The Protection of children : the right to family right and how they can conflict.

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Örebro University

School of law, psychology and social work Law, second level, Thesis, 15 Credits 2013-01-08

The protection of children,

the right to family right and how they can conflict

Author: Cimona Sandin.

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Abstract

This paper examines the right to family life and how it can conflict with the child’s right to protection against harm. The paper examines how the international community views the family and what rights the family has in international law. In addition to this, the paper also looks at the different family structure a family can have and it also examine whether there are a universal definition of family.

Furthermore, the paper also talks about the children and the rights afforded to them and how the rights has developed through time. The concept of childhood is a much-debated issue. There have been debates on when the childhood begins but also on when it ends and the views of the States differs somewhat. Childhood is a concept that is heavy with different psychological, physical, religious and cultural believes and practices. When the States was working on the Convention on the Rights of the Child they had to try to consolidate the different views on both the beginning and the end of childhood but it proved to be

problematic. To say that the childhood began at conception would have made the convention incompatible with the national law that allows abortion and it could therefore risk that some States did not sign the convention. They therefore made a compromise that meant that the States could keep their own definition on the beginning of childhood.

The family as well as the well-being of the child is important and this is reflects in

international law. This paper therefore also examines the articles in international and regional treaties concerning the family and the protection of the child. It also examines several cases from the European Court of Human Rights to illustrate how the Court has reasoned in cases where rights of the parents has been in conflict with the children’s rights and best interest.

The conclusion drawn from this paper is that no set of rights weigh more than the other. They are both very important and if it is possible, the authorities shall try to balance them with each other. They have to have both what would be best for the child and the parents right to family life in mind. Even if the authorities have to remove a child from the parents care they need to have a reunification of the family as a ultimate goal to work towards.

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Abbreviations

ACHPR African Charter on Human and Peoples´ Rights

ACRWC African Charter on the Rights and Welfare of the Child CRC Convention on the Rights of the Child

ECHR European Convention on Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

OAU Organization of African Unity

OAS Organization of American States UDHR Universal Declaration of Human Rights

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Chapter 1 Introduction

Family is to most people very important and it is easy for them take their family for granted. The family is the group of people that most of us feel that we can really trust, they are who has helped you to develop to the person you are. When most people think of family, they visualize a group of people who treat each other with love, respect and trust. A group of people whom they can feel happiness, anger, sorrow and comfort with. People can argue something fierce with but at the same time know that if they need help or comfort then the family will be there to provide it. At least it is the ideal view of family but the reality is not always so shiny and bright. Not all children can trust their family to treat them with love, care and respect. Children are precious but vulnerable people who cannot protect themselves. It is therefore up to their family to protect them; however, when the family is what is threatens the well-being of the child the society has to take the family’s place. The national authorities can then find themselves in a situation where they need to make a difficult decision. The parents right to family life and right to decide over their family against what would be best for the child.

1.1 Purpose

The purpose with this thesis is to examine whether in international law exists a balance between the parent’s rights to family life and those rights of the child to family, protection against harm of both physical and psychosocial kind. Alternatively, if no balance exists examine whether one set of rights is seen as more important over the others in the European Court of Human Rights.

The purpose of this thesis is:

 To examine what defines a family.

 To examine what defines a child.

 To describe the international and regional laws on family and family life.

 To described the rights afforded to children in international and regional laws.

 To examine the decisions in court cases from the European Court of Human Right.

1.2 Problem formulation

National authorities can sometime find themselves in situations where they have to balance between protecting the family life and the parent’s right to it on one hand and on the other hand, they have to see what would be in the child’s best interest. In some situations the removal of the child from the parent’s care is what would be in the best interest for the child. However, in these situations, a conflict between the two sets of rights will arise and the authorities would have to weigh them against each other. In such a conflict, will one set of rights have a higher value? Alternatively, is it possible to balance these different rights and if so what would a court look at?

1.3 Delimitation

The paper will focus on the international and regional law that is relevant for the subject at matter. The author knows that there are many more rights afforded the child in the Convention on the Rights to the Child; however, there is no scope in this paper to examine

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them all. Therefore, the articles that will examined concerns the well-being of the child and the rights it would have if it were removed from the parents care. The author has chosen to examine relevant articles in regional instrument since them, because of their smaller geographical areas and smaller cultural diversities, may have affected the wording and meaning of the rights. Furthermore, it would give how global the rights in the international treaties in this area are. The author thought that if they have been written into regional treaties than it gives an idea whether the rights truly has been accepted. The author has chosen to use case-law from the European Court of Human Rights since it is a court with many successful years of experience and it has a good reputation.

1.4 Disposition, method and material

The first chapter of the paper is an introductory chapter meant to introduce the subject and the purpose of the thesis. The following second chapter will describe how international views family and describe the different family types that exist and the problem of trying to agree on a universal definition on the concept of family.

The following third chapter will talk about the development of the child’s status and its rights. It will also talk about different cultural traditional views of the child and the problem of trying to mesh these views and agree on a definition of a child.

The fourth chapter will talk about the existing international law regional legislation regarding both the family and the child. It will describe the rights that the family has and those rights the child has that is relevant for the subject in this paper.

The fifth chapter will talk about four cases from the European Court of Human Rights about the respect for family life in article 8 of the European Convention on Human Rights.

Chapter six is an analysis of the contents of the paper to help answering the question asked in chapter one. The seventh chapter will be the conclusion of this paper follows it. The method used in this paper will be the legal dogmatic method. The author will examine the laws in an area relevant for the subject, doctrines and cases from the court to help answering the questions asked.

Material that will be used in this paper is international and regional treaties to help determine the legal position in the areas that relevant for the subject. The treaties used will be the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Rights of the Child, Universal Declaration of Human Rights. Furthermore, since the paper also will cover what the law on a regional level express about the subject the author will also use the African Charter on Human and Peoples´ Rights, African Charter on the Rights and Welfare of the Child, European Convention on Human Rights and the American Convention on Human Rights. The author will also use case-law from the European Court of Human Rights since they illustrate the conflict between the two sets of rights in the reality. Furthermore, to the subject relevant general comments from both the Human Rights Committee and the Committee on the Rights of Child has also been used. Books and articles on the subject has also been read and used.

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Chapter 2. The definition of family

That the family is a basic unit in the society is acknowledged by international law, which also recognizes that the family is the natural environment for the upbringing of a child and for the well-being of a child. Furthermore, international law recognizes the childhood as a separate status, but the rights of the child cannot receive the best protection if it is treated in isolation. The rest of the family has to be taken into consideration too. Because of this, it is of a huge importance for the child how the international law defines family. How the family is defined will have an effect on some aspects of a child’s life that are fundamental. There could be aspects such as if other family members besides the parents are allowed to reunite with the child if the family has been separated for some reason. If the rights given to the child are to be protected effectively, then international law needs to be flexible enough to be able to accommodate several different kinds of family structures and values, and also community structures and values. At the same time, it needs to enshrine the minimum standard of international legal rights for children that have been universally agreed upon.1

Despite the fact that international law recognize that the family is the basic unit on which the society rest upon, there is no definition on what a family is that has been universally agreed upon. The family is a concept that is in continuous to development and several different concepts exist. A family can consist of a single parent, his or her child/children; the nuclear family with father, mother, and children;2 the polygamous family;3 and it can be the extended family in which parents and siblings, grandparents, cousins and married children forms a single unit. All of these are different kinds of families but they all bring with them a profound implication for the rearing of the child. In an extended family for example, all members share the responsibility for the upbringing of the children. In such a family every members has his or her own role to perform and the unit is therefore able to function as an economic, reproductive, and social unit. Childcare in some African societies is worth mentioning. In these societies, childcare is often seen as a communal activity and because of this other family members can be just as important to the child as the child’s parents are; they have after all been involved in the process of development that the child has gone through.4

Because the childcare is a communal activity in some local customs and culture, there has not been a lot of state intervention. This has brought with it “important implication for the international law on the rights of the child”5

since in these local customs and cultures other members of the extended family bedsides the parents have a legitimate right to claim responsibility towards the child. Another implication is that the rights of one kinship member are closely related to the duties of another and the kinship system is based on this interwoven

1

Van Bueren, Geraldine, The international law on the rights of the child, [Paperback ed.], Martinus Nijhoff, The Hague, 1998, p. 67.

2

Van Bueren, Geraldine,p. 68.

3

Zeitzen, Miriam Koktvedgaard., Polygamy: a cross-cultural analysis, Berg, Oxford, 2008, p. 3. In a polygamous family one person is married to more than one person at the same time. It could be a man that is married to several wives (polygyny), or where the woman is married to several husbands (polyandry), or it could be a group marriage where multiple persons are married to each other.

4_{Van Bueren, Geraldine, p. 68.} 5

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pattern.6 That these local customs has affected the international law can be seen in article 5 of the Convention on the rights of the child 1989 (CRC). The article states that the States Parties to the convention are to

“…respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”7

The nuclear family is a relatively new social structure. This kind of family structure developed together with the industrialization of the society. The industrialization meant that family members were separated from each other because they worked separately, they had different kind of jobs.8

Most Western societies nowadays have more or less a mix of extended, nuclear, and single parent family types. Even the societies were the nuclear family structure is more common have started to recognize the benefits of an extended family. The extended family is a resource that the state can use in those occasions were the parents no longer can provide for their children. It is important that international law is able to accommodate the different family types; otherwise, it will not be possible for it to be widely applicable.9

The Human Rights Committee has stated that the Covenant, for the purpose of article 17 in the International Covenant on Civil and Political Right (ICCPR), requires that the interpretation of the term ‘family’ to be as broad as possible because then the interpretation could include “all those comprising the family as understood in the society of the State party concerned.”10

The Committee accepted that the term ‘family’ does not have a universally accepted and binding definition and therefore invited the States party to the ICCPR to submit in their reports a description on what that term means in their societies. Furthermore, the Committee has observed that not all countries have the possibility to give the family the same amount of legal protection or measures as other countries. What they can afford depends upon different “social, economic, political or cultural conditions and traditions.” 11

However there are cultural traditions that are not compatible with the best interest of the child and the Committee has therefore placed limits on the flexibility of the definition. The definition of family has to be in accordance with international human rights law; it can therefore not be discriminatory.12

It is not only on international level that there have been attempts at defining family. There have also been attempts on regional level to define the family; they have tried to find a definition that would be appropriate in that particular area of the world. The member states to

6

Van Bueren, Geraldine, The international law on the rights of the child, Martinus Nijhoff, The Hague, 1998, p. 68.

7

Convention on the Rights of the Child 1989, article 5

8

Van Bueren, Geraldine, p. 68- 69.

Human Rights Committee, General Comments No. 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17) : 1988-04-08. Thirty-second session, 1988.

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the Organization of American States (OAS) has through the American Convention on Human Rights, tried to characterize the family. Neither article 17 Rights of the Family nor article 19 Rights of the Child that both relate to family in a way, seem too explicitly to define family as parents and child.13 The African Charter on the Rights and Welfare of the Child (ACRWC) 1990 on the other hand is one regional human rights instrument that explicitly includes other persons than the parents. Article 20 of the charter provides that “parents or other persons responsible for the child shall have the primary responsibility of the upbringing and development the child...”14

In Europe the European Convention on Human Rights (ECHR) do not protect the family

per se, instead article 8 in the convention protect the ‘family life’. In its interpretation of

article 8, the European Commission on Human Rights concluded that the protection of the right to family life is not limited to the de jure family life, but is concerned with the de facto family life. The European Court of Human Rights has taken the same approach and decided that family life at least includes the family bond between near relatives such as a child and his or her grandparents. Near relatives such as the grandparents may after all play a big role in family life. The Commission has also concluded that a relationship could fall within the term ‘family life’ even though it is not as intensive and different from that between a child and its parents. In Europe there appear to be trend to define a family life not by the family titles themselves but by examine the substantive role of the different family members and their relation towards the child. An approach that is in accordance with the best interest of the child since it allows the child to keep their link with other relatives that has had an important role in the child’s life.15

13

Van Bueren, Geraldine, p. 70.

14_{African Charter on the Rights and Welfare of the Child 1990, article 20.} 15

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Chapter 3 The definition of a child

“Childhood is a relative concept which changes according to local culture, the geographical environment and the prevailing social and economic conditions.” 16

The fact that there has been and still exists a fierce debate about the nature of children´s rights is not so surprising. There is even occasional disagreement about the “historic origins of childhood to which any moral and legal right would attach”17

Throughout history, people in all societies has dealt with childhood and children and many features are the same. Regardless of time and place, children are seen as someone that needs training to prepare them for adulthood. The child needs to learn how to handle strong emotions such as anger and fear in a socially acceptable way. Thanks to the long period of helplessness of the human child during the infancy, the child has always need to be cared and provided for, no matter what time in history or place on earth they lived. The views of childhood can vary a lot from different societies and from one time to the next. The use of children in labor for example is in some societies seen as normal whilst others see it as a violation of the innocent and vulnerability of the children. In some societies, it is assumed that many of the children will die young and they have therefore organized a big part of their approach to childhood around this fact. Opposite to this are the societies that work hard to prevent children from dying. Some societies believe in corporal punishment and routinely use it whilst others are shocked by these methods and there are those that have legislated against it. There are also different view on when the childhood ends. Some societies has made the assumption that the childhood ends when a child has gone through puberty and there are many example of this in history were many kings and conquerors has started their career whilst being mid-teens. Other societies have invented categories such as adolescence because they insist that children are still children of some sort after they have reached puberty.18

Under the twentieth century, effective family planning became possible and in a world where people had choices, responsibilities, and rights, the family started too developed. In Western Europe, the law regarding children had previously mostly been concerned with matters of life and death. However, a development had occurred and the focus shifted to the well-being of the child. The domestic laws of today “seek to improve the judicial and the administrative safeguards for the increased representation and protection of children...”19 The law had previously even struggled with children´s status as legal persons. A transformation of the family and the child´s role in them and in the society had to occur or else many of the instruments regarding the international rights of the child would not been adopted.20

The history of the concept of childhood shows that several different cultural traditions are mirrored in the international law on the rights of the child. Islamic laws, and then most obviously with its kafalah, has influenced the formation of the international children´s rights. According to kafalah, another family can take in an abandoned or an orphaned child. However, the child does not have any right to use the family name of that family nor will the

18

Stearns, Peter N., Childhood in world history, Routledge, New York, 2006, p. 1-2.

19_{Van Bueren, Geraldine, p. xxi.} 20

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child inherit from them. The first right a child has according to Islamic law, is the right to have its parentage established. Once it is established, duties and rights such as fosterage, custody, and guardianship follow. Every child has the right to be in custody of someone from the time it is born. Custody is a form of guardianship and it is in Islamic law divided into three categories. The first category is that of the guardianship of the infant and it is a responsibility of the women. The second and third categories are the guardianships education and that of property; both these guardianships are the responsibility of the men.21

African states have also been part of the development of children´s rights in international law. Fact is, the first regional organization to adopt children´s rights instruments was the Organisation of African Unity.22 In African states, the well-being of children were not up to the parents alone, but a responsibility shared by every adult in the community. A kinship system that exposes the children to many different social relationships. These societies view childcare as a communal activity, every kin involved in the development of the children has because of this a legitimate basis to assert responsibility and family rights towards the children. Furthermore, the role the child itself has can sometimes be seen to furthering the interest of their kin.23

In Western Europe, four different developments occurred that would bring a change to the legal status of children. At first, the amount of people working with agriculture decreased and with it, the traditional economical benefits that children brought lessened. Secondly, after recognizing the value of education and with it being made obligatory by law, limits were placed upon labor so that the children could take advantage of the educational opportunities give them. Thirdly, the women´s position in society changed drastically, they started to become a separate person of their own and this made it so that children were no longer the sole responsibility or property of the father. Finally, the role of the parent were redefined and a clear link between the responsibilities of the state and the child were established since the state´s started to intervene in matters that had previously been viewed to be the sole concern of the family.24

The traditional definition on children has been that they are individuals that have not yet reached adulthood. This definition was laden with different practices and believes of cultural, psychological, religious, and physical kind. Two points of childhood that has been the subject of serious international debate, and it is from when childhood begins and when it ends. The Geneva Declaration of the Rights of the Child 1924 did not contain a definition on who is a child, nor when childhood begins. Instead, the first reference on the matters was made in the preamble to the Declaration on the Rights of the Child 1959. This Declaration provides the following “WHEREAS the child, by reason of his physical and mental immaturity, needs

special safeguards and care, including appropriate legal protection, before as well as after birth.”25

When the childhood begins is of critical importance because if it begins from the

21_{Van Bueren, Geraldine, p. xxi-xxii.} 22

The Organisation of African Unity adopted their children’s right instrument in 1990 but it did not enter into force until nine years later on November 29 1999. As of November 2010, all states members of the African Union has signed the Children’s Charter all but 8 has ratified it. http://acerwc.org/the-african-charter-on-the-rights-and-welfare-of-the-child-acrwc/ Last accessed on 2013-01-06.

23

Van Bueren, Geraldine, p. xxii.

24_{Van Bueren, Geraldine, p. xxi.} 25

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moment the child is conceived, then the right to life that the child has through article 6 (1) in the CRC and several other international treaties, would be applicable from the time of conception. Furthermore, an important consequence of the different views on the beginning of childhood is the different regulation of the right to abortion that exists in national laws. 26

Since states have such fundamentally different views on the starting point of the childhood, it makes it impossible for them to reconcile those views in a treaty. Some states believes that childhood begins from the moment of conception, others has limited the beginning of childhood to a certain period of the pregnancy, and then there are those states that believes that the childhood begins the moment the child is born.27 During the work with the drafting of both the preamble and article 1 of CRC, the participating states debated whether to include in the scope of the treaty, the time between the moment of conception and the time of the birth of the child.28 Ireland, the Holy See and other states had proposed to include an explicit reference to before birth in the text. The opposing states argued against it, stating that the national laws on abortion differed so much and that the inclusion of such a reference would prevent many state from ratifying or accede to the Convention. The solution reached was to include word for word the paragraph of the preamble to the 1959 Declaration, and to make the following statement on behalf of the entire working group in the travaux preparatories.29

“In adopting this preambular paragraph, the Working Group does not intend to prejudice the interpretation of article 1 or any other provision of the Convention by States Parties.”30

The Convention does not restrict state parties from setting a limit in time on when the childhood begins in their own domestic laws. Which has been made evident by the fact that states has made reservations and declaration concerning article 1. However, the limited case and treaty laws seems to suggest that international law protects the beginning of childhood from the moment of birth. This, as mentioned above, does not prohibit states from setting an earlier time limit but it is not a protection that can be read into customary international law, nor into those treaty provisions that protects the right to life. That is, if it is not expressed openly in the treaty as it is in article 4(1) of the American Convention in which the right to life is protected generally from the time the child is conceived. There are treaties that extend the protection to the unborn child, like article 6(4) of the Geneva Protocol No. 1 1977 and 6(5) of ICCPR. However, these articles concern the expectant mothers and not a child, since they prohibit either the delivery of or the carrying out of death sentences on pregnant women.31

Just as the participating states debated on the beginning of childhood, they also debated on at what age the child stops being a child. A child´s role in the family and in

26

27

28_{Stern, Rebecca, The Child´s Right to Participation- Reality or Rethoric?, Universitetstryckeriet, Uppsala 2006,}

p 87.

29

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the community differs enormously between different societies and cultures and because of this, the communities do not share a common view on when the childhood ought to end. That said there are a number of commonly applied factors that helps determine when a child has reached the end of his or her childhood. A child, who has reached a particular age, gained the ability to perform certain acts or have the capacity to perform certain functions, has reached the end of their childhood. The minimum age is arbitrary since all children develops at different speeds, but in regards to the legal limits there has to be some accord. In addition, there should be a rational relationship between the minimum age limit and the purpose of that limit.32

There was no definition on when the childhood ended in any of the earlier Declarations, so it was proposed during the work with the drafting of CRC that for the purpose of that Convention the age limit were to be 18 years. Some states were against it since they have a lower limit in their national legislations. In some societies, especially rural ones, a lower age limit has been used since they had a high infant mortality and a shorter expected lifespan and because of this, children younger than 18 were allowed to participate in duties that would help their family survive. These states argued for an age limit of 15 years because it was the limit set by the General Assembly in connection with the International Year of the Child in 1979. Those states that wished to keep the age of 18 as the limit, argued that the convention ought to be applicable to as large a group as possible. There was also a wish from Japan to have a higher age limit than 18 years for the end of childhood since that would be in consistency with their national legislation.33

With the age of 18, the Convention set a standard to which the states should strive with their protection however; the states with a lower age limit are allowed to keep it. There exist cultural and religious diversities that are reflected in the different national limits on age and it is these that the CRC tries to accommodate with the linkage of the international definition of childhood to the majority laws in the national systems. The international community has not agreed upon a universal definition of childhood; however, it seems to be an emerging trend in modern international law to think that the rights of the child ought to be applicable to as many individuals under the age of 18 years as possible.34 The result of the debates on when childhood begins and when it ends during the drafting of the Convention is the definition of a child as it is written in article 1, which reads as follow

“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”35

32

33

Van Bueren, Geraldine, p. 36 - 37.

34_{Van Bueren, Geraldine, p. 37- 38.} 35

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Chapter 4 Legislation

4.1 Right to family life on international level

The family is an institution that can come in several different compositions; it is from their family that an individual takes his or her sense of identity, support and responsibility. An institution that offers all its members a sense of security and protection, a unit that is responsible for the growth and wellbeing of the children. This role is universal across different cultures and because of this; the family receives protection from the fundamental universal and regional human rights instruments.36 When it relates to children, the respect for family life has two underlying principles. The first principle is that “the family is the natural and fundamental unit of society,” 37 and the second one is that it is in the best interest of the child to maintain that family unit.38 The fact that the family is of essential importance and that it has the right to protection is something that has often received international recognition.39 Because of this, there are several treaty provisions that recognize the natural and fundamental nature of the family unit and the position it has in today´s society. 40 One such provision exists in article 16 (3) of the Universal Declaration on Human Rights (UDHR) which express that.41

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”42

This principle in article 16 (3) of the UDHR is expressed in one form or other in several binding human rights instruments, both of the universal and the regional kind.43 Three global human rights instruments that promulgate the same principle is the International Covenant on Civil and Political Rights (ICCPR), in which article 23 states: “The family is

the natural and fundamental group unit of society and is entitled to protection by society and the State.”44 International Covenant on Economic, Social and Cultural Rights (ICESCR) is another instrument in which the same principle is recognized. The principle is written into article 10 of the covenant:

“The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children”45

36

Gulick, Karen. Protection of Family Life. Studies in Transnational Legal Policy, Vol. 41, pp. 291-336, p 291.

37

Mrazik, Ryan T. and Schoenholtz, Andrew I (Institute for the study of international migration, Georgetown University), Protecting and promoting the human right to respect for family life: Treaty-based reform and domestic advocacy. Georgetown Immigration Law Journal, Vol. 24 Issue 3 and 4(2009-2010) pp. 651-684, p 652.

38

Mrazik, Ryan T. and Schoenholtz, Andrew I p 652

39_{UNHCR Executive Committee of the High Commissioner's Programme Standing Committee, 15th meeting}

'Family Protection Issues'*. International Journal of Refugee Law, Vol. 11 (1999) pp. 582-591, p 584.

40

Mrazik, Ryan T. and Schoenholtz, Andrew I p 652.

41_{UNHCR Executive Committee of the High Commissioner's Programme Standing Committee, p 584.} 42

United Nations Universal Declaration on Human Rights 1948, article 16.

43

UNHCR Executive Committee of the High Commissioner's Programme Standing Committee, p 584.

44_{International Covenant on Civil and Political Rights 1966, article 23 (1).} 45

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Furthermore, the Convention on the Rights of the Child is a third instrument that speaks of the fundamental importance of the family unit and that it is to be protected. In the preamble to the convention, the States parties wrote that they were:

“Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,”46

As seen from the different citation above, these international human rights instruments does not only clearly recognize the family as a fundamental and natural part of society; they also oblige the member states to give a broad protection to the family unit.47 People’s right to family life has further protection in ICCPR since article 17 of the covenant states that:

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”48

4.2 The child´s right in international law

The above mentioned human rights instrument that gives the population in each member state a right to family life, right to have the family unit protected is also applicable to the child since the child is a citizen too. However, international law does not give a child the right to family in the same way as it does to adults. Quite the opposite in fact, States are obligated to prevent a child under a certain age from establishing their own family. The question of the child’s right to family can only arise through marriage, adoption, and fostering.49

An adult has the right through article 17 of ICCPR to protection from arbitrary or unlawful interference in their privacy or family et cetera. The child is afforded the same right through article 16 of CRC. They have a right to protection by law against such arbitrary or unlawful interference.50 However, there are instances when the state have permission and actually is obliged to interfere in the privacy and family life of a child. According to article 19 of the CRC, the states has permission to interfere when it needs to take

“... take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”51

46

Convention on the Rights of the Child 1989, preamble

47_{Mrazik, Ryan T. and Schoenholtz, Andrew I, p 652.} 48

International Covenant on Civil and Political Rights 1966, article 17

49

50_{Convention on the Rights of the Child 1989, article 16.} 51

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Article 19 does not refer explicitly to corporal punishment and there is no record of any discussion about it during the drafting process in the travaux préparatoires. However, the Convention is a living instrument and the interpretations of it do develop over time and with the time that has passed the use of corporal punishment of children in their home, schools, and other institutions has become more visible. This together with the fact that the states are obliged through article 37 of the Convention to make sure that “no child shall be subjected to

torture or other cruel, inhuman or degrading treatment or punishment” has made the

Committee on the Rights of the Child feel it necessary with a definition of “corporal” or “physical” punishment.52

The definition of corporal or physical punishment is any punishment that by the use of physical force is causing the child some degree of pain or discomfort, however light it may be. It can be slapping, smacking or hitting the child in any way either with the bare hand or by the use of some instrument such as a belt, whip, shoe, stick or even with a wooden spoon. However, it can also be by kicking, shaking or throwing the child. Things like “… scratching, pinching, biting, pulling hair or boxing ears, forcing children to

stay in uncomfortable positions, burning, scalding or forced ingestion...”53

are other examples. Forced ingestion could be forcing a child to swallow hot spices or that the child has its mouth washed out with soap. The Committee expressed that corporal punishment will always be degrading for the child. However, not only physical forms of punishment are incompatible with the CRC, non-physical forms punishment can also be cruel and degrading. Example of cruel and degrading non-physical punishment is such punishment that “belittles,

humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.”54

That said, the Committee do not reject the concept of discipline of children, a child do after all need the necessary guidance an adult can give them to be able to have a healthy development.55

All children have the right not to be separated from his or her parents against their will, since a separation would in fact cause an interference of the child’s right to family life. However, separation is admissible if it has been found necessary for the child´s best interest. It can be necessary with a separation if the child´s parents abuse or neglect the child or if it is necessary to decide where the child should reside when the parents no longer live together. A decision to separate a child from one or both of the parents must be made by a competent authority that are subjected to judicial review and the decision must be in accordance with applicable law and procedures. In any proceedings where a decision on a separation of parents and child is at the table, all interested parties shall have an opportunity to tell their views. In those cases where the child has been separated from one or from both his or her parents, then the child has the right to “maintain personal relations and direct contact with both parents on

a regular basis”56

unless of course such a contact would not be in the child´s best interest.57 If a child has been deprived of his or her parents either it be permanently or temporarily, or if the child for his or her own best interest has been removed from their care, they are

52

Committee on the Rights of the Child, General Comment No. 8 (2006), (CRC/C/GC/8), p. 6 paragraph 18- 19.

53_{General Comment No. 8, p. 4 paragraph 11.} 54

General Comment No. 8, p. 4 paragraph 11.

55

General Comment No. 8, p. 5 paragraph 13.

56_{Convention on the Rights of the Child 1989, article 9 (3).} 57

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“entitled to special protection and assistance”58

from the state. The state shall ensure that a

child in such a situation has an alternative care, which could include placement in a foster home, adoption, a placement in a suitable institution that care for children or even in kafalah as in Islamic law. However, when the state considers such alternative care it shall pay due regard to the “desirability of continuity in a child's upbringing and to the child's ethnic,

religious, cultural and linguistic background.”59

In connection to this, a child who has been placed by the authorities “for the purposes of care, protection or treatment of his or her

physical or mental health”60

has the right to have their case reviewed. In this review, the authorities shall look at the treatment provided to the child and look at all the other things that had been relevant to the child´s placement.61

One of the interpretative principles in international law that underpins the CRC is the best interest of the child. The principle of the best interest of the child may be common in domestic system but it is not a principle that has been openly incorporated into many of the big human rights instruments. For example, there are no references to such a concept in neither the ECHR nor ICCPR. The principle of the best interest of the child is in its broadest application articulated in article 3(1) of the CRC.62 The article provides that

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”63

In contrary to the above-mentioned articles in CRC, this article creates neither rights nor duties. Instead, it is a principle of interpretation that are to be considered in all actions that concerns children and it shall be considered in relation to all rights contained in the convention. The convention challenge the view that a child´s parents can always decide what is the best interest of their child and it also challenge the view that family life is always in the child´s best interest. The concept of the best interest of the child has unfortunately become weaker when it was incorporated into CRC then it is in other instruments since the concept in the convention is a primary consideration and not the primary consideration. Article 3 of the Geneva Declaration of the Rights of the Child 1924 and article 4 of the African Charter on the Rights and Welfare of the Child both states that what is best for the child ought to be considered first.64 The state is to ensure that the child has the protection and care that is necessary for his or her well-being and in doing that the state is to consider the rights and duties of the parents, legal guardians, or any other persons that are legally responsible for the child. In doing this, the state shall also take “all appropriate legislative and administrative

measures.”65

58_{Convention on the Rights of the Child 1989, article 20 (1).} 59 Ibid, article 20 (3). 60 Ibid, article 25. 61_{Ibid, article 25.} 62

Van Bueren, Geraldine, p. 45-46.

63

Convention on the Rights of the Child 1989, article 3(1).

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4.3 Regional level

Legislation on the right to family life does not only exist in international law but also in the legislation on regional level. On the European regional level, we have legislation on the right to family life in article 8 in the European Convention for the protection of Human Rights and Fundamental freedoms from 1950.

Article 8 - Right to respect for private and family life

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”66

The ECHR has an excellent reputation to protect human rights but the convention was not written with the child´s rights in mind. In contrast to its reputation in protecting the human rights, the ECHR do not have the same good record in protecting the rights of the child. At the same time, few applications to the court are submitted on the behalf of children so there really has only been limited opportunity to develop a child-related case law. Any potential that the ECHR has to develop its protection children´s rights needs to be maximized and one way to accomplish this, according to Dr. Ursula Kilkelly, is to interpret the Convention in the light of the CRC since the ECHR is a living instrument that has to evolve so it maintains its legal and social condition. CRC is an instrument that has been ratified by all members of the Council of Europe.67 In Europe, protection for the family and family life exist also in article 16 of the European Social Charter from 1961 and in article 7 of the Charter of Fundamental Rights of the European Union from 2000. Protection for the family and family life exist within the Organization of African Unity (OAU) too. Article 18 of the African Charter on Human and Peoples´ Rights (ACHPR) 1981 states that

“1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral.

2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.

3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.

66_{The European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome 1950, art. 8}



Dr Ursula Kilkelly., Faculty of Law, University Collage Cork, Ireland.

67

World Conference of the International Society of Family Law, Family life and human rights: papers presented at the 11th World Conference of the International Society of Family Law, Gyldendal, Oslo, 2004, p. 347- 348.

_{The Organisation of African Unity was disbanded and replaced with the African Union in 2002.}

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4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs.”68

The ACRWC protects the family in article 18. The Charter also regulates different child related matters that also can be found in CRC. Every child has the right to parental care, to reside with his or her parents if it is possible, shall not be separated from the parents unless it is according to law and is for the child´s best interest. In case of a separation the child has the right to have regular and direct contact and a relationship with the parents.69 In case a separation from the family has occurred either, it be temporary or on a permanent basis, then the child has the right to special protection and assistance. In such cases, alternative family care needs to be organized and that can be foster placement or placement in a suitable institution that takes care of children. When considering alternative care the states shall pay regard to the best interest of the child and the desire for continuity in the upbringing. It shall also regard the ethnical, religious, or the linguistic background of the child.70 One way that the ACRWC differs from its international counterpart the CRC, is that children in the former also has responsibilities towards their family, society, state, other legally recognized communities and towards the international community.71

The League of Arab States is another regional organization that has instruments that protect the family. The states recognizes in article 38 in the Arab Charter on Human Rights 1994, that:

“(a) The family is the basic unit of society, whose protection it shall enjoy.

(b) The State undertakes to provide outstanding care and special protection for the family, mothers, children and the aged.”72

The privacy of the family affairs, the inviolability of the home, private means to communicate, and the right for people to have their correspondence confidential is protected through article 17 of the Arab Charter on Human Rights.73 The Cairo Declaration on Human Rights in Islam 1990 is another instrument of the region that protects the family and its welfare and state that the family is the foundation of society.74 The Organization of the American States (OAS), another regional organization that in their American Convention on Human Rights 1969 acknowledges that the family is the

“...natural and fundamental group unit of society...”75

and as such is to protected by the

society and the state. If a child´s parents are separated then the child shall receive the necessary protection based on their best interest.76 This convention also states, “Every

minor child has the right to the measures of protection required by his condition as a

68

African Charter on Human and Peoples´ Rights 1981, article 18.

69_{African Charter on the Rights and Welfare of Child 1990, article 19.} 70

Ibid, article 25.

71

Ibid, article 31.

72_{Arab Charter on Human Rights 1994, article 38.} 73

Ibid, article 17.

74

The Cairo Declaration on Human Rights in Islam 1990, article 5.

75_{American Convention on Human Rights 1969, article 17(1).} 76

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minor on the part of his family, society, and the state.” 77 There is also protection against arbitrary or abusive interference in a person’s private life and family in the conventions right to privacy article. 78

77_{Ibid, article 19.} 78

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Chapter 5 Case law from European Court of Human Rights

5.1 Case of K. and T. v. Finland

In the case, the applicants alleged a breach of their right to family life in article 8 of ECHR. The first applicant, a woman called K., suffered from mental health issues and she been hospitalized numerous times.79 After showing signs of behavioral problems K’s son M. was voluntarily placed in a children´s home for a brief period. A medical opinion was that K. at that time was not capable to care for a child however, this would not necessarily always be the case,80 something that later proved to be true.81 After the birth of K’s third child J., the applicants received notice of the authorities’ decision to place J. and M. into emergency care and a separation of mother and baby occurred after delivery. The basis of the decision was K.´s fragile mental health before delivery, the possible endangerment to the baby´s health, and lastly T.´s inability to care for both K. and J. Afterwards K.´s access to the children was restricted to only supervised visits,82 a restriction prolonged after J. and M. were taken into normal public care.83

In 1994, both children moved in with a foster family and the authorities foresaw it to be a long-term placement that would last for years.84 After this, the applicant’s access to the children was restricted to supervised visits once a month for three hours. It was thought that unlimited access would hamper a successful placement.85 The public care plan were revised on several occasion, the fist revision occurred late 1994 and the last one in 199886 but the restrictions remained despite the fact that the applicant´s had been informed that there were no longer any grounds for them. However, the authorities thought it important for the children to settle in the family they would grow up with and an increased contact with the parent´s would jeopardize the process. In addition to the monthly visit, the foster parents were to take the children to their parents every six month.87 The Social Director thought that a reunification of the family was not in sight since the foster family had become the children´s de facto home. The monthly visits and correspondence were enough for the children to be aware of their biological parents.88 In 2000, it was decided that the children would remain in the foster home but the monthly visitation would not be supervised and they would last longer.89

The applicant´s claim

The applicant´s claims to never had a chance to work on their problems and that emergency care were a too hasty and drastic a measure to begin with, and J. had not had the opportunity to bond with the applicants. With M. already in the children´s home, there was no immediate

79

The European Court of Human Rights, case of K. and T. v. Finland (application no. 25702/94) 12 July 2001 p. 3-4, para. 11- 13.

80

K. and T. v. Finland, p. 4- 5, para. 16, 19- 20.

81

K. and T. v. Finland, p. 13, para. 58.

82_{K. and T. v. Finland, p. 6- 7, para. 22-27.} 83

84

85_{K. and T. v. Finland, p. 12, para. 57.} 86

87

K. and T. v. Finland, p. 15- 16, para. 73 and 77.

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danger towards him that would justify an emergency order. Furthermore, the requirement of proper hearings and involvement of the parents in the decision-making in article 8 were not meet since they were not heard in respect of the emergency care orders.90 They claimed the social worker showed a hostile attitude towards their family life.91 Furthermore, the authorities had failed to examine the request of family reunification properly and clearly had no intention to terminate the care. To take a child into care should be a temporary measure that ought to end as soon as possible, but the authorities had always presumed that M. and J. would never return to their parents. What's more, their right to access had been so unnatural that M. and J. had not been able to form normal family ties to their parents.92

The government’s claim

The social welfare authorities had provided the applicant´s with different measures for four years and when that was not enough to ensure adequate development of the children, the authorities had no other choice but take the children into care. The decision on the emergency care orders was not a hasty; they had the children´s best interest in mind. J’s safety could not be guaranteed without the care order since the mentally ill K. was the sole custodian of J., she could have removed J. from the hospital. With M. already in voluntary care because of behavioral problems, there clearly was a risk for a disturbed development. Both care orders concerning him were therefore justified. M. needed a secure and stable environment, something the applicants could not provide him with.93 The Government does admit that they did not foresee a reunification of the family and there has been no measure taken with that aim. The expectation was that the children would remain in care for a long time. The authorities had sought expert opinion on a possible reunification however; the opinion said that the applicant´s could not create an age appropriate contact with the children. This showed that the authorities had made a serious effort and had considered the issue.94

When a child is taken into care, it does naturally imply that there will be some access restriction of a practical and natural kind. However, this does not change the family ties between the child and its biological parents, these ties are not preserved only by physical connection. That the children has a foster family does not prevent them from forming normal family ties with their parents as adults. In regards to M. so had the applicant´s unlimited access to him when he first was placed in the children´s home however, with K.´s deteriorating health they had been forced to limit her visit since they had a negative effect on M. The applicant´s had had regular visits with the children and they had could have kept contact with the through telephone and letters.95

The reasoning and judgment of the court

The Court had to decide if the interference in the applicant´s family life were justified, lawful, had a legitimate aim, and if it was necessary in a democratic society. They found it undisputed that all the measures had a basis in the national law and they had a clear and legitimate aim.96

90

K. and T. v. Finland, p. 32- 33, para.156- 159.

91

K. and T. v. Finland, p. 37- 38, para.171.

K. and T. v. Finland, p. 33- 35, para. 160- 163.

94

K. and T. v. Finland, p. 39- 40, para. 176.

95_{K. and T. v. Finland, p. 43- 44, para. 187- 191.} 96

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The Court had to then decide if the intrusive measures were necessary in a democratic society.97 The Court accepts that it is not always possible for the authorities to involve the custodians of a child when they have to make a decision regarding an emergency care order. It may not even be desirable if they are what are threatening the child since a prior warning could make the measure ineffective. The existing circumstances justified the decision to not contact or consult the applicant´s before they acted and the authorities’ fear of what K. would do if she had been forewarned, was reasonable. Furthermore, it was not realistic to only involve T. in the decision-making process. However, the Court also thought that it was an extremely harsh measure to take the J. into public care as soon as she had been delivered.

“There must be extraordinarily compelling reasons before a baby can be physically removed from the care of its mother, against her will, immediately after birth as a consequence of a procedure in which neither she nor her partner has been involved.”98

The Court did not find such compelling reasons with regard to J. since both had been in care of the hospital staff at the time. Furthermore, the authorities knew about both the pregnancy and of K.´s illness for months; there was therefore not an unforeseen emergency. When the authority contemplates drastic measures, they need to examine if other less intrusive measures is possible instead. The authorities’ reasons were relevant but they did not justify the level of intrusion in the applicant´s family life. The emergency care order concerning J. had, according the Court, a disproportionate effect on the applicant´s potential enjoinment of family life. However, there may have been necessary for the authorities to take some precautionary measures in order to protect J, but the chosen measure were not necessary in a democratic society. 99 The Court expressed another opinion regarding the emergency care order for M. who was already placed voluntarily in a children´s home after he showed signs of disturbance and needed special care. As such, he was already separated from the applicants. The Court felt that the emergency care order could therefore not affect the applicants’ family life in the same way. The order was necessary since M.´s placement in the children´s home was voluntary and the applicant´s could remove him at any time. Furthermore, since the emergency care order was temporary the Court found that the national authorities was entitled to think that such a drastic measure was necessary.100

In regards to the normal care orders, the Court did the following assessment.

”The fact that a child could be placed in a more beneficial environment for his or her upbringing will not on its own justify a compulsory measure of removal from the care of the biological parents; there must exist other circumstances pointing to the “necessity” for such an interference with the parents’ right under Article 8 of the Convention to enjoy a family life with their child.” 101

However, main task of the authorities was to safeguard the children´s best interest, with that in mind the Court has no reason to doubt that the national authorities’ could consider

99

100_{K. and T. v. Finland, p. 35- 37, para. 164- 169.} 101

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that public care was called for. Furthermore, it could not see anything wrong with the implementation of the normal care orders; it was neither too harsh nor exceptional. In contrary to the emergency care orders, the applicant´s was properly involved in the decision-making process about the normal care orders. Furthermore, the applicant´s had the opportunity to appeal against decision of the Social Welfare Board.102

The Court did also assess whether the national authorities fulfilled their obligation to work towards a reunification of the family. The guiding principle is that a care order shall be regarded as a temporary measure that is to end when the situation allows. The ultimate aim ought to be a reunification of the family. Reunification is a positive duty that will start to weigh on the authorities as time goes by, however, it needs to be balanced against the duty to consider the child´s best interest. In this case, the Court notes that the authorities efforts had not been enough to count as an effort to work towards a family reunification. Especially since it was their only effort, the authorities are expected to examine the situation regularly. The potential for a reunification will decrease and then be destroyed if the family is not allowed to see each other enough. The authorities’ attitude had been exceptionally negative and the restrictions they imposed actually hindered any possible reunification.103 The Court also stated that while the national authorities have a duty to facilitate a reunion, the obligation to apply coercion have to be limited in light of the children´s best interest. If contact with the birth parents appears to threaten the best interests of the child then it is up to the authorities to balance the interests of the child with those of the parents.104

The Court found with fourteen votes against three that there had been a violation of article 8 regarding the emergency care order of J. With eleven against six that there had been no violation regarding the same care order for M. As for the normal care orders, the Court held unanimously that there had no violation. It did unanimously found the failure to work towards a reunification of the family a violation. The Court held unanimously that not violation of article 8 had concerning the access restrictions.105

Separate opinions

Three out of the four separate opinions to this case disagreed or partly disagreed with the Courts judgment concerning the emergency care order for J. In the concurring opinion of Judge Pellonpää, joined by Judge Sir Nicolas Bratza, Pellonpää expressed that he agreed on the critics about the implementation of the emergency care order concerning J. but not with the majority’s conclusion that the making of the emergency care order to constitute a violation. The majority opinion inferred that there did not exist such an emergency to justify the emergency care order. Pellonpää thought that the reasons applied regarding M. that he easily and legally could be removed from the children´s home was equally valid concern with J. since nobody legally could prevent K. from taking J from the hospital. The Court accepted the emergency care order for M. despite the lack of an unforeseen emergency. In Pellonpää’s view, were the authorities within their margin of appreciation to consider the situation to be

102

K. and T. v. Finland, p. 38- 39. para. 173.

103

K. and T. v. Finland, p. 40- 41. para. 177-179.

104_{K. and T. v. Finland, p. 44- 45. para. 194.} 105

The Protection of children : the right to family right and how they can conflict.