best Interests of the Child: The Case Law of the European Court of Human Rights

2019 ◽  
pp. 187-208
Author(s):  
Katarina Trimmings
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Best Interests ◽  
European Court

The Best Interests of the Child

2020 ◽  
pp. 203-221
Author(s):  
Wouter Vandenhole ◽  
Gamze Erdem Türkelli
Keyword(s):  
Human Rights ◽  
Family Law ◽  
Children's Rights ◽  
Case Law ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Elusive Concept

The best interests of the child principle is considered a pillar of children’s rights law and, according to the UN Convention on the Rights of the Child (CRC), is to be a primary consideration in all actions concerning children. Yet best interests is an elusive concept and principle that has no single authoritative definition or description. Internationally and domestically relevant in such diverse areas as family law, adoption, migration, and socioeconomic policymaking, the best interests principle requires flexibility and is best served by a case-by-case approach, as has been recognized by the UN Committee on the Rights of the Child and the European Court of Human Rights. This chapter analyzes relevant international case law and suggests the use of a number of safeguards to prevent such requisite flexibility from presenting a danger of paternalism, bias, or misuse.

Reconstructing the European Court of Human Rights’ Article 8 Jurisprudence in Deportation Cases: The Family’s Right and the Public Interest

2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
Best Interests ◽  
European Convention ◽  
The Public ◽  
European Court ◽  
Two Factors ◽  
The One ◽  
The Right

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.

Challenges to the Application of the Concept of Vulnerability and the Principle of Best Interests of the Child in the Case Law of the ECtHR Related to Detention of Migrant Children

2021 ◽  
pp. 104-137
Author(s):  
Ksenija Turković
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Migrant Children ◽  
Best Interests ◽  
Eu Law ◽  
Immigration Detention ◽  
Short Overview ◽  
European Court ◽  
International Instruments ◽  
Legal Consequences

The administrative detention of migrant children, and the conditions of deprivation of liberty, pose serious challenges to the realisation of their rights. The present chapter discusses the concept of vulnerability and the principle of the best interests of the child, and their legal consequences, for the effective respect, protection, and fulfilment of the human rights of migrant children in the context of immigration detention. In doing so, it gives a short overview of the developments in the Court’s case law related to detention of migrant children. Using the Court’s concepts of vulnerability, the best interests of the child, and circumscribed child’s autonomy, as well as taking inspiration from other international instruments and EU law, this chapter attempts to demonstrate where the European Court of Human Rights (ECtHR) case law on the detention of migrant children in particular under Articles 3, 5, and 8 of the ECHR could grow further, and the opportunities for such growth, as well as the barriers to it.

scholarly journals RESTRICTIONS OF THE RIGHT TO LIBERTY

2020 ◽  
Vol 73 (12) ◽  
pp. 2915-2920
Author(s):  
Valentina I. Borisova ◽  
Yurii M. Zhornokui ◽  
Larysa V. Krasytska
Keyword(s):  
Human Rights ◽  
Research Methods ◽  
Mentally Ill ◽  
Case Law ◽  
Legal Regulation ◽  
Best Interests ◽  
Involuntary Admission ◽  
European Court ◽  
Special Scientific ◽  
The Right

The aim: To determine the grounds of involuntary admission of a mentally ill person in the context of the possibility to restrict his or her right to liberty. Materials and methods: The authors have studied and analyzed international legal acts, legislation of certain countries, judgments of the European Court of Human Rights, case law on involuntary admission of a mentally ill person by using philosophical, general and special scientific research methods. Conclusions: The imperfection of the legal regulation of relations concerning the involuntary admission of a mentally ill person leads to illegal restriction of the personal right to liberty. It has been proven that involuntary admission and restriction of the freedom of a mentally ill person can be justified, if we take into account the requirement of “therapeutic necessity” for a mentally ill person, the requirement of protecting the rights of others and guaranteeing their safety, the requirement of ensuring the best interests of a mentally ill person.

Children’s Rights in the European Court of Human Rights – An Emerging Power Structure

2016 ◽  
Vol 24 (3) ◽  
pp. 548-574
Author(s):  
Anette Faye Jacobsen
Keyword(s):  
Human Rights ◽  
Quantitative Assessment ◽  
Power Structure ◽  
Children's Rights ◽  
Case Law ◽  
Children’S Rights ◽  
Best Interests ◽  
Legal Research ◽  
European Court ◽  
European System

Legal research has shown mixed results regarding the application of a child-centred approach in judgments from the European Court of Human Rights. With an interdisciplinary perspective, however, a number of remarkable features become visible.This article explores case law from the European system with a blended methodology. First, a quantitative assessment of the Court’s judgments over the last decade reveals, surprisingly, that the child’s best interests doctrine has become widely used only recently, despite the principle being invoked as early as 1988. Secondly, an in-depth discourse analysis of selected landmark cases shows how the child-centred approach, in certain types of case, has gained status as the paramount consideration to the extent that it may sideline competing principles in the balancing exercise of adjudication. In the conclusion, the two types of enquiries, the statistical and the qualitative scrutiny of judgments, are combined to offer an assessment of the power of children’s rights alongside other interests in the European human rights machinery.

scholarly journals Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases

2019 ◽  
Vol 37 (2) ◽  
pp. 157-177
Author(s):  
Mark Klaassen
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Best Interests ◽  
Primary Role ◽  
European Court ◽  
The Right ◽  
Compliance Tests

The European Court of Human Rights plays a subsidiary role in the protection of the rights and freedoms set forth in the Convention. To enable national authorities to perform their primary role, it is important that the Court offers sufficient guidance on the interpretation of the Convention. It has already been argued that the case law of the Court on the right to respect for family life in immigration cases, lacks consistency in terms of procedural and substantive protection. The inconsistency in the case law is mostly the case in the admission and regularisation case law. This manifests itself in specific issues including the determination of whether an interference has occurred as well as the court’s determination of the best interests of the child. Consequently, the case law difficult to apply by national authorities which leads to widely diverging practices by the Contracting Parties. The objective of this article is to outline the differences and inconsistencies in the different forms of immigration cases and the corresponding compliance tests of the Court. The article aims to offer a solution that would enable both the Court and the Contracting Parties to differentiate the level of protection that is offered by Article 8 in immigration cases, while providing sufficient guidance to national decision-making authorities and judiciaries so that they can efficiently and effectively exercise the primary role they play in the protection of the right to respect for family life in immigration cases.

Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights

2020 ◽  
Vol 20 (4) ◽  
pp. 745-768
Author(s):  
Milka Sormunen
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Case Law ◽  
Best Interests ◽  
Procedural Approach ◽  
Rights Of The Child ◽  
European Court ◽  
Significant Strength ◽  
United Nations Convention ◽  
The United Nations

Abstract According to Article 3(1) of the United Nations Convention on the Rights of the Child, the best interests of the child have to be a primary consideration in all cases concerning children. The Committee on the Rights of the Child understands Article 3(1) as a ‘threefold concept’: a substantive right, an interpretive principle and a rule of procedure. This article argues that the provision is best understood as a procedural obligation. Understanding Article 3(1) as a procedural obligation remedies key problems that originate from interpreting the provision as a substantive right. A significant strength of the procedural approach is that it can be consistently applied in different case groups. This article illustrates the argument with the case law of the European Court of Human Rights related to children, in which the article detects three layers of a procedural approach to the best interests of the child.

Towards a Uniform and Informed Interpretation of the Best Interests of the Child by the Judiciary: Inter-American and European Jurisprudence

2021 ◽  
pp. 1-24
Author(s):  
Susana Sanz-Caballero
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Case Law ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Critical Form ◽  
The United Nations ◽  
The Right ◽  
Judicial Remedies

This article analyses the interpretations made by two regional human rights courts regarding the best interests of the child. In cases of controversy, it is for the judges to decide how, or whether, the best interests of the child should be applied. Due to the dependence and vulnerability of children, judicial remedies are a critical form of redress when children’s rights are violated. This article analyses case law from two regional courts (the Inter-American Court of Human Rights (ICtHR) and the European Court of Human Rights (ECtHR)). The purpose of this analysis is twofold: first of all to see how the two courts interpret and apply the concept; and secondly, to ascertain whether there are similarities of interpretation or common grounds of understanding between the two courts, with particular regard to General Comment No. 14 (GC 14) of the United Nations Committee on the Rights of the Child on the right of the child to have their best interests taken as a primary consideration.

scholarly journals The principle of the best interests of the child in the expulsion case law of the European Court of Human Rights: Procedural rationality as a remedy for inconsistency

2019 ◽  
Vol 37 (1) ◽  
pp. 50-68 ◽  
Author(s):  
Mathieu Leloup
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Best Interests ◽  
Critical Examination ◽  
Procedural Rationality ◽  
Procedural Approach ◽  
European Court ◽  
The Subject ◽  
The Right

According to Article 3 CRC, the best interests of the child should be a primary consideration in all actions concerning children. This article examines how the European Court of Human Rights applies this principle in expulsion cases that have an impact on the right to family life. A distinction is made between the cases where the expulsion measure is aimed at one of the parents and the cases where the child itself is the subject of the impugned decision. A critical examination of the available case law proves that the Court’s use of the principle is inconsistent in several areas. It is argued that the Court should adopt a procedural approach towards the principle. This would make the case law more consistent, while simultaneously increasing the children’s protection.

scholarly journals The Uncertain Place of the Child’s Best Interests in ECtHR’s Immigration Case Law

2020 ◽  
Vol 20 (2) ◽  
pp. 93-112
Author(s):  
Jennie Edlund ◽  
Václav Stehlík
Keyword(s):  
Human Rights ◽  
Family Life ◽  
Case Law ◽  
Best Interests ◽  
Immigration Law ◽  
European Convention ◽  
European Court ◽  
Migration Control

Summary It has been highlighted that in the area of immigration law the protection offered by the European Convention of Human Rights (ECHR) to children and family life is arguably at its weakest. The European Court of Human Rights (ECtHR) immigration case law on Article 8 ECHR has shown an uneven and uncertain application of the child’s best interests. Little significance is attached to the child’s respect for family life when determining whether the immigration measure is compatible with the ECHR. This paper will explore how the Court is identifying the best interests of the child and analyse what weight the Court apportions to the best interests of the child when balancing the state’s and the applicant’s interests. It will also examine whether the Court priori-tize migration control over the child’s best interests in cases where both family matters and immigration matters are involved.

Sign in / Sign up

Export Citation Format

Share Document