 |
Children’s
Rights are Human Rights
Paper for SLS and the Human Rights Centre,
6 March 2006.
Introduction
Thank you for asking me to speak at this evening’s seminar
on the topic of the child’s right to family and private
life. I will be focusing upon the child’s rights under
article 8 of the European Convention on Human Rights (hereinafter
ECHR) as incorporated by the Human Rights Act 1998, but I
also intend to discuss the child’s rights under article
3 of the ECHR (the right to freedom from inhuman and degrading
treatment and punishment). The five themes which are examined
in this paper are the interpretative value of the UNCRC when
advocating on behalf of children in family law proceedings,
the implications of positive duties in respect of children
under article 3 of the ECHR, the best interests principle,
participation and contact and reunification.
The Children’s Law Centre is a non- governmental organisation,
a charity established in 1997, with the aim of promoting,
protecting and realising children’s rights. We offer
a regional free phone advice and information service throughout
Northern Ireland called CHALKY (0808 808 5678) and a casework
and representation service within our waiver agreement with
the Law Society of Northern Ireland, focusing mainly on tribunals
and judicial review. We have a casework policy with defined
criteria and we also operate a referral system to private
practice solicitors on the accredited solicitor list or on
our panel of solicitors who have expressed an interest in
education law. The current strategic areas we have identified
in respect of our own casework are the right of the child
to a practical and effective education, children’s rights
and the children in need provisions of the Children (NI) Order
1995 and the child’s right to equality and non-discrimination.
We make submissions to government and to international bodies
on law, policy and practice on children’s rights and
we have a youth group called Youth @ clc. We produce materials
on children’s rights for advisers and for children and
young people, all of which are on our website at www.childrenslawcentre.org.
and we offer a comprehensive training package called “Children’s
Rights are Human Rights” which considers the current
European and domestic case law. We are currently finalising
a joint publication between SLS and the Children’s Law
Centre on children’s rights in Northern Ireland.
The United Nations Convention on the Rights of the Child
The UNCRC is an international human rights treaty which was
adopted by the General Assembly of the United Nations on 20
November 1989 and which was ratified by the United Kingdom
Government in December 1991. It has been ratified by 192 countries
in the world – only Somalia and the United States of
America have not ratified. The UNCRC contains 54 articles
and a broad range of civil, political, economic, cultural,
social and educational rights for children. It has been described
as establishing a new vision of the child, one that goes beyond
the more traditional approach aimed at providing protection
to recognising the child as a holder of participatory rights
and freedoms and as a powerful evolutionary instrument of
change .
The UNCRC has been gaining prominence in Northern Ireland.
It has been argued that it should form the basis on which
the new Children and Young People’s Strategy should
be founded and has been expressly referred to in the legislation
establishing the Commissioner for Children and Young People
for Northern Ireland (hereinafter NICCY) by virtue of which
NICCY is bound to consider the provisions of the UNCRC when
exercising any of his or her functions. NICCY has also recently
published a comprehensive analysis of children’s rights
in Northern Ireland conducted by Queen’s University,
using the UNCRC and the recommendations of the United Nations
Committee on the Rights of the Child as the benchmark against
which to assess progress. This research provides an invaluable
baseline against which to measure progress on children’s
rights in Northern Ireland. Research conducted by the Children’s
Law Centre and Save the Children in 1999 also evaluated the
implementation of the UNCRC during the period 1994 –
1999. The United Kingdom government is examined on the implementation
for the UNCRC every 5 years before the United Nations Committee
on the Rights of the Child, which produces reports of these
examinations and has in addition produced general guidelines
for periodic reports. It has also issued a General Comment
in relation to general measures of implementation.
The use of the UNCRC for the purpose of illuminating and advancing
children’s rights arguments under the ECHR has been
endorsed by the European Court of Human Rights and is frequently
expressly referenced by the High Court in England and in Northern
Ireland and practitioners are therefore encouraged to adopt
this approach in formulating legal argument on behalf of children.
In the context of the child’s right to family and private
life under article 8 of the ECHR it is suggested that the
relevant articles of the UNCRC which should be considered
are articles 2 ( non discrimination),3 (best interests), 9
(separation from parents), 10 (family reunification), 12 (the
child’s views)), 16 (protection of privacy), 18 (parental
responsibilities), 19 (protection from abuse and neglect),
20 (protection of children without families), 21 (adoption),
24 (access to health and health services) and 27 (standard
of living).
A copy of the UNCRC has been provided in your packs this evening
for ease of reference.
I wish now to address a number of specific areas relating
to the child’s rights to freedom from inhuman and degrading
treatment under article 3 of the ECHR and to family and private
life under article 8 of the ECHR. These fundamental rights
are considered in the context of the spectrum of interventions
by the state which may take place in children’s lives:
child protection measures, private family law proceedings,
public family law proceedings, family support and services
for children in need and adoption. I will be specifically
considering children’s rights with regard to child protection,
physical punishment, procedural fairness, best interests,
reunification and contact.
The Child’s Rights under Article 3 of the ECHR
Article 3 of the ECHR protects children against the use of
torture, inhuman and degrading treatment. Article 3 of the
ECHR should be read in conjunction with article 19 of the
UNCRC which requires the State to take all appropriate legislative,
administrative, social and educational measures to protect
the child from all forms of maltreatment by parents or others
responsible for the care of the child and establish appropriate
social programmes for the prevention of abuse and treatment
of victims. Whether or not treatment amounts to inhuman and
degrading treatment has been held by the European Court to
depend on all the circumstances of the case, such as the nature,
context and duration of the treatment, its physical or mental
effects, the sex, age, the state of health of the victim and
the consequences of the ill treatment. It has been argued
that when considering the effects of torture or inhuman and
degrading treatment and punishment the human rights framework
appears to lack an appropriate model for assessing the physical,
psychological and social development processes of children.
This undoubtedly remains the case, although signs of some
progress towards developing a more sophisticated approach
are becoming visible. The conduct must go beyond that inevitable
element of suffering or humiliation connected with a given
form of legitimate treatment or punishment. It is widely accepted
that this right is one of the few rights under the ECHR, which
is non-derogable, that is, there can be no justification for
inhuman and degrading treatment of a child.
The duty on the State to protect children from inhuman and
degrading treatment
The recognition by the Court of positive obligations on state
parties arising under articles 2, 3 and 8 of the ECHR in cases
such as Oneryeldiz v Turkey , Osman v UK and Edwards v UK
has become critically important in relation to the protection
of children’s rights, particularly in the fields of
physical punishment in the home, child protection and child
abuse. Positive obligations can include the requirement to
conduct adequate investigations, take preventative operational
measures, ensuring that legislative and policy frameworks
are in place, which adequately protect rights, and in some
circumstances the provision of support services and information.
Physical Punishment
In the following 15 states, children are protected by law
from all corporal punishment – Austria (1989), Croatia
(1999), Cyprus (1994), Denmark (1997), Romania (2004), Finland
(1983), Germany (2000), Israel (2000), Iceland (2003), Bulgaria
(2000), Latvia (1998), Norway (1987), Sweden (1979), Ukraine
(2004) and Hungary (2005). The United Nations Committee on
Rights of Child on 4th October 2002 recommended that the United
Kingdom government should remove the defence of reasonable
chastisement and prohibit all corporal punishment in the family
and required the United Kingdom government to promote positive
participatory non-violent forms of discipline and carry out
public education campaigns in this regard. In June 2004, the
Parliamentary Assembly of the Council of Europe overwhelmingly
adopted a recommendation calling for a Europe wide ban on
corporal punishment of children:
“The Assembly considers that any corporal punishment
of children is in breach of their fundamental right to human
dignity and physical integrity. The fact that such corporal
punishment is still lawful in certain member states violates
their equally fundamental right to the same legal protection
as adults. Striking a human being is prohibited in European
society and children are human beings.”
At the 61st session of the UN Commission on Human Rights held
in Geneva (14th March – 22nd April 2005) the Commission
adopted a number of resolutions, which urged states to prohibit
all corporal punishment of children. In Resolution 2005/39
“ Torture and other cruel, inhuman and degrading treatment
or punishment” the Commission reminds governments that
corporal punishment including of children can amount to cruel,
inhuman or degrading punishment or even to torture (paragraph
7).
Responding to human rights complaints brought against five
countries, in compliance with the European Committee of Social
Rights report, the Committee of Ministers of the Council of
Europe has confirmed that Supreme Court judgments in Italy
and Portugal do prohibit all corporal punishment. The Committee
found however that Belgium, Greece and Ireland are in breach
of their obligations under the European Social Charter because
they have not prohibited all corporal punishment (June 2005).
Other European countries including the Netherlands, Slovenia
and the Slovak Republic have announced that they intend to
legislate to abolish all corporal punishment. The United Nations
Secretary General is currently conducting a study on violence
against children.
The leading case of A v UK in which a young boy had been beaten
repeatedly with a garden cane by his stepfather examined the
question of the scope of the State’s obligation to protect
children from ill treatment under article 3 of the ECHR. It
was concluded that as the stepfather was acquitted in the
Crown Court in England as a result of raising the defence
of reasonable chastisement in relation to a charge of assault
occasioning actual bodily harm, that the level of protection
that the United Kingdom had provided to the boy was inadequate,
that is, that our domestic laws could allow for an acquittal
when the European Court was of the view that the treatment
of the boy on this occasion amounted to inhuman and degrading
treatment under article 3. The European Court was clear that
there was a positive obligation on all states to ensure that
legislative frameworks and court structures protected children.
The Council of Ministers is supervising the implementation
of this judgment and is considering whether the United Kingdom
government have fulfilled their positive obligations to children
arising from this case by the introduction of section 58 of
the Children Act 2004 which restricts the use of the defence
of reasonable chastisement to common assault cases. It has
been suggested by the government that there is an intention
to replicate clause 58 of the Children Act 2004 in Northern
Ireland. Although clause 58 removes the defence of reasonable
chastisement from the more serious criminal offences such
as assault occasioning actual bodily harm and grievous bodily
harm, it does not remove the defence from common assault and
therefore does not in our view represent a total ban on the
use of physical punishment in the home. Press releases have
now been issued by all four United Kingdom Children’s
Commissioners and supported by the Children are Unbeatable
Campaign stating that clause 58 is an unacceptable “half
way house”.
In the important case of R v Secretary of State for Education
and Employment and others ex parte Williamson [2005] UKHL
15, the House of Lords dismissed an application by head teachers,
teachers and parents of children at four independent schools
in England. The applicants complained that the statutory ban
on the use of corporal punishment in schools interfered with
the parent’s rights under article 9 of the ECHR (freedom
of religion and freedom to manifest their religion). The House
of Lords held that the interference with the parents’
rights under article 9 was necessary in a democratic society
for the protection of the rights and freedoms of others i.e.
children. Per Lord Nicholls of Birkenhead at paragraph 49
– 50:
“The statutory ban pursued a legitimate aim; children
are vulnerable and the aim of the legislation is to promote
their well being. Corporal punishment involves deliberately
inflicting physical violence. The legislation is intended
to protect children against the distress, pain and other harmful
effects this physical violence may cause. That corporal punishment
may have these effects is self evident.”
“Parliament was bound to respect the claimants’
beliefs in this regard but was entitled to decide that manifestation
of these beliefs in practice was not in the best interests
of children.”
Child Protection
Courts in the United Kingdom had traditionally preserved the
immunity of social services from negligence claims in the
context of child protection, but as a result of some landmark
decisions in Europe this position has now changed. A leading
case in this area is Z & Others v UK (the so called Bedfordshire
cases) in which allegations were made by five siblings who
had suffered severe ill treatment and neglect by their parents
over a number of years that Bedfordshire County Council had
failed to protect them and that they had no access to an effective
court or an effective remedy as the House of Lords had effectively
bestowed an immunity on social services in relation to being
sued in negligence in the United Kingdom in relation to child
protection issues. The Commission decided that the treatment
the children received amounted to inhuman and degrading treatment
under article 3 and inferred a positive obligation under article
3 on the State to provide children and young people with adequate
protection against inhuman and degrading treatment. The Commission
also found that there had been a violation of article 6 (the
right to a fair trial) in that the applicants had been effectively
denied the right of access to a court to have the merits of
their claim for negligence/ breach of statutory duty examined.
It is important, however, to say that it has been recognised
that the decision -making process in child protection cases
is an extremely difficult task for social workers. These cases
were heard by the European Court and judgment was given on
10 May 2001. The European Court found that there had been
a breach of all the children’s article 3 rights in respect
of the State’s failure to protect them from inhuman
and degrading treatment. The European Court did not make a
finding under article 6 (right to a fair hearing) but did
make a finding under article 13 (no remedy) and awarded the
sum of £320 000 in total damages plus costs.
In the case of E and Others v UK the European Court found
a breach of article 3 and article 13 of the ECHR in respect
of the failure by the state to protect four applicants from
sexual and physical abuse, which amounted to inhuman and degrading
treatment. The European Court stated in this case that a failure
to take reasonably available measures, which could have had
a real prospect of altering the outcome or mitigating the
harm, is sufficient to engage the responsibility of the State.
The Child’s Rights under Article 8 of the ECHR
Article 8 of the ECHR guarantees everyone the right to respect
for family and private life. In determining whether family
life actually exists the European Court considers whether
there are “close personal ties”. It should be
borne in mind that the ECHR is a living document, which must
be interpreted in accordance with societal change. It is not
possible, therefore, to be prescriptive about what does and
does not constitute family life. Private life has been defined
by the ECHR as including a person’s physical and psychological
integrity . Article 8 protects a right to personal development
and the right to establish and develop relationships with
the outside world and also protects the rights of children
to participate in the life of the community and to have access
to a range of social, recreational and cultural activities
and to the emotional and developmental environment in which
a child is brought up. This broad definition could have potentially
wide applicability in relation to advocating for example for
services for children with a disability, for children in need
who require complex care packages or for children and young
people who require age appropriate child and adolescent mental
health services ( CAMHS). When determining whether there has
been an interference with a child’s right to family
and/or private life, the European Court considers whether
the measure complained of constitutes an interference with
respect for family life, whether the interference was in accordance
with the law, whether it was necessary in a democratic society
and whether there was a legitimate aim to the interference.
States enjoy a considerable margin of appreciation in this
area.
Positive obligations are inherent in effective respect for
family life. The key themes emerging in the context of the
rights to family and private life for children are the recognition
of the best interests principle, the consistent reinforcement
of the Court’s views on the need for contact and reunification
with parents and the need to hear the “voice of the
child” (i.e. positive duties to ensure procedural safeguards).
Before I consider each of these children’s rights themes
with regard to article 8 of the ECHR, I wish to set the scene
by highlighting some key points which have arisen in the case
of AR v Homefirst Trust.
AR v Homefirst Trust
The Court of Appeal in Northern Ireland has considered the
right to family life of a mother in the context of an application
by the Trust for a care order in respect of her baby. The
initial application for an emergency care order was made one
day after the baby was born in September 2003 and by the time
of hearing in February 2005, the child had not returned to
her care. The High Court made a care order, which was appealed
to the Court of Appeal by the mother who wanted the court
to permit a residential assessment. She argued on appeal that
the actions of the Trust in seeking a care order which effectively
prevented her from having contact with her child or the opportunity
to establish that she is or could become capable of caring
for her child violated her article 8 rights. She also argued
that the High Court, in making the care order, likewise acted
in breach of those rights and that neither the Trust nor the
High Court had sufficient regard for the nature of the rights
that arise under article 8 of the ECHR and made no proper
evaluation of those rights in balancing them against what
were perceived to be the best interests of the child. Whilst
recognising that the guardian ad litem’s primary concern
was what was in the best interests of the child, and the desirability
of having a permanent placement for the child, the Court of
Appeal were of the view that the rights of the mother in this
case under article 8 of the ECHR and the positive duty to
take measures to facilitate family reunification had not been
properly considered. The Court of Appeal was critical of the
fact that no written care plan had been put before the High
Court and that the mothers article 8 rights had not been explicitly
recognised in the submissions by the Trust at hearing. It
was indicated by the Court of Appeal that a lack of training
for Trust staff on the implications of the ECHR had a profound
effect on the outcome of the case:
“The failure of the Trust’s officers to be sufficiently
alive to the requirements of the Convention and the jurisprudence
of the European Court of Human Rights has had profound and
important consequences in this case.”
The Court of Appeal recalled from the Strasbourg jurisprudence
that the removal of a child from his parents is recognised
as a draconian measure, to be undertaken only in the most
compelling circumstances after all alternative measures have
been fully explored and that this was particularly so in the
case of a new born child. Convincing evidence must be produced
that every feasible alternative has been examined and rejected
for sound reasons and where substantial professional testimony
opposes the removal of a child from his parent, the court
should be very slow to accede to a care plan that involves
the separation of the child from his parents. The Trust had
restricted contacted between child and mother and the Court
of Appeal was of the view that this provided further evidence
of a failure to recognise the mother’s article 8 rights
in accordance with Strasbourg jurisprudence. Significantly
the Court of Appeal indicated that they had been unable to
find any written reference in all the papers before them to
the mother’s article 8 rights.
“Although the court must treat the child’s welfare
as paramount, this does not mean that it should exclude from
its consideration other factors such as the Article 8 rights
of the parent. Whilst these cannot prevail over the welfare
of the child, they must be taken into account.”
The Court of Appeal did not however overturn the care order
as the child by that time was settled in a foster home with
his siblings and the Court could not sanction his removal
from this placement.
Best Interests
The best interests principle and it compatibility with the
ECHR and the rights of parents has been the subject of recent
academic debate. However, it is submitted in this paper that
the European Court has in fact recognised the widespread commitment
amongst European countries to the best interests principle
and has sought to accommodate this principle within a rights
based decision making framework, in which there is a fair
and sufficient consideration of the rights of all parties.
This is demonstrated in the developing case law. The best
interests principle is usually considered at the stage of
the decision making process which examines whether the interference
with family life was legitimate. In the context of private
and public law family proceedings , reference has been made
to attaching “particular importance” to the best
interests of the child in the case of Johansen v Norway (1996)
;
“The Court considers that taking a child into care should
normally be regarded as a temporary measure to be discontinued
as soon as circumstances permit and that any measures of implementation
of temporary care should be consistent with the aim of ultimately
reuniting the natural parent and the child. In this regard
a fair balance has to be struck between the interests of the
child in remaining in public care and those of the parent
in being reunited with the child. In carrying out this balancing
exercise, the Court will attach particular importance to the
best interests of the child, which depending on their nature
and seriousness, may override those of the parent. In particular,
…the parent cannot be entitled under article 8 of the
Convention to have such measures taken as would harm the child’s
health and development”.
In Hansen v Turkey (2003) , this position was restated as
follows in the context of a discussion about reunification;
“Whilst national authorities must do their utmost to
facilitate such co operation, any obligation to apply coercion
in this area must be limited since the interests as well as
the rights and freedoms of all concerned must be taken into
account, and more particularly the best interests of the child
and his or her rights under article 8 of the Convention. Where
contacts with the parent might appear to threaten those interests
or interfere with those rights, it is for the national authorities
to strike a fair balance between them.”
In later cases reference has been made by the European Court
to attaching “crucial importance” to the best
interests of the child and the European Court has stated that,
in the absence of any failure to take a parent’s rights
sufficiently into account or an arbitrary decision making
process, if any balancing exercise is necessary that the child’s
interests must prevail;
“The Court reiterates that in judicial decisions where
the rights under Article 8 of parents and those of a child
are at stake, the child’s rights must be the paramount
consideration. If any balancing of interests is necessary,
the interests of the child must prevail…The Court has
not found any indication that the domestic courts, in striking
the balance they did between the rights of the applicant and
those of the child, failed to take the applicant’s rights
sufficiently into account or decided in an arbitrary manner.”
From a children’s rights perspective, there remains
some concern at present however that the framework in which
to assess a child’s best interests has not been fully
developed under ECHR jurisprudence and that insufficient attention
is paid to the child as a holder of article 8 rights as well
as often being the subject of dispute. For example, as Ursula
Kilkelly points out Convention authorities have failed to
highlight the factors to be taken into account in applying
the best interests principle or what weight should be attached
to each factor and these matters seem to fall within the margin
of appreciation allowed to States in relation to the assessment
of a child’s best interests under domestic legislative
frameworks such as article 3 of the Children (NI) Order 1995.
The balancing of rights in freeing /adoption cases is a particularly
complex exercise. The child has rights to stability and permanency
with an adoptive family. The child also has rights to family
life with their natural parents and siblings, as long as the
exercise of these rights is in the child’s best interests.
On the basis that the rights of parents are properly considered
throughout, the best interests of the child should be the
paramount consideration in the decision-making process. In
the case of Re A, the Trust applied for a care order and an
order freeing the child for adoption without the parent’s
consent. The High Court in Northern Ireland considered the
parents’ Article 8 rights but concluded that adoption
was in the best interests of the child. Subsequent to the
AR v Homefirst Trust case, in Homefirst Community Trust v
SN [2005] the Court of Appeal were critical of a Trust’s
failure to be fully cognisant of a mother’s rights under
article 8 of the ECHR, but due to the passage of time and
the fact that the child had happily settled with his carer
for nearly three years confirmed that it was now in the child’s
best interests to be freed for adoption and that his mother
was withholding her consent unreasonably.
In relation to the issue of consideration of parent’s
rights and the child’s rights in freeing/ adoption proceedings
,the High Court in Northern Ireland in a later case formulated
the due consideration exercise in the following way;
“I am satisfied that this Trust has afforded due consideration
of this couple’s rights under Article 8 of the ECHR
and that every reasonable consideration has been given to
the prospect of rehabilitation. However the Trust have also
taken into account the rights of the child to a family life
and have in my view correctly concluded that this can only
be done by following the route of adoption. I consider that
their response has been a proportionate one to a legitimate
aim namely to protect the welfare and interests of the child”.
The Right to Procedural Fairness for Children
It is clear that the right to procedural fairness is inherent
in the right to family life under article 8 of the ECHR and
that positive obligations on the state with regard to respect
for family and private life arise as a result. . Procedural
fairness applies to case conferences, reviews and other administrative
decisions, as well as to court proceedings in the context
of family and childcare decisions. Administrative decisions
made by Trusts, which interfere with the right to family life
and decisions by the courts are all likely to attract the
procedural safeguards within article 8 and also in certain
circumstances the article 6 rights. The United Nations Committee
on the Rights of the Child in 2002 specifically recommended
that the United Kingdom government should take further steps
to ensure that article 12 of the UNCRC is consistently reflected
in the legislation governing procedure in courts and administrative
proceedings (including separation and divorce proceedings)
to ensure that a child capable of forming his or her own views
has the right to express those views.
Article 6 and 8 of the ECHR- Participation Rights of Children
and Young People
Article 8 of the ECHR requires that there should be sufficient
procedural protection of the child’s interests. The
European Court considered the participation rights of children
and young people under article 6 of the ECHR in criminal proceedings
in the case of T & V v UK stating unequivocally that in
order for a child to have a fair hearing they must be able
to understand and participate effectively. Although this decision
was made in the context of a criminal trial, it is also of
relevance when considering children’s participative
rights in private and public law proceedings. It is suggested
that the twin concepts of understanding and participation
as essential factors in the guarantee of a fair hearing for
children should be read across into all judicial and administrative
proceedings relating to children and young people. Recent
case law has indicated that States must also consider the
procedural safeguards in place for children and young people
with mental health difficulties, special educational needs
or disability. In the case of S.C v UK an 11-year-old boy
had been assessed as having a significant degree of learning
delay with a verbal IQ and performance IQ falling at or below
the first percentile. He was reported as having the level
of vocabulary of approximately a six year old. He was tried
for attempted robbery in the Crown Court, which put in place
measures such as no wigs and gowns, not requiring him to sit
in the dock, frequent breaks etc. as per the Practice Direction
which had been issued by the Lord Chancellor after the case
of T & V v UK. The European Court found that the right
of an accused to effective participation in his or her criminal
trial generally included not only the right to be present,
but also to hear and follow the proceedings. In the case of
a child it was essential that he or she be dealt with in a
manner which took full account of his or her age, level of
maturity and intellectual and emotional capabilities and that
steps were taken to promote his or her ability to understand
and participate in the proceedings, including conducting the
hearing in such a way as to reduce as far as possible his
or her feelings of intimidation and inhibition. Consideration
should have been given to a specialist tribunal being established.
In this case, the child was sentenced to detention for 21/2
years. At no stage did he understand that he risked a custodial
sentence and in fact when he was sentenced by the court and
had been taken into the holding cells, he still expected to
go home with his foster father. The European Court was of
the view that the applicant had not been able to participate
in this trial to the extent required by article 6 (1) of the
ECHR. Further comment has now been made by the High Court
in England in relation to this case in the case of TP v West
London Youth Court [2005] . The facts of this case were that
the Youth Court in England heard the case of a 15 year old
who had been assessed as having an IQ of an 8 year old. The
High Court confirmed that in their view the “specialist
tribunal” was in fact the Youth Court and that on the
balance of probabilities the young person would be able to
participate if assisted by specialist and experienced representatives.
There were however a number of measures which should always
be taken to ensure that a child receives a fair hearing: keeping
the claimants level of cognitive functioning in mind; using
concise and clear language; having regular breaks, taking
additional time to explain court procedures; being proactive
to ensure that the claimant has access to support and explaining
and ensuring the claimant understands the ingredients of the
charge; explaining possible outcomes and sentences and controlling
cross examination of children.
The European Court is particularly concerned with procedural
fairness in the context of care proceedings and has recognised
that there is an important need for procedural fairness when
children are being removed from a family setting. In the case
of P, C and S v UK the applicant mother had been convicted
of a misdemeanour offence in the United States relating to
her son, then aged nine. On the birth of a further child in
England, the local authority obtained an emergency protection
order and removed the child at birth, thereafter applying
for interim and full care orders. The local authority then
made an application to free the child for adoption. The adoption
order did not ultimately contain any provision for direct
contact between the child and her parents. The European Court
did not find a breach of the inherent right to procedural
fairness under article 8 of the ECHR in respect of the procedures
adopted by the local authority prior to the birth of the child,
nor in relation to obtaining an emergency protection order
at an inter partes hearing. However, the European Court did
find a breach of article 8 of the ECHR in respect of the manner
of implementation of the order i.e. the removal of the child
from the mother at birth and also in respect of the lack of
legal representation of the mother during the care and freeing
proceedings, together with the lack of any real lapse in time
between the freeing and adoption proceedings. The European
Court was of the view that the applicant mother was deprived
of a fair hearing. As a result of this procedural unfairness,
it was held that the child’s article 8 rights were also
breached. The government in this case interestingly raised
the defence that they were protecting the child’s rights
under articles 8 and 3 of the ECHR.
In light of the procedural safeguards under article 6 of the
ECHR and implicit in article 8 of the ECHR, it is suggested
that it is likely that the European Court will find consultation
with and representation of children and young people, including
those with mental illness and learning disability to be essential
for the effective protection of their rights. In both private
and public family law proceedings this is likely to mean that
states will have to demonstrate how the child’s voice
has been heard in proceedings and how their rights and interests
have been protected throughout all administrative and court
proceedings. However, whilst significant progress has been
made in European Court judgments with respect to the development
of the best interests principle and the importance of the
child’s participation in decision making, any detailed
analysis of the concept of legal competency of children and
young people as decision makers is largely absent from current
European Court judgments with the exception of the notable
cases referred to above.
Voice of the Child
In relation to the voice of the child in legal and administrative
proceedings, there have been two decisions by the European
Court, in the context of family proceedings, which are particularly
relevant to the debate in relation to separate representation
in private family law proceedings. These are the cases of
Sahin v Germany and Sommerfeld v Germany . In the Sahin case
an unmarried father of a three-year-old child successfully
complained of a breach of his rights under articles 6, 8 and
14 of the ECHR. The European Court found a breach of article
8 and made particular reference to the fact that the child
had not been heard in court at any stage of the proceedings,
although the reasoning for this appears to have been that
the failure to involve the child amounted to a breach of the
father’s rights and unfortunately not the child’s
article 6 and 8 rights which were clearly engaged in these
cases and, it is submitted should have been more central to
the judgment.
In the Sommerfeld case the applicant was again an unmarried
father of a child who at the commencement of legal proceedings
was 10 years old. The child stated repeatedly that she did
not want to see her natural father at all. A psychologist
was appointed by the District Court who prepared an opinion
(one page) stating that, as the applicant and the child had
not had a relationship for six years that an assessment was
not possible. The psychologist indicated that the child did
not want personal contact with the applicant. The European
Court held, in finding a breach of the natural father’s
article 8 rights, that the District Court should not have
been satisfied with hearing only the child as to her wishes
but should have had at its disposal expert psychological evidence
in order to evaluate the child’s seemingly firm wishes.
Correct and complete information was an indispensable pre
requisite for establishing a child’s true wishes and
thereby striking a fair balance between the interests at stake.
These cases were both appealed to the Grand Chamber, which
gave its decisions on 8 July 2003. In the Sommerfeld case,
the Grand Chamber although they found breaches of articles
8 and 14, said that it was going too far to say that domestic
courts must always involve a psychological expert in every
case – this depends on the circumstances of the case
and the age and maturity of the child. In the Sahin case the
Grand Chamber found breaches of articles 8 and 14, but did
not find a breach of article 8 on the grounds that the child
had not been heard properly. There were, however strong dissenting
judgments indicating that the child’s views should have
been properly ascertained.
In the context of adoption proceedings, in the case of GHB
v UK significant weight was attached by the European Court
to the wishes and feelings and rights under article 8 of the
ECHR of a twelve -year- old girl in relation to adoption proceedings.
The child in this case wanted to be adopted and was resolute
in her opposition to the making of a contact order with her
grandparents as she was afraid this would destabilise her
placement. The European Court stated that to have ordered
the child, against her wishes to remain in contact with her
grandparents would have constituted a failure properly to
respect the child’s own rights under article 8 of the
ECHR. Similarly in the case of Pini and others v Romania which
concerned the adoption of two Romanian children (aged 91/2
at the time of the adoption proceedings and 11 at the time
of the ECHR hearing) against their will by an Italian couple,
the European Court held that the children’s interests
dictated that their opinions should have been taken into account
once they had attained the necessary maturity to express them.
In the High Court in Northern Ireland, Mr Justice Gillen has
considered the wishes and views of children in the context
of non Hague Convention abduction and ultimately refused to
order return of the children in this case to Bahrain. He stated
that one important yardstick against which the family justice
system in Northern Ireland must be evaluated is article 12
of the UNCRC. He went on to say:
“It must be remembered that a child is a person with
human dignity and not merely the object of a parental dispute.
A child’s fundamental rights including the right to
be heard, must be respected in all forums including the confounds
of the Hague Convention and non- Convention cases. A child
therefore possesses the right to self – expression.
Equally a court must be wary not to give undue weight to the
views of children particularly when they are very young. Only
in those cases where there is some evidence before the court
that the child is capable of giving his or her own view is
such an investigation warranted in the particular circumstances
of each case.”
Further consideration was given by Mr Justice Gillen to the
importance of the voice of the child in E (Voice of the Child)
[2005]. In the context of the wishes and feelings of a 12
year old child in wardship and residence proceedings, Mr Justice
Gillen referred to the “gathering momentum of the importance
of listening to children” and taking into account their
perspectives when decisions are being made about them;
“One important yardstick against which the family justice
system in Northern Ireland must be evaluated is Article 12
of the UNCRC to which the United Kingdom is signatory …As
stated in Re S ,N and C , I do not believe it is helpful or
appropriate for me to set in stone the age at which a child
is likely to be of sufficient maturity to give informed views.
This will undoubtedly vary according to the individual intelligence
and maturity of the individual child and the circumstances
of the case. Nor do I believe there is any fixed method for
obtaining those views.”
Contact and reunification
The European Court has been very clear in its judgments about
the importance of contact for children who have been separated
from their parents and has also stated that in implementing
care orders the ultimate aim should be reunification if possible
with parents. These requirements can be classified as positive
obligations on the state to respect family life. In the case
of Olsson v Sweden siblings had been taken into care, separated
and then placed at considerable distances away from each other.
The European Court found that there had been a violation of
the parent’s rights under article 8 of the ECHR. Although
the children’s right to contact with each other was
not elaborated on, it is arguable that the right to contact
could equally apply to the child’s right to contact
with parents/carers, extended family and with brothers and
sisters, but that the European Court has not yet properly
explored this area.
In the case of Kutzner v Germany the applicants lived with
their parents and unmarried brother on an old farm with their
two daughters aged 5 and 4. In February 1997 an order was
made withdrawing the parents’ rights to decide where
their daughters should live on the grounds that the parents
“lacked the intellectual capacity” to bring up
their children properly. In May 1997, the court withdrew all
parental rights and in July 1997 the two children were placed
in two separate unidentified foster homes. The parents did
not see their children for 6 months. Thereafter the parents
saw the children for one hour monthly in the presence of 8
representatives from social services later extended to two
hours monthly. The European Court found that not enough consideration
had been given by the German authorities to additional measures
of family support as an alternative to separation from parents.
The European Court reiterated that a care order should in
principle be regarded as a temporary measure and that any
measures implementing temporary care should be consistent
with reunification with parents. A violation of article 8
was found with regard to the parents’ rights and damages
were awarded. Whilst this is a powerful judgment which is
often cited in family cases, when we consider the impact which
these decisions must have had on the children of the family,
it is unfortunate that there is a lack of focus specifically
on breaches of the children’s rights, both in relation
to contact with each other and contact with their parents
and extended family.
The removal of a child into care will only be justified under
the ECHR where it is in accordance with law, necessary in
a democratic society and the decision has a legitimate aim
and is proportionate. Thus whilst states enjoy a wide margin
of appreciation in this area and measures are often found
to be in accordance with law and in pursuit of a legitimate
aim, interference with the right to family life must also
be shown to be “necessary in a democratic society”
and procedurally fair. The European Commission and the European
Court have been traditionally reluctant to interfere with
a state’s discretion in relation to the initial decision
by a public authority to remove a child into a care setting.
However, the European Court has been more likely to intervene
at the implementation stage of the care order. In TP &
KM v UK a child and mother were separated for almost a year
as a result of care proceedings. The child was returned when
it became apparent that a mistake had been made in relation
to the identity of an alleged abuser. It was held by the European
Court that there was a breach of mother and child’s
article 8 rights as a result of the ongoing care proceedings.
The initial removal of the child under a place of safety order
did not constitute a breach of article 8 of the ECHR, but
the continuation of measures after the initial stage disclosed
a lack of respect for the child and the mother’s rights
to family life and was not necessary in a democratic society.
One of the issues which has arisen under article 8 of the
ECHR, is in relation to the removal of children at birth from
their natural parents. In K and T v Finland the applicant’s
son, M, was placed in a children’s home as a short-term
measure, mother having been hospitalised on several occasions
and diagnosed as suffering from schizophrenia. As soon as
the next child was born, she was immediately placed in care
and care orders were applied for and confirmed on behalf of
both children with contact restrictions. The Grand Chamber
concluded that the emergency care order in respect of the
baby had violated article 8 of the ECHR and that there had
been a further violation of article 8 of the ECHR in respect
of the failure to take proper steps to reunite the family.
Extraordinarily compelling reasons were needed to justify
the physical removal of a baby from the care of his/her mother
against her will immediately after birth and no such reasons
had been established by the authorities.
There are obviously cases where the ultimate goal of reunification
will not be possible. The Court has stated in the case of
Johansen v Norway that in cases where the child’s welfare
is at risk by reunification a fair balance must be struck
between the interests of the child remaining in public care
and those of the parents in being reunited with the child
and in this regard particular importance should be attached
to the best interests of the child. The important matter therefore
is that all reasonable efforts are made by the state in respect
of re unification. This in effect places positive obligations
on the state to ensure that adequate family support programmes
are in place.
Post Adoption Contact
The adoption process inevitably means the interference with
rights to family life. However the European Court has consistently
shown that if the adoption can be shown to be for the purposes
of protecting the child’s best interests, is in accordance
with law, has a legitimate aim and is necessary, proportionate
and procedurally fair, then the interference will be justified.
One of the challenges from a children’s rights perspective
which may arise with more frequency is the concept of post
adoption contact particularly in relation to inter sibling
contact. In Northern Ireland, in the case of Re K, Mr Justice
Gillen drew attention to research on post adoption contact
when making an order of adoption with contact once per month
on the basis that the child had expressed a wish for contact
to continue at this level. Similarly, in the case of Re Z
& T, (Freeing Order Application) although not considering
it appropriate to make an order for inter sibling contact
in the context of a freeing application, he indicated a view
that inter sibling contact should continue three or four times
a year. In N (Freeing Order Application), the Court was of
the view that a sibling’s needs and views are relevant
but not determinative factors, which can be taken into account
by a reasonable parent in relation to adoption proceedings.
In England section 46 (6) of the Adoption and Children Act
places a statutory requirement on the court to consider whether
there should be arrangements for allowing any person contact
with the child and for that purpose the court must consider
any existing or proposed arrangements and obtain the views
of the parties to the proceedings. The DHSS PS are about to
issue a consultation document in Northern Ireland in relation
to a new Regional Adoption Strategy and an element of this
consultation process will be to gather views on post adoption
contact. It is important that the child’s rights are
central to any new legislative framework in relation to adoption
and that issues such as post adoption contact and the balancing
of the rights of the adopted child and the rights of his or
her siblings are comprehensively addressed.
Conclusion
The European Convention on Human Rights is often called a
living document. As times change, its meaning and interpretation
will also change. A body of jurisprudence in relation to children’s
rights is beginning to emerge. There have been a number of
high profile and important cases from a child’s perspective
recently and the focus this has given to children particularly
in relation to participation and protection is welcomed. It
is also encouraging to see increasing references to the United
Nations Convention on the Rights of the Child in European
and domestic court judgments and we would encourage the use
by children’s lawyers of the UNCRC in conjunction with
the ECHR in the formulation of arguments in children’s
cases.
There remain, however, a number of areas which need to be
addressed in relation to the protection of the rights of children
and young people. Firstly, it is suggested that in order to
comply with international children’s rights standards,
we will require law reform in Northern Ireland which removes
the defence of reasonable chastisement in relation to the
use of physical punishment in the home. Secondly we need to
address the right to participation for children and young
people in private family law proceedings. This is a matter
which the Children Order Advisory Committee is currently considering.
In domestic violence proceedings, article 36 of the Family
Homes and Domestic Violence (NI) Order 1998 which enabled
the Lord Chancellor to provide by regulations for the separate
representation of children in specified circumstances has
never been commenced.
In the family proceedings courts there is currently no legislative
basis within the Children (NI) Order 1995 to provide separate
legal representation for children in family proceedings cases.
The wishes and feelings of children in private law cases in
the family proceedings courts are brought before the court
by a social worker in a report or in some court areas a court
welfare officer. In the Family Care Centre or the High Court,
the court can ask the Official Solicitor to represent a child,
but this can occur only in certain specified circumstances,
which are outlined in the current Best Practice Guidance issued
by the Children Order Advisory Committee. There therefore
remains a considerable gap in the law in Northern Ireland
with regard to the protection of the procedural rights of
children and young people as guaranteed under article 12 of
the UNCRC and articles 6 and 8 of the ECHR.
Whilst it is certainly not necessary to provide separate legal
representation to children in all cases, there are a significant
number of areas such as cases where children have witnessed
domestic violence, where such representation would be appropriate.
In England, a mechanism for the separate representation of
children in private family law proceedings has been introduced
by section 122 of the Adoption and Children Act 2002. It is
suggested that in order to protect the procedural rights of
children and young people in family proceedings we need to
give some consideration to a way forward on legislative reform
in relation to separate representation in private family law
proceedings in Northern Ireland and to commencement of article
36 of the Family Homes and Domestic Violence (NI) Order 1998.
Such reform could be considered alongside the consideration
of the steps required to provide comprehensive services to
children and young people and families going through parental
separation and/or divorce, as discussed at the recent conference
“Getting it Right for Children when Parents are Separating”
( 1 March 2006). The provision of age appropriate information
for children and young people about their rights in relation
to family law proceedings should also be addressed as part
of these services.
Thirdly, with regard to the rights of looked after children
and participation, it is suggested that consideration should
be given to the implementation in Northern Ireland of provisions
equivalent to section 119 of the Adoption and Children Act
2002 which introduced advocacy for looked after children on
a statutory footing and section 122 which introduced reviewing
officers.
Fourthly, we need to ensure that children’s rights are
central to reform of our adoption law and finally, pursuant
to the judgment in AR v Homefirst Trust it is suggested that
all professionals working with children and young people should
be able and required to access training and information in
relation to the ECHR case law relating to the rights of the
child.
Tara Caul
Head of Legal Unit, Children’s Law Centre.
6 March 2006.
Children’s Rights are Human Rights
Paper for SLS and the Human Rights Centre, 6 March 2006.
Introduction
Thank you for asking me to speak at this evening’s seminar
on the topic of the child’s right to family and private
life. I will be focusing upon the child’s rights under
article 8 of the European Convention on Human Rights (hereinafter
ECHR) as incorporated by the Human Rights Act 1998, but I
also intend to discuss the child’s rights under article
3 of the ECHR (the right to freedom from inhuman and degrading
treatment and punishment). The five themes which are examined
in this paper are the interpretative value of the UNCRC when
advocating on behalf of children in family law proceedings,
the implications of positive duties in respect of children
under article 3 of the ECHR, the best interests principle,
participation and contact and reunification.
The Children’s Law Centre is a non- governmental organisation,
a charity established in 1997, with the aim of promoting,
protecting and realising children’s rights. We offer
a regional free phone advice and information service throughout
Northern Ireland called CHALKY (0808 808 5678) and a casework
and representation service within our waiver agreement with
the Law Society of Northern Ireland, focusing mainly on tribunals
and judicial review. We have a casework policy with defined
criteria and we also operate a referral system to private
practice solicitors on the accredited solicitor list or on
our panel of solicitors who have expressed an interest in
education law. The current strategic areas we have identified
in respect of our own casework are the right of the child
to a practical and effective education, children’s rights
and the children in need provisions of the Children (NI) Order
1995 and the child’s right to equality and non-discrimination.
We make submissions to government and to international bodies
on law, policy and practice on children’s rights and
we have a youth group called Youth @ clc. We produce materials
on children’s rights for advisers and for children and
young people, all of which are on our website at www.childrenslawcentre.org.
and we offer a comprehensive training package called “Children’s
Rights are Human Rights” which considers the current
European and domestic case law. We are currently finalising
a joint publication between SLS and the Children’s Law
Centre on children’s rights in Northern Ireland.
The United Nations Convention on the Rights of the Child
The UNCRC is an international human rights treaty which was
adopted by the General Assembly of the United Nations on 20
November 1989 and which was ratified by the United Kingdom
Government in December 1991. It has been ratified by 192 countries
in the world – only Somalia and the United States of
America have not ratified. The UNCRC contains 54 articles
and a broad range of civil, political, economic, cultural,
social and educational rights for children. It has been described
as establishing a new vision of the child, one that goes beyond
the more traditional approach aimed at providing protection
to recognising the child as a holder of participatory rights
and freedoms and as a powerful evolutionary instrument of
change .
The UNCRC has been gaining prominence in Northern Ireland.
It has been argued that it should form the basis on which
the new Children and Young People’s Strategy should
be founded and has been expressly referred to in the legislation
establishing the Commissioner for Children and Young People
for Northern Ireland (hereinafter NICCY) by virtue of which
NICCY is bound to consider the provisions of the UNCRC when
exercising any of his or her functions. NICCY has also recently
published a comprehensive analysis of children’s rights
in Northern Ireland conducted by Queen’s University,
using the UNCRC and the recommendations of the United Nations
Committee on the Rights of the Child as the benchmark against
which to assess progress. This research provides an invaluable
baseline against which to measure progress on children’s
rights in Northern Ireland. Research conducted by the Children’s
Law Centre and Save the Children in 1999 also evaluated the
implementation of the UNCRC during the period 1994 –
1999. The United Kingdom government is examined on the implementation
for the UNCRC every 5 years before the United Nations Committee
on the Rights of the Child, which produces reports of these
examinations and has in addition produced general guidelines
for periodic reports. It has also issued a General Comment
in relation to general measures of implementation.
The use of the UNCRC for the purpose of illuminating and advancing
children’s rights arguments under the ECHR has been
endorsed by the European Court of Human Rights and is frequently
expressly referenced by the High Court in England and in Northern
Ireland and practitioners are therefore encouraged to adopt
this approach in formulating legal argument on behalf of children.
In the context of the child’s right to family and private
life under article 8 of the ECHR it is suggested that the
relevant articles of the UNCRC which should be considered
are articles 2 ( non discrimination),3 (best interests), 9
(separation from parents), 10 (family reunification), 12 (the
child’s views)), 16 (protection of privacy), 18 (parental
responsibilities), 19 (protection from abuse and neglect),
20 (protection of children without families), 21 (adoption),
24 (access to health and health services) and 27 (standard
of living).
A copy of the UNCRC has been provided in your packs this evening
for ease of reference.
I wish now to address a number of specific areas relating
to the child’s rights to freedom from inhuman and degrading
treatment under article 3 of the ECHR and to family and private
life under article 8 of the ECHR. These fundamental rights
are considered in the context of the spectrum of interventions
by the state which may take place in children’s lives:
child protection measures, private family law proceedings,
public family law proceedings, family support and services
for children in need and adoption. I will be specifically
considering children’s rights with regard to child protection,
physical punishment, procedural fairness, best interests,
reunification and contact.
The Child’s Rights under Article 3 of the ECHR
Article 3 of the ECHR protects children against the use of
torture, inhuman and degrading treatment. Article 3 of the
ECHR should be read in conjunction with article 19 of the
UNCRC which requires the State to take all appropriate legislative,
administrative, social and educational measures to protect
the child from all forms of maltreatment by parents or others
responsible for the care of the child and establish appropriate
social programmes for the prevention of abuse and treatment
of victims. Whether or not treatment amounts to inhuman and
degrading treatment has been held by the European Court to
depend on all the circumstances of the case, such as the nature,
context and duration of the treatment, its physical or mental
effects, the sex, age, the state of health of the victim and
the consequences of the ill treatment. It has been argued
that when considering the effects of torture or inhuman and
degrading treatment and punishment the human rights framework
appears to lack an appropriate model for assessing the physical,
psychological and social development processes of children.
This undoubtedly remains the case, although signs of some
progress towards developing a more sophisticated approach
are becoming visible. The conduct must go beyond that inevitable
element of suffering or humiliation connected with a given
form of legitimate treatment or punishment. It is widely accepted
that this right is one of the few rights under the ECHR, which
is non-derogable, that is, there can be no justification for
inhuman and degrading treatment of a child.
The duty on the State to protect children from inhuman and
degrading treatment
The recognition by the Court of positive obligations on state
parties arising under articles 2, 3 and 8 of the ECHR in cases
such as Oneryeldiz v Turkey , Osman v UK and Edwards v UK
has become critically important in relation to the protection
of children’s rights, particularly in the fields of
physical punishment in the home, child protection and child
abuse. Positive obligations can include the requirement to
conduct adequate investigations, take preventative operational
measures, ensuring that legislative and policy frameworks
are in place, which adequately protect rights, and in some
circumstances the provision of support services and information.
Physical Punishment
In the following 15 states, children are protected by law
from all corporal punishment – Austria (1989), Croatia
(1999), Cyprus (1994), Denmark (1997), Romania (2004), Finland
(1983), Germany (2000), Israel (2000), Iceland (2003), Bulgaria
(2000), Latvia (1998), Norway (1987), Sweden (1979), Ukraine
(2004) and Hungary (2005). The United Nations Committee on
Rights of Child on 4th October 2002 recommended that the United
Kingdom government should remove the defence of reasonable
chastisement and prohibit all corporal punishment in the family
and required the United Kingdom government to promote positive
participatory non-violent forms of discipline and carry out
public education campaigns in this regard. In June 2004, the
Parliamentary Assembly of the Council of Europe overwhelmingly
adopted a recommendation calling for a Europe wide ban on
corporal punishment of children:
“The Assembly considers that any corporal punishment
of children is in breach of their fundamental right to human
dignity and physical integrity. The fact that such corporal
punishment is still lawful in certain member states violates
their equally fundamental right to the same legal protection
as adults. Striking a human being is prohibited in European
society and children are human beings.”
At the 61st session of the UN Commission on Human Rights held
in Geneva (14th March – 22nd April 2005) the Commission
adopted a number of resolutions, which urged states to prohibit
all corporal punishment of children. In Resolution 2005/39
“ Torture and other cruel, inhuman and degrading treatment
or punishment” the Commission reminds governments that
corporal punishment including of children can amount to cruel,
inhuman or degrading punishment or even to torture (paragraph
7).
Responding to human rights complaints brought against five
countries, in compliance with the European Committee of Social
Rights report, the Committee of Ministers of the Council of
Europe has confirmed that Supreme Court judgments in Italy
and Portugal do prohibit all corporal punishment. The Committee
found however that Belgium, Greece and Ireland are in breach
of their obligations under the European Social Charter because
they have not prohibited all corporal punishment (June 2005).
Other European countries including the Netherlands, Slovenia
and the Slovak Republic have announced that they intend to
legislate to abolish all corporal punishment. The United Nations
Secretary General is currently conducting a study on violence
against children.
The leading case of A v UK in which a young boy had been beaten
repeatedly with a garden cane by his stepfather examined the
question of the scope of the State’s obligation to protect
children from ill treatment under article 3 of the ECHR. It
was concluded that as the stepfather was acquitted in the
Crown Court in England as a result of raising the defence
of reasonable chastisement in relation to a charge of assault
occasioning actual bodily harm, that the level of protection
that the United Kingdom had provided to the boy was inadequate,
that is, that our domestic laws could allow for an acquittal
when the European Court was of the view that the treatment
of the boy on this occasion amounted to inhuman and degrading
treatment under article 3. The European Court was clear that
there was a positive obligation on all states to ensure that
legislative frameworks and court structures protected children.
The Council of Ministers is supervising the implementation
of this judgment and is considering whether the United Kingdom
government have fulfilled their positive obligations to children
arising from this case by the introduction of section 58 of
the Children Act 2004 which restricts the use of the defence
of reasonable chastisement to common assault cases. It has
been suggested by the government that there is an intention
to replicate clause 58 of the Children Act 2004 in Northern
Ireland. Although clause 58 removes the defence of reasonable
chastisement from the more serious criminal offences such
as assault occasioning actual bodily harm and grievous bodily
harm, it does not remove the defence from common assault and
therefore does not in our view represent a total ban on the
use of physical punishment in the home. Press releases have
now been issued by all four United Kingdom Children’s
Commissioners and supported by the Children are Unbeatable
Campaign stating that clause 58 is an unacceptable “half
way house”.
In the important case of R v Secretary of State for Education
and Employment and others ex parte Williamson [2005] UKHL
15, the House of Lords dismissed an application by head teachers,
teachers and parents of children at four independent schools
in England. The applicants complained that the statutory ban
on the use of corporal punishment in schools interfered with
the parent’s rights under article 9 of the ECHR (freedom
of religion and freedom to manifest their religion). The House
of Lords held that the interference with the parents’
rights under article 9 was necessary in a democratic society
for the protection of the rights and freedoms of others i.e.
children. Per Lord Nicholls of Birkenhead at paragraph 49
– 50:
“The statutory ban pursued a legitimate aim; children
are vulnerable and the aim of the legislation is to promote
their well being. Corporal punishment involves deliberately
inflicting physical violence. The legislation is intended
to protect children against the distress, pain and other harmful
effects this physical violence may cause. That corporal punishment
may have these effects is self evident.”
“Parliament was bound to respect the claimants’
beliefs in this regard but was entitled to decide that manifestation
of these beliefs in practice was not in the best interests
of children.”
Child Protection
Courts in the United Kingdom had traditionally preserved the
immunity of social services from negligence claims in the
context of child protection, but as a result of some landmark
decisions in Europe this position has now changed. A leading
case in this area is Z & Others v UK (the so called Bedfordshire
cases) in which allegations were made by five siblings who
had suffered severe ill treatment and neglect by their parents
over a number of years that Bedfordshire County Council had
failed to protect them and that they had no access to an effective
court or an effective remedy as the House of Lords had effectively
bestowed an immunity on social services in relation to being
sued in negligence in the United Kingdom in relation to child
protection issues. The Commission decided that the treatment
the children received amounted to inhuman and degrading treatment
under article 3 and inferred a positive obligation under article
3 on the State to provide children and young people with adequate
protection against inhuman and degrading treatment. The Commission
also found that there had been a violation of article 6 (the
right to a fair trial) in that the applicants had been effectively
denied the right of access to a court to have the merits of
their claim for negligence/ breach of statutory duty examined.
It is important, however, to say that it has been recognised
that the decision -making process in child protection cases
is an extremely difficult task for social workers. These cases
were heard by the European Court and judgment was given on
10 May 2001. The European Court found that there had been
a breach of all the children’s article 3 rights in respect
of the State’s failure to protect them from inhuman
and degrading treatment. The European Court did not make a
finding under article 6 (right to a fair hearing) but did
make a finding under article 13 (no remedy) and awarded the
sum of £320 000 in total damages plus costs.
In the case of E and Others v UK the European Court found
a breach of article 3 and article 13 of the ECHR in respect
of the failure by the state to protect four applicants from
sexual and physical abuse, which amounted to inhuman and degrading
treatment. The European Court stated in this case that a failure
to take reasonably available measures, which could have had
a real prospect of altering the outcome or mitigating the
harm, is sufficient to engage the responsibility of the State.
The Child’s Rights under Article 8 of the ECHR
Article 8 of the ECHR guarantees everyone the right to respect
for family and private life. In determining whether family
life actually exists the European Court considers whether
there are “close personal ties”. It should be
borne in mind that the ECHR is a living document, which must
be interpreted in accordance with societal change. It is not
possible, therefore, to be prescriptive about what does and
does not constitute family life. Private life has been defined
by the ECHR as including a person’s physical and psychological
integrity . Article 8 protects a right to personal development
and the right to establish and develop relationships with
the outside world and also protects the rights of children
to participate in the life of the community and to have access
to a range of social, recreational and cultural activities
and to the emotional and developmental environment in which
a child is brought up. This broad definition could have potentially
wide applicability in relation to advocating for example for
services for children with a disability, for children in need
who require complex care packages or for children and young
people who require age appropriate child and adolescent mental
health services ( CAMHS). When determining whether there has
been an interference with a child’s right to family
and/or private life, the European Court considers whether
the measure complained of constitutes an interference with
respect for family life, whether the interference was in accordance
with the law, whether it was necessary in a democratic society
and whether there was a legitimate aim to the interference.
States enjoy a considerable margin of appreciation in this
area.
Positive obligations are inherent in effective respect for
family life. The key themes emerging in the context of the
rights to family and private life for children are the recognition
of the best interests principle, the consistent reinforcement
of the Court’s views on the need for contact and reunification
with parents and the need to hear the “voice of the
child” (i.e. positive duties to ensure procedural safeguards).
Before I consider each of these children’s rights themes
with regard to article 8 of the ECHR, I wish to set the scene
by highlighting some key points which have arisen in the case
of AR v Homefirst Trust.
AR v Homefirst Trust
The Court of Appeal in Northern Ireland has considered the
right to family life of a mother in the context of an application
by the Trust for a care order in respect of her baby. The
initial application for an emergency care order was made one
day after the baby was born in September 2003 and by the time
of hearing in February 2005, the child had not returned to
her care. The High Court made a care order, which was appealed
to the Court of Appeal by the mother who wanted the court
to permit a residential assessment. She argued on appeal that
the actions of the Trust in seeking a care order which effectively
prevented her from having contact with her child or the opportunity
to establish that she is or could become capable of caring
for her child violated her article 8 rights. She also argued
that the High Court, in making the care order, likewise acted
in breach of those rights and that neither the Trust nor the
High Court had sufficient regard for the nature of the rights
that arise under article 8 of the ECHR and made no proper
evaluation of those rights in balancing them against what
were perceived to be the best interests of the child. Whilst
recognising that the guardian ad litem’s primary concern
was what was in the best interests of the child, and the desirability
of having a permanent placement for the child, the Court of
Appeal were of the view that the rights of the mother in this
case under article 8 of the ECHR and the positive duty to
take measures to facilitate family reunification had not been
properly considered. The Court of Appeal was critical of the
fact that no written care plan had been put before the High
Court and that the mothers article 8 rights had not been explicitly
recognised in the submissions by the Trust at hearing. It
was indicated by the Court of Appeal that a lack of training
for Trust staff on the implications of the ECHR had a profound
effect on the outcome of the case:
“The failure of the Trust’s officers to be sufficiently
alive to the requirements of the Convention and the jurisprudence
of the European Court of Human Rights has had profound and
important consequences in this case.”
The Court of Appeal recalled from the Strasbourg jurisprudence
that the removal of a child from his parents is recognised
as a draconian measure, to be undertaken only in the most
compelling circumstances after all alternative measures have
been fully explored and that this was particularly so in the
case of a new born child. Convincing evidence must be produced
that every feasible alternative has been examined and rejected
for sound reasons and where substantial professional testimony
opposes the removal of a child from his parent, the court
should be very slow to accede to a care plan that involves
the separation of the child from his parents. The Trust had
restricted contacted between child and mother and the Court
of Appeal was of the view that this provided further evidence
of a failure to recognise the mother’s article 8 rights
in accordance with Strasbourg jurisprudence. Significantly
the Court of Appeal indicated that they had been unable to
find any written reference in all the papers before them to
the mother’s article 8 rights.
“Although the court must treat the child’s welfare
as paramount, this does not mean that it should exclude from
its consideration other factors such as the Article 8 rights
of the parent. Whilst these cannot prevail over the welfare
of the child, they must be taken into account.”
The Court of Appeal did not however overturn the care order
as the child by that time was settled in a foster home with
his siblings and the Court could not sanction his removal
from this placement.
Best Interests
The best interests principle and it compatibility with the
ECHR and the rights of parents has been the subject of recent
academic debate. However, it is submitted in this paper that
the European Court has in fact recognised the widespread commitment
amongst European countries to the best interests principle
and has sought to accommodate this principle within a rights
based decision making framework, in which there is a fair
and sufficient consideration of the rights of all parties.
This is demonstrated in the developing case law. The best
interests principle is usually considered at the stage of
the decision making process which examines whether the interference
with family life was legitimate. In the context of private
and public law family proceedings , reference has been made
to attaching “particular importance” to the best
interests of the child in the case of Johansen v Norway (1996)
;
“The Court considers that taking a child into care should
normally be regarded as a temporary measure to be discontinued
as soon as circumstances permit and that any measures of implementation
of temporary care should be consistent with the aim of ultimately
reuniting the natural parent and the child. In this regard
a fair balance has to be struck between the interests of the
child in remaining in public care and those of the parent
in being reunited with the child. In carrying out this balancing
exercise, the Court will attach particular importance to the
best interests of the child, which depending on their nature
and seriousness, may override those of the parent. In particular,
…the parent cannot be entitled under article 8 of the
Convention to have such measures taken as would harm the child’s
health and development”.
In Hansen v Turkey (2003) , this position was restated as
follows in the context of a discussion about reunification;
“Whilst national authorities must do their utmost to
facilitate such co operation, any obligation to apply coercion
in this area must be limited since the interests as well as
the rights and freedoms of all concerned must be taken into
account, and more particularly the best interests of the child
and his or her rights under article 8 of the Convention. Where
contacts with the parent might appear to threaten those interests
or interfere with those rights, it is for the national authorities
to strike a fair balance between them.”
In later cases reference has been made by the European Court
to attaching “crucial importance” to the best
interests of the child and the European Court has stated that,
in the absence of any failure to take a parent’s rights
sufficiently into account or an arbitrary decision making
process, if any balancing exercise is necessary that the child’s
interests must prevail;
“The Court reiterates that in judicial decisions where
the rights under Article 8 of parents and those of a child
are at stake, the child’s rights must be the paramount
consideration. If any balancing of interests is necessary,
the interests of the child must prevail…The Court has
not found any indication that the domestic courts, in striking
the balance they did between the rights of the applicant and
those of the child, failed to take the applicant’s rights
sufficiently into account or decided in an arbitrary manner.”
From a children’s rights perspective, there remains
some concern at present however that the framework in which
to assess a child’s best interests has not been fully
developed under ECHR jurisprudence and that insufficient attention
is paid to the child as a holder of article 8 rights as well
as often being the subject of dispute. For example, as Ursula
Kilkelly points out Convention authorities have failed to
highlight the factors to be taken into account in applying
the best interests principle or what weight should be attached
to each factor and these matters seem to fall within the margin
of appreciation allowed to States in relation to the assessment
of a child’s best interests under domestic legislative
frameworks such as article 3 of the Children (NI) Order 1995.
The balancing of rights in freeing /adoption cases is a particularly
complex exercise. The child has rights to stability and permanency
with an adoptive family. The child also has rights to family
life with their natural parents and siblings, as long as the
exercise of these rights is in the child’s best interests.
On the basis that the rights of parents are properly considered
throughout, the best interests of the child should be the
paramount consideration in the decision-making process. In
the case of Re A, the Trust applied for a care order and an
order freeing the child for adoption without the parent’s
consent. The High Court in Northern Ireland considered the
parents’ Article 8 rights but concluded that adoption
was in the best interests of the child. Subsequent to the
AR v Homefirst Trust case, in Homefirst Community Trust v
SN [2005] the Court of Appeal were critical of a Trust’s
failure to be fully cognisant of a mother’s rights under
article 8 of the ECHR, but due to the passage of time and
the fact that the child had happily settled with his carer
for nearly three years confirmed that it was now in the child’s
best interests to be freed for adoption and that his mother
was withholding her consent unreasonably.
In relation to the issue of consideration of parent’s
rights and the child’s rights in freeing/ adoption proceedings
,the High Court in Northern Ireland in a later case formulated
the due consideration exercise in the following way;
“I am satisfied that this Trust has afforded due consideration
of this couple’s rights under Article 8 of the ECHR
and that every reasonable consideration has been given to
the prospect of rehabilitation. However the Trust have also
taken into account the rights of the child to a family life
and have in my view correctly concluded that this can only
be done by following the route of adoption. I consider that
their response has been a proportionate one to a legitimate
aim namely to protect the welfare and interests of the child”.
The Right to Procedural Fairness for Children
It is clear that the right to procedural fairness is inherent
in the right to family life under article 8 of the ECHR and
that positive obligations on the state with regard to respect
for family and private life arise as a result. . Procedural
fairness applies to case conferences, reviews and other administrative
decisions, as well as to court proceedings in the context
of family and childcare decisions. Administrative decisions
made by Trusts, which interfere with the right to family life
and decisions by the courts are all likely to attract the
procedural safeguards within article 8 and also in certain
circumstances the article 6 rights. The United Nations Committee
on the Rights of the Child in 2002 specifically recommended
that the United Kingdom government should take further steps
to ensure that article 12 of the UNCRC is consistently reflected
in the legislation governing procedure in courts and administrative
proceedings (including separation and divorce proceedings)
to ensure that a child capable of forming his or her own views
has the right to express those views.
Article 6 and 8 of the ECHR- Participation Rights of Children
and Young People
Article 8 of the ECHR requires that there should be sufficient
procedural protection of the child’s interests. The
European Court considered the participation rights of children
and young people under article 6 of the ECHR in criminal proceedings
in the case of T & V v UK stating unequivocally that in
order for a child to have a fair hearing they must be able
to understand and participate effectively. Although this decision
was made in the context of a criminal trial, it is also of
relevance when considering children’s participative
rights in private and public law proceedings. It is suggested
that the twin concepts of understanding and participation
as essential factors in the guarantee of a fair hearing for
children should be read across into all judicial and administrative
proceedings relating to children and young people. Recent
case law has indicated that States must also consider the
procedural safeguards in place for children and young people
with mental health difficulties, special educational needs
or disability. In the case of S.C v UK an 11-year-old boy
had been assessed as having a significant degree of learning
delay with a verbal IQ and performance IQ falling at or below
the first percentile. He was reported as having the level
of vocabulary of approximately a six year old. He was tried
for attempted robbery in the Crown Court, which put in place
measures such as no wigs and gowns, not requiring him to sit
in the dock, frequent breaks etc. as per the Practice Direction
which had been issued by the Lord Chancellor after the case
of T & V v UK. The European Court found that the right
of an accused to effective participation in his or her criminal
trial generally included not only the right to be present,
but also to hear and follow the proceedings. In the case of
a child it was essential that he or she be dealt with in a
manner which took full account of his or her age, level of
maturity and intellectual and emotional capabilities and that
steps were taken to promote his or her ability to understand
and participate in the proceedings, including conducting the
hearing in such a way as to reduce as far as possible his
or her feelings of intimidation and inhibition. Consideration
should have been given to a specialist tribunal being established.
In this case, the child was sentenced to detention for 21/2
years. At no stage did he understand that he risked a custodial
sentence and in fact when he was sentenced by the court and
had been taken into the holding cells, he still expected to
go home with his foster father. The European Court was of
the view that the applicant had not been able to participate
in this trial to the extent required by article 6 (1) of the
ECHR. Further comment has now been made by the High Court
in England in relation to this case in the case of TP v West
London Youth Court [2005] . The facts of this case were that
the Youth Court in England heard the case of a 15 year old
who had been assessed as having an IQ of an 8 year old. The
High Court confirmed that in their view the “specialist
tribunal” was in fact the Youth Court and that on the
balance of probabilities the young person would be able to
participate if assisted by specialist and experienced representatives.
There were however a number of measures which should always
be taken to ensure that a child receives a fair hearing: keeping
the claimants level of cognitive functioning in mind; using
concise and clear language; having regular breaks, taking
additional time to explain court procedures; being proactive
to ensure that the claimant has access to support and explaining
and ensuring the claimant understands the ingredients of the
charge; explaining possible outcomes and sentences and controlling
cross examination of children.
The European Court is particularly concerned with procedural
fairness in the context of care proceedings and has recognised
that there is an important need for procedural fairness when
children are being removed from a family setting. In the case
of P, C and S v UK the applicant mother had been convicted
of a misdemeanour offence in the United States relating to
her son, then aged nine. On the birth of a further child in
England, the local authority obtained an emergency protection
order and removed the child at birth, thereafter applying
for interim and full care orders. The local authority then
made an application to free the child for adoption. The adoption
order did not ultimately contain any provision for direct
contact between the child and her parents. The European Court
did not find a breach of the inherent right to procedural
fairness under article 8 of the ECHR in respect of the procedures
adopted by the local authority prior to the birth of the child,
nor in relation to obtaining an emergency protection order
at an inter partes hearing. However, the European Court did
find a breach of article 8 of the ECHR in respect of the manner
of implementation of the order i.e. the removal of the child
from the mother at birth and also in respect of the lack of
legal representation of the mother during the care and freeing
proceedings, together with the lack of any real lapse in time
between the freeing and adoption proceedings. The European
Court was of the view that the applicant mother was deprived
of a fair hearing. As a result of this procedural unfairness,
it was held that the child’s article 8 rights were also
breached. The government in this case interestingly raised
the defence that they were protecting the child’s rights
under articles 8 and 3 of the ECHR.
In light of the procedural safeguards under article 6 of the
ECHR and implicit in article 8 of the ECHR, it is suggested
that it is likely that the European Court will find consultation
with and representation of children and young people, including
those with mental illness and learning disability to be essential
for the effective protection of their rights. In both private
and public family law proceedings this is likely to mean that
states will have to demonstrate how the child’s voice
has been heard in proceedings and how their rights and interests
have been protected throughout all administrative and court
proceedings. However, whilst significant progress has been
made in European Court judgments with respect to the development
of the best interests principle and the importance of the
child’s participation in decision making, any detailed
analysis of the concept of legal competency of children and
young people as decision makers is largely absent from current
European Court judgments with the exception of the notable
cases referred to above.
Voice of the Child
In relation to the voice of the child in legal and administrative
proceedings, there have been two decisions by the European
Court, in the context of family proceedings, which are particularly
relevant to the debate in relation to separate representation
in private family law proceedings. These are the cases of
Sahin v Germany and Sommerfeld v Germany . In the Sahin case
an unmarried father of a three-year-old child successfully
complained of a breach of his rights under articles 6, 8 and
14 of the ECHR. The European Court found a breach of article
8 and made particular reference to the fact that the child
had not been heard in court at any stage of the proceedings,
although the reasoning for this appears to have been that
the failure to involve the child amounted to a breach of the
father’s rights and unfortunately not the child’s
article 6 and 8 rights which were clearly engaged in these
cases and, it is submitted should have been more central to
the judgment.
In the Sommerfeld case the applicant was again an unmarried
father of a child who at the commencement of legal proceedings
was 10 years old. The child stated repeatedly that she did
not want to see her natural father at all. A psychologist
was appointed by the District Court who prepared an opinion
(one page) stating that, as the applicant and the child had
not had a relationship for six years that an assessment was
not possible. The psychologist indicated that the child did
not want personal contact with the applicant. The European
Court held, in finding a breach of the natural father’s
article 8 rights, that the District Court should not have
been satisfied with hearing only the child as to her wishes
but should have had at its disposal expert psychological evidence
in order to evaluate the child’s seemingly firm wishes.
Correct and complete information was an indispensable pre
requisite for establishing a child’s true wishes and
thereby striking a fair balance between the interests at stake.
These cases were both appealed to the Grand Chamber, which
gave its decisions on 8 July 2003. In the Sommerfeld case,
the Grand Chamber although they found breaches of articles
8 and 14, said that it was going too far to say that domestic
courts must always involve a psychological expert in every
case – this depends on the circumstances of the case
and the age and maturity of the child. In the Sahin case the
Grand Chamber found breaches of articles 8 and 14, but did
not find a breach of article 8 on the grounds that the child
had not been heard properly. There were, however strong dissenting
judgments indicating that the child’s views should have
been properly ascertained.
In the context of adoption proceedings, in the case of GHB
v UK significant weight was attached by the European Court
to the wishes and feelings and rights under article 8 of the
ECHR of a twelve -year- old girl in relation to adoption proceedings.
The child in this case wanted to be adopted and was resolute
in her opposition to the making of a contact order with her
grandparents as she was afraid this would destabilise her
placement. The European Court stated that to have ordered
the child, against her wishes to remain in contact with her
grandparents would have constituted a failure properly to
respect the child’s own rights under article 8 of the
ECHR. Similarly in the case of Pini and others v Romania which
concerned the adoption of two Romanian children (aged 91/2
at the time of the adoption proceedings and 11 at the time
of the ECHR hearing) against their will by an Italian couple,
the European Court held that the children’s interests
dictated that their opinions should have been taken into account
once they had attained the necessary maturity to express them.
In the High Court in Northern Ireland, Mr Justice Gillen has
considered the wishes and views of children in the context
of non Hague Convention abduction and ultimately refused to
order return of the children in this case to Bahrain. He stated
that one important yardstick against which the family justice
system in Northern Ireland must be evaluated is article 12
of the UNCRC. He went on to say:
“It must be remembered that a child is a person with
human dignity and not merely the object of a parental dispute.
A child’s fundamental rights including the right to
be heard, must be respected in all forums including the confounds
of the Hague Convention and non- Convention cases. A child
therefore possesses the right to self – expression.
Equally a court must be wary not to give undue weight to the
views of children particularly when they are very young. Only
in those cases where there is some evidence before the court
that the child is capable of giving his or her own view is
such an investigation warranted in the particular circumstances
of each case.”
Further consideration was given by Mr Justice Gillen to the
importance of the voice of the child in E (Voice of the Child)
[2005]. In the context of the wishes and feelings of a 12
year old child in wardship and residence proceedings, Mr Justice
Gillen referred to the “gathering momentum of the importance
of listening to children” and taking into account their
perspectives when decisions are being made about them;
“One important yardstick against which the family justice
system in Northern Ireland must be evaluated is Article 12
of the UNCRC to which the United Kingdom is signatory …As
stated in Re S ,N and C , I do not believe it is helpful or
appropriate for me to set in stone the age at which a child
is likely to be of sufficient maturity to give informed views.
This will undoubtedly vary according to the individual intelligence
and maturity of the individual child and the circumstances
of the case. Nor do I believe there is any fixed method for
obtaining those views.”
Contact and reunification
The European Court has been very clear in its judgments about
the importance of contact for children who have been separated
from their parents and has also stated that in implementing
care orders the ultimate aim should be reunification if possible
with parents. These requirements can be classified as positive
obligations on the state to respect family life. In the case
of Olsson v Sweden siblings had been taken into care, separated
and then placed at considerable distances away from each other.
The European Court found that there had been a violation of
the parent’s rights under article 8 of the ECHR. Although
the children’s right to contact with each other was
not elaborated on, it is arguable that the right to contact
could equally apply to the child’s right to contact
with parents/carers, extended family and with brothers and
sisters, but that the European Court has not yet properly
explored this area.
In the case of Kutzner v Germany the applicants lived with
their parents and unmarried brother on an old farm with their
two daughters aged 5 and 4. In February 1997 an order was
made withdrawing the parents’ rights to decide where
their daughters should live on the grounds that the parents
“lacked the intellectual capacity” to bring up
their children properly. In May 1997, the court withdrew all
parental rights and in July 1997 the two children were placed
in two separate unidentified foster homes. The parents did
not see their children for 6 months. Thereafter the parents
saw the children for one hour monthly in the presence of 8
representatives from social services later extended to two
hours monthly. The European Court found that not enough consideration
had been given by the German authorities to additional measures
of family support as an alternative to separation from parents.
The European Court reiterated that a care order should in
principle be regarded as a temporary measure and that any
measures implementing temporary care should be consistent
with reunification with parents. A violation of article 8
was found with regard to the parents’ rights and damages
were awarded. Whilst this is a powerful judgment which is
often cited in family cases, when we consider the impact which
these decisions must have had on the children of the family,
it is unfortunate that there is a lack of focus specifically
on breaches of the children’s rights, both in relation
to contact with each other and contact with their parents
and extended family.
The removal of a child into care will only be justified under
the ECHR where it is in accordance with law, necessary in
a democratic society and the decision has a legitimate aim
and is proportionate. Thus whilst states enjoy a wide margin
of appreciation in this area and measures are often found
to be in accordance with law and in pursuit of a legitimate
aim, interference with the right to family life must also
be shown to be “necessary in a democratic society”
and procedurally fair. The European Commission and the European
Court have been traditionally reluctant to interfere with
a state’s discretion in relation to the initial decision
by a public authority to remove a child into a care setting.
However, the European Court has been more likely to intervene
at the implementation stage of the care order. In TP &
KM v UK a child and mother were separated for almost a year
as a result of care proceedings. The child was returned when
it became apparent that a mistake had been made in relation
to the identity of an alleged abuser. It was held by the European
Court that there was a breach of mother and child’s
article 8 rights as a result of the ongoing care proceedings.
The initial removal of the child under a place of safety order
did not constitute a breach of article 8 of the ECHR, but
the continuation of measures after the initial stage disclosed
a lack of respect for the child and the mother’s rights
to family life and was not necessary in a democratic society.
One of the issues which has arisen under article 8 of the
ECHR, is in relation to the removal of children at birth from
their natural parents. In K and T v Finland the applicant’s
son, M, was placed in a children’s home as a short-term
measure, mother having been hospitalised on several occasions
and diagnosed as suffering from schizophrenia. As soon as
the next child was born, she was immediately placed in care
and care orders were applied for and confirmed on behalf of
both children with contact restrictions. The Grand Chamber
concluded that the emergency care order in respect of the
baby had violated article 8 of the ECHR and that there had
been a further violation of article 8 of the ECHR in respect
of the failure to take proper steps to reunite the family.
Extraordinarily compelling reasons were needed to justify
the physical removal of a baby from the care of his/her mother
against her will immediately after birth and no such reasons
had been established by the authorities.
There are obviously cases where the ultimate goal of reunification
will not be possible. The Court has stated in the case of
Johansen v Norway that in cases where the child’s welfare
is at risk by reunification a fair balance must be struck
between the interests of the child remaining in public care
and those of the parents in being reunited with the child
and in this regard particular importance should be attached
to the best interests of the child. The important matter therefore
is that all reasonable efforts are made by the state in respect
of re unification. This in effect places positive obligations
on the state to ensure that adequate family support programmes
are in place.
Post Adoption Contact
The adoption process inevitably means the interference with
rights to family life. However the European Court has consistently
shown that if the adoption can be shown to be for the purposes
of protecting the child’s best interests, is in accordance
with law, has a legitimate aim and is necessary, proportionate
and procedurally fair, then the interference will be justified.
One of the challenges from a children’s rights perspective
which may arise with more frequency is the concept of post
adoption contact particularly in relation to inter sibling
contact. In Northern Ireland, in the case of Re K, Mr Justice
Gillen drew attention to research on post adoption contact
when making an order of adoption with contact once per month
on the basis that the child had expressed a wish for contact
to continue at this level. Similarly, in the case of Re Z
& T, (Freeing Order Application) although not considering
it appropriate to make an order for inter sibling contact
in the context of a freeing application, he indicated a view
that inter sibling contact should continue three or four times
a year. In N (Freeing Order Application), the Court was of
the view that a sibling’s needs and views are relevant
but not determinative factors, which can be taken into account
by a reasonable parent in relation to adoption proceedings.
In England section 46 (6) of the Adoption and Children Act
places a statutory requirement on the court to consider whether
there should be arrangements for allowing any person contact
with the child and for that purpose the court must consider
any existing or proposed arrangements and obtain the views
of the parties to the proceedings. The DHSS PS are about to
issue a consultation document in Northern Ireland in relation
to a new Regional Adoption Strategy and an element of this
consultation process will be to gather views on post adoption
contact. It is important that the child’s rights are
central to any new legislative framework in relation to adoption
and that issues such as post adoption contact and the balancing
of the rights of the adopted child and the rights of his or
her siblings are comprehensively addressed.
Conclusion
The European Convention on Human Rights is often called a
living document. As times change, its meaning and interpretation
will also change. A body of jurisprudence in relation to children’s
rights is beginning to emerge. There have been a number of
high profile and important cases from a child’s perspective
recently and the focus this has given to children particularly
in relation to participation and protection is welcomed. It
is also encouraging to see increasing references to the United
Nations Convention on the Rights of the Child in European
and domestic court judgments and we would encourage the use
by children’s lawyers of the UNCRC in conjunction with
the ECHR in the formulation of arguments in children’s
cases.
There remain, however, a number of areas which need to be
addressed in relation to the protection of the rights of children
and young people. Firstly, it is suggested that in order to
comply with international children’s rights standards,
we will require law reform in Northern Ireland which removes
the defence of reasonable chastisement in relation to the
use of physical punishment in the home. Secondly we need to
address the right to participation for children and young
people in private family law proceedings. This is a matter
which the Children Order Advisory Committee is currently considering.
In domestic violence proceedings, article 36 of the Family
Homes and Domestic Violence (NI) Order 1998 which enabled
the Lord Chancellor to provide by regulations for the separate
representation of children in specified circumstances has
never been commenced.
In the family proceedings courts there is currently no legislative
basis within the Children (NI) Order 1995 to provide separate
legal representation for children in family proceedings cases.
The wishes and feelings of children in private law cases in
the family proceedings courts are brought before the court
by a social worker in a report or in some court areas a court
welfare officer. In the Family Care Centre or the High Court,
the court can ask the Official Solicitor to represent a child,
but this can occur only in certain specified circumstances,
which are outlined in the current Best Practice Guidance issued
by the Children Order Advisory Committee. There therefore
remains a considerable gap in the law in Northern Ireland
with regard to the protection of the procedural rights of
children and young people as guaranteed under article 12 of
the UNCRC and articles 6 and 8 of the ECHR.
Whilst it is certainly not necessary to provide separate legal
representation to children in all cases, there are a significant
number of areas such as cases where children have witnessed
domestic violence, where such representation would be appropriate.
In England, a mechanism for the separate representation of
children in private family law proceedings has been introduced
by section 122 of the Adoption and Children Act 2002. It is
suggested that in order to protect the procedural rights of
children and young people in family proceedings we need to
give some consideration to a way forward on legislative reform
in relation to separate representation in private family law
proceedings in Northern Ireland and to commencement of article
36 of the Family Homes and Domestic Violence (NI) Order 1998.
Such reform could be considered alongside the consideration
of the steps required to provide comprehensive services to
children and young people and families going through parental
separation and/or divorce, as discussed at the recent conference
“Getting it Right for Children when Parents are Separating”
( 1 March 2006). The provision of age appropriate information
for children and young people about their rights in relation
to family law proceedings should also be addressed as part
of these services.
Thirdly, with regard to the rights of looked after children
and participation, it is suggested that consideration should
be given to the implementation in Northern Ireland of provisions
equivalent to section 119 of the Adoption and Children Act
2002 which introduced advocacy for looked after children on
a statutory footing and section 122 which introduced reviewing
officers.
Fourthly, we need to ensure that children’s rights are
central to reform of our adoption law and finally, pursuant
to the judgment in AR v Homefirst Trust it is suggested that
all professionals working with children and young people should
be able and required to access training and information in
relation to the ECHR case law relating to the rights of the
child.
Tara Caul
Head of Legal Unit, Children’s Law Centre.
6 March 2006.
|
