How has the European Court of Human Rights contributed to the protection of children's rights under the auspices of the European Convention on Human Rights 1951 and has the United Nations Convention on the Rights of Children 1989 had an impact on the reasoning of the European Court of Human Rights behind its decisions in cases concerning children's rights? Briefly consider whether any national law standards on children's rights protection have been influenced by ECHR decisions or maybe have progressed further to protect children's rights in accordance with UNCRC principles.
The European Convention on Human Rights is not a child-centred document, but it has the significant advantage of a court, which enforces Convention rights and has actually applied them to children in its jurisprudence. In contrast, the United Nations Convention on Rights of Children is a specific children-orientated instrument, which however lacks a court to enforce children's rights; the Children's Rights Committee has solely advisory role.
The European Court's interpretation of ECHR, accommodating for children, has illuminated weaknesses in protecting some rights, never designed for children, like the cautiously interpreted civil and political rights, and strengths in protecting others, like the creatively interpreted right to life and freedom from torture1. The Court2 has sometimes referred to UNCRC standards as persuasively authoritative, so UNCRC has had some practical influence, also as some states achieved its standards in their national laws. This work shall examine ECHR articles by categories. Art.
2 and 3 – the promotion of children's non-derogable (absolute) right to life and freedom from torture or inhuman/degrading treatment has been strengthened by creative imposition of positive obligation on states, requiring them not only to abstain from infringing, but effectively to secure these rights even against private individuals3. Osman v. UK4 followed the UNCRC standard (Art. 6), establishing that states must do everything possible to safeguard child's life, even if interfering with parent's family/private life, where parents' actions may endanger child's life.
However, disproportionate burden on authorities should not be imposed, where saving one child's life disregards others' needs5. A welcome development of child's right to life was holding a state obliged to inform potential victim of risk to his health from state action6. In Isiltan v. Turkey7, a state obligation to have regulations in hospital was implied to protect a sick child. The real uncertainty in the Court is with unborn children cases. Paton v. UK8 sadly failed to decide whether unborn child has right to life at all or at least with limitations, while abortion of foetus within 10 weeks of pregnancy did not infringe Art.
2 due to mother's right to protection of her health, superior to father's views. Unfortunately, the Court failed to clarify scope of abortion rights too9, so a broad margin of appreciation exists and it is yet uncertain whether unborn child may qualify as an entity for "protection of rights of others" in Art. 8(2) thereby forcing the mother to carry it full term10. What is clear is that unborn children have no separate right to life, which may be compared with wider protection in Polish law11 and "conditional persons" status in Swiss law12.
A v. United Kingdom13 concerned corporal punishment, holding that it breached Art. 3 right to freedom from torture, inhuman/degrading treatment because of gravity of punishment. The Court is sometimes criticised14 for being unable to pronounce prohibition of all physical punishment, as promoted by UNCRC, Art. 19; the case made no impact in UK15, where parents could still legitimately claim reasonable chastisement defence, while Sweden – Parenthood and Guardianship Code 1983, Chapter 6, Section 1 – Norway and Finland16 had already banned all parental physical punishment.
The present author submits that the Court's decision is understandable, as perhaps disregarding gravity element in Art. 3 completely would be too far-reaching, which proves the argument of ECHR's relative unsuitability for children, especially in modern progressive society. However, significantly the European Commission's reference to UNCRC, particularly Art. 1917 – state obligation to protect child from all forms of ill-treatment18 – and UN Committee observations is in Kilkelly's view evident of Court's dynamic approach19. Indeed, not only did the Court in Tyrer v.
UK20, holding judicial punishment to be incompatible with Art. 3, state that it could be influenced by developments in standards of member states' laws and policies, but it also viewed positively national laws preventing violence against children21. This reflects Court's awareness of ECHR's 'living instrument' nature and readiness to uphold national standards in Europe. In Z v. United Kingdom22 the Court held welfare authorities to be obliged to intervene to protect children from parental abuse, which follows Art. 19 UNCRC and is arguably more intrusive than A v. UK.
Hopefully, this will build up UK, and other states, to abolish children's physical punishment, as was done in schools23. Art. 5 and 8 – a serious weakness of Court's jurisprudence has been in reconciling parents and children's rights when a child claims right to private life or liberty of person, which encroaches upon parents' family life, or a parent claims right to own family life at expense of child's real interests. Very often, the Court has protected parents' privacy rather than child's own, as Eekelaar and Dingwall commented24. Olsson v. Sweden25 reflects this in that state interference with parents' Art.
8 rights required to be justified by strict necessity. Nielsen v. Denmark26 was a landmark case, which decided that a child's right to liberty was not infringed by mother's absolute custody and his placement in child ward27 without hearing the child. The surprisingly authoritarian decision for late 1980's, which Fortin believes again illuminated Convention's ill-equipment for children's rights and Court's inability to overcome it28, was actually influenced by need to prevent indirect state interference by Court with parents' privacy, if child's freedom was allowed against the mother.
The Court importantly argued that a child of 12 was not ready to take decisions himself, so it was normal for his mother to decide for him, which implies that it would not be so had he been older29. The case leaves us wandering what this age of autonomy should be. It may also explain why in A v. UK, heard about 10 years after Nielsen and UNCRC, the Court would not itself abolish parental physical punishment, while already before Nielsen it had approved of such state legislation30.
Notwithstanding this decision's significance, long years have passed since; Danish law, however, still failed to comply with Art. 12 UNCRC autonomy generally31. The Court's protective approach is clearly reflected in X and Y v. Netherlands32, where European Commission dismissed 14-year-old runaway's complaint of infringement of her Art. 8 right by welfare authorities returning her home against her will, justified by Art. 8(2) protection of health and morals. In X v. Denmark33, however, the Court decided that parents' Art.
8 rights were not infringed by Danish welfare authorities refusing to force 14-year-old girl to return home against her will, which seemingly protected child's right to own private life. The apparently inconsistent approach to child's Art. 8 rights in these contrasting cases is effectively explained by need to protect the girl in the latter case against her parents, hence decision in her favour. Consequently, the strength of child's own private life as against parents and states' Art. 8(1), (2) right seems uncertain.
A similar pair of contrasting cases is Koniarska v. United Kingdom34 and DG v. Ireland35. The former involved a disappointing refusal of disturbed teenager girl's claim that security accommodation order infringed her Art. 3, 5 and 8 rights. Refusal of her liberty was justified by flexibly interpreted exemption under Art. 5(1)(d) "educational supervision" and her treatment did not overstep Art. 3 threshold. Douglas and Lowe36 see this approach as very paternalistic and disappointing, indicating a long way towards recognition of autonomy rights.
Indeed, even after UNCRC, it shows no improvement over Nielsen-type attitude, lacking in children's empowerment and posing a poor example for states37. In DG v. Ireland, however, teenager's detention under secure accommodation order infringed Art. 5 because of lacking instruction, educational or recreational facilities, which reflects Court's A v. UK-type reasoning – liberty will be infringed only where restricting measure is too harsh, involving intimidation (which could not be proved in Nielsen), or where state lacks effective educational supervision, the latter happening in stricter-interpreted Bouamar v.
Belgium38. The author questions whether Court's not living up to UNCRC standard – Art. 16 (privacy) – shows its practical unattainability and how likely is allowance of absolute autonomy for child in real life? Care orders caused much difficulty in 1980's, when child protection agencies' intervention to protect children's best interests almost automatically violated parents' Art. 8 rights39, which had primary role. Care orders required most pressing grounds – even poor material conditions not always sufficed40. More recently, however, Art.
8 has been interpreted more flexibly in realisation of children's need of protection against their parents, to be achieved by allowing states wide margin of appreciation in relation to term "necessary" and attaching crucial importance to best interests of child (Art. 20 UNCRC). This approach was emphasised in Johansen v. Norway41, where the Court strongly asserted that child's best interests may outweigh parents' rights42, especially where parents' exercise of Art. 8 rights may harm child's health and development.
This has been followed in other cases43; in Botta v. Italy44, the implication was that local authorities may be obliged to intervene even at detriment to parents' family life. In Peters v. Netherlands45, for example, respect for child's private life was potentially violated by subjecting child to compulsory medical procedure46. This approach implies that reasonable parental measures against child's will, denying him autonomy, do not breach his privacy right. Bainham47 argues that Court's fitting of child's interests into balancing exercise fails to empower them with Art. 8 rights as such, regardless how much weight is attached to their welfare.