Child Protection

This chapter analyses the obligations placed on domestic authorities in the field of child protection. It starts by examining the way in which the Court has attempted to balance the rights of parents and children in this area, and in particular, the place of the ‘best interests’ principle in the Court’s jurisprudence. The chapter then goes on to consider the substantive rights in this area, including emergency measures, the removal of the child from the family, and their placement in alternative care, before examining the extensive procedural rights for parents and children under Articles 6 and 8. Finally, it details the jurisprudence of the Court concerning family reunification and the positive obligations placed on states to facilitate this.

Family Formation and Parenthood

This chapter examines the interpretation of ‘family life’ under Article 8 and the way that this has evolved throughout the Court’s history. It contrasts the approach of the Court to ‘family life’ between children and mothers, with ‘family life’ between fathers and children, noting the focus of the Court on function over form. It then turns to the establishment of parenthood, both in terms of maternity and paternity, as well as the right of the child to establish information concerning their origins. Finally, the chapter examines the changing face of the family, considering new family forms, including same-sex couples and transgender parents, as well as new methods of reproduction, such as artificial reproductive techniques and surrogacy.

Introduction

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.

The Right to Education

This chapter examines the approach of the European Court of Human Rights to cases concerning children’s education, and the interaction between parental rights and state obligations in this respect. It starts by looking at the jurisprudence concerning state versus private schooling, as well as the compatibility of prohibitions on home schooling with the Convention. It then goes on to consider specialised and segregated schooling, focusing on children with disabilities, migrant children, and ethnic minorities, and in particular the treatment of Roma children. The chapter further analyses the ability of parents to object to the content of education provided by the state, in the context of education in a chosen language, sexual education, and religious education. Finally, this chapter considers how Article 2, Protocol 1 of the Convention has been applied to higher education.

Conclusions

This chapter summarises how, as an instrument for the protection of children’s rights, the European Convention on Human Rights has come a long way from its limited beginnings in 1950, and the many achievements of the Court in enforcing and progressing children’s rights, both in terms of substantive rights and procedural safeguards. However, it also acknowledges the deficiencies of the Convention as a child rights instrument, noting in particular the lack of strong participation rights for children, the focus on ‘best interests’ rather than rights, and the emphasis placed on the margin of appreciation. Finally, the chapter outlines possible future challenges for children’s rights before the Court.

Social and Economic Rights

This chapter focuses on four social and economic rights which have been invoked in relation to children before the European Court of Human Rights: the right to health care, the right to a healthy environment, the right to property, and the right to social welfare. In relation to health care, it considers issues concerning consent to treatment, immunisation and disease prevention, privacy, and medical negligence. The chapter then examines the issue of abortion, focusing on the status of the unborn children under the Convention, as well as the right to effective access to treatment. The right to a healthy environment is also analysed, although this issue has only been briefly considered in the context of children’s rights. Finally, the child’s right to property, in the context of misuse of property, inheritance rights, and child maintenance are considered, as well as social security and social welfare, including parental leave and allowances, and access to state benefits.

Adoption

This chapter considers the Court’s jurisprudence in relation to adoption. Starting with adoption by a step-parent, it examines the approach of the Court to dispensing with parental consent, as well as challenges to laws prohibiting adoption by same-sex couples. Next, the chapter turns to adoption in the context of child protection proceedings, examining the substantive and procedural obligations on states and the interpretation of the best interests of the child in this context. The chapter also considers intercountry adoption, including the recognition and enforcement of adoption orders, as well as the involvement of children in decision-making. Finally, the chapter examines eligibility criteria for adoptive parents, focusing particularly on the issues of single-parent adoption and adoption by homosexual individuals.

The Right to Respect for Private Life

This chapter considers the right of the child to respect for private life from the perspective of three interrelated, but distinct, aspects. First, it considers the Court’s case law concerning the right to privacy, and the protection of one’s image. Second, it examines the development of the Court’s approach to the right to receive information—this ranges from rather conservative and paternalistic beginnings to a more robust protection of freedom of expression. Finally, the chapter analyses the Court’s jurisprudence concerning the right to identity, including the right to information on origins and rights concerning the naming of children and their citizenship.

Children and the Immigration System

This chapter focuses on children and the immigration system. It considers the separation of children and their parents in three contexts: deportation of parents without a right to reside; expulsion of a parent following the commission of a criminal offence; and expulsion of a child following the commission of a criminal offence. It then goes on to analyse the case law on family reunification and the obligation on states to allow children to enter a state where their family is currently residing. Finally, it examines the situation of children in immigration detention—both as unaccompanied minors and where they have been detained with their parents.

Private Law Child Disputes

One of the most prolific areas of jurisprudence of the European Court of Human Rights relates to private law disputes concerning children: the extent of parental authority; custody and residence; access and contact; parental child abduction; as well as the procedural rules that accompany them. This chapter explores how these have come before the Court, and the ways in which children’s rights have been conceptualised, both in the applications themselves and in the Court’s decision-making. It also examines the rules of standing to bring a case on behalf of a child, as well as the right to represent the child before the Court, and argues that the current rules provide inadequate protection for the rights of children.