The Child and the European Convention on Human Rights

Second Edition

Ursula Kilkelly

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317038610
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

The European Convention on Human Rights is the most successful system for the enforcement of human rights in the world. However, to date its full potential for protecting children's rights has not been explored as attention has focused on the UN Convention on the Rights of the Child. This unique book provides the first analysis of the extensive case law of the Commission and the Court of Human Rights on all issues concerning children and their rights. This study is important as a study of the regional protection of children's rights and, moreover, the case law itself can be directly applied in the legal system of nearly every European country, including the UK. The book includes chapters on the rights of the child under the European Convention on Human Rights in relation to education, protection from abuse, the right to identity, child care, juvenile justice, health care and immigration and the family. It also explores the potential of the Strasbourg mechanism for the protection of children's rights and thus provides a practical and vital guide to the study and use of the European Convention in the broad area of children's rights.

1 The Application of the European Convention to Children

Background to the European Convention

When the Council of Europe was formed in the aftermath of the Second World War one its principal aims was to foster respect for human rights, democracy and the rule of law among the nations of Europe. This was to be achieved, inter alia, through the establishment of a collective guarantee of human rights, which would bind all States that ratified it. More importantly, a Commission and Court of Human Rights would be set up to supervise state adherence to its standards. With the horrors of the war fresh in their memories and the will to prevent their recurrence strong, the drafting parties lost little time in drawing up the first European human rights treaty¹ and on 4 November 1950 the Convention for the Protection of Human Rights and Fundamental Freedoms was opened for signature.² The Convention (known as the European Convention on Human Rights, or the ECHR) came into force in 1958 when the requisite eight States had accepted the compulsory jurisdiction of its main supervisory body, the European Court of Human Rights. The first case was heard by the Commission and then the Court almost straightaway and the right of an individual to take a complaint against the State under the Convention was thereby clarified and firmly established.³ The right of individual petition distinguishes the European Convention from other human rights treaties, and this feature has allowed the Commission and Court of Human Rights to establish the Convention’s enviable reputation as a successful mechanism for the protection and enforcement of human rights. The Commission of Human Rights has heard tens of thousands of complaints, and in the last forty years its status has grown from a body, which filtered complaints for the Court, to a respected, judicial, human rights institution in its own right. The Court has handed down over one thousand judgments under the Convention in that time and its contribution to international human rights law, as well as to the jurisprudence of many of its States Parties, is unrivalled. The Convention has been either supplemented or amended by Protocol on eleven occasions. Protocols One, Four, Six and Seven have added new rights and the remaining Protocols have made procedural amendments of varying significance. Protocol Nine in particular extended to the individual the right to have a case referred from the Commission to the Court. Moreover, Protocol Eleven, which came into force in November 1998, effected much needed reform of the Convention’s complaint mechanism which, with the steady increase in complaints, had been operating under unsustainable pressure. In particular, cases were taking over five years to reach the Court and with the number of cases likely to continue to grow, the system was in danger of grinding to a halt. As a result, it was resolved to streamline the process and to this end, the existing institutions were abolished and replaced with a single Court of Human Rights, which now sits in Strasbourg on a permanent basis. One of the reasons for the increase in the case load of the Commission and Court was the expansion of the number of Parties to the Convention itself. The last ten years has seen membership grow to forty states, including many of the relatively new democracies of Eastern Europe and the Balkans, meaning that the Convention and the reach of its guarantees are both European in the widest sense.⁴

The European Convention and Children

The focus in the European Convention is on rights of a civil and political nature and its provisions reflect the concerns of the Governments in post war Europe. For example, Article 3 prohibits torture, inhuman and degrading treatment or punishment; Article 8 protects family life from arbitrary and unlawful state interference and Article 9 guarantees thought, conscience and religion. Despite being inspired by the Universal Declaration of Human Rights, the European Convention does not reiterate its standards of social and economic rights. Thus, the Convention does not recognise the right to social security, the right to an adequate standard of living, or cultural rights of any kind. Specific reference to the important needs of childhood is absent too. Nor does the Convention acknowledge that the family is the natural and fundamental unit of society. Indeed, in contrast to the earlier Declaration on which it was based, the Convention lacks even the most basis recognition of the rights of the child. Yet, despite these shortcomings, it does make provision for the protection of children in certain, specific areas. Article 5 permits the detention of a minor for the purpose of educational supervision or for bringing him before the competent legal authority, thereby providing for the rehabilitation of minors in conflict with the law and their protection from harm. Article 6, which recognises the right to a fair trial, provides that the press and public may be excluded from all or part of the trial where the interests of juveniles require. This offers States the potential to restrict the right to a public trial where children are involved, in order to protect them from adverse publicity and protect their privacy during such proceedings. Article 2 of the First Protocol to the Convention guarantees the right to education, and recognises the right of parents to ensure that the education and teaching of their children is in conformity with their own religious and philosophical convictions. This latter concept affirms the dominance of the parental role in the rearing and education of children. This is reflected too in Article 5 of the Seventh Protocol, which guarantees parental equality, during marriage and in the event of its dissolution, and also recognises the State’s right to take measures considered necessary in the interests of the child. This provision has generated little case law, however, and it is Article 8, which guarantees the right to respect for family life, which has been most frequently invoked in children’s cases.

In light of the fact that it makes few express references to the rights of the child, the equal entitlement of children to enjoy Convention rights needs to be highlighted, and its potential maximised. It is significant therefore that Article 1 obliges States to secure Convention rights and freedoms to everyone within their jurisdiction. This principle of equal entitlement to Convention rights is reinforced by Article 14, which prohibits discrimination in the enjoyment of Convention rights detailed below. In theory, then, Convention rights are guaranteed to all, and there is little to prevent their application to children. In practice, the Commission and Court of Human Rights have refrained from placing express or general limits on the application of the Convention in children’s cases. Moreover, they have adopted several dynamic interpretive principles, which have positive implications for the protection which the Convention offers children. These are outlined below, alone with some of the institutions’ other more general approaches, which are central to the way in which children’s cases are decided.

Non-Discrimination

The Convention’s non-discrimination principle takes on added significance in seeking to maximise the general application of Convention provisions to children. Although not an equality provision, Article 14 prohibits discrimination in the enjoyment of Convention rights, and it may be relied upon by children and young persons, who can make out a claim. However, the protection, which Article 14 offers children, is limited by the fact that it is not a free standing provision. It can be invoked only in conjunction with one of the Convention’s substantive provisions, and its scope to protect children’s rights is restricted therefore by the Convention’s considerable textual limits. Moreover, the effect of Article 14 is not such that all discriminatory treatment will be contrary to the Convention as such an approach would be unworkable. Instead, the Court has established that a difference in treatment which is capable of objective and reasonable justification will not fall foul of Article 14.⁵ Despite the practical nature of this approach, it is clear that it may nonetheless be used to justify the unequal treatment of children under the Convention. In particular, where there are reasonable and objective grounds for treating children differently, either from adults or from each other, then the alleged discriminatory treatment will not contravene Article 14.⁶

Despite thes...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgements
• Note on the Citation of Strasbourg Cases
• Series Preface
• 1 The Application of the European Convention to Children
• 2 Definition and Status of the Child
• 3 Juvenile Justice and Detention
• 4 Education
• 5 Identity
• 6 Participation Rights
• 7 Life, Health and Health Care
• 8 Abuse and Neglect
• 9 Definition and Treatment of the Family
• 10 Immigrant and Refugee Children
• 11 Custody and Contact
• 12 Alternative Care
• 13 Adoption
• Convention for the Protection of Human Rights and Fundamental Freedoms (Selected Provisions)
• List of Cases of the European Commission of Human Rights
• List of Cases of the European Court of Human Rights
• Bibliography
• Index