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Children’s Rights in Icelandic Constitutional Law .1 Children’s Rights

Protection of Children’s Rights in the Icelandic Constitution

3 Children’s Rights in Icelandic Constitutional Law .1 Children’s Rights

Protection of Children’s Rights in the Icelandic Constitution 87 in interpreting the boundaries of the Constitution.16 Constitutional jurispru-dence in Iceland can be traced back to the early decades of indepenjurispru-dence.

For many years there were clear signs of judicial restraint. Signs of judicial ac-tivism have been more frequent after the amendments to the Constitution in 1995 and in most cases constitutional provisions are applied in conjunction with provisions in the echr. It has been argued that Iceland is now one of the Nordic states where judicial review of legislation has been most active.17 This development is notable in comparing two cases concerning children. In a case from 1979 the Supreme Court of Iceland on one hand refused to acknowledge contact rights between a child and its father after the breakup of the parents unmarried cohabitation. The court referred to explicit laws and the role of the legislator in changing policy in family matters.18 In 2000 the Supreme Court on the other hand relied on the Constitution in acknowledging the standing of a man in a paternity case, contrary to a section in the Children Act explicitly limiting standing to the mother and the child.19

Judicial review in Iceland does not address the constitutionality of the legis-lation itself but instead focuses on the question to what extent constitutional provisions are upheld when a relevant piece of legislation is applied in indi-vidual cases. Such cases can only be brought by legal persons with a sufficient interest related to the relevant case.20

3 Children’s Rights in Icelandic Constitutional Law

88 Friðriksdóttir rights requires the promotion of children as active citizens ensuring them to the maximum extent status, dignity, equality, autonomy, participation, protec-tion and care. Children do not enjoy full political power as secprotec-tions 34 and 35 of the Constitution sets 18 years as the minimum age for standing and voting in parliamentary elections. Apart from this a child perspective in general de-mands that children are entitled to the progressive exercise of their rights in accordance with their evolving capacities.

The crc was the first human rights convention to explicitly emphasise the indivisibility of all human rights, both civil and political and economic, social and cultural rights. The comprehensiveness of the crc reflects an interdepen-dence of rights that presents a challenge in integrating policies and practices to ensure meaningful implementation.

It has to be noted that the amendments to the Icelandic Constitution in 1995 do not reflect a comprehensive child perspective. Before analysing the Constitution’s special provision for children it is nonetheless important to note other substantive constitutional provisions relating to rights for children and mention some strengths and weaknesses.

3.2 Some General Constitutional Provisions Important for Children The principle of equality evolved through the years in Iceland as one of the more important constitutional norms.22 The principle of equality and non- discrimination is now enshrined in section 65 of the Icelandic Constitution with amendments from 1995. The section states that ‘everyone shall be equal before the law and enjoy human rights irrespective of sex, religion, opinion, national origin, race, colour, property, birth or other status’. The principle re-quires a careful analysis of legitimate differentiation between children and adults in ensuring rights and their enforcement in different contexts. The equality principle is also important to ensure the rights of children in vulner-able positions, for example, young children, adolescents, girls, children with disabilities and children of racial, ethnic or religious minorities.23 It has been

22 Parliamentary Assembly 1994– 95, Document 389 – case 297.

23 Rachel Hodges and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (Unicef 2007). The Committee on the Rights of the Child has voiced concerns about the high dropout rate of immigrant children from school and that chil-dren of immigrants may not be covered by child health- care services, see Concluding observations: Iceland CRC/ C/ ISL/ CO/ 3– 4. The Ombudsman for children has expressed concerns for the vulnerability and potential discrimination of the growing number of children seeking international protection in Iceland, Ombudsman for Children, Helstu áhyggjuefni 2017 [Main Concerns 2017], (2017) 32.

Protection of Children’s Rights in the Icelandic Constitution 89 argued that codifying the provision in the Constitution has served to strength-en the protection of vulnerable groups, most oftstrength-en in conjunction with other fundamental rights.24 In the concluding observations from 2011 the Committee on the Rights of the Child found it necessary to reiterate earlier observations that had not yet been implemented or sufficiently implemented, most point-edly the lack of a data collection system that is a prerequisite for introducing and applying strategies to address inequalities. The committee voiced con-cerns that systems of data collection did not cover all areas of the Convention and that there were insufficient mechanisms for the processing, evaluation and assessment of such data. The committee encouraged Iceland to develop a comprehensive system for collecting, processing and analysing data as a basis for assessing progress achieved in the realisation of child rights, disaggregated by age, sex, geographic location, ethnicity and socioeconomic background to facilitate analysis of the situation of different groups of children.25 The Om-budsman for Children has especially expressed concerns about geographical inequities and urged the state to research differences in services and ensure all children living in Iceland equal opportunities.26 The Government has duly recognised these concerns.27

Section 67 of the Constitution protects persons from the deprivation of liberty and can apply to children in certain circumstances.28 Cases con-cerning child protection interventions are though usually scrutinised under section 71.29

24 Thorarensen (n 11) 593. As an example in 1999 the Supreme Court of Iceland found that the University of Iceland had failed to provide a blind student with the necessary support to enable her studies, Supreme Court of Iceland H.1999: 390.

25 Concluding observations: Iceland CRC/ C/ ISL/ CO/ 3– 4. This is still a legitimate concern, see Iceland’s 5th and 6th periodic report to the Committee on the Rights of the child, November 2018, 11– 13, <https://www.stjornarradid.is/lisalib/getfile.aspx?itemid=576b-ca31-3130-11e9-9431-005056bc4d74> accessed 21 August 2019. A  bill proposing changes to the Act on the Ombudsman for children was introduced in Parliament on september 2018, obligating the Ombudsman to collect and disseminate necessary dis-aggregated information on children, Parliamentary Assembly 2018– 2019, Document 156 – case 156.

26 Ombudsman for Children, Helstu áhyggjuefni 2017 [Main Concerns 2017] (n 23) 23. See also European Agency for Special Needs and Inclusive Education, Education for All in Iceland – External Audit of the Icelandic System for Inclusive Education (European Agency for Special Needs and Inclusive Education 2017) 17.

27 Iceland’s 5th and 6th periodic report (n 25) 18.

28 District Court of North- East Iceland, 31 December 2009, (case No E- 228/ 2009), where a 14- year- old girl was arrested as a passenger in a stolen vehicle and detained for twelve hours at the police station, considered a violation of section 67 of the Constitution.

29 Thorarensen (n 11) 134– 135.

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90 Friðriksdóttir Section 68 of the Constitution protects persons from torture or any other inhuman or degrading treatment or punishment.30 This provision has special importance to children in public care but also refers to positive obligations on the state to ensure adequate protection within the family and in other settings.31 In spite of this the Supreme Court of Iceland in 2009 acquitted a stepfather accused on spanking his two stepsons as punishment for alleged bad behaviour.32 The judgement was heavily criticised and amendments to legislation ensued.33 In the concluding observations from 2011 the Committee on the Rights of the Child expressed concerns regarding different types of vi-olence and recommended that Iceland ensures, through adequate legal provi-sions and regulations, that all children victims and or witnesses of crimes, e.g.

children victims of abuse, domestic violence, sexual and economic exploita-tion, abducexploita-tion, and trafficking and witnesses of such crimes, including those perpetrated by State and non- State actors, are provided with the protection required by the crc.34

Section 71 of the Constitution ensures freedom from interference with pri-vacy, home and family life.35 The right to respect for private and family life has come to encompass a wide range of areas. The right to privacy, home and family thus encompasses, for example, the right to data protection, a person’s identity, intimacy and moral and physical integrity, home and familial rela-tionships.36 The Supreme Court of Iceland, in 2014, iterated the right to know one’s identity as an integral part of the right to privacy and family life in a pa-ternity suit challenging mandatory dna testing.37 To name another example of the different contexts the Supreme Court in 2017 found the refusal to acknowl-edge non- biological intended parents as legal parents persuant to a surrogacy arrangement not a violation of section 71.38

30 This right to protection was recognised as a constitutional norm before the amendments in 1995.

31 Thorarensen (n 11)  174; 177; Parliamentary Assembly 1994– 95, Document 389  – case 297.

32 Supreme Court of Iceland, 22 January 2009, (case No 506/ 2008).

33 Hrefna Friðriksdóttir, ‘Að nota samning SÞ um réttindi barnsins með hendi og vendi að hingað til brúkanlegum siðvana [Using the CRC with force as hitherto was customary]’ in Rannsóknir í félagsvísindum X (Félagsvísindastofnun Háskóla Íslands 2009).

34 Concluding observations: Iceland, CRC/ C/ ISL/ CO/ 3– 4.

35 The right to privacy was recognised as a constitutional norm before the amendments in 1995. It is worth noting that the right to life and to dignity are not explicitly protected in the Constitution but are recognised as constitutional norms.

36 Thorarensen (n 11) 286, 288, 309, 313.

37 Supreme Court of Iceland, 28 January 2014 (case No 800/ 2013).

38 Supreme Court of Iceland, 30 March 2017 (case No 367/ 2016).

Protection of Children’s Rights in the Icelandic Constitution 91 Section 71, subsection 3 recognises lawful interference with privacy, home and family life if this is urgently necessary for the protection of the rights of others. Most cases involving the claims of child protection authorities for de-priving parents of custody rely on the balancing of the rights of parents and children according to section 71, arguing how the right of the child to stability, harmonious development and protection from harm, aided by a general ref-erence to section 76, subsection 3 justifies interfref-erence with the rights of the parents to the protection of family life.39

4 Special Provision for Children in the Icelandic Constitution