Social Rights of Children in Europe : A Case Law Study on Selected Rights [1 ed.] 9789004375932, 9789004375925

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Social Rights of Children in Europe

International Studies in Human Rights volume 128

The titles published in this series are listed at brill.com/​ishr

Social Rights of Children in Europe A Case Law Study on Selected Rights By

Katharina Häusler

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Häusler, Katharina. Title: Social rights of children in Europe : a case law study on selected rights / by Katharina Häusler. Description: Leiden ; Boston : Brill Nijhoff, 2019. | Based on author’s thesis (doctoral - Universität Wien, 2017) issued under title: Basic social rights of children in Europe. | Includes bibliographical references and index. Identifiers: LCCN 2018051692 | ISBN 9789004375925 (alk. paper) Subjects: LCSH: Children’s rights–Europe–Cases. | Social rights–Europe–Cases. | Basic needs–Law and legislation–Europe–Cases. | Convention on the Rights of the Child (1989 November 20) Classification: LCC KJC3556 .H38 2019 | DDC 342.408/772–dc23 LC record available at https://lccn.loc.gov/2018051692

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. ISSN 0924-​4 751 ISBN 978-​90-​04-​37592-​5 (hardback) ISBN 978-​90-​04-​37593-​2 (e-​book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, usa. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents Abbreviations ix 1 Introduction 1 1 Background 1 2 Scope of the Research 4 3 Methodology and Limitations 7 4 Structure of the Book 9 2 The Normative Framework for the Rights of Children in Europe 11 1 The Council of Europe 11 2 The European Union 18 3 Systematic Analysis of Selected Basic Social Rights of Children and Their Interpretation 26 1 The Right to Health 26 1.1 General Scope of the Right 26 1.2 The Right to Be Heard in Decisions Affecting a Child’s Health 35 1.3 Access to Health Care and Rehabilitation 39 1.3 .1 Organisation and Operation of Health Care Facilities 40 1.3 .2 Access to Specific Treatment or Medical Supplies 42 1.3 .3 Access to Health Care for Migrant or Asylum-​Seeking Children 44 1.4 Prevention of Health Risks, including Child Mortality 46 1.4 .1 Prevention of Risks at Health Care Facilities/​Appropriate Medical Treatment 48 1.4 .2 Protection against other Public Health Risks 49 1.4 .3 Protection against Health Risks Caused by Third Parties: Violence against and Abuse of Children 51 1.4 .4 Information and Education about Health Risks and Health Institutions 58 1.5 Prevention and Access to Health Care of Children in Institutions or Detention 60 1.6 Conclusions 65 2 The Right to Education 68 2.1 General Scope of the Right 68 2.2 Access to Education –​General Questions 77

vi Contents

2.2.1 Organisation of the Educational System, Access to Education and Possible Limitations 79 2.2.2 Access to Education of Asylum-​Seeking and Migrant Children 83 2.3 Equality in (the access to) Education and Minority Rights 85 2.3 .1 Minority Rights in Education 87 2.3 .2 Children with Disabilities 93 2.3 .3 Children of Roma Origin 97 2.4 Content of Education 102 2.4 .1 Religious Education in Schools 104 2.4 .2 Respect for Religious/​Philosophical Beliefs in Schools and in the General Curriculum 107 2.5 Conclusions 110 3 The Right to an Adequate Standard of Living 114 3 .1 General Scope of the Right 114 3 .2 The Right to Housing 121 3 .2.1 Availability of and Access to Adequate Housing 127 3 .2.2 Housing Conditions of Roma Families 133 3 .2.3 Forced Evictions 134 3 .3 Access to Social Benefits Targeted at Children and Families 139 3 .4 Conclusions 147 4 The Rights to Appropriate Care and Contacts with Parents 150 4 .1 General Scope of the Rights 150 4 .2 The Right to Know and Maintain Contact with One’s Parents 159 4 .2.1 The Right to Know One’s Parents and Establish One’s Identity 159 4 .2.2 The Right to Regular and Direct Contact with Parents 169 4 .3 The Right to Appropriate Care by Parents and Care Proceedings 175 4 .4 The Right to Appropriate Care Outside the Family Context 187 4 .5 Conclusions 194 5 The Right to Protection against Economic and Other Forms of Exploitation 198 5.1 General Scope of the Right 198 5.2 Protection against Child Labour and Labour Exploitation of Young Persons 205 5.3 Protection against Child Trafficking and Sexual Exploitation of Children 211 5.4 Conclusions 216

Contents

vii

4 Summary and Overall Research Conclusions 218 Bibliography 225 1 Legal and Policy Instruments 225 2 Authoritative Treaty Interpretations 227 3 Case Law 228 3 .1 Court of Justice of the European Union 228 3 .2 European Committee of Social Rights 229 3 .3 European Court of Human Rights 231 3 .4 European Commission of Human Rights (until 31 October 1998) 235 3 .5 National Case Law 235 4 Conclusions by the ecsr (Reporting Procedure) 235 5 Academic Literature 237 6 Reports 245 Index 247

Abbreviations cf. cfr cjeu CoE crc crpd e.g. echr

confer (compare) Charter of Fundamental Rights of the European Union Court of Justice of the European Union Council of Europe Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities exempli gratia (for example) European Convention on Human Rights, formally: Convention for the Protection of Human Rights and Fundamental Freedoms ecj (European) Court of Justice (part of the cjeu) ecrml European Charter for Regional or Minority Languages ecsr European Committee of Social Rights ECtHR European Court of Human Rights esc European Social Charter et seq. et sequens (and the following) EU European Union fcnm (CoE) Framework Convention for the Protection of National Minorities greta (CoE) Group of Experts on Action against Trafficking in Human Beings i.a. inter alia (among others) i.e. id est (it is; in other words) iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights ilo International Labour Organization OP-​c rc-​SC Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography teu Treaty on European Union tfeu Treaty on the Functioning of the European Union (formerly:  Treaty establishing the European Community) udhr Universal Declaration of Human Rights UN United Nations unesco United Nations Educational, Scientific and Cultural Organization unicef United Nations International Children’s Emergency Fund

­c hapter 1

Introduction 1 Background The Convention on the Rights of the Child (crc), adopted by United Nations (UN) General Assembly resolution 44/​25 of 20 November 1989,1 set a new benchmark in the recognition and protection of human rights of children. Even though the major international human rights treaties  –​including the 1966 Covenants (icescr, iccpr), the European Convention on Human Rights (echr) or the 1961 European Social Charter (1961 esc) –​spell out that its rights apply to all human beings (independent of age), talking about children and their needs has long been detached from a rights discourse. Often children were rather seen as “little adults” who have not yet grown into full legal personalities and thus have to be taken care of. There rights were considered as being subordinate to the needs and values of their families.2 Even the UN’s major child programme, the United Nations International Children’s Emergency Fund (unicef) has long defined its mandate solely from a humanitarian angle and has shied away from entering into a discourse about the human rights of children.3 The crc has fundamentally changed the discourse:  it regards children as rights-​holders of all human rights rather than solely as objects of protection.4 This is why it reiterates many “general” human rights already enshrined in the Covenants and adds additional rights, which are specific to the situation of children. The crc’s rights, which can be grouped as protection, 1 The resolution and, thus the Convention, was adopted exactly 30 years after the adoption of the United Nations Declaration of the Rights of the Child, the first (but non-​binding) recognition of children’s rights on the international level. On the 1959 UN Declaration of the Rights of the Child and its influence on the crc see e.g. Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Nijhoff, The Hague 1999) 14–​15. 2 Sarah I Spronk-​van der Meer, The right to health of the child: An analytical exploration of the international normative framework (Intersentia, Cambridge 2014) 40. 3 Nigel Cantwell, ‘Are Children’s Rights still Human?’ in Antonella Invernizzi and Jane Williams (eds), The Human Rights of Children: From Visions to Implementation (Ashgate, Farnham 2011) 38–​39. 4 The crc itself emerged in an environment of changing perceptions about children and childhood  –​away from primarily paternalistic preoccupation about children’s welfare towards more awareness about children as social actors (cf. Helen Stalford, Children and the European Union: Rights, Welfare and Accountability (Modern Studies in European Law, Hart, Oxford 2012) 9.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004375932_002

2 ­chapter  provision, and participation rights (“the 3 Ps”) express both children’s position as rights-​holders and their specific needs due to their age and/​or physical and mental conditions.5 Furthermore, the crc reunites civil and political and economic, social and cultural rights in one instrument, overcoming the division by the International Covenant on Economic, Social and Cultural Rights (icescr) and the International Covenant on Civil and Political Rights (iccpr).6 The recognition that children are full rights-​holders has also changed the way of looking at their socioeconomic and cultural rights:  adequate food, health care, a shelter and the possibility to go to school –​to name just a few ­examples –​are not a question of charity, they are every child’s right as a human being. Consequently, it does not depend on the duty bearer’s (i.e. state’s) generosity and only to a limited extent to the availability of resources7 to provide these services but it is its legal duty.8 While this view is nowadays largely accepted in theory –​the crc is considered a universal standard to which 196 states are parties9 –​many children are still deprived of their rights in practice.10 Corresponding to the language used by international human rights treaties, states’ obligations can be described as either positive obligations or negative obligations, depending on whether states have to take active steps to “ensure” rights or they have to refrain from putting the enjoyment of rights at risk (“respect rights”).11 Additionally, human 5

6 7 8

9 10 11

The “3 Ps” do not appear anywhere in the crc’s text but were introduced as summarising category in the academic discussion. They are now widely used in children’s rights discourses and advocacy. On a critical perspective see Quennerstedt who argues that the focus on the “3 Ps” (and in particular “protection”) contributes to reinforcing images of children as not full human beings and thus not full human rights holders (Ann Quennerstedt, ‘Children, But Not Really Humans? Critical Reflections on the Hampering Effect of the ‘3 p’s’’ (2010) 18 The International Journal of Children’s Rights 619). Asbjørn Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd ed. Brill, Leiden 2001) 11. See below section 2 “Scope of the research”. A recent article has argued that efforts under the assumption of children’s wellbeing do not necessarily go along with children’s rights and that in parliamentary debates and resulting legislation arguments based on the former mostly still win over the latter: E. K M Tisdall, ‘Children’s Wellbeing and Children’s Rights in Tension?’ (2015) 23 The International Journal of Children’s Rights 769. As of 19 May 2018 (cf. http://​indicators.ohchr.org/​). On this discrepancy see e.g. Aoife Nolan, Children’s Socio-​Economic Rights, Democracy And The Courts (Hart Publishing, Oxford 2011) xxviii. This differentiation originates in general public international law, more specifically in the law on state responsibility. See in more detail: Dinah Shelton and Ariel Gould, ‘Positive and negative obligations’ in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (Oxford University Press 2013).

Introduction

3

rights doctrine has developed three, more detailed dimensions of states’ obligations to guarantee human rights: the duty to respect (i.e. non-​interference), the duty to protect (against interference by third-​parties) and the duty to fulfil (i.e. putting in place the necessary infrastructure or services).12 The duty to respect corresponds to negative obligations, while the duties to protect and fulfil require positive actions from the states.13 Typically, the rights of children can take the form of both positive and negative obligations and their violation concerns all three dimensions. The non-​ implementation or incomplete implementation of these obligations by states might have various reasons. States might legally deny certain rights to children or groups of children, there might not be implementing legislation in conformity with children’s rights (e.g. entitlement to social security benefits, laws regulating education), states are unable to protect children against other individuals or they are unwilling to ensure the fulfilment in practice. However, while there is ample medical, pedagogical, developmental or demographic research on the situation of children, there is still very little research on their social situation from a human rights (entitlement) perspective. Such a human rights perspective would allow though to understand the full scope of children’s basic social rights in practice and to better analyse why children might find themselves deprived of these rights –​is there a legal gap, are laws wrongly interpreted by authorities or courts, do states face logistic/​financial problems in implementing rights or are they simply unwilling to guarantee to children the full enjoyment of their rights? Concerning Europe, very few studies have looked at some of these questions14 and to date there does not exist a systematic analysis of European case law concerning basic social rights of children in Europe. This book, which is based on the author’s doctoral thesis,15 aims to close this gap, albeit without attempting to cover all aspects of all social, economic and cultural rights of children in Europe in their full legal and policy dimensions. Rather it focuses on case law on selected rights, which are particularly important to the wellbeing of children. In these areas it will thus examine the legal standards on the 12 1 3 14

15

See e.g. Frédéric Mégret, ‘Nature of obligations’ in Daniel Moeckli and others (eds), International human rights law (Oxford University Press, Oxford and New York 2014) 101. Shelton and Gould (n 11) 566. E.g. Ursula Kilkelly, The Child and the European Convention on Human Rights (Programme on international rights of the child, Ashgate/​Dartmouth, Aldershot 1999); Nolan (n 10); Spronk-​van der Meer (n 2); Ton Liefaard and Jaap E Doek (eds), Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (Springer, Dordrecht 2015). Submitted to the University of Vienna in 2017.

4 ­chapter  level of the Council of Europe and the European Union and will analyse first how they relate to the crc’s and the Covenants’ standards and second, how these rights are interpreted in case law (and thus what they effectively encompass in practice). Finally, it will depict possible gaps in the interpretation and/​ or implementation of these rights. 2

Scope of the Research

For the purpose of this book, social rights are understood in a broad, interrelated sense. At the core of this definition are therefore the economic, social and cultural rights as stipulated by the icescr and the European Social Charter (esc).16 However, the study will also include certain civil and political rights, insofar as these rights have specific socioeconomic aspects17 recognised by case law (e.g. the prohibition of inhuman or degrading treatment as standard of human dignity). The advantage of such an interrelated and indivisible understanding of “basic social rights” is that fundamental rights of children in the social field (concerning their living conditions, health, education, and social protection) can be analysed in all their dimensions and from various perspectives without being confined to the boundaries of the icescr and the esc. Especially regarding these areas, there is “no bright line that separates rights into two distinct categories”18 and such a –​somewhat arbitrary –​separation is little helpful when aiming at a comprehensive analysis. As Koch formulated, “Human rights are there for the sake of persons; they must reflect and respect the factual conditions of human life and the complexity of human activity. The various elements of our lives are inextricably intertwined, and human experience rarely confines itself into neat categories. Human activity and human needs are ‘treaty crossing’ ”.19 16 17 18

19

Where not stated otherwise this study uses the text of the Revised Social Charter. However, differences to the 1961 text will be made clear. Cf. Nolan’s definition of “socio-​economic rights” as “[…] those rights that deal with minimum conditions for welfare and wellbeing” Nolan (n 10) 21. Luke Clements and Alan Simmons, ‘European Court of Human Rights, Sympathetic Unease’ in Malcolm Langford (ed), Social Rights Jurisprudence:  Emerging Trends in International and Comparative Law (Cambridge University Press, Cambridge, New  York 2008) 409. Ida E Koch, Human Rights as Indivisible Rights: The Protection of Socio-​Economic Demands under the European Convention on Human Rights (International Studies in Human Rights, Martinus Nijhoff Publishers, Leiden, Boston 2009) 4.

Introduction

5

As the book deals with the situation in Europe, this approach has the additional advantage that it allows for the inclusion of the echr which contains predominantly civil and political rights but is to date the continent’s only regional human rights treaty with a judicial enforcement mechanism permitting individual applications. Consequently, the European Court of Human Rights (ECtHR) has developed over the last decades a rich case law, which considers the echr as a “living instrument”, whose rights might be interpreted beyond their historic understanding.20 Lastly, by guaranteeing both civil and political and economic, social and cultural rights in one single instrument, the crc itself stressed the understanding of children’s rights as strongly indivisible and interrelated rights. Rather than attempting to cover the potentially very broad scope of all “basic social rights” as defined above, this study is limited to five rights, which were selected on the basis of their relevance for children’s wellbeing: the right to health (section 3.1), the right to education (3.2), the right to an adequate standard of living (3.3), the right to appropriate care and contact with parents (3.4), and the right to protection against economic and other forms of exploitation (3.5). With the analysis of these very basic social rights the present book might lay the basis for future research in this field. Previous research relevant for this study has shown that socioeconomic rights of children are widely guaranteed in Europe but weakly implemented.21 Furthermore, as the justiciability of these rights –​in the sense that they can form the basis for individual claims  –​has long been contested,22 litigation based on socioeconomic rights has received unequal attention compared to the litigation based on traditional civil and political rights. Consequently, the substantive content of economic, social and cultural rights and thus also the concrete states obligations with regard to these rights, are underdeveloped.23 20

21 22

23

The ECtHR first considered the echr as a “living instrument” in its judgment Tyrer v. United Kingdom, no 5856/​72, 25 April 1978, which concerned corporal punishment of a minor (see in more detail below). Since then this notion has been a regular part of the Court’s interpretation of echr rights (see e.g. George Letsas, ‘The echr as a Living Instrument: Its Meaning and its Legitimacy’ in Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Studies on Human Rights Conventions, Cambridge University Press, Cambridge 2013).) Nolan (n 10). Koch (n 19) 7; Christian Courtis, ‘Standards to Make esc Rights Justiciable: A Summary Exploration’ (2009) 2 Erasmus Law Review 379; Martin Scheinin, ‘Economic and social rights as legal rights’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd ed. Brill, Leiden 2001) 29–​30. Nolan (n 10) xxx.

6 ­chapter  The book therefore also aims to analyse how courts deal with socioeconomic rights, which might not always be precisely formulated and are sometimes not even phrased as individual rights. It should be briefly mentioned here that the crc itself differentiates between state obligations regarding civil and political and economic, social and cultural rights. Article 4 crc (states’ duty to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights) establishes that “[…] [w]‌ith regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-​operation”. However, in referring to the icescr –​which contains a similar provision –​and its interpretation, the Committee on the Rights of the Child emphasised that first, many of the crc’s rights cannot be clearly attributed to one or the other category and second, that “[w]hatever their economic circumstances, States are required to undertake all possible measures towards the realization of the rights of the child, paying special attention to the most disadvantaged groups”.24 Therefore, while States have arguably more leeway in the implementation of economic, social and cultural rights of children, they cannot postpone their realisation forever and retrogressive measures are forbidden. Additionally, in line with the interpretation of the icescr,25 Article 4 crc is now widely understood as obliging states to realise minimum core obligations immediately.26 In the European context, it is important to note that the rights enshrined in the esc are not worded as “progressive” rights,27

24

25

26

27

Committee on the Rights of the Child, General Comment No. 5 (2003): General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6): CRC/​ GC/​2003/​5 (2003), §§ 6–​8. The Committee has recently also issued a General Comment on Article 4: Committee on the Rights of the Child, General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4): CRC/​C/​GC/​19 (2016). See e.g. M.  Magdalena Sepúlveda, The nature of the obligations under the International Covenant on Economic, Social and Cultural Rights. Utrecht, Univ. Diss. 2002 (School of Human Rights research series, Intersentia, Antwerpen 2003); Audrey Chapman and Sage Russel, ‘Introduction’ in Audrey Chapman and Sage Russel (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, Antwerp 2002). Wouter Vandenhole, ‘Children’s rights from a legal perspective, Children’s rights law’ in Wouter Vandenhole (ed), Routledge International Handbook of Children’s Rights Studies (Routledge, New York 2015) 31. See more on concrete “minimum obligations” below in ­chapter 3. Urfan Khaliq and Robin Churchill, ‘The European Committee of Social Rights, Putting Flesh on the Bare Bones of the European Social Charter’ in Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, Cambridge, New York 2008) 430.

Introduction

7

nevertheless the ecsr has accepted in its case law the theory of the maximum use of available resources, “when the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve”.28 Finally, it should be noted that there is no common European definition about the legal meaning of “child”. While most of the instruments adopted in the framework of the Council of Europe use the crc’s definition of a child –​a person below the age of eighteen29 –​there is no formal definition in any of the EU treaties and the definition of what a child is varies in secondary legislation, depending on the context (e.g. free movement rights, protection of young workers).30 This book will use the crc’s definition when referring to children, unless otherwise stated in the context of specific legislation, lowering or increasing the age of majority. As all CoE and EU Member States are States Parties to the crc, the crc’s definition has also been adopted by many national legislations. 3

Methodology and Limitations

The main legal bases for this research are the echr, the esc and the Charter of Fundamental Rights of the European Union (cfr) but it will also include more specific treaties as far as they guarantee basic social rights for children (e.g. Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse). It will, however, not consider treaties which might concern children but do not provide a legal basis for their human rights (such as the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children).31 While also taking academic literature into account, the analysis relies mainly on case law. This method, which has also been used by other researchers in this field, allows illustrating the relation between the law and factual situations in the best possible way.32 Judgments or decisions are worth analysing 28 29 30 31 32

Cf. e.g. International Association Autism-​Europe v. France, Complaint No. 13/​2002, 4 November 2003, § 53. “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”. (Convention on the Rights of the Child, 20 November 1989, Article 1) European Union Agency for Fundamental Rights, European Court of Human Rights and Council of Europe, Handbook on European law relating to the rights of the child (Luxembourg 2015) 18. Cf. the distinction between “child law” (in a broad sense) and “children’s rights law” (the human rights of children) as defined by Vandenhole: Vandenhole (n 26) 27. Cf. e.g. Koch (n 19) 10.

8 ­chapter  because they do not only decide the actual case but clarify and develop the standards established by European human rights law in general. The case law that will be analysed encompasses judgments by the European Court of Human Rights (ECtHR) and the (European) Court of Justice (ecj) as well as decisions on collective complaints by the European Committee of Social Rights (ecsr). For the better understanding of the scope of the rights, it will also consider the ecsr’s conclusions on the periodic reports of States Parties.33 Where necessary, also conclusions by other Council of Europe treaty bodies will be taken into account. However, due to the limited number of cases regarding children’s rights that have so far been adjudicated by the ecj,34 most of the analysis is based on case law by the ECtHR and the ecsr. Regarding EU law, apart from isolated cases before the ecj, the analysis will therefore primarily focus on the potential scope of cfr provisions. In this context it should also be recalled that Article 52 § 3 cfr stipulates that in as far as Charter provisions correspond to rights guaranteed by the echr, the meaning and scope of these provisions shall be the same as those laid down by the echr. Therefore the jurisprudence of the ECtHR is also relevant for Union law, where provisions are –​at least partly –​ identical to that of the echr. Cases have been filtered by applicable rights and key words (e.g. article 8 echr, “child” “health” etc.)35 and analysed along specific aspects and lines of 33

34

35

Following the changes to the reporting procedure adopted by the Committee of Ministers at the 1196th meeting of the Ministers’ Deputies on 2–​3 April 2014 there are now three types of periodic reports. Firstly, (ordinary) annual reports on one of the four thematic groups of Charter provisions, which have to be submitted by all states that have not accepted the collective complaints procedure. Secondly, states that have accepted the collective complaints procedure have to submit a simplified report every two years. Finally, reports on conclusions of non-​conformity for lack of information adopted by the Committee the preceding year –​this is the case when States Parties previously failed to submit any report or the report did not cover all the information required (cf. CM(2014)26, Part I, § C.1 (Group 1 “Employment, training and equal opportunities”, Group 2 “Health, social security and social protection”, Group 3 “Labour rights” and Group 4 “Children, families, migrants”) and Part 2, § 5). According to previous research in this area, less than a dozen of ecj cases were “brought by, on behalf of, or even loosely related to, children” (Helen Stalford, ‘The crc in Litigation Under EU Law’ in Ton Liefaard and Jaap E Doek (eds), Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (Springer, Dordrecht 2015) 218), even less in the area of social rights. The following databases have been used for the research: http://​curia.europa.eu/​and http://​fra.europa.eu/​en/​case-​law-​database (ecj), http://​hudoc.echr.coe.int (ECtHR), http://​hudoc.esc.coe.int/​eng/​# (ecsr), http://​www.coe.int/​t/​dg3/​children/​WCD/​ simpleSearch_​en.asp (“Theseus” database on the ECtHR’s case law on children),

Introduction

9

argumentations deduced from the bodies’ reasoning (e.g. “state’s duty to prevent health risks”). As most authoritative treaty guaranteeing children’s rights, the crc has been used as a point of reference to compare if the aspects covered by the crc’s rights are also covered by European law and jurisprudence. Although the book thus frequently refers to the crc and its interpretation by the Committee on the Rights of the Child, the focus on European case law does not allow for the systematic consideration of the general comments, concluding reports and decisions on the (first) cases36 adopted by the Committee on the Rights of the Child. Finally, by analysing case law and treaty body reports concerning European states, the research will (indirectly) deal with national legislations or actions to implement children’s rights in various European countries. However, the book focuses on European standards and will not analyse in a systematic way the national legal framework for the promotion and protection of social rights of children in specific European states. 4

Structure of the Book

Chapter 2 will present the legal standards guaranteeing children’s rights on the level of the Council of Europe and the European Union. These standards might be treaties focusing entirely on the rights of children (e.g. Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse) but also general human rights treaties (e.g. the echr, the cfr or the esc) containing rights which are of particular relevance for children. The social rights within these legal frameworks will be particularly highlighted. Thus this chapter will lay the ground for the in-​depth analysis of the content and interpretation of certain rights in the following chapter. Chapter 3 will analyse the content and interpretation of selected social rights of children in a systematic way (right by right). Each section will start with a presentation of the texts of the respective right in all relevant European

36

https://​w ww.crin.org/​e n/​l ibrary/​c ustom-​s earch-​l egal?promo=1&search_​a pi_​l anguage=current (Child Rights International Network, legal database). The Optional Protocol to the Convention on the Rights of the Child on a communications procedure (opcrc iii), adopted by the UN General Assembly on 19 December 2011, allows for individual complaints to be lodged before the Committee on the Rights of the Child. As of 19 May 2018, 37 states have ratified or acceded to the opcrc iii. Case law is available on http://​juris.ohchr.org/​en/​search/​results?Bodies=5&sortOrder=Date last accessed on 19 May 2018.

10 ­chapter  human rights instruments and will compare them to relevant international texts. In a second step, it will analyse the scope of the right based on case law by European courts and treaty bodies but also on academic literature (in particular, commentaries but also scholarly articles). It will pay particular attention to the development of the interpretation of a right in the case law: Is the interpretation consistent? Have there been significant changes in the interpretation and if yes, how did this affect the scope of this right? Are there different interpretations of similar rights by various European courts or treaty bodies? Does the case law include references to international norms and their interpretation by international treaty bodies? The crc’s guiding principle that the best interests of children must be a primary concern in making decisions that may affect them (“best interests-​ principle”, cf. Article 3 crc)37 will be considered as a key requirement of international human rights law throughout the whole book. Therefore, the analysis will also look at how judges or experts take the “best interests-​principle” into account in their interpretation of rights. This is also crucial as –​due to children’s limited legal capacity –​most of the litigation is initiated by parents or other legal representatives on behalf of children rather than by children themselves. Chapter 4 will summarise the main results of the research and highlight possible legal deficits or deficits in the implementation of rights. 37

Interestingly, the crc uses the wording “a” primary consideration, not “the” or “the paramount”. In practice this means that the best interests of the child often have to be balanced with other rights or interests. This was different in the 1959 UN Declaration on the Rights of the Child and also first drafts of the text of the crc, which used “the paramount consideration” (Michael D A Freeman, Commentary on the United Nations Convention on the Rights of the Child, Article 3: The best interests of the child (A commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Leiden 2007)  25 et seq.; Vandenhole (n 26)  32). On the interpretation of the “best interests-​ principle” see also the recent work by the CoE: Council of Europe, The best interests of the child: A dialogue between theory and practice (Council of Europe, Strasbourg 2016).

­c hapter 2

The Normative Framework for the Rights of Children in Europe 1

The Council of Europe

Over the past decades, Europe has seen the development of an impressive regional human rights framework. The foundation in 1949 of the Council of Europe, a regional organisation dedicated specifically to the promotion of human rights, democracy and the rule of law, was the starting point for the common European protection of human rights.1 A  year later the Council of Europe Member States adopted the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights or echr), which continues to date to be the organisation’s –​and Europe’s –​ landmark human rights standard, even though it includes far fewer rights than the Universal Declaration of Human Rights (udhr). In particular, the echr does not include social, economic and cultural rights in the traditional definition of the term. The reasons for this deliberative step were not expressly explained by the drafters2 but can be seen as linked to the discussions about two separate human rights treaties on the UN level, rather than one document reflecting the udhr, arising around the same time.3 1 Statute of the Council of Europe, cets No. 001, 5 May 1949, preamble, Articles 1, 3. 2 Greer explained the “almost exclusive emphasis on civil and political rights in the ECHR” as a deliberate choice to contrast with “Soviet-​style communism” in other parts of Europe (Steven Greer, ‘Europe’ in Daniel Moeckli and others (eds), International human rights law (Oxford University Press, Oxford and New  York 2014)  418); Steiner et al. cite one of the drafters of the echr, Pierre-​Henri Teitgen, according to whom the priority in 1949 was first “to guarantee political democracy in the European Union and then to co-​ordinate our economies, before undertaking the generalisation of social democracy” (Henry Steiner, Philip Alston and Ryan Goodman, International human rights in context: Law, politics, morals: Text and materials (3rd ed. Oxford University Press, Oxford 2008) 1018). 3 Koch (Chapter 1 n 19) 6; 8. On the historic divide between the two sets of rights in the Cold War-​era see e.g. Ioana Cismas, ‘The Intersection of Economic, Social, and Cultural Rights and Civil and Political Rights’ in Eibe Riedel, Gilles Giacca and Christophe Golay (eds), Economic, Social, and Cultural Rights in International Law: Contemporary Issues and Challenges (Oxford University Press 2014) 452–​54; Manfred Nowak, Introduction to the International Human Rights Regime (The Raoul Wallenberg Institute human rights library, Nijhoff, Leiden 2003) 23 et seq.; Eide (Chapter 1 n 6) 10.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004375932_​0 03

12 ­chapter  The echr’s blindness towards economic, social and cultural rights was partly remedied by the first protocol to the Convention (including e.g. the protection of property and the right to education) and in particular, by the European Social Charter. Adopted in 1961, the esc was the first international instrument aiming to protect a comprehensive range of social rights.4 It was substantially revised in 1996, when many rights where updated and new rights included in a new treaty, the Revised esc.5 In addition, the ECtHR has gradually recognised specific social or economic implications of certain echr rights in its jurisprudence. As early as in 1979, the Court considered “[…] that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-​tight division separating that sphere from the field covered by the Convention”.6 Over the following decades, it has continued to (prudently) develop a jurisprudence that indirectly facilitated the enjoyment of certain social rights through a progressive interpretation of the echr’s (civil and political) rights. In particular, the recognition of positive state obligations regarding the right to life (Article 2 echr), the prohibition of torture and inhuman or degrading treatment (Article 3), and the right to private and family life (Article 8)  has led to the indirect recognition of certain social rights (e.g. health or housing rights) by the ECtHR.7 Clements/​Simmons grouped the ECtHR’s case law on the protection of socio-​economic rights into two categories: first, gross socio-​economic deficits directly or indirectly attributable to state action and second, gross socio-​economic destitution for which the state has no direct or obvious indirect responsibility but obligations derive from Article 1 in combination with Articles 3 and 8.8 The ECtHR’s prudent but increasing interpretation of certain social aspects of the rights guaranteed by the echr has been particularly important for the recognition of children’s social rights, as will be shown below.

4 Philip Alston, ‘Assessing the Strengths and Weaknesses of the European Social Charter’s Supervisory System’ in Gráinne de Búrca, Bruno de Witte and Larissa Ogertschnig (eds), Social rights in Europe (Oxford Univ. Press, New York 2005) 45. 5 Khaliq and Churchill (Chapter 1 n 27) 428. 6 Airey v. Ireland, no 6289/​73, 9 October 1979, § 26. 7 Ellie Palmer, ‘Protecting Socio-​Economic Rights Through the European Convention on Human Rights, Trends and Developments in the European Court of Human Rights’ (2009) 2 Erasmus Law Review 397, 398; Koch (Chapter 1 n 19) 10. The analysis in c­ hapter 3 will illustrate how the ECtHR has deduced certain “social aspects” from the echr’s rights with regard to children. 8 Clements and Simmons (Chapter 1 n 18) 410–​11. Article 1 echr obliges States Parties to ensure that Convention rights are protected for all persons under their jurisdiction.

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The esc is in several ways a “weaker” human rights instrument than the echr, in particular because ratification of or accession to the esc is not a prerequisite for membership in the CoE, States Parties do not have to accept all rights contained in the treaty9 and monitoring of their compliance only works through a “quasi-​judicial”10 mechanism with limited powers.11 Both the 1961 esc and the revised esc thus differentiate between “core rights” and “selective rights”, which creates unequal levels of protection across Europe. With regard to the enforceability of the rights, authors criticised especially the lack of remedial powers of the ecsr and the strong role of the CoE’s Committee of Ministers in the final stage of the collective complaints procedure, which can effectively dilute the ecsr’s findings of violations of Charter rights.12 However, according to research by the Council of Europe, many of the ecsr’s decisions led to the necessary amendments on the national level, even when the Committee of Ministers only adopted “soft” resolutions instead of binding recommendations to the state concerned.13 More than likely this had also to 9

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12

13

Apart from nine core standards from which states have to accept at least six, States Parties can select the provisions they wish to ratify. In total, they have to accept at least 16 of the 31 articles or 63 out of 98 numbered paragraphs. Kaliq/​Churchill pointed out the singularity of this possibility among international human rights treaties, which they explained with the considerable differences in the level of economic and social progress of the Council of Europe Member States in 1961 (Khaliq and Churchill (Chapter 1 n 27) 429). On the “quasi-​judicial” nature of the procedure see: Régis Brillat, ‘The Supervisory Machinery of the European Social Charter: Recent Developments and their Impact’ in Gráinne de Búrca, Bruno de Witte and Larissa Ogertschnig (eds), Social rights in Europe (Oxford Univ. Press, New York 2005) 32 et seq.; Akandji-​Kombé refers to it as “jurisprudential” and partly “juridical” (Jean-​François Akandji-​Kombé, ‘The Material Impact of the Jurisprudence of the European Committee of Social Rights’ in Gráinne de Búrca, Bruno de Witte and Larissa Ogertschnig (eds), Social rights in Europe (Oxford Univ. Press, New York 2005) 89). In addition to the mandatory (periodic) state reporting procedure, an optional collective complaint mechanism was established by a Protocol in 1995 (see in detail e.g. Karin Lukas, ‘The Collective Complaint Procedure of the European Social Charter: Some Lessons for the EU?’ (2014) 41 Legal Issues of Economic Integration 275 276 et seq.). A further difference to the echr is that the esc only applies to the citizens of States Parties and to foreign nationals of other Contracting Parties lawfully resident or working regularly within the territory of the state concerned (cf. Appendix to the European Social Charter, 1961, § 1; the Revised Social Charter of 1996 contains an identical provision in its appendix). Robin R Churchill and Urfan Kaliq, ‘The Collective Complaints System of the European Social Charter, An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 European Journal of International Law 417; David J Harris and John Darcy, The European Social Charter (The procedural aspects of international law monograph series, 2nd ed. Transnational Publishers, Ardsley, NY 2001) 375; Alston (n 4). For the role of the Committee of Ministers see §§ 8–​9 of the Additional Protocol. Directorate General Human Rights and Rule of Law, Practical impact of the Council of Europe monitoring mechanisms in improving respect for human rights and the rule of law in

14 ­chapter  do with the ecsr’s practice, which itself found an effective avenue for a follow-​ up procedure to its decisions: during the reporting procedure it regularly asks States Parties to include information on compliance with /​implementation of decisions under the provision concerned.14 Nevertheless, some of the rights in both texts are couched in relatively imprecise terms15 –​a fact that considerably increased the ecsr’s power to clarify and concretise these rights.16 While it has already been making notable efforts in interpreting the rights through the periodic reporting procedure, their full potential in practice is only slowly uncovered since the entry into force of the Additional Protocol providing for a system of collective complaints.17 These differences have led Alston to the conclusion “that social rights remain the poor step-​sister of civil and political rights and [that] this is every bit as true within the Council of Europe as elsewhere”.18 However, even if they are not fully equivalent –​both in legal terms and their practical implementation –​ the echr and the esc can be considered as the European counterparts of the two UN Covenants and thus the backbone of human rights protection in Europe. In addition to these general instruments, a number of more specific instruments have been developed within the framework of the CoE over the last decades, addressing either specific human rights concerns or providing protection for specific groups. These treaties and their respective monitoring systems have often either pioneered or mirrored on a regional level comparable UN standards.19 Regarding the protection of children, however, the CoE has not followed the UN’s path: to date there exists no specific instrument on the rights of children in general within the Council of Europe. Nevertheless, a very specific treaty, the

1 4 15 16

17 1 8 19

member states (2014) https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806d22c8 last accessed 20 November 2018, 28–​34. See also: Brillat (n 10) 32–​33. Lukas (n 11) 279. Akandji-​Kombé (n 10) 94. Several concrete obligations are already spelt out clearly in some of the provisions (e.g. the labour-​related rights), while for many others the ecsr is challenged to distil (positive) obligations “[…] on the basis of what can reasonably be expected of the parties to the Charter in terms of European standards and expectations” (Harris and Darcy (n 12) 373). Akandji-​Kombé (n 10) 99 et seq.; Holly Cullen, ‘The Collective Complaints System of the European Social Charter, Interpretative Methods of the European Committee of Social Rights’ (2009) 9 Human Rights Law Review 61, 70–​71. Alston (n 41) 47. As of 19 May 2018, 224 treaties have been adopted in the framework of the CoE. Not all but a large part of these aim to enhance the standards of protection concerning human rights, democracy, and rule of law.

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CoE Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (“Lanzarote Convention” 2007) addresses a particularly flagrant violation of children’s rights, where Member States perceived the need for a common European standard of protection. A  number of other treaties concluded in the framework of the CoE address legal issues regarding children but either do not guarantee individual rights for children or only indirectly (e.g. European Convention on the Adoption of Children, European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children). The esc contains two specific provisions on children: Article 7 stipulates the right of children and young persons to protection (from economic exploitation) –​which is one of the “core rights” of the Convention, all States Parties have to accept –​and Article 17 of the revised esc provides for the right to social, legal and economic protection (in particular, the right to care, assistance and education and to the protection from violence and negligence). Both have been invoked in a number of collective complaints before the ecsr, which has also referred to more specific children’s rights standards, especially the crc, in its interpretation of these rights.20 Additionally, as a general human rights instrument, the esc contains other economic, social and cultural rights, which are of particular importance for children, e.g. the right to appropriate facilities for vocational guidance and vocational training (Articles 9–​10), the right to protection of health (Article 11), the right to social and medical assistance (Article 13) the right to benefit from social welfare services (Article 14) or the right of the family to social, legal and economic protection (Article 16).21 Regarding 20

21

Ursula Kilkelly, ‘The crc in Litigation Under the echr, the crc and the echr: The Contribution of the European Court of Human Rights to the Implementation of Article 12 of the crc’ in Ton Liefaard and Jaap E Doek (eds), Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence (Springer, Dordrecht 2015) 194. The ecsr’s interpretation will be analysed in more depth below in ­chapter 3. In DCI v. the Netherlands the ecsr underlined that the esc “firstly treats children as individual rights’ holders since human dignity inherent in each child fully entitles her/​him to all fundamental rights granted to adults. Additionally, the specific situation of children, which combines vulnerability, limited autonomy and potential adulthood, requires States to grant them specific rights, such as those enshrined in the following provisions of the Charter: –​ right to shelter (Article 31 § 2), –​right to health (Articles 8, 11, 7, 19 § 2), –​right to education (Articles 9, 10, 15, 17, 19 §§ 11–​12), –​protection of the family and right to family reunion (Articles 16, 27, 19 § 6), –​protection against danger and abuse (Articles 7 § 1, 17), –​prohibition of child labour under the age of 15 (Article 7 § 1 and § 3), –​specific working conditions between 15 and 18 (Article 7)”. (Defence for Children International (DCI) v. the Netherlands, Complaint No. 47/​2008, 20 October 2009, § 25)

16 ­chapter  general rights to assistance and services, children’s rights are, however, often intrinsically linked to the rights of their families.22 The echr is very general in nature and contains no group-​specific rights, although the right to education (Protocol No. 1)  is arguably most important for children. In its case law the ECtHR has attached increasing importance to the rights of children, mainly by using the crc to inform the interpretation of echr rights to children.23 While rights such as Article 3 (prohibition of torture and inhuman or degrading treatment) or Article 8 (right to respect for private and family life) make no reference to children, those provisions have proved to have a great potential to advance children’s rights through litigation before the ECtHR.24 As for the protection of socio-​economic rights in general, the ECtHR has advanced its jurisprudence on children’s rights primarily by developing procedural rights and positive obligations for states under certain echr rights, especially Articles 2, 3 and 8.25 However, so far cases under Article 8 are predominately argued from the perspective of parents rather than the perspective of children; whereas cases under other substantive provisions do not necessary involve the rights of parents.26 This perspective risks that reference to children’s rights is only made by parents who want to pursue their own agenda with the help of Article 8 (e.g. concerning custody decisions or access rights). Furthermore, simply transferring adults’ rights to children may risk that children’s rights are not adequately protected, as they might require more, or rights may mean something different in children’s contexts than in that of adults.27 While there is no specific CoE instrument stipulating the rights of children, there is a Convention which aims to facilitate children’s exercise of their rights. However, despite its generic title, the European Convention on the Exercise of Children’s Rights, opened for signature in January 1996, is a very specific treaty. Considered by the drafters as an instrument which should help Member States to fulfil (the first sentence of) Article 4 crc,28 it provides for measures 22 2 3 24 25 26 27 28

Spronk-​van der Meer (Chapter 1 n 2) 204. For the practical consequences of this perspective, see the case law analysis in chapter 3. Kilkelly (n 20) 194. ibid 195. Palmer (n 7). See above (introduction). The interpretation of certain rights is analysed in more detail in c­ hapter 3. European Union Agency for Fundamental Rights, European Court of Human Rights and Council of Europe (Chapter 1 n 30) 30. Shazia Choudhry and Jonathan Herring, European human rights and family law (Hart, Oxford 2010) 222. “States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention”. On the drafter’s

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which aim to promote the rights of children in proceedings before judicial authorities. As Article 1 of the Convention stipulates, “[f]‌or the purposes of this Convention proceedings before a judicial authority affecting children are family proceedings, in particular those involving the exercise of parental responsibilities such as residence and access to children”. Therefore, the treaty does not aim to facilitate the exercise of all children’s rights before all authorities or courts but has only a limited scope of application.29 Additionally, so far only 20 CoE Member States have ratified or acceded to the Convention,30 weakening the instrument’s authoritativeness. In addition to legal instruments, the CoE pays considerable attention to children and their rights in political programmes –​especially during the last decade. Mandated by the Third Summit of the Heads of State and Government of the Council of Europe (Warsaw 2005), the transversal programme “Building a Europe for and with children” was launched in 2006. The first two cycles of this programme (2006–​2009; 2009–​2011) aimed, among others, to mainstream children’s rights among the main CoE actors, to identify the need for new standards and policy guidelines, and to increase children’s access to information and participation.31 In the third strategy (2012–​2015), the CoE defined its role explicitly as “[…] catalyst for the implementation of the United Nations Convention on the Rights of the Child in Europe”. In aiming to fulfilling this role the strategy’s overarching goal is to “achieve effective implementation of existing children’s rights standards”.32 On 2 March 2016 the Committee of Ministers adopted the latest Council of Europe Strategy for the Rights of the Child for the years 2016–​2021. It was launched at a High Level Conference in Sofia on 5 and 6 April 2016 and identifies five priorities for the Member States to guarantee to all children: equal opportunities, participation, a life free from violence, child-​friendly justice and

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intentions see:  Council of Europe, Explanatory Report to the European Convention on the Exercise of Children’s Rights (1996) http://​rm.coe.int/​CoERMPublicCommonSearchServices/​DisplayDCTMContent?documentId=09000016800cb5ee last accessed 17 June 2018, § 4. For a critical analysis of the Convention see Caroline Sawyer, ‘One Step forward, Two Steps Back –​The European Convention on the Exercise of Children’s Rights’ (1999) 11 Child and Family Law Quarterly 151. http:// ​ w ww.coe.int/ ​ e n/ ​ web/ ​ c onventions/ ​ f ull- ​ l ist/ ​ - ​ / ​ c onventions/ ​ t reaty/ ​ 1 60/ ​ s ignatures?p_​auth=pVmmHDhV last accessed 17 June 2018. Council of Europe, Council of Europe Strategy for the Rights of the Child (2012–​2015) (2012) http://​rm.coe.int/​CoERMPublicCommonSearchServices/​DisplayDCTMContent?documentId=090000168045d224 accessed 17 June 2018, 5. ibid 3.

18 ­chapter  children’s rights in the digital environment.33 As the previous strategies the document is based explicitly on the crc (and especially its four general principles) and the priorities were selected based on the challenges identified in the drafting process, including in the consultations with multiple stakeholders.34 To bring in the views of children themselves, a secondary analysis of over 130 consultations with children (undertaken by various institutions across the CoE Member States) was prepared,35 and some Member States directly consulted children at national level.36 For the implementation of the strategy, which aims to guide all activities of the CoE and its Member States with regard to children, a special ad-​hoc committee answerable to the Committee of Ministers of the Council of Europe was created and a mid-​term evaluation will be carried out after three years.37 2

The European Union

The European Union (EU) is a rather new player in terms of human rights protection in Europe, at least if taking only formal standards into account. The process of economic integration starting with the foundation of the European Community in 1957 was primarily focused on ensuring economic and social progress, while human rights guarantees have long not been part of the Treaties.38 As the Community’s legal provisions increasingly entered the individual 33 34 35 3 6 37 38

Council of Europe, Council of Europe Strategy for the Rights of the Child (2016–​2021) (2016) http://​rm.coe.int/​CoERMPublicCommonSearchServices/​DisplayDCTMContent?documentId=090000168066cff8 accessed 17 June 2018. Poverty, inequality and exclusion; violence against children; a justice system made for adults; challenges for families and parents; racism, hate speech and radicalisation; growing up in a digital world; migration (ibid 7 et seq.). Aoife Daly, Sandy Ruxton and Mieke Schuurman, Challenges to children’s rights today: What do children think?: A desktop study on children’s views and priorities to inform the next Council of Europe Strategy for the Rights of the Child (2016). Council of Europe (n 33) 5. ibid 23. Cf. e.g. Steiner, Alston and Goodman (n 39) 1014–​15; Sonia Morano-​Foadi and Stelios Andreadakis, ‘Reflections on the Architecture of the EU after the Treaty of Lisbon: The European Judicial Approach to Fundamental Rights’ (2011) 17 European Law Journal 595, 597–​98; Jean-​Claude Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge University Press, Cambridge [U.K.] and New York 2010) 146–​47. Apart from the primarily economic focus of the European Community, some authors suggested that the founders might have considered human rights protection in Europe already adequately covered by the Council of Europe, which has an explicit human rights mandate in its founding treaty and had already adopted the echr (Sionaidh Douglas-​Scott, ‘The European Union and

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sphere, it was the growing pressure from national constitutional courts39 that has pushed the ecj to develop the doctrine that fundamental rights formed part of the general principles of Community law in as far as they can be derived from the echr and the constitutional traditions common to the Member States.40 This important principle was formalised by the Treaty of Maastricht in 1992 (cf. Article F) and consolidated by later Treaty reforms. It is  –​in an adapted version41 –​still part of the Treaty on European Union (teu) (cf. Article 6 of the consolidated version of the Treaty of Lisbon). As such it is also important for the litigation of children’s rights: as all Member States are parties to the crc, the crc’s rights form part of the general principles of Community law.42 Therefore, they must be respected whenever Union legislation or action relates to children.43 The close relationship of the EU’s fundamental rights regime to the echr44 is also important for the protection of children’s (social) rights in Union law. As has been mentioned above, the ECtHR has developed a solid jurisprudence on children’s rights, which constitutes an authoritative parameter for Union law. The EU’s accession to the echr, foreseen by the Treaty of Lisbon but currently

39 40 41 42

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Human Rights after the Treaty of Lisbon’ (2011) 11 Human Rights Law Review 645, 647–​48; Greer (n 39) 435). The courts had questioned the primacy of community law if its fundamental rights protection was not comparable to national constitutions. Cf. notably the German Federal Constitutional Court in its well-​known judgment Solange I (1974) 271 2 BvL 52/​71. Internationale Handelsgesellschaft mbH v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel (1970), Case C-​11/​70 [1970] ecr 1125; Erich Stauder v City of Ulm (1969), Case C-​29/​ 69 [1969] ecr 419. Article 6 teu now mentions first the cfr (see below). As the ecj has recognised in its case law that “[…] international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law” (J. Nold, Kohlen-​und Baustoffgroßhandlung v Commission of the European Communities (1974), Case 4/​73 [1974] ecr 491, § 13). This has notably been recognised by the ecj in European Parliament v Council of the European Union (2006), Case C-​540/​03 [2006] ECR I-​5769, § 37. See also Stalford (Chapter 1 n 33) 214. Other than for the EU’s intended accession to the echr (cf. Article 6 teu) there is (currently) no legal basis for the EU’s accession to the crc because the crc itself only allows states to accede to it. Therefore the EU will continue to be only indirectly bound by the crc. The special status of the echr is not only linked to the “general principles of Union law” but has also been reaffirmed by the ecj’s case law starting with Nold (n 42). Article 6 (3) teu as amended by the Treaty of Lisbon has elevated this commitment to primary law: “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.

20 ­chapter  in a renegotiation process,45 will further enhance the legal ties between the echr and Union law, as it will subject the EU to the jurisdiction of the ECtHR. Therefore, the Convention will continue or maybe even increase its role as a major source for claiming children’s rights at EU level.46 In the 1990s, the growing political nature and the expanding competences of the European Union have increased the voices of those who called for the development of a comprehensive human rights catalogue by the European Union.47 These calls for a modern “European Bill of rights” were heard by the Cologne European Council in June 1999, which decided on the development of a Charter, which should consolidate the fundamental rights applicable at Union level.48 Elaborated through an innovative procedure,49 the Charter of Fundamental Rights of the European Union was proclaimed by the European Parliament, the Council and the European Commission, one and a half years later at the margins of the European Council of Nice on 7 December 2000. As the aim of the cfr was to make the fundamental rights enjoyed by citizens at the EU level more visible, the cfr assembles rights stemming from various sources, including most notably the echr, the esc as well as UN and International Labour Organization (ilo) treaties. It is a modern human rights instrument, guaranteeing both traditional civil and political and economic, social and cultural rights. Nevertheless, controversy arose regarding the interpretation of the Charter’s distinction between “rights” and “principles” (cf. Article 51 45

46 47

48 49

The ecj has given a negative opinion on the first draft of the Accession Agreement in December 2014 (Opinion pursuant to Article 218(11) TFEU –​Draft international agreement –​ Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms –​Compatibility of the draft agreement with the EU and FEU Treaties (2014), Opinion 2/​13 [2014] ECLI:EU:C:2014:2454). Helen Stalford and Mieke Schuurman, ‘Are We There Yet?: the Impact of the Lisbon Treaty on the EU Children’s Rights Agenda’ (2011) 19 The International Journal of Children’s Rights 381, 395. Cf. e.g. the report by the “Comité des Sages” appointed by the European Commission (European Commission, For a Europe of civic and social rights: Report by the Comité des Sages chaired by Maria de Lourdes Pintasilgo (1996)). Alston/​Weiler proposed instead the EU’s accession to the echr and the esc (Philip Alston and Joseph H H Weiler, ‘An ‘Ever Closer Union’ in Need of a Human Rights Policy’ (1998) 9 European Journal of International Law 658). Cf. Cologne European Council, 3–​4 June 1999, Conclusions by the Presidency, §  44. Available online:  http://​www.europarl.europa.eu/​summits/​kol1_​en.htm last accessed 18 June 2018. The cfr was developed by a “Convention” composed of representatives of the European Commission, the European Parliament, national governments and parliaments (Cf. http://​www.europarl.europa.eu/​charter/​composition_​en.htm last accessed 18 June 2018. On the origins and drafting process of the Charter see e.g. Piris (n 38) 147–​48.

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cfr) and the question if all of the provisions under Chapter 4 (“Solidarity”) constitute fully enforceable, individual rights.50 These questions will only be authoritatively answered by the ecj’s jurisprudence in the coming years.51 Additionally, the cfr includes new human rights concepts such as the protection of personal data (Article 8), rights of the elderly (Article 25), the right to good administration (Article 41) or the right of access to documents (Article 42). However, since the cfr was not inserted into the reformed teu (Treaty of Nice), it only became legally binding with the entry into force of the Treaty of Lisbon, which finally awarded it the same legal value as the Treaties.52 Similar to the history of fundamental rights protection at Union level in general, children’s rights were considered a “by –​product” to or “side effect” of the economic and political integration process rather than a genuine policy concern for most of the EC’s/​EU’s history.53 Additionally, as the EU is only allowed to legislate in areas where it enjoys competences conferred to it by the Treaties (cf. Articles 2–​6 tfeu), legislation on children has so far been piecemeal.54 The cfr, however, provides a new normative basis for integrating and claiming children’s rights that binds all Union institutions and the Member States when implementing Union law.55 It includes a specific provision which combines some of the crc’s central provisions but does not fully correspond

50

51 52

53 54 55

For more details about this discussion see e.g. Niilo Jääskinen, ‘Fundamental Social Rights in the Charter –​Are They Rights? Are They Fundamental?’ in Steve Peers (ed), The EU Charter of Fundamental Rights: A Commentary (Hart, Oxford 2014); Koen Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 European Constitutional Law Review 375. For a first assessment of the case law so far see: Jasper Krommendijk, ‘Principled Silence or Mere Silence on Principles?, The Role of the EU Charter’s Principles in the Case Law of the Court of Justice’ (2015) 11 European Constitutional Law Review 321. However, without incorporating it directly. Florence Benoît-​Rohmer, ‘La Charte des droits fondamentaux de l’Union européenne dix ans après sa proclamation’ in Wolfgang Benedek and Matthias C Kettemann (eds), European Yearbook on Human Rights 2011 (Intersentia and Berliner Wissenschafts-​Verlag and Neuer Wissenschaftlicher Verlag, Antwerp and Berlin and Wien 2011) 28. Stalford (Chapter 1 n 4) 15–​17; Ruth Lamont, ‘Article 24 –​Rights of the Child’ in Steve Peers (ed), The EU Charter of Fundamental Rights: A Commentary (Hart, Oxford 2014) 663. While the teu mentions the protection of children’s rights as an aim for both the internal and external policies (cf. Article 3 §§ 3 and 5; see also below), there is no general competence for the promotion of children’s rights in the tfeu (Lamont (n 53) 662). Stalford and Schuurman (n 46) 397. According to Article 51 § 1 cfr Member States are only bound by the cfr “when they are implementing Union law”. The limits of this scope of application –​much debated in academic literature –​have been authoritatively interpreted by the ecj in Åklagaren v Hans Åkerberg Fransson (2013), Case C-​617/​10 [2013] ECLI:EU:C:2013:105.

22 ­chapter  to the crc’s “general principles” as defined by the Committee on the Rights of the Child.56 Notably, Article 24 cfr (“The rights of the child”) stipulates the right to protection and care, the right to participation/​right to be heard, and the “best interests-​principle”, as well as the right to maintain a personal relationship with ones parents. However it does neither include children’s rights to survival and development (cf. Article 6 crc) nor the principle of non-​ discrimination (cf. Article 2 crc). While the Convention responsible for drafting the Charter has provided no explanation for formulating Article 24 in this particular way,57 all four “general principles” of the crc are reflected in the Charter as a whole but in case of non-​discrimination and the right to survival and development, the Charter provisions do not refer specifically to children.58 Nevertheless, Article 24 is also of symbolic value, as it illustrates the recognition of children as independent rights holders under Union law.59 In addition the cfr contains an article on the prohibition of child labour and the protection of young people at work (Article 32), as well as a number of rights which are typically of special relevance for children (e.g. the right to education). The cfr can thus be seen as manifesting a strong commitment to children’s rights,60 which reflects the increased awareness about children’s rights since the time the echr and the 1961 esc were adopted.61 As McGlynn highlighted, the general equality provision in Article 20 cfr (“Everybody is equal before the law”), together with the non-​discrimination provision of Article 21 (including 56

57

58 5 9 60 61

According to the interpretation of the Committee on the Rights of the Child, the crc includes four “general principles” which are not only rights in themselves but also guide the interpretation of the Convention as a whole. These are non-​discrimination (Article 2), best interests of the child (Article 3), right to survival and development (Article 6), and participation (Article 12): cf. Committee on the Rights of the Child (Chapter n 24), § 12. The drafting history of this provision indicates that it is rather the fruit of a compromise (out of many diverging proposals) than an effort to systematically incorporate the crc’s general principles into the text of the cfr (cf. Sven Hölscheidt, ‘Artikel 24 –​ Rechte des Kindes’ in Jürgen Meyer (ed), Charta der Grundrechte der Europäischen Union (Beck, 4th edition Nomos, Baden-​Baden 2014) 10–​14. Clare McGlynn, ‘Rights for Children?: The Potential Impact of the European Union Charter of Fundamental Rights’ (2002) 8 European Public Law 394. Lamont (n 53) 678. Stalford (Chapter 1 n 34) 215. As mentioned above, the Revised Social Charter is influenced by the crc and, compared to the 1961 version, includes an article on the rights of children and young persons to social, legal and economic protection (cf. Article 17; the 1961 text only includes a –​much shorter –​provision on “the right of mothers and children to social and economic protection” in its Article 17).

Normative Framework for the Rights of Children in Europe

23

age as one of the prohibited grounds of discrimination) can also be read as a form of “child –​proofing”. Not only are all individuals, including children, equal before the law but all actions and policies of the EU must not discriminate against children.62 Additionally, the broad wording of Article 24, in particular the “best interests”-​principle, might provide an interesting entry point for claiming children’s rights within the EU’s legal system. However, the ecj has so far not closely analysed the meaning and scope of Article 24 and in general, there are still very few references to the Charter’s children’s rights provisions in the Court’s case law.63 Yet, in the past the ecj has already upheld children’s rights in many instances, based on secondary legislation,64 the echr or the “general principles of EU law”, including the crc. Most importantly, it has affirmed that children enjoy the benefits associated with EU citizenship in their own right, independent of their parents’ nationality or residence status.65 It is also important to note that the Treaty of Lisbon included, for the first time, an explicit reference on the rights of children in the teu. Article 3 § 3 teu mentions “protection of the rights of the child” as one of the general objectives of the European Union, while Article 3 § 5 teu defines the protection of the rights of the child as an important aspect of the EU’s external relations policy. Although this is an important symbol for the EU’s commitment to the rights of the child, it is rather a guideline for the application of the Treaties than a basis for concrete legal action.66 However, similar to the Council of Europe, the European Union has developed an increasing number of legislative initiatives and policies regarding children, despite the lack of a specific legal instrument on the rights of children.67 While initially the European Parliament was the driving force behind advancing children’s rights on the Union level, since the 2000s also the European 6 2 63 64 65 66

67

McGlynn (n 58) 393. Lamont (n 53) 681. Children’s rights are scattered in many secondary legislative acts and the definition of what a child is, is not uniform in Union law (ibid 662–​70). See e.g. Baumbast and R v Secretary of State for the Home Department (2002), C-​413/​99 [2002] ECR I-​7091. For the ecj’s jurisprudence on concrete rights, see below ­chapter 3. In this sense see Stalford/​Schuurman who highlight that not even the “horizontal” provisions of the Lisbon Treaty (those provisions specified in Title II, Articles 7–​17 tfeu as having general application) mention children (Stalford and Schuurman (n 46) 383). References to children are inserted, however, into two new provisions of the tfeu relating to combating sexual exploitation and human trafficking (Article 79 § 2 lit. d; Article 83 § 1). McGlynn highlighted that a number of Community law instruments or provisions focused on (the wellbeing of) children long before the Charter was adopted and before the Treaties even contained any reference to children, e.g. the Young Workers Directive (McGlynn (n 58) 389).

24 ­chapter  Commission increasingly brought forward policy or legislative proposals, partly supported by the growing body of research on the topic by the European Union Agency for Fundamental Rights.68 The most comprehensive policy document regarding children and their rights is the Agenda on the Rights of Children, adopted by the European Commission in 2011.69 Building on the teu and the cfr, the Agenda on the Rights of Children aims to set guidelines for taking children’s rights into account in all policy areas of the Union. It defines both general principles70 and specific proposals for action regarding a child-​friendly justice, targeted EU action to protect children when they are vulnerable and children in the EU’s external action.71 In the latter policy area, the EU’s commitment to children’s rights has also been determined by a separate Communication by the European ­Commission,72 as well as two sets of guidelines, addressed to all external ­policy actors, including the Member States: the 2016 EU Guidelines for the Promotion and Protection of the Rights of the Child73 and the EU Guidelines on C ­ hildren and Armed Conflicts, adopted in 2003 and revised in 2008.74 The latter would, however, need to be updated though to take the entry of the Treaty of Lisbon and the cfr into account, including the change of responsibilities in the Union’s ­external action. What is remarkable in the Agenda is the strong emphasis on the crc, which the Commission considers as part of the Union’s international commitments, since all Member States have ratified the Convention. In the words of the Commission, “[i]‌n the future, EU policies that directly or indirectly affect children 6 8 69 70

71 72 73 74

See in more detail Stalford (Chapter 1 n 4) 11–​13. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Agenda for the Rights of the Child: COM(2011) 60 final (2011). 1. Making the rights of the child an integral part of the EU’s fundamental rights policy (“fundamental rights check” of legislative proposals), 2. Building the basis for evidence-​ based policy making (reliable, comparable and official data), 3. Cooperation with stakeholders (particularly, through the European Forum for the Rights of the Child). The section on “Child participation and awareness raising” can also be regarded as an overarching principle valid for all policy areas. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (n 69). Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Special Place for Children in EU External Action: COM(2008) 55 final (2008). https://​eeas.europa.eu/​sites/​eeas/​files/​eu_​guidelines_​rights_​of_​child_​2017.pdf last accessed 18 June 2018. The 2016 Guidelines build on the 2007 EU Guidelines on the Protection and Promotion of the Rights of the Child. https://​eeas.europa.eu/​sites/​eeas/​files/​10019_​08_​en.pdf last accessed 18 June 2018.

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should be designed, implemented, and monitored taking into account the principle of the best interests of the child enshrined in the EU Charter of Fundamental Rights and in the uncrc”.75 While the implementation of this postulation is still rather an aspirational goal than daily practice, references to the crc’s rights and principles are clearly visible now when talking about children in policy documents or legislative initiatives, particularly in the area of freedom, security and justice, but e.g. also in external instruments.76 As Stalford points out, the increasing incorporation of crc rights into European legislation does not only strengthen the position of children’s rights in the Union’s legal regime but in return also opens new channels for litigating and enforcing crc rights through judicial procedures.77 75 76

77

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (n 69). Stalford (Chapter 1 n 34) 212. For a detailed analysis of children’s rights in the EU’s external action, see Wouter Vandenhole, ‘Children’s Rights in EU External Action, Beyond Charity and Protection, Beyond Instrumentalisation and Conditionality’ (2011) 19 International Journal of Children’s Rights 477. Stalford (Chapter 1 n 34) 216.

­c hapter 3

Systematic Analysis of Selected Basic Social Rights of Children and Their Interpretation 1 1.1







The Right to Health General Scope of the Right Article 24 crc 1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish infant and child mortality; (b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-​water, taking into consideration the dangers and risks of environmental pollution; (d) To ensure appropriate pre-​natal and post-​natal health care for mothers; (e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents; (f) To develop preventive health care, guidance for parents and family planning education and services. 3. States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/​9 789004375932_​0 04

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4. States Parties undertake to promote and encourage international co-​ operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries. Article 11 esc –​The right to protection of health With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia: 1. to remove as far as possible the causes of ill-​health; 2. to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; 3. to prevent as far as possible epidemic, endemic and other diseases, as well as accidents. Article 13 esc –​The right to social and medical assistance With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake: 1. to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition; 2. to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights; 3. to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want; 4. to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953. Article 17 esc –​The right of children and young persons to social, legal and economic protection With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full

28 ­chapter 





development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-​operation with public and private organisations, to take all appropriate and necessary measures designed: 1.   a. to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose; b. to protect children and young persons against negligence, violence or exploitation;(…) Article 35 cfr –​Health care Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.

The right to health is important for many aspects of a child’s life and it is a right, which is strongly linked to –​and mutually dependent on –​other rights. On the one hand, the enjoyment by a child or its care-​givers of a number of economic, social and cultural rights (e.g. the rights to food, housing, work, education, social security) but also civil and political rights (e.g. right to private and family life, right to freedom of expression and information) is a precondition for the enjoyment of the right to health. On the other hand, the right to health is itself a precondition for the enjoyment of some of the aforementioned but also additional rights, e.g. the right to education, the right to take part in cultural life, and ultimately also the right to life.1 The effective enjoyment of the right to health thus has a strong multiplier effect on the enjoyment of other rights.2

1 Asbjørn Eide and Wenche Barth Eide, Article 24: The right to health (A Commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Leiden, Boston 2006) 4; Committee on the Rights of the Child, General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) CRC/​C/​ GC/​15 (2013), § 7. 2 Ursula Kilkelly, ‘Health and children’s rights’ in Wouter Vandenhole (ed), Routledge International Handbook of Children’s Rights Studies (Routledge, New York 2015) 217.

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29

Consequently, Article 24 crc is a very detailed norm and reflects a holistic vision of health, which includes health services and the underlying determinates of health.3 After describing the core normative content as States Parties’ recognition of the “right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health”, Article 24 continues with a (non-​exhaustive) list of key elements of the right.4 It covers a number of different areas –​from the access to health care services, the combat against infant and child mortality as well as diseases and malnutrition, pre-​natal care for pregnant women, to educational measures and preventive health care. In its detailedness this provision goes beyond Article 12 icescr,5 and pays specific attention to children’s particular need for protection and the importance of their development in a healthy environment.6 The Committee on the Rights of the Child understands children’s right to health as stipulated by Article 24 crc as (…) an inclusive right, extending not only to timely and appropriate prevention, health promotion, curative, rehabilitative and palliative services, but also to a right to grow and develop to their full potential and live in conditions that enable them to attain the highest standard of health through the implementation of programmes that address the underlying determinants of health.7

3 Spronk-​van der Meer (Chapter 1 n 2) 41. 4 Kilkelly speaks of “basic, minimum standards of child health” (Kilkelly (n 2) 218). 5 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-​rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. 6 As Spronk-​van der Meer summarised, altogether Article 24 crc “constitute[s]‌the broadest provision on the right to health in international human rights law”. (Spronk-​van der Meer (Chapter 1 n 2) 44). 7 Committee on the Rights of the Child (n 1), § 2.

30 ­chapter  However, the full implementation of such an inclusive right to health is resource-​intensive and requires the translation of its normative content to many practical fields, such as the medical, child protection, school, and housing sector.8 Thereby states are strongly dependent on private actors to actually guarantee the right to children in practice (e.g. doctors, companies but also parents or other care-​givers). Consequently, states do not only have a strong direct obligation to fulfil the right (e.g. building and running hospitals, establishing a health care insurance system or financial aid) but also a strong indirect obligation to regulate e.g. the conditions for the provision of health care or pharmaceutical goods. This partly overlaps with the obligation to protect against harm to children’s health (potentially) inflicted by others, including parents, teachers or other care-​givers, but also by providers of goods and services (e.g. dangerous toys, unhealthy or unsafe food or drinks). Lastly, States Parties also have the duty to respect children’s right to health, notably by refraining from acts by state authorities which would detrimentally affect their state of health (e.g. hindering access to necessary health care, placement of children in institutions unsuitable to fit their health needs). The clarification of states’ duties is important to avoid misunderstandings regarding the scope of the right to health. While no state party can guarantee a state of good health to anybody, states can provide necessary services and regulations to facilitate the enjoyment of physical and mental health and, of course, refrain from direct interference. In the case of children this means that the primary responsibility for a child’s state of health lies with its care-​givers and  –​increasing with its capacities  –​depends also on its own choices.9 As Eide/​Eide thus summarised, “[t]‌he normative content of ‘the highest attainable standard of health’ is a right to the best possible health outcomes taking into account both the child’s biological preconditions as well as its access to health care”.10 In line with the crc’s general provision on economic, social and cultural rights,11 Article 24 also recognises that the full and immediate implementation 8

9 10 11

Sarah I Spronk, ‘Realizing Children’s Right to Health’ (2014) 22 The International Journal of Children’s Rights 189, 190. Similarly, the Committee on the Rights of the Child emphasised: “A wide range of different dutybearers need to be involved if children’s right to health is to be fully realized and the central role played by parents and other caregivers needs to be better recognized”. Committee on the Rights of the Child (n 1), § 6. Eide and Eide (n 1) 6. ibid 9. The crc itself does not define the exact scope of Article 24 and its modes of implementation (Kilkelly (n 2) 217). Cf. above: section 1.2 (Scope of the research).

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of children’s right to health might overstretch a State Party’s financial and administrative capacities. Therefore Article 24 stipulates that “States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures [to]…” rather than “States Parties shall guarantee”. As described above, this requires, however, that States Parties use all available resources with a view to constant improvement, refrain from taking retrogressive measures and fulfil at least “core minimum obligations”. In the case of children’s right to health, core obligations, according to the interpretation by the Committee on the Rights of the Child, include (a) Reviewing the national and subnational legal and policy environment and, where necessary, amending laws and policies; (b) Ensuring universal coverage of quality primary health services, including prevention, health promotion, care and treatment services, and essential drugs; (c) Providing an adequate response to the underlying determinants of children’s health; and (d) Developing, implementing, monitoring and evaluating policies and budgeted plans of actions that constitute a human rights-​based approach to fulfilling children’s right to health.12 While this definition leaves a wide room for interpretation to states to decide which measures are necessary to fulfil the “minimum core obligations”, it is clear that qualitative primary health services must always be available and accessible to children. Furthermore, resource allocation itself must not be discriminatory e.g. if no budget is allocated to meet the health care needs of marginalised children.13 Besides the obligations directly arising from Article 24, the right to health is also closely linked to States Parties general obligations under the Articles 2 and 3 crc (prohibition of discrimination, “best interests”-​principle, provision of necessary care and protection) as well as to the other two “general principles” enshrined in Articles 6 and 12.14 Article 6 has a special position, as it does not only guarantee children’s right to life but also their right to “survival and development”. This implicates much stronger preventive obligations of states than traditional expressions of the “right to life” in other international human rights instruments. If broken down to concrete measures, these preventive obligations to preserve children’s rights to

1 2 13 14

Committee on the Rights of the Child (n 1), § 73. Spronk-​van der Meer (Chapter 1 n 2) 48. Eide and Eide (n 1) 5.

32 ­chapter  survival and development strongly overlap with obligations under the right to health. Children’s right to be heard (Article 12) is particularly important for decision-​making concerning health-​care measures and  –​in combination with Article 3 –​to balance parents’ rights with children’s wishes and their best interests.15 Among the European human rights instruments, the esc provides for a less detailed but comparably comprehensive provision on the “protection of health”, enshrined in Article 11. Notably, it lists exemplary measures states have to take to ensure very broadly the “effective exercise of the right to protection of health”. Even though the authoritativeness of this provision is slightly weakened by the fact that it is not listed among the group of nine “core rights” of which States Parties have to accept at least six,16 in practice only one state (Armenia) has so far not accepted Article 11 §§ 1–​3.17 Article 11 esc obliges States Parties inter alia to address the underlying reasons for ill-​health (thus arguably also socio-​economic and cultural factors), to provide health advice and education and to prevent diseases and other health risks. While remarkably it does not mention access to health care expressly, the ecsr has interpreted Article 11 § 1 widely as requiring states to undertake the necessary measures to ensure equal access to medical assistance and hence to the “protection of health”.18 Furthermore, this aspect is covered by Article 13 § 1 esc, which addresses necessary financial or other assistance to ensure access to health care for those without adequate resources. In addition, Article 17 esc obliges States Parties to undertake a number of measures to ensure the “social, legal and economic protection” of children. These include notably measures to ensure that children “have the care, the assistance, the education and the training they need” (§ 1 lit. a) and are protected “against negligence, violence or exploitation” (§ 1 lit. b). As we will see, these provisions have great potential to provide for child-​specific health guarantees within the esc framework.

15 16 17 18

Kilkelly (n 2) 218–​20. Cf. Part 3, Article A § 1 Revised Social Charter. According to information provided by the Council of Europe on http://​www.coe.int/​en/​ web/​turin-​european-​social-​charter/​accepted-​of-​provisions last accessed 8 December 2018. For details see the case law analysis below. Hervey argues that the notion of the “right to protection of health” used by Article 11 esc goes beyond a right to health care and also covers the “determinants of good health” (Tamara K Hervey, ‘We Don’t See a Connection: The ‘Right to Health’ in the EU Charter and European Social Charter’ in Gráinne de Búrca, Bruno de Witte and Larissa Ogertschnig (eds), Social rights in Europe (Oxford Univ. Press, New York 2005) 311).

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In the context of the Council of Europe’s increased policy setting on children’s rights in recent years,19 the Committee of Ministers adopted in 2011 “Guidelines on child-​friendly health care”.20 Building in particular on the crc but also other human rights instruments, the Guidelines define five principles for a child-​friendly health care approach: participation, promotion, protection, prevention and provision.21 While not a binding legal norm, the guidelines provide guidance on the interpretation and implementation of health care provisions, which are endorsed by all Council of Europe Member States and can be used as point of reference not only by policy-​makers and practitioners but also by the ecsr and the ECtHR. The cfr contains only a rudimentary provision on the right to health, recognising the right to access to preventive health care and medical treatment only “under the conditions established by national laws and practices” (Article 35). This cautious wording illustrates the EU Member States’ disaccord about the position of social, economic and cultural rights in the cfr.22 While the Union itself has no health care system and the organisation of health care systems is a matter of national competence, the vagueness of this provision raises questions as to the standard applicable for the Union’s institutions when legislating or implementing health-​related norms that concern all Member States.23 Furthermore, also the standard applicable for Member States when they are implementing Union law (e.g. free movement law, immigration law or procurement law) is very vague and protection seems to be dependent on

19 20 21

22

23

Cf. above ­chapter 2. The Guidelines define “child friendly health care” as “(…) health care policy and practice that are centred on children’s rights, needs, characteristics, assets and evolving capacities, taking into account their own opinion”. Committee of Ministers of the Council of Europe, Guidelines on child-​friendly health care (2011), §§ 22–​28. “Provision” in the sense of the Guidelines refers “to any service which contributes to the health and wellbeing of children and families, and therefore includes more than just traditional health services”. As Hervey noted: “[…] the status of social rights in general, including the ‘right to health’ within the EU’s legal order has been seen as problematic in the context of the negotiations of the EUCFR and the Constitutional Treaty. It appears that significant efforts have been taken to avoid the direct application, and in particular the enforceability, of provisions such as Article 35 EUCFR in the legal orders of the Member States” (Hervey (n 18) 335). Article 168 tfeu contains a (soft) obligation in this regard: “A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. (…)”.

34 ­chapter  national law.24 However, most authors and also the European Union Agency for Fundamental Rights have assumed that Article 35 requires Member States to guarantee the right to health at least in line with “minimum core obligations”, in particular access to essential primary and emergency medical care.25 Regarding the obligations of the Union’s institutions, recourse to the crc via the “general principles of Union law” could be another option to ensure an adequate standard of protection for children. Such an argumentation could be supported by the second sentence of Article 35 cfr, which stipulates that “[a]‌ high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities”. In fact, this second part of Article 35 cfr suggests a very wide field of application but without recourse to the crc (or potentially also the esc or icescr) it will be difficult to distil concrete obligations and let that part of the provision seem more like a policy objective or principle than an individual right (cf. the nearly identical phrasing of Article 168 tfeu).26 As there are so far only few cases, in which either the ecj or the Advocate General refer to Article 35 cfr –​and none of them concern children –​it is difficult to evaluate the full scope of this provision at this point. However, the first case by the ecj shows that in particular the second sentence of Article 35 cfr has potential to provide minimum health guarantees in Union law that can counter-​balance the economic freedoms in internal market law.27 Additionally, it could provide common standards for asylum and immigration law or environmental provisions and it will be interesting to see how Article  35 cfr is interpreted in relation to significant cuts in national health care systems due to fiscal austerity measures imposed by Union law.28 Apart from Article 35 cfr, also Article 24 cfr could provide a basis for children’s rights in Union law, as especially the “best interests”-​principle and the right to express their own views are very relevant for the medical sector.29

24 25 26 27 2 8 29

Spronk-​van der Meer interprets Article 35 more positively, as leaving room for national measures “to achieve the highest attainable standard of health of children by referring to their national laws and practices” (Spronk-​van der Meer (Chapter 1 n 2) 194. Tamara Hervey and Jean McHale, ‘Article 35 –​ The Right to Health Care’ in Steve Peers (ed), The EU Charter of Fundamental Rights: A Commentary (Hart, Oxford 2014) 958. If Article 35 cfr is to be considered an individually enforceable right or only a “principle” (cf. Article 52 cfr) is disputed. The ecj has not pronounced on the issued yet (ibid 966–​ 67). Cf. Deutsches Weintor eG v Land Rheinland-​ Pfalz (2012), Case C-​ 544/​ 10 [2012] ECLI:EU:C:2012:526. Hervey and McHale (n 25) 968. Spronk-​van der Meer (Chapter 1 n 2) 196.

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35

The echr does not include any reference to the right to health, as traditionally this right has been considered exclusively as social right.30 Nevertheless, the ECtHR has recognised aspects of the right to health under a number of echr provisions, in particular Article 2 (right to life), Article 3 (prohibition of torture or inhuman or degrading treatment or punishment), Article 5 (right to liberty and security, including conditions for the detention of minors) and Article 8 (right to respect for private and family life). While there are few claims for the positive right to certain health care measures, there is rich case law on virtually all other aspects of the right to health of children based on the echr.31 In the crc’s spirit, this shows the inseparable link between the traditional civil rights to life and protection from torture or inhuman or degrading treatment and the traditional social right to health. While a violation of the right to health might not always reach the threshold of a violation of the Articles 2 and 3 echr, a violation of these two norms is very likely to be also a violation of the right to health.32 With regard to Article 8 echr, the ECtHR has repeatedly held in its case law that individuals’ physical and psychological integrity, their involvement in the choice of medical care provided to them and their consent in that respect, as well as access to information, enabling them to assess the health risks to which they are exposed, fall within the scope of this provision.33 The extent to which these and other echr provisions provide for similar guarantees as Article 24 crc will be explored in the analysis below. The following analysis will focus on four major aspects of children’s right to health and will analyse how these aspects are protected under European instruments.34 1.2 The Right to Be Heard in Decisions Affecting a Child’s Health The child’s right to be heard (Article 12 crc), one of the crc’s general principles, has two major implications for the right to health: it includes the right to be heard concerning individual health interventions affecting the child but also regarding the design of public health policies. In the view of the Committee on the Rights of the Child the latter encompasses, for example,

3 0 31 32 33 34

Koch (Chapter 1 n 19) 59. ibid 61. Cf. above the paragraph on the link between Article 24 and Article 6 crc. Trocellier v. France (dec.), no. 75725/​01, 5 October 2006 (with many references to previous case law). The elements of this analysis follow article 24 crc and its interpretation by the Committee on the Rights of the Child in its General Comment No. 15.

36 ­chapter  consultations on what services are needed, how and where they are best provided, barriers to accessing or using services, the quality of the services and the attitudes of health professionals. In addition, it is important to consider how to strengthen children’s capacities to increasingly take responsibility for their own health and development, and how to involve them more effectively in the provision of services.35 On the individual level, the recognition that children’s evolving capacities have a bearing on their independent decision-​making on health issues, has two important consequences in practice:  first, (young) children need age-​ appropriate information and guidance about health interventions and second, the older a child is, the more weight should be given to his/​her own wishes and autonomous decision-​making should be facilitated. To ensure that this is effectively respected, it is thus essential, according to the Committee on the Rights of the Child, “that supportive policies are in place and that children, parents and health workers have adequate rights–​based guidance on consent, assent and confidentiality”.36 Among the European human rights treaties, only the most recent instrument, the cfr contains a norm directly corresponding to Article 12 crc.37 However, the (non-​binding) “Council of Europe guidelines on child-​friendly health care” provide guidance on how to interpret a child’s right to participation regarding individual health decisions38 and as active members of society,39 in light of both international and European human rights norms.40 The ECtHR has recognised the right to autonomous decision-​making in matters regarding a person’s health (“free, express and informed consent”) as an aspect of the right to private life (Article 8 echr)41 or even the prohibition 3 5 36 37 38

39 40

41

Committee on the Rights of the Child (n 1), § 19. ibid. § 21. Cf. Article 24 cfr, see also above. “When a child, according to law, is able to consent to an intervention, the intervention may only be carried out after the child has given his or her free and informed consent. When, according to law, the child does not have the capacity to consent to an intervention, the opinion of the child shall be taken into account as an increasingly determining factor in proportion to his or her age and degree of maturity. Children should be given appropriate information beforehand” Committee of Ministers of the Council of Europe (n 21), § 12i. ibid. §§ 12ii, 23–​24. The CoE Convention on Human Rights and Biomedicine also includes a provision according to which “the opinion of the minor shall be taken into consideration as an increasingly determining factor” in addition to the necessary consent by parents or legal guardians (cf. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, CETS No. 164, 4 April 1997, Article 6). Cf. e.g. Csoma v. Romania, no. 8759/​05, 15 January 2013.

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of inhuman or degrading treatment (Article 3 echr), in cases of severe disregard of a patient’s right to autonomy and choice.42 However, there are still very few cases regarding the right of children to be heard and/​or make their own decisions on health issues. Additionally, some of the cases have been brought before the Court by parents, arguing a violation of their parental rights rather than a violation of the child’s rights under Article 8 echr. In such cases the Court has been very slow in recognising children’s right to have their views on their health issues duly taken into account. A first case decided by the ECtHR in 1988 concerned the involuntary hospitalisation of a 12-​year-​old boy in a psychiatric ward in the course of protracted custody proceedings. The ECtHR did not find a deprivation of the applicant’s liberty within the meaning of Article 5 echr because his mother –​who was the holder of parental rights –​had agreed to the hospitalisation in accordance with expert medical advice. In the Court’s words, it considered that “[the applicant] was still of an age at which it would be normal for a decision to be made by the parent even against the wishes of the child”.43 However, it did not elaborate in detail why the intended aim (that the child could calm down and receive psychotherapeutic treatment) could not be achieved with less intrusive means. Interestingly, neither the applicant nor the ECtHR considered the applicability of Article 8 echr, which might have had a lower threshold in this case. The rather long hospitalisation (5 1/​2 months) and the fact that the applicant was not mentally ill would have likely added weight to his disagreement to the hospitalisation, when balancing the conflicting interests according to the requirements of Article 8 echr. In the case of Glass v. the United Kingdom both the minor concerned –​a child with severe mental and physical disabilities  –​and his mother argued that their rights under Article 8 echr had been violated, as diamorphine had been administered to the first applicant, even though the second applicant had objected to the treatment. The ECtHR considered that this decision to impose treatment constituted an interference with the first applicant’s right to respect for his private life, and in particular his right to physical integrity.44 It further found that the UK’s regulatory framework for resolving conflicts over a proposed medical treatment of a child was in principle consistent with the 42 43

44

Cf. e.g. V.C. v. Slovakia, no. 18968/​07, 8 November 2011. Nielsen v. Denmark, no. 10929/​84, 28 November 1988, § 72. Choudhry/​Herring commented that this “[…] is a very broad interpretation of the rights of parents. Under it children’s rights are virtually entirely subsumed with the rights of parents” (Choudhry and Herring (n 27) 223). Glass v. the United Kingdom, no. 61827/​00, 9 March 2004, § 70.

38 ­chapter  standards of the Council of Europe’s Convention on Human Rights and Biomedicine regarding the question of consent. However, in the concrete case this framework would have required that the hospital requested the competent court’s authorisation for the administration of the drug, since it was clear that the second applicant would not agree to the treatment.45 This case illustrates that when a child is unable to express his or her views, procedures must be established that evaluate which treatment is in the best interests of the child. While both parents and medical staff should bear the child’s best interests in mind, such procedures are even more necessary, when those two disagree on the necessary treatment. This could also be the case when parents object to a certain treatment for religious or ideological reasons. Another case against the UK further highlights the potential conflict between the express wishes of parents and the treatment considered necessary by medical personnel. It concerned a 9-​year-​old girl who was admitted to hospital for examination of what seemed to be bruising on her legs. Even though her father left instructions that no further medical tests were to be carried out until the girl’s mother arrived and gave any necessary consent, the hospital took blood samples and photographs of the girl’s legs, while she remained in the hospital alone. In fact, the consultant paediatrician suspected that the girl had been sexually abused, while later on it turned out that she suffered from a rare skin disease. The ECtHR observed that in the absence of any evidence that the girl’s condition was critical or that her situation was either deteriorating or was likely to deteriorate before her mother arrived, there was no justification for proceeding with the examination without the parents’ consent. Hence it concluded that the child’s right to physical and moral integrity had been violated as the interference was not in accordance with domestic law, which (ironically) protected the parents’ and not the child’s rights though.46 This underlines that even –​or particularly –​in sensitive cases the best interests of the child have to be carefully evaluated by all stakeholders involved. The fact that doctors are sensitised to recognise signs of (sexual) abuse might provide an effective protection against further violence and is thus a very positive development for children. However, sensitive and age-​appropriate procedures are necessary that take children seriously and allow clarifying possible 45 46

ibid., §§ 75–​83. M.A.K. and R.K. v. the United Kingdom, nos. 45901/​05 and 40146/​06, 23 March 2010, § 79. Additionally, it found a violation of both the girl’s and her father’s rights under Article 8 (aspect of the right to family life) due to their separation while the child had to stay in hospital and her father could only visit her under restrictions (until a dermatologist was consulted who finally diagnosed the skin disease).

Systematic Analysis of Selected Basic Social Rights

39

misunderstandings as early as possible. While the doctor responsible in this case cannot be accused of having acted in bad faith (unfortunate coincidences likely caused the erroneous suspicion that the girl had been abused), it is striking that there is no record of a medical interview of the girl herself.47 Even if a 9-​year-​old might not be able to assess herself the implications of blood testing, she would have been able to answer questions on alleged sexual abuse if e.g. interviewed by a social worker who was apparently present at the hospital at that time. However, the ECtHR disregarded this fact in its examination of the child’s claim under Article 8 echr as it considered that interviewing the girl would have likely not allowed the doctors and social workers to rule out abuse as a possible cause of her injuries at an earlier stage.48 Only rather recently, the ECtHR paid more careful attention to a minor’s right to express her own wishes and have them duly taken into account. In the case of P. and S. v. Poland it found a violation of the echr, among others, because the authorities had not taken properly into account the views of a 14-​ year old rape victim and failed to provide her with objective counselling and information.49 This can be seen as an advancement in the recognition of children’s rights to have their views duly taken into account in medical decisions affecting them. However, the specificities of this case –​a number of facts contributed to the ECtHR’s finding of a violation of Article 3 echr –​might limit the transferability of this statement to other cases. 1.3 Access to Health Care and Rehabilitation Access to adequate health care (and rehabilitation) is crucial for addressing illness and ensuring permanently children’s wellbeing. According to the Committee on the Rights of the Child, Article 24 crc “imposes a strong duty of action by States parties to ensure that health and other relevant services are available and accessible to all children (…)”. This includes, in particular, ensuring a comprehensive primary health-​care system, an adequate legal framework, considering underlying factors of children’s health and the physical and financial accessibility of services.50 Similar to other social rights, doctrine has also developed certain quality standards for the access to health care. In particular, health care facilities have to be available (i.e. facilities, services and 47 48 49 50

This fact was also raised by the applicant herself during the proceedings before the ECtHR (cf. § 63) and the (domestic) Independent Review Panel, investigating the case (§ 71). ibid. § 71. P. and S. v. Poland, no. 57375/​08, 30 October 2010. The case will be dealt with in more detail below (subsection 1.3.2). Committee on the Rights of the Child (n 1), § 28.

40 ­chapter  programmes in sufficient quantity and quality), accessible to everybody in practice (i.e. affordable, within reach), and acceptable (i.e. respectful of medical ethics and culturally appropriate).51 The ecsr pays particular attention to the equality and effectiveness of access in its consideration of state reports on the right to health (Article 11 esc). In this sense it frequently poses questions on the access to health care by minorities, migrants or other disadvantaged groups52 and has concluded that “(…) the fact of giving the right of access to healthcare does not guarantee effective access for everyone.53 Therefore, States Parties do not only have to build up a health care system, which is theoretically open to all residents but must ensure that financial or other obstacles are not so high as to prevent effective access. The ecsr thus encourages states to adopt a comprehensive system of universal coverage54 to reduce out of pocket payment, which hinders equal access to health.55 Moreover, the ecsr pays attention to the fact that access to health care is only effective when it is timely. It therefore regularly asks states to provide information on the waiting time for care in hospitals, as well as for a first consultation in primary care, to evaluate if health care is provided within medically acceptable periods and without undue delays.56 1.3.1 Organisation and Operation of Health Care Facilities While the ECtHR has long been recognising certain positive obligations under Article 2,57 it has been prudent in deriving concrete health care standards from Contracting Parties’ (positive) obligations linked to the right to life.58 In Cyprus v. Turkey, a case that concerned both children and adults, the ECtHR was  –​ in abstract, as there was no concrete case of persons whose life was put at 51 5 2 53 54 55 56 57 58

Thomas Wenzel and others, ‘Right to health’ in Manfred Nowak, Karolina M Januszewski and Tina Hofstätter (eds), All Human Rights for All: Vienna Manual on Human Rights (Neuer Wissenschaftlicher Verlag, Vienna 2012) 324–​25. Cf. e.g. Conclusions XX-​2 –​Spain –​Article 11-​1, 6 December 2013. Cf. e.g. Conclusions 2013 –​France –​Article 11-​1, 6 December 2013. Cf. e.g. Conclusions 2013 –​Cyprus –​Article 11-​1, 6 December 2013. Cf. e.g. Conclusions 2015 –​Georgia –​Article 11-​1, 4 December 2015. Cf. e.g. Conclusions 2013 –​Albania –​Article 11-​1, Conclusions 2013 –​Bulgaria –​Article 11-​1, Conclusions XX-​2 –​Spain –​Article 11-​1, 6 December 2013. Osman v. the United Kingdom, no 87/​1997/​871/​1083, 28 October 1998; L.C.B. v. the United Kingdom, no 14/​1997/​798/​1001, 9 June 1998. In Erikson v. Italy the ECtHR held for the first time that “(…) the positive obligations a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients’ lives” (Erikson v. Italy (dec.), no. 37900/​ 97, 26 October 1999). This interpretation was repeated in a number of further cases (e.g. Calvelli and Ciglio v. Italy [GC], no. 32967/​96, 17 January 2002, § 49).

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risk –​cautious on entering the debate on the requirements of national health care systems. Noting that health care was in principle available for ethnic Greeks in Northern Cyprus, the ECtHR did not consider it necessary to examine the extent to which Article 2 of the Convention might impose an obligation on a Contracting State to make available a certain standard of health care.59 In the case of Asiye Genç v. Turkey, however, the concrete and particularly urgent need for access to adequate health care was at issue.60 The ECtHR decided that Turkey had violated its positive obligations under Article 2 echr, as the applicant’s new-​born child died in an ambulance while being transferred between various hospitals, which rejected admission due to a lack of capacities at their neonatal departments. It underlined that Article 2 required states, above all, to establish a regulatory framework that ensures a high level of competence among health professionals and requires hospitals to adopt appropriate measures to guarantee the protection of the life of patients.61 As in various hospitals of the region concerned there was only a small number of incubators (some of which were defective at the material time) the Court considered that Turkey had not “paid sufficient attention to the efficient organisation and functioning of the public hospital service, and more generally of its health protection system, and that the lack of capacities was not just related to an unforeseen influx of patients”.62 In addition, the Court found that Turkey had also violated its procedural obligations as none of the shortcomings in the management of the health service had been the subject of any national investigation.63 While the tragic circumstances of the case might be very specific,64 the Court’s general statements about the obligations under Article 2 echr are in fact a strong affirmation of the States Parties’ positive obligations to ensure

59

60 61 62

63 64

Cyprus v. Turkey [GC], no 25781/​94, 10 May 2001, § 219. However, Article 2 might be violated where it is shown that the authorities of a Contracting State have put an individual’s life at risk through the denial of health care they have undertaken to make available to the population in general. Asiye Genç v. Turkey, no 24109/​07, 27 January 2015. ibid., § 67. See above (n 58) for previous case law in this sense. ibid., § 80 (own translation). At the time of writing the judgment was only available in French: “Cela démontre que l’État n’a pas suffisamment veillé à la bonne organisation et au bon fonctionnement du service public hospitalier, et plus généralement de son système de protection de la santé et que le manque de place n’était pas seulement lié à un manque de place imprévisible dû à un afflux de patients”. ibid., § 86. The recent judgment in the case of Aydoğdu v. Turkey (concerning the death of a prematurely born baby) could, however, point to a systemic deficiency in the neonatal care in Turkey (Aydoğdu v. Turkey, no. 40448/​06, 30 August 2016).

42 ­chapter  an effective access to health care, at least for those children who need urgent treatment. Article 2 echr thus includes a right that health care facilities must be physically accessible for children and must offer them (at least) a standard of health care that the state has undertaken to make available to the population in general. (Physical) accessibility includes an appropriate management of health care facilities, which ensures sufficient capacities of health services for all patients in need of treatment (excluding unforeseeable influx). 1.3.2 Access to Specific Treatment or Medical Supplies In addition to Article 2 echr, also Article 8 (right to private and family life) may give rise to positive obligations to ensure access to health care and rehabilitation for children. In its case law the ECtHR has recognised that the positive obligation of states to secure the effective respect for the physical and psychological integrity of individuals might also include public funding for certain health care treatments or medical supplies. However, Article 8 does not guarantee as such a right to free medical care65 and in any case a certain severity of the negative effects of the illness or disability on the individual’s life is required to entail positive obligations by states.66 Furthermore, according to the Court, Article 8 requires a balance between individual rights and the society at large and when the issues involve an assessment of the priorities regarding the allocation of limited state resources, the authorities enjoy a wide margin of appreciation. In this sense, the ECtHR did not consider that the Dutch authorities’ denial of an expensive robotic arm to a teenager, which would have undeniably greatly facilitated his daily life and supported his independence, had violated Article 8 echr. In view of its margin of appreciation, the Netherlands were not obliged to offer to the applicant child a standard of health care which would have gone beyond that provided to all persons insured under the Health Insurance Act and the Exceptional Medical Expenses Act.67 Under very specific circumstances, the inaccessibility of necessary health care services might, however, even amount to inhuman or degrading treatment. In the case of P. and S. v. Poland a 14-​year-​old girl, who was pregnant as a result of rape (a fact that had been confirmed by the public prosecutor), 65 66 67

Pentiacova and Others v. Moldova (dec.), no. 14462/​03, 4 January 2005. Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/​97, 14 May 2002: “(…) affects her life in such a way as to interfere with her right to personal development and her right to establish and develop relationships with other human beings and the outside world”. Sentges v. the Netherlands (dec.) no. 27677/​02, 8 July 2003.

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experienced considerable pressure from various groups over several weeks, after a local hospital had publicly announced that it had refused her wish to perform an abortion. The ECtHR concluded that the health care system and authorities had given no proper regard to the girl’s vulnerability and young age, as well as her own views and feelings. Instead the authorities’ approach had been “(…) marred by procrastination, confusion and lack of proper and objective counselling and information”.68 In combination with the inadequate protection against harassment by third parties, these facts led the Court to conclude that there had been a violation of Article 3.  Regarding the access to the abortion service itself, the ECtHR concluded that effective access to reliable information on the conditions for the availability of lawful abortion and the relevant procedures to be followed, was directly relevant for the exercise of personal autonomy.69 However, despite the fact that the abortion was legal according to Polish law, the minor and her mother (who was the second applicant in the case) did not receive appropriate and objective medical counselling. In addition, no set procedure was available to them under which they could have had their views heard and properly taken into consideration.70 The ECtHR thus also found a violation of Article 8 echr, as regards the authorities’ positive obligation to secure to the applicants’ effective respect for their private lives. In addition, it decided on a violation of Article 8 regarding the disclosure of the minor’s personal and medical data.71 In a very sensitive case, the ECtHR has therefore carefully interpreted the states’ obligations regarding access to abortion services, especially for minor girls who are in a particularly difficult situation due to their young age and limited legal capacity. In its previous case law it had repeatedly held that Article 8 echr provided no right to abortion and hence states enjoyed a wide margin of appreciation on the provision of possibilities of lawful abortion in national law.72 However, the judgment in P. and S. v. Poland suggests that where abortion is legal, the access to the service and to objective information about it must not be hindered. Furthermore, it underlines the importance of a girl’s or women’s possibility to take a decision based on reliable information and without any pressure. 68 69 70 71 72

P. and S. v. Poland, no. 57375/​08, 30 October 2010, § 167. ibid. § 111. ibid. § 108. ibid. §§ 135–​137. Cf. e.g. A, B and C v. Ireland [GC], no. 25579/​05, 16 December 2010 (with references to further case law).

44 ­chapter  1.3.3 Access to Health Care for Migrant or Asylum-​Seeking Children Migrant children or minor asylum-​seekers in need of health care are in a particularly vulnerable situation, independent of whether they reside with or without their families. Apart from practical difficulties (e.g. lack of knowledge about the health care system, language barriers), national laws often restrict the access to medical aid for non-​nationals. Within the European Union, the Reception Conditions Directive73 establishes minimum standards for the living conditions of asylum seekers, including necessary health care. However, other short-​term migrants or persons who are not yet or not any more asylum-​ seekers, might be entirely excluded from public health care. The ecsr had to deal with a number of cases, where it had to determine the extent to which the esc obliges states to provide health care to irregularly staying minors. In the case of fidh v. France it was called to decide whether an amendment of French law, which limited the access to health care for non-​ nationals, was in conformity with the esc. This question was particularly delicate, as the appendices of both the 1961 text of the esc and its revised version limit the application of the esc to citizens and nationals of other Contracting Parties.74 Yet the ecsr held that health care was such an essential right for the preservation of human dignity that the total denial of medical assistance to foreign nationals was contrary to the esc, even if the persons concerned were irregularly staying.75 Nevertheless, in the case at issue it did not find a violation of the right to social and medical assistance (Article 13) but only a violation of Article 17 esc (right of children and young persons to social, legal and economic protection). Since the French legislation provided for the treatment in case of emergencies and life-​threatening conditions (and a number of further costs could be covered once an uninterrupted stay of more than three months could be proved) the Contracting Party did not fully deny access to medical assistance to irregular migrants. However, regarding children, the esc referred to the crc, which inspired Article 17 and held that this provision established a more comprehensive right to care and assistance for minors. Access to medical assistance only in the case of emergency or after a certain period of uninterrupted stay was therefore not sufficient to fulfil the requirements of Article 17.76 While the applicant ngo argued, inter alia, that the limited access to the 73 74 75 76

Directive 2013/​33/​EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection. See above (­chapter 2). International Federation of Human Rights Leagues (FIDH) v.  France, Complaint No. 14/​ 2003, 8 September 2004, §§ 31–​32. ibid. §§ 36–​37.

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medical assistance scheme ruled out prevention and delayed care for minors, the ecsr did not elaborate further why the French law was incompatible with Article 17, i.e. what kind of health care services needed to be accessible to all children. It provided slightly more guidance on the concrete state obligations in the subsequent cases Médecins du Monde v.  France and dci v. Belgium, which concerned similar situations. As a general principle of interpretation, the ecsr declared in Médecins du Monde v. France that it considered itself bound by the crc’s “best interests –​principle”, whenever confronted with a case where the rights of a child were at stake.77 According to the ecsr, the “best interests  –​principle” requires Contracting Parties to ensure that all children present on its territory, whatever their residence status, enjoy an adequate access to health care, and that specific health problems of disadvantaged children are addressed. It therefore found a violation of Article E (non-​discrimination) taken in conjunction with Article 11 § 1 esc by France.78 In dci v. Belgium, the ecsr concluded that the lack of accommodation for unaccompanied minors or those staying irregularly with their families in Belgium forced some children to live on the streets. That situation exposed them to increased threats to their health and physical integrity, whilst also severing their access to health care.79 Consequently, it decided that Belgium had violated its (positive) obligations under Article 11 § 1 and § 3. However, as in fidh v. France, it did not find a violation of Article 13 because there existed a form of medical assistance guaranteed by law (which entitled migrant minors to medical assistance on the same basis as the country’s nationals) and no serious shortcomings of this system could be evidenced. While this assistance essentially took the form of “urgent medical assistance”, the ecsr found that –​ other than the French provisions at stake in fidh v. France –​it did not only cover life-​threatening medical situations but also curative and preventative assistance, as well as essential psychological assistance. Therefore and even though acknowledging that there might be many difficulties for the practical implementation of this urgent medical assistance, the ecsr did not consider

77 78 79

Médecins du Monde –​International v. France, Complaint No. 67/​2011, 11 September 2012, § 141, referring to previous case law: Defence for Children International (DCI) v. the Netherlands, Complaint No. 47/​2008, 20 October 2009, § 29. ibid. §§ 144–​145. Defence for Children International (DCI) v.  Belgium, Complaint No. 69/​2011, 23 October 2012, §§ 116–​118.

46 ­chapter  that Belgium had failed to take the necessary measures to which it was obliged under Article 13.80 All three decisions constitute a major advancement in the scope of the esc, based less on the text of the Charter than on basic principles of children’s rights established by the crc. While acknowledging the financial and practical difficulties for states and health care providers in ensuring medical services to undocumented/​irregularly staying persons, the ecsr decided that children’s right to protection and care prevailed. It can thus be considered settled case law that all children under the Contracting Parties’ jurisdiction, must have access to a minimum of health care services, including certain preventive care, whatever the circumstances of their stay. This interpretation conforms to the crc, which inspired the new wording of Article 17 esc (compared to the 1961 Charter): Article 24 § 2 lit. f crc foresees, among others, that State Parties “develop preventive health care”. In the interpretation by the Committee on the Rights of the Child, prevention “should address the main health challenges facing children within the community and the country as a whole. These challenges include diseases and other health challenges, such as accidents, violence, substance abuse and psychosocial and mental health problems”.81 While “preventive health care” in this understanding is potentially very broad, the ecsr did not specify so far what kind of preventive health care measures states have to make available for all children under their jurisdictions. 1.4 Prevention of Health Risks, including Child Mortality European instruments do not describe necessary measures for the prevention of health risks as detailed as the crc does. This is likely to be related to the different contexts of the instruments. While the crc is exclusively dedicated to children, the esc, cfr and health-​related articles of the echr are (part of) general human rights instruments and thus less adapted to specific groups. Furthermore, the crc’s background is a global one, where children’s health problems related to general living conditions are far more prevalent than in the European context. For example, the overall low rates of child and infant mortality in Europe82 indicate that mostly these deaths are rather the result of

80 8 1 82

ibid., §§ 129–​132. A  case raising similar questions has been recently decided by the ecsr:  European Committee for Home-​Based Priority Action for the Child and the Family (EUROCEF) v. France, Complaint No.114/​2015, 24 January 2018. Committee on the Rights of the Child (n 1), § 62. According to data provided by the World Health Organization the infant mortality rate in Europe (probability of dying between birth and age 1 per 1000 live births) was 8.3 in 2016, while the under-​five mortality rate (probability of dying by age 5 per 1000 live births)

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tragic incidents or individual errors by health professionals than of states’ systemic failure to ensure adequate health care and nutrition to children. Similarly, there are no special provisions on appropriate pre-​natal and post-​natal care for mothers, even though there is no doubt that both child mortality and maternal health could fall under the scope of Articles 11 and 17 esc, Articles 2 and 8 echr and Articles 24 and 35 cfr. For example, in 2013 the ecsr considered that a number of (Central and Eastern European) countries83 was not in conformity with Article 11 § 1 esc because of persisting high infant and maternal mortality rates and insufficient measures taken to improve the situation. The ecsr held that “where these mortality rates remaine[d]‌considerably worse than the European average, this point[ed] to weaknesses in the health system and to the inadequacy of measures taken to reduce mortality”.84 The Committee on the Rights of the Child considers “timely and appropriate prevention” to be an integral part of the scope of the right to health.85 This does not only cover access to preventive care (see e.g. above on the access to preventive care by migrant children) but also measures to reduce the risk for children to turn ill, get injured or disabled or even to die. First and foremost, states must ensure that their own (in-​)actions, including services performed by the public health care system, do not pose risks to the health and wellbeing of children. However, the right to health entails also positive obligations to protect children against health risks caused by third parties, e.g. protection against violence and abuse86 or against environmental hazards.87 The esc in turn contains a specific provision that obliges states “to prevent as far as possible epidemic, endemic and other diseases, as well as accidents” (Article 11 § 3 esc). In its evaluation of states’ obligations under this provision the ecsr regularly asks about information on states’ measures regarding the reduction of environmental risks (particularly, the protection of air quality,

83 8 4 85 86 87

was 9.6. Both numbers were the lowest among all who regions (http://​apps.who.int/​gho/​ data/​view.main.CM1300R?lang=en accessed 18 June 2018). The countries concerned were Azerbaijan, Georgia, Hungary, Republic of Moldova, Romania, the Russian Federation, and Ukraine. All of these countries are part of the who’s European region (http://​www.who.int/​about/​regions/​en/​). European Committee of Social Rights, Activity Report 2013 (2014) 19. Committee on the Rights of the Child (n 1), § 2 (see also above). ibid. § 64. See also General comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment. Committee on the Rights of the Child (n 1), § 49: “States should take measures to address the dangers and risks that local environmental pollution poses to children’s health in all settings. […] States should regulate and monitor the environmental impact of business activities that may compromise children’s right to health, food security and access to safe drinking water and to sanitation”.

48 ­chapter  water safety, noise), as well as measures taken to prevent drug addiction, immunisation and epidemiological monitoring and the prevention of accidents. All of these facts are particularly relevant for the health of children. In addition, Article 17 esc includes the protection of children and young persons against negligence, violence or exploitation (§ 1 lit. b). Under this article the ecsr thus evaluates the measures states have taken to ensure the protection of children from ill-​treatment and abuse. 1.4.1

Prevention of Risks at Health Care Facilities/​ Appropriate Medical Treatment While hospitals, walk-​in clinics or other health care facilities are important for preserving children’s wellbeing or curing their illnesses, a number of factors can pose risks for children’s health in such institutions, e.g. inadequate procedures, lack of knowledge or professional conduct by doctors or nurses, or unsafe infrastructural conditions. Under certain circumstances, a state’s failure to provide for an adequate legal framework (e.g. regulations on professional conduct), infrastructure and inspection to prevent health risks for children in medical settings, can involve its responsibility under Articles 2 and 8 echr. In addition, in the case of alleged medical malpractice, the positive obligations under both articles require states to conduct timely and effective investigations into the circumstances of the case. For example, the ECtHR found a violation of the state’s positive obligations under Article 2 in a case where Poland failed to conduct an effective and speedy investigation into the death of the applicant’s wife and the serious damage to his son’s health, following complications during a delivery by caesarean section.88 It considered that a prompt examination of cases concerning death in a hospital setting was also important beyond individual cases, as the “(…) knowledge of facts and possible errors committed in the course of medical care should be established promptly in order to be disseminated to the medical staff of the institution concerned so as to prevent the repetition of similar errors and thereby contribute to the safety of users of all health services”.89 If however, States Parties have taken all necessary steps to prevent health risks in medical settings, including the prompt and effective investigation of cases of medical malpractice, individual failures by health care professionals are not attributable to the states under Articles 2 and 8 echr. Therefore, the ECtHR did not find a violation of Poland’s (positive) obligations under Article

88 89

Byrzykowski v. Poland, no. 11562/​05, 27 June 2006. ibid. § 117.

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8 echr in another case where a possible link between medical negligence and the severe disability of a child had been thoroughly and timely examined by several levels of the domestic judicial system.90 In another case, where national courts had already found a negligence of the medical staff in the performance of their duties as well as deficiencies in the legal requirements for blood transfusions, the ECtHR decided that Turkey violated Article 2 echr because it did not provide the applicant child, who had been infected with hiv by blood transfusions at birth, with full and free medical cover for life.91 According to the ECtHR, the positive obligation to protect life under Article 2 echr would have entailed that the State Party first took preventive measures against the spread of hiv through blood transfusions and then to provide sufficient and appropriate redress. The duty to prevent health risks consequently includes the obligation to mitigate the damage and pay compensation to the victim, where a child’s state of health deteriorated as a result of a state’s failure to prevent health risks at hospitals or other health care facilities. In addition, the Court also found a violation of the procedural aspect of Article 2 in this case, due to the length of domestic proceedings. In this context it recalled the importance of prompt examinations of cases concerning medical negligence in a hospital setting outlined in the Byrzykowski case.92 The echr thus provides both certain substantial and procedural guarantees to prevent health risks for children in medical settings. While these obligations might be stricter for public health care facilities, the Oyal case –​which involved a private blood bank –​indicates that the (substantial) regulatory obligation and the procedural obligation to conduct investigations are applicable irrespective of the public or private character of the health care facility. The application of either Article 2 or Article 8 depends on the gravity of the incident or failure: as Article 2 protects the right to life, it can only be invoked if the failure to prevent health risks resulted either in the death of the person concerned or in a life-​threatening situation. 1.4.2 Protection against other Public Health Risks Apart from the specific context of health care institutions, the States Parties’ direct obligations under the right to health entail the obligation to prevent possible health risks for children at all places for which it is responsible and to undertake appropriate measures against public health risks in general. 90 91 92

Spyra and Kranczkowski v. Poland, no. 19764/​07, 25 September 2012, § 99. For a similar case see Yardımcı v. Turkey, no. 25266/​05, 5 January 2010. Oyal v. Turkey, no. 4864/​05, 23 March 2010. ibid. § 76.

50 ­chapter  The ecsr has repeatedly stressed the importance of preventive policies and measures for the effective fulfilment of Article 11 esc –​both in individual cases and for public health in general.93 During the latest monitoring cycle it found, e.g. non-​conformities with Article 11 § 3 because of a lack of measures to ensure safe drinking water in rural areas,94 to prevent smoking or accidents,95 or to improve the right to a healthy environment for persons living in lignite mining areas.96 Furthermore it underlined that “[i]‌n some areas, such as epidemic diseases, prevention policies may completely miss their goal if they leave certain social groups exposed”.97 Hence it expressed concern about inequalities in the provision of health care services and financial coverage, which resulted in unequal access and consequently in the ineffectiveness of public prevention policies as such. In its decision on the merits in the case of Médecins du Monde –​ International v. France it found a violation of Article E in conjunction with Article 11 § 3 esc due to an insufficient policy on prevention of diseases and accidents in the Roma community. According to the Committee, measures aiming to ensure e.g. high immunisation levels concerned the population in general; however special attention had to be directed at the most vulnerable groups.98 As infectious diseases, such as tuberculosis and measles, and the risk of domestic accidents largely resulted from the poor living conditions in the migrant Roma camps, the government was obliged to take specific measures to address their particular problems. “Treating the migrant Roma in the same manner as the rest of the population when they are in a different situation constitutes discrimination”.99 Under specific circumstances, also the echr might oblige Contracting States to undertake preventive measures to ensure the safety and wellbeing of children. Similarly to cases concerning the prevention of risks at health care facilities,100 the ECtHR has also developed certain substantial and procedural 93

94 95 96 97 98 99 100

In a case unrelated to children’s rights the ecsr emphasised that when there are reasonable grounds for concern regarding potentially dangerous effects on human health, Article 11 esc obliges states to take precautionary measures “consistent with the high level of protection” established by that article (International Federation of Human Rights Leagues (FIDH) v. Greece, Complaint No. 72/​2011, 23 January 2013). Conclusions 2013 –​ Georgia –​ Article 11-​3. Conclusions 2013 –​ Andorra –​ Article 11-​3. Conclusions XX-​2 –​ Greece –​ Article 11-​3. European Committee of Social Rights, Activity Report 2011 (2012) 126. Médecins du Monde  –​International v.  France, Complaint No. 67/​2011, 11 September 2012, § 160. ibid. § 163. See above.

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obligations under Article 2 echr to prevent public health risks for children. In Iliya Petrov v. Bulgaria the ECtHR held Bulgaria responsible for the severe trauma the applicant suffered as a result of the electric shock he got in an unsecured electrical substation, located in the park “Children’s World”, at the age of 11. In this context the Court recalled its previous case law, according to which the positive obligation to protect life under Article 2 applied in the context of any activity likely to jeopardise the right to life, a fortiori for the activities of an industrial nature, which are inherently dangerous.101 Consequently, it considered that when the state set up high-​voltage electrical installations its responsibility under Article 2 echr required the prevention of the risks inherent to those facilities. However, even though Bulgaria had appropriate regulations in place to secure electric installations, there was no system for regular checks. This “indifference of the authorities to control the safety of electric installations” resulted in a violation of the Contracting Party’s obligations under Article 2 echr.102 Additionally, the Court also found a violation of Bulgaria’s procedural obligations under Article 2 echr due to the lack of an effective domestic investigation. 1.4.3

Protection against Health Risks Caused by Third Parties: Violence against and Abuse of Children As mentioned in the introduction to this subsection, a comprehensive protection of children’s right to health has to include a protection against actions by third parties that are (potentially) detrimental to their health. While possible risks for the health of children, caused by third parties, cover potentially a wide variety of activities, case law points specifically to violence against and abuse of children in schools or in the family context. Regarding environmental pollution, caused mainly by industrial activities, there is so far no case law specifically concerning children, even though in most cases where the ECtHR recognised a state’s (positive) obligation to protect applicants against the health risks resulting from industrial activity, the applicants also referred to the risks for their children.103 As the Committee on the Rights of the Child highlighted, corporal punishment has severe impacts on children’s health, including fatal and non-​fatal injuries, as well as psychological and emotional consequences.104 Nevertheless, 101 Iliya Petrov v. Bulgaria, no. 19202/​03, 24 April 2012, § 54. 102 ibid. § 62 (own translation from the French original). 103 See e.g. López Ostra v. Spain, no. 16798/​90, 9 December 1994; Guerra and Others v. Italy [GC], no. 116/​1996/​735/​932, 19 February 1998; Öneryıldız v. Turkey [GC], no. 48939/​99, 30 November 2004. 104 Committee on the Rights of the Child (n 1), § 68.

52 ­chapter  according to research, only 53 states wordwide have so far enacted provisions prohibiting all forms of corporal punishment of children in all locations.105 Within the CoE area, as of September 2017, 32 states have achieved prohibition in all settings.106 Corporal punishment of children is therefore also of high concern to European institutions and courts. The ECtHR had to decide on its first cases concerning corporal punishment of children in the 1980s and 1990s.107 In Campbell and Cosans v.  the United Kingdom the Court considered that the existence of corporal punishment as a disciplinary measure in state schools in Scotland did not constitute a violation of the applicants’ sons’ rights under Article 3 echr, as in fact neither of them had been subjected to corporal punishment and it had not been shown that they had suffered any adverse effects on their health due to the mere threat of a potentially inhuman treatment. However it found a violation of the second sentence of Article 2 Protocol No. 1 as regards the applicants, since their convictions, relating to “a weighty and substantial aspect of human life and behaviour”, had not been respected.108 Eleven years later, the Court was again confronted with corporal punishment used as disciplinary measure at British schools. In its judgment in the case of Costello-​Roberts v.  the United Kingdom it held that a school’s disciplinary system fell within the ambit of the right to education, which states are obliged to secure to children under Article 2 Protocol No. 1 echr. By delegating its obligations to private bodies or individuals –​in this case a private boarding school –​the Contracting Party cannot absolve itself of its duties.109 The

105 Global Initiative to End All Corporal Punishment of Children, Global progress towards prohibiting all corporal punishment, April 2018, available online: http://​www.endcorporalpunishment.org/​assets/​pdfs/​legality-​tables/​Global-​progress-​table-​commitment.pdf accessed 19 May 2018; However, there is steady progress: In 2014 it was only 40 states: Michael Freeman and Bernadette J Saunders, ‘Can we Conquer Child Abuse if we don’t Outlaw Physical Chastisement of Children?’ (2014) 22 The International Journal of Children’s Rights 681, 683. 106 Global Initiative to End All Corporal Punishment of Children, Progress towards prohibiting all corporal punishment in Europe and Central Asia, September 2017, available online:  http://​www.endcorporalpunishment.org/​assets/​pdfs/​legality-​tables/​Europe-​and-​ Central-​Asia-​progress-​table-​commitment.pdf accessed 19 May 2018. 107 The case of Tyrer v. the United Kingdom (no. 5856/​72), already decided in 1978, concerned corporate punishment as a form of criminal law sanction, at that time still permissible under the laws of the Isle of Man for punishing male children (10–​14) or young men (14–​ 17). In that case the ECtHR found a (direct) violation of Article 3. 108 Campbell and Cosans v. the United Kingdom, no. 7511/​76, 7743/​76, 25 February 1982, §§ 25, 30, 36; 38. The case will be dealt with in more detail below under the right to education. 109 Costello-​Roberts v. the United Kingdom, no. 13134/​87, 25 March 1993, §§ 27–​28.

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ECtHR has thus recognised, in principle, certain positive obligations for states under Articles 3 and 8 echr to protect individuals against harmful acts by others. In the concrete case, however, it denied that the punishment inflicted on the applicant by the school’s headmaster –​being “slippered” three times on the buttocks through his shorts with a rubber-​soled gym shoe –​attained the minimum level of severity required under Article 3 echr.110 Neither did it find a violation of Article 8 echr as it considered that the treatment “did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of the prohibition contained in Article 8”.111 It is important to note, however, that under Common Law at the time of the events both parents and teachers were exempted from punishment under criminal law (and consequently also civil liability), if they administered “reasonable and moderate physical punishment with a proper instrument in a decent manner”.112 Given the further developments in the European case law, including decisions by the ecsr, and the national laws of CoE Member States, the ECtHR might arrive at a different conclusion if a similar case was brought before it today. The first case on corporal punishment in the home was decided by the ECtHR in 1998 and concerned again the United Kingdom. It was brought before the Court by a minor, who had been beaten with a cane by his stepfather several times. While the stepfather had been charged with assault occasioning actual bodily harm he had finally been acquitted by a jury due to the Common Law defence of “reasonable chastisement”. In the Court’s view, however, the English law did not provide adequate protection to the applicant against inhuman or degrading treatment or punishment inflicted on him by his stepfather. Consequently it found a violation of the UK’s (positive) obligations under Article 3 echr. Interestingly, in the proceedings of this case, even the British government admitted that the English law at that time failed to provide adequate protection to children and therefore should be amended.113 In recent years, corporate punishment of children was also high on the agenda of the Council of Europe’s governing and monitoring bodies,114 in particular

110 111 112 113 114

ibid. §§ 31–​32. ibid. § 36. Cf. ibid. § 15. A. v. the United Kingdom, no. 100/​1997/​884/​1096, 23 September 1998, §§ 23–​24. While an analysis of the policy initiatives dedicated to the topic would go beyond the scope of this book, the monograph Council of Europe, Eliminating corporal punishment: a human rights imperative for Europe’s children (2nd edition, Strasbourg 2008) and the campaign “Raise your hand against smacking” (http://​www.coe.int/​en/​web/​children/​ corporal-​punishment) should be mentioned as key examples.

54 ­chapter  the ecsr. During the latest evaluation of the States Parties’ performance on Article 17 esc, several countries were found to be in breach of the Charter because corporal punishment was not explicitly prohibited by national laws (or was only prohibited in schools and institutions, but not in the home).115 A number of countries still allowed mild forms of physical punishment (e.g. “reasonable chastisement” in the United Kingdom or “authorisation of discipline” in Turkey), which are equally incompatible with the esc.116 The ban of corporal punishment in all settings was also the subject of a series of collective complaints by the ngos “World Organisation against torture (omct)”117 and “Association for the Protection of All Children (approach)”118 against a number of European states between 2003 and 2013. While the details of the legal situation differed in the countries concerned, none of the national legislations had at the material time provisions in place expressly prohibiting corporal punishment of children in all settings. In its decisions on these collective complaints, the ecsr referred in particular to Article 19 crc and Article 3 echr and recalled that the esc was a living instrument that had to be interpreted in light of developments in the national law of Member States of the Council of Europe as well as relevant international instruments.119 This refers in particular to physical chastisement of children by parents or other

115 See e.g. Conclusions 2015 –​Andorra –​Article 17-​1, 4 December 2015; Conclusions 2015 –​ Malta –​Article 17-​1, 4 December 2015; Conclusions 2015 –​Russian Federation –​Article 17-​1, 4 December 2015; Conclusions 2015 –​Georgia –​Article 17-​1, 4 December 2015 (legislative basis missing); Conclusions 2015 –​Slovak Republic –​Article 17-​1, 4 December 2015 (corporal punishment in the home). 116 European Committee of Social Rights, Activity Report 2015 (2016) 29. 117 World Organisation against Torture (OMCT) v. Greece, Complaint No. 17/​2003, 7 December 2004; World Organisation against Torture (OMCT) v. Ireland, Complaint No. 18/​2003, 7 December 2004; World Organisation against Torture (OMCT) v. Italy, Complaint No. 19/​2003, 7 December 2004; World Organisation against Torture (OMCT) v. Portugal, Complaint No. 20/​2003, 7 December 2004; World Organisation against Torture (OMCT) v, Belgium, Complaint No. 21/​2003, 7 December 2004; World Organisation against Torture (OMCT) v. Portugal, complaint 34/​2006, 6 December 2006. 118 Association for the Protection of all Children (APPROACH) Ltd v. Belgium, Complaint No. 98/​2013, 20 January 2015; Association for the Protection of all Children (APPROACH) Ltd v. Czech Republic, Complaint No. 96/​2013, 20 January 2015; Association for the protection of All Children (APPROACH) Ltd v. Slovenia, Complaint No. 95/​2013, 5 December 2014; Association for the Protection of All Children (APPROACH) v. Italy, Complaint No. 94/​2013, 5 December 2014; Association for the Protection of all Children (APPROACH) Ltd v. Ireland, Complaint No. 93/​2013, 2 December 2014; Association for the Protection of All Children (APPROACH) Ltd. V. France, Complaint No. 92/​2013, 12 September 2014. 119 World Organisation against Torture (OMCT) v. Greece, Complaint No. 17/​2003, 7 December 2004, § 31.

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care-​givers, a practice still widespread –​and commonly accepted –​in Europe half a century ago.120 The ecsr further outlined that states had to prohibit and penalise all forms of violence against children121 by national law, to fulfil their obligations under Article 17 esc. The relevant provisions had to be “sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children” and states had to act with due diligence to ensure the elimination of violence in practice.122 In its latest decision on the matter, Association for the Protection of All Children (APPROACH) Ltd. v.  Belgium, the ecsr underlined the wide consensus among human rights bodies at both the European and international level that corporal punishment of children should be expressly and comprehensively prohibited by law. As Belgian law did not provide for a sufficiently clear, binding and precise prohibition of corporal punishment, it was not in conformity with Article 17 § 1 esc.123 Similar to corporal punishment, public attention on domestic violence has increased in recent decades. Meanwhile it can be considered as common understanding among international human rights bodies that states’ obligations under the right to life, the prohibition of inhuman or degrading treatment and also the right to health entail an adequate protection against domestic violence by law and other measures.124 While this area covers many different aspects of civil and criminal law and the ECtHR has already developed a rich jurisprudence on states’ obligations in the context of domestic violence,125 here only

1 20 Freeman and Saunders (n 105) 684. 121 “(…) that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children” World Organisation against Torture (OMCT) v. Portugal, complaint 34/​2006, 6 December 2006, § 19. 122 World Organisation against Torture (OMCT) v. Portugal, complaint 34/​2006, 6 December 2006, §§ 19–​21. These criteria have become key parameters for the assessment of cases concerning the prohibition of corporal punishment by national legislations. 123 Association for the Protection of all Children (APPROACH) Ltd v. Belgium, Complaint No. 98/​2013, 20 January 2015, §§ 49; 55–​56. 124 Lee Hasselbacher, ‘State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection’ (2010) 8 Northwestern Journal of International Human Rights 190. As a manifestation of these obligations see in particular the Council of Europe Convention on preventing and combating violence against women and domestic violence (“Istanbul Convention”) and its interpretation by the Group of Experts on Action against Violence against Women and Domestic Violence (grevio). 125 A short summary of the case law is available on http://​www.echr.coe.int/​Documents/​FS_​ Domestic_​violence_​ENG.pdf last accessed 18 June 2018.

56 ­chapter  two cases involving violence against children should be briefly ­mentioned. The aspect of the placement of children outside their families because of dangers to their wellbeing (including domestic violence) will be treated below (section 4.3). In the first case, the ECtHR held that Slovakia had failed to provide a woman and her three minor children with the immediate protection required against the violence by their father/​husband. After the first applicant had left the jointly tenured apartment with her children, to protect them against physical and sexual abuse by their father, it took more than two years until the applicants’ father/​former husband was prohibited from entering the apartment and finally was also criminally convicted. The applicants meanwhile had to move away from their home. Noting that due to the nature and severity of the allegations, the applicants would have required protection immediately, the ECtHR found violations of the state’s obligations both under Article 3 and 8 echr. While during the proceedings the government argued that the lack of protection with regard to the first applicant was due to her own procedural errors, it admitted that it failed to provide adequate protection to the children.126 In the second case, the ECtHR found a violation of Croatia’s procedural obligations under Article 3 for failure to promptly investigate allegations of domestic violence raised by the first applicant who was 10 years old at the time of the events.127 However, the Court did not find a violation of the Contracting Party’s (substantive) obligation to protect under Article 3, as it considered that the national authorities had taken reasonable steps to assess and weigh the risk of possible further ill-​treatment, while the first applicant remained in her father’s custody.128 As an aggravated form of violence, sexual abuse does not only violate a child’s physical integrity but is also likely to endanger their mental health and wellbeing long after the events occurred.129 Apart from being protected by other/​more specific provisions, the protection of children against sexual violence and abuse is therefore an integral part of their right to the highest attainable 126 127 128 129

E. S. and Others v. Slovakia, no. 8227/​04, 15 September 2009, §§ 43–​44. M. and M. v. Croatia, no. 10161/​13, 3 September 2015, § 152. At the time of the ECtHR’s judgment the criminal proceedings against the first applicant’s father had lasted for almost four and a half years. ibid. § 160. “Observing that the sexual exploitation of children, in particular child pornography and prostitution, and all forms of sexual abuse of children, including acts which are committed abroad, are destructive to children’s health and psycho-​social development;” Preamble to the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007).

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standard of health. Within the Council of Europe, states have agreed on a specific treaty on the matter, the Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (“Lanzarote Convention”). The Committee of the Parties to the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse evaluates its implementation by the States Parties through the regular monitoring procedure –​ similar to the ecsr –​however, children cannot address the Committee with individual complaints.130 Nevertheless Article 17 esc or Articles 3 and 8 echr might also require states’ actions against sexual abuse of children and might therefore be invoked in cases before the ecsr and ECtHR. For example, the ECtHR found that effective protection of children against sexual abuse in schools required an effective system of control, which allowed for the detection and reporting of possible incidents. It is therefore not important for the state’s responsibility under Article 3 (substantive aspect/​duty to protect) if the state concerned knew about a specific case but if it ought to have been aware of the risk of sexual abuse in a certain context and if it adequately protected children, through its legal system, from such treatment.131 As in the cases of other forms of violence against children, it is up to the domestic authorities to conduct effective and timely investigations, once allegations of abuse are reported. In the case of C.A.S. and C.S. v. Romania the ECtHR found a violation of Romania’s procedural obligations under Articles 3 and 8 to promptly and effectively investigate a case of repeated sexual abuse of a minor, despite the gravity of the allegations and the particular vulnerability of the victim. Remarkably the Court referred to Romania’s obligations under the crc and underlined that in (criminal) investigations of cases involving violence against children the obligations under Articles 3 and 8 echr required that the best interests of the child were respected. This entailed a “rigorous and child –​sensitive” investigation.132 Equally, the ECtHR found a violation of the state’s procedural obligations under Articles 3 and 8 in another case against Romania.133 Admitting that in this case the national authorities were confronted with a sensitive situation (conflicting versions, little direct evidence), the Court still considered that they

1 30 For more details on the Convention see below section 5.3 131 O’Keeffe v. Ireland [GC], no. 35810/​09, 28 January 2014, § 168. 132 C.A.S. and C.S. v. Romania, no. 26692/​05, 20 March 2012, §§ 78, 82. The ECtHR regretted that in that case the victim was never offered counselling and was not accompanied by a qualified psychologist during the proceedings or afterwards, while the national courts attached high weight to his late reaction to the abuse. 133 M. and C. v. Romania, no. 29032/​04, 27 September 2011.

58 ­chapter  failed to explore the options available for a thorough investigation. Furthermore, the authorities had attached little weight to the particular vulnerability of minors and had conducted the investigations with considerable delay.134 All of these facts are incompatible with the requirements of a timely and thorough investigation, paying attention to the best interests of the child. 1.4.4

Information and Education about Health Risks and Health Institutions While the crc mentions both education on child health and nutrition and on family planning, as necessary measures to ensure the right to health, European instruments are less specific. Only the esc includes a provision on “advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health” among States Parties’ obligations under Article 11 esc. Nevertheless, possible obligations for states might also arise from Article 2 Protocol No. 1 echr (right to education) in conjunction with Article 8 echr or Article 14 (right to education) and Article 35 cfr. The ecsr has consistently interpreted Article 11 esc as requiring States Parties to develop policies on health education aimed at the general population as well as for groups affected by specific problems, notably through awareness-​ raising campaigns. Additionally, health education should be part of primary and secondary education, covering e.g. nutrition, sexuality, road safety, smoking, and alcohol and drug abuse. The measures taken should seek to prevent activities that are damaging to health as well as encourage the development of a sense of individual responsibility in respect of matters such as healthy diet, sexual and reproductive health and the environment.135 Adequate health education thus has to meet certain (content-​related) quality standards and has to be provided in sufficient quantity throughout primary and secondary education, as well as through public campaigns. In other words, states must demonstrate, through concrete measures, that they implement a public health education policy for the benefit of the population in general and specifically, the population groups affected by special problems.136 Whether these requirements are fulfilled, must be tested against the overall spirit of the esc and the specific aims of Article 11. 134 ibid. §§ 117–​120. 135 Cf. e.g. Conclusions 2013 –​Azerbaijan –​Article 11-​2, 6 December 2013; Conclusions 2013 –​ Portugal –​Article 11-​2, 6 December 2013; Conclusions XX-​2 –​Germany –​Article 11-​2, 6 December 2013; Conclusions XV-​2, Addendum, Slovakia. 136 Marangopoulos Foundation for Human Rights (MFHR) v. Greece, Complaint No. 30/​2005, 6 December 2006, §§ 216, 219.

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In the case of Médecins du Monde v. France, already mentioned above, the ecsr considered that France also failed to meet its obligations under Article E taken in conjunction with Article 11 § 2 with regard to the provision of information about the public health system to the migrant Roma community. While the Committee had previously found the situation in France to be in conformity with the Charter in the field of awareness-​raising of the general population, it considered that special attention should be paid to the migrant Roma population due to their particular vulnerability on health issues resulting from their poor living conditions.137 As the applicant organisation had pointed out, very few migrant Roma women used maternal health care services (with negative effects for both mothers and children) and the prevention of childhood illnesses was very fragmentary among this group. Therefore, the ecsr concluded that public authorities should take measures to inform those concerned and encourage them to benefit from the possibilities offered by the public health care system e.g. free and regular consultation and screening for children and pregnant women. However, the French Government did not mention any concrete action directed at the migrant Roma population in order to inform them and raise their awareness about health issues.138 In a case against Croatia, the ecsr found that discriminatory statements contained in educational material used in the mandatory curriculum of sexual and reproductive health education, constituted a violation of Article 11 § 2, in the light of the non-​discrimination clause in the preamble of the 1961 esc.139 The Committee acknowledged that the Croatian authorities enjoyed a wide margin of discretion in determining the cultural appropriateness of the educational material used in the ordinary school curriculum. However, it found that specific elements of the educational material in use were manifestly biased, discriminatory and demeaning, notably in how persons of non-​heterosexual orientation were described and depicted.140 While it did not consider that the overall content of the ordinary curriculum on sexual and reproductive health education in Croatia was insufficient, the ecsr thus stressed that particular aspects fell short of the substantive requirements of the esc as a whole.

137 138 139

140

Médecins du Monde –​International v. France, Complaint No. 67/​2011, 11 September 2012, §§ 151–​152. ibid. § 152. International Centre for the Legal Protection of Human Rights (INTERIGHTS) v.  Croatia, Complaint No. 45/​2007, 30 March 2009. In the Revised esc the non-​discrimination clause was turned from a preambular paragraph into a full treaty obligation (cf. Article E Revised esc). ibid. §§ 59–​60.

60 ­chapter  Prevention and Access to Health Care of Children in Institutions or Detention In line with international human rights standards, states bear a special responsibility for preventing health risks and ensuring the mental and physical wellbeing of persons who are in their custody. Even more than on the indiscriminatory nature of the right to health, as determined by the icescr and crc, this is based on the prohibition of inhuman or degrading treatment and the special standards regarding persons deprived of their liberty, e.g. the UN Convention against Torture.141 At the outset, it should be underlined that placing a child into institutional care or psychiatric hospitalisation is itself a decision with serious implications for the child’s health that requires careful procedures, inquiring on the needs and wishes of the child. More than any other children, this affects those with disabilities. In addition to the crc, the Convention on the Rights of Persons with Disabilities (crpd), adopted in 2006, sets new standards for the rights of children with disabilities and requires the end of the practice of “systematic institutionalisation” of children with disabilities.142 According to the Committee on the Rights of the Child, hospitalisation or placement in an institution of children with disabilities should be considered as last option, while as far as possible children should grow up “[…] in the community in a family setting and preferably within their own family with the necessary supports made available to the family and the child”.143 However, while closely linked to the child’s health, the aspect of the placement decision, respectively the conditions for placement, warrant special attention and will be analysed in more detail below (see section 3.4 on the right to adequate care). This subsection will focus on the specific requirements for securing children’s right to health in contexts where they are placed in institutions, hospitalised or detained. If children are in public care –​whether hospitalised, detained, or in an educational/​care facility –​the state partly or fully takes over the responsibilities 1.5

141 Cf. e.g. Rick Lines, ‘The right to health of prisoners in international human rights law’ (2008) 4 International Journal of Prisoner Health 3, 11–​14; Manfred Nowak, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention, A/​HRC/​13/​39/​Add.5 (2010), 61–​64. 142 See in more detail:  Eric Rosenthal and Laurie Ahern, ‘Segregation of children worldwide: the human rights imperative to end institutionalization’ (2013) 12 Journal of Public Mental Health 193. 143 Committee on the Rights of the Child (n 1), § 15.

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of care-​givers, including the responsibility to care for children’s physical and mental wellbeing. Additionally, the context of the placement in an institution or detention makes children more vulnerable to abuse, violence and other risks to their health.144 States are therefore required to provide an environment, including facilities and services, which is conducive to children’s basic needs and addresses the specific risks linked to the institutional context. Due to the special situation in institutions or detention –​especially the authorities’ strong powers of control –​states have enhanced obligations to conduct effective investigations into any allegations of harm inflicted to a child in these contexts.145 While none of the European human rights instruments includes a specific provision on the (health) rights of children in detention, Article 17 esc is interpreted by the ecsr as guaranteeing also the rights of children in public care (cf. § 1 lit c “to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family’s s­ upport”). Additionally, all esc, echr and cfr provisions containing “health–​related ­aspects”, already analysed above, can potentially also serve to determine standards for health-​related rights of children in institutions or detention. In the case of Güveç v. Turkey the ECtHR found that the conditions under which the applicant, a minor, was held in an adult prison for five years has caused him severe mental suffering (including failed suicide attempts), while the authorities failed to provide him with adequate medical treatment. In finding a violation of Article 3 echr, the Court paid particular attention to the fact that the applicant was only fifteen years old when he was detained, that for more than six months he had no access to legal advice and that for a period of eighteen months he was tried for an offence carrying the death penalty.146 All of these facts make it understandable that he suffered from stress and anxiety that ultimately caused his mental health problems. The ECtHR also referred to the crc and esc regarding the applicant’s detention in an adult prison, which was not only contrary to international law but also Turkey’s domestic provisions.147 Additionally, the prison administration failed to pay proper attention

144 Cf. UN General Assembly, United Nations Rules for the Protection of Juveniles Deprived of their Liberty, Resolution 45/​113, 14 December 1990. 145 This general principle, long part of the ECtHR’s case law on Articles 2 and 3 echr, has been confirmed recently by the Court in a case of an alleged slapping of a minor in police custody: while the mistreatment could not be proven, the ECtHR considered that the domestic investigation had been inadequate (Adam v. Slovakia, no. 68066/​12, 26 July 2016). 146 Güveç v. Turkey, no. 70337/​01, 20 January 2009, § 91. 147 ibid. §§ 58–​61.

62 ­chapter  to the applicant’s medical problems for years and did not transfer him, even though the prison doctor’s report suggested that he would need to spend considerable time in a specialised hospital. In this case the Turkish authorities thus both failed to establish the necessary facilities and procedures to prevent possible health risks for minors in detention and to provide access to the necessary medical treatment. In another case against Turkey the ECtHR concluded that the lack of necessary medical assistance can constitute inhuman or degrading treatment in the sense of Article 3 echr, even if it occurred only over a short period of time but the treatment would have been critical for the person detained. This is particularly the case when concerning a minor.148 In the case at issue, the applicant, who was still a minor at the time of the events, sustained severe injuries on his head when arrested during a violent manifestation. Even though his head was bleeding, he was only examined by a doctor more than four hours after his arrest and was not transferred to an emergency service afterwards, despite the doctor’s recommendation. In the ECtHR’s view, a careful examination would have been necessary to establish the severity of the injuries and to start appropriate treatment. It concluded that “it was the responsibility of the State, […] to take care of the applicant’s state of health and to give him the necessary medical care, since he was placed under the control of the authorities”.149 This view was confirmed in a recent Grand Chamber judgment, which found, inter alia, a violation of Article 3 on the ground of inadequate medical treatment. Based on European and international standards, including the crc, the ECtHR set out specific standards for the protection of the health of juvenile detainees, in particular, that minors must be medically assessed for suitability prior to placement in a juvenile detention centre.150 In a very specific case the ECtHR recently examined the adequacy of the medical treatment of a baby, which was born in prison and had to stay there for the first six months of his life with his mother who was held in pre-​trial ­detention. In this case the Court found a number of violations of Article 3 echr, including on account of the inadequate medical care provided for such a young child. By referring to the relevant international standards, it noted

148 Oyğur v. Turkey, no. 6649/​10, 5 March 2013. 1 49 ibid. § 54. At the time of writing the judgment was only available in French; the translation is the author’s own (in the original: “(…) il était de la responsabilité de l’Etat, au titre particulier de ses obligations positives au regard de l’article 3, de se préoccuper de l’état de santé du requérant et de lui donner les soins médicaux nécessaires tant que celui-​ci était placé sous le contrôle des autorités”). 150 Blokhin v. Russia [GC], no. 47152/​06, 23 March 2016, cf. especially § 138.

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that the child was particularly vulnerable in an adult prison and required close medical monitoring by a specialist. However, there were a number of inaccuracies and contradictions in his medical file, particularly regarding the dates of his medical examinations. According to the Court, that in itself was sufficient to find a violation of Article 3.151 This judgment is very important, as the ECtHR did not only consider the mother’s conditions of detention and the fairness of her trial but also thoroughly examined the situation of her child –​a question that is frequently overlooked when talking about detention conditions.152 As analysed above, particularly grave failures by the authorities to prevent health risks or provide access to medical treatment, can lead to a violation of Article 2 echr if the state’s omission resulted in the death of the person concerned. Since the state bears a higher responsibility for children in public care, the death of children in institutions must always be carefully examined to establish if it was the result of the authorities’ failures or tragic circumstances. In the case of Nencheva and others v. Bulgaria the ECtHR found a series of particularly serious failures by the authorities. In the course of the winter 1996/​97 fifteen children and young adults (below the age of 22) died in a home for children with severe physical and mental disabilities, under appalling conditions. Despite the fact that the authorities had been informed by the director of the inadequate conditions of the home, especially the lack of adequate heating, food and medicine, they failed to act for several months, even when the first deaths occurred. In the Court’s view, “such living conditions inevitably endangered the lives of vulnerable children with diseases requiring specific and enhanced care”.153 In addition, the majority of the medical files of the children did not contain any information about their treatment and the events in the days before their deaths; in some cases not even the cause of death could be established.154 The ECtHR considered that Bulgaria would have had a special responsibility to protect the health and life of these particularly vulnerable children under its exclusive control and noted that the occurrence of the tragic .

151 The ECtHR found it established that the child had gone without any monitoring by a paediatrician for almost three months (Korneykova and Korneykov v. Ukraine, no. 56660/​ 12, 24 March 2016). 152 In recent years ngos but also the UN system have turned increased attention to this topic see e.g. Committee on the Rights of the Child, Day of General Discussion “Children of incarcerated parents” 30 September 2011; Peter S Smith and Lucy Gampell, Children of imprisoned parents (2011) http://​childrenofprisoners.eu/​wp-​content/​uploads/​2014/​01/​ Full-​report-​Children-​of-​Imprisoned-​parents.pdf last accessed 18 June 2018. 153 Nencheva and others v. Bulgaria, no. 48609/​06, 18 June 2013, § 120. 154 ibid. § 8.

64 ­chapter  events was “neither sudden, nor isolated or unforeseen”.155 Consequently, it found violations of both the substantial and procedural limb of Article 2 echr (i.e. lack of duty to protect and failure to conduct proper investigations). In a comparably tragic case against Romania, the ECtHR underlined its previous case law that persons in custody were in a vulnerable position and the authorities were therefore under a duty to protect them.156 The case concerned a young man suffering from severe mental disabilities and an hiv infection, who had spent his entire life in state care and died in a psychiatric hospital at the age of eighteen. Noting that he spent his whole life “in the hands of the authorities”, the ECtHR concluded that Romania was “under an obligation to account for his treatment and to give plausible explanations concerning such treatment”.157 However, what it found was that the decisions regarding his placement were mainly based on which establishment was willing to accommodate him rather than on where he would be able to receive appropriate medical care and support. In fact, the transfers between different institutions had taken place without a proper diagnosis and in disregard of his basic health needs. Furthermore, the authorities had been aware that the hospital to which he was ultimately admitted was in appalling condition and could not provide proper treatment for hiv patients, in particular anti-​retroviral therapy. The ECtHR therefore concluded that by failing to provide the requisite standard of protection, Romania has violated Mr Câmpeanu’s right to life. This case is not only interesting because the ECtHR’s detailed analysis of the factual and legal requirements allows for the deduction of a number of general principles regarding the necessary standards of protection for persons in institutional care but also because it illustrates the possible “protection gap” that can occur at the end of childhood. While the facts of the case suggest that Mr Câmpeanu’s treatment had been inadequate most of his life, his situation worsened when he reached adulthood. He had to leave the centre for children with disabilities, where he had lived during the previous years and despite his severe mental disability, the authorities did not appoint a legal guardian. As he had no next-​of-​kin either, he was therefore unable to voice any concerns regarding his placement in different institutions or to initiate proceedings before

155 ibid. §§ 119, 122. At the time of writing the judgment was not available in English; the translation is the author’s own (in the original: “Il convient de noter ensuite que –​et c’est là un élément crucial dans l’affaire –​la survenue des évènements tragiques n’était pas soudaine, ponctuelle et imprévue…”). 156 Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, no. 47848/​08, 17 July 2014, § 131. 157 ibid. § 140.

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domestic courts.158 This shows that states must put in place special procedures to assess the needs of children reaching adulthood, who are living in state care. More specifically, such procedures must assess whether children (and then young adults) are fully able to make decisions themselves or need further medical, social, and/​or legal assistance. 1.6 Conclusions As we have seen in this section, children’s right to health covers many different aspects –​in particular, participation, prevention and care. Independent of the different contexts and legal bases, the key parameter is due diligence. While states cannot guarantee a certain state of health, they must show that they have taken all necessary steps to ensure the wellbeing of children. First of all, this means that as far as possible, states must prevent –​reasonably foreseeable –​risks for the health of children from even materialising. If children need health care measures, they need to have access to medical assistance and it must be provided in good quality. Finally, if certain circumstances pose concrete and immediate risks, states must provide effective redress and protection against further exposure. Due diligence requires that states must act in good faith and use all resources available, even when a certain measure of prevention or care is ultimately not successful. However, many cases analysed above show the contrary: authorities were aware of the facts but failed to react, while they could have at least mitigated the negative consequences for children. As for many other social rights, the right to health entails an organisational duty for states. They must organise public services in a manner ensuring that health care obligations can be adequately fulfilled and also must ensure regular monitoring. Moreover, preventive action requires both legislative and policy measures and implementing steps. While these general principles can be deduced from an overall analysis of the cases, we have seen that the threshold for invoking a state party’s responsibilities under the right to health differs depending on its legal basis. Article 11 esc is a broad provision, which is interpreted in a wide sense by the ecsr. Its comprehensive view of the “right to protection of health” thus covers various different aspects; not all of them are expressly mentioned in Article 11. One of these central aspects is access to health care, which the ecsr understands as not only including physical availability but also equality of access and thus special measures to reach disadvantaged groups. The Committee 158 This fact also contributed to the ECtHR’s decision regarding the locus standi (Article 34 echr) of the ngo lodging an application on behalf of the deceased without having been authorised to do so while he was still alive (cf. §§ 104–​114 of the judgment).

66 ­chapter  even went so far as to extend the scope of the application of the esc beyond the literal meaning of the text to also cover migrant children –​an interpretation that it justified with the particularly close link of the right to a person’s dignity. Finally, according to the ecsr’s interpretation of Article 11 § 3, States Parties are also required to undertake a broad range of preventive measures, in particular public awareness raising and information about health risks. The provision thus captures most aspects of Article 24 crc. However, the aspect of child mortality, which is not covered by Article 11, might be better protected by Article 2 echr, as it provides more detailed obligations on States Parties, including procedural obligations concerning the investigation of deaths and possible compensation (see below). As distinct from Article 11, Article 13 esc covers primarily the financial aspects of access to medical care and thus the conditions under which States Parties are obliged to provide certain medical services free of charge (or subsidised). This involves sensitive questions of building up social security schemes and (re-​)distributing public funds. Accordingly, the ecsr has been applying a narrower standard of interpretation to Article 13 in the case law analysed and left a broader margin of interpretation to states, as long as free access to basic care was provided. In obliging States Parties to address also the underlying consequences of ill-​health, Article 11 esc goes far beyond these basic requirements of Article 13 and might eventually advance a wider interpretation of “necessary social and medical assistance”. Article 17 § 1 esc (especially lit. a and b) can be seen as a child-​specific supplement to Article 11 esc. From the right of children to protection against negligence, violence and exploitation, the ecsr has deduced detailed state obligations, in particular a full prohibition of all forms of corporate punishment of children and protection against other forms of domestic violence or abuse in institutional care. Moreover, it argued that Article 17’s comprehensive protection required states to provide social and medical assistance to children that goes beyond the requirements of Article 13, in case there is an immediate threat that otherwise a child could be subject to neglect or exploitation. While the echr does not contain a right to health, the case law analysis has illustrated that it bears great potential to protect aspects of the right to health. The key to a “right to health –​friendly” interpretation is the ECtHR’s due diligence doctrine with regard to the Articles 2, 3 and 8 echr, which obliges states to undertake comprehensive measures to prevent (serious) violations of human rights from materialising. Undertaking these measures very often results in the necessity to provide health protection measures.

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Whether Article 2, 3 or 8 echr can be invoked, is primarily a question of the intensity of the interference but of course also depends on the characteristics of each provision, as interpreted by the ECtHR. Article 2 echr has the highest threshold and can be invoked in cases where the death of a child could have been prevented by a state’s action but the authorities either failed to act themselves or to put in place the necessary infrastructure or monitoring measures to ensure that adequate health care could be provided to children. In line with the Court’s established case law, this applies equally when a child’s life was severely put at risk. Article 3 in turn, requires that the circumstances, under which children had to suffer, attained a certain level of severity. Typically it is the chronology of facts –​a series of (in-​)actions by the authorities –​which put the child in a situation of disparity or suffering e.g. the lack of treatment in a difficult situation or a particularly bad quality of treatment ignoring basic needs of the child, as well as violence or abuse over a longer period. Finally, Article 8 echr is the most difficult to grasp as it covers a broad range of life situations. Most important for a child’s right to health are the aspect of the right to private life (in particular, the right to independent decision-​making about treatments) and the physical and moral integrity of children (especially, the prevention of health risks and the access to necessary treatment). All three provisions can also lead to secondary obligations of the states, in particular the obligation to investigate cases of alleged violations and to pay compensation in cases where violations have been established. A problematic aspect of the ECtHR’s case law covering aspects of the right to health is that a number of the cases analysed were brought to the Court on behalf of adults (usually parents) and were also viewed from a parents’ perspective (particularly, their rights under Article 8), while information on the child’s wishes is often incomplete or entirely lacking. On a general note, certain gaps and challenges in the implementation of children’s right to health can be observed across all instruments. Firstly, the right to be heard in matters regarding a child’s health is underdeveloped in national laws and practice but partly also in the jurisprudence by European bodies. The case law revealed that in several countries there are insufficient laws to establish systematic procedures to involve children in health decisions. Furthermore, there is insufficient counselling to children, as well as information to guide health care providers and care-​givers. This strongly contradicts the CoE’s principles on child-​friendly health care and shows a clear need to address the implementation of ambitious policies in practice. A couple of examples have revealed moreover that judicial bodies themselves are not always fully aware of children’s right to participation and tend to see cases

68 ­chapter  from an adult’s perspective, especially if they have been brought before it by parents or other care-​givers. Secondly, despite many policy and awareness raising measures in recent years, violence against children continues to be a wide-​spread phenomenon that constitutes a severe –​and often lasting –​threat to children’s rights. The amount of cases brought before European bodies, as well as conclusions by the ecsr concerning this topic, shows that there are both legal protection gaps and practical challenges on domestic level. While e.g. the prohibition of corporal punishment in the home will also require a change of attitudes, that cannot be easily implemented but only supported by awareness raising measures, the analysis highlighted that many countries still lack comprehensive legal protection. A clear legal protection framework will send out, however, important signals that no form of violence against children is tolerated and that the authorities are also willing to enforce children’s rights. Finally, the analysis also showed that marginalised or disadvantaged children, including migrant children or children with disabilities, often face practical difficulties in accessing health care or receiving adequate treatment. Partly the difficulties result from deliberate decisions (e.g. limiting the access to medical treatment for migrant children) but more often there is a lack of attention to the special needs of these children, which results in both inadequate or quantitatively insufficient infrastructure and a lack of awareness by health care personnel. These factors are an underlying (and systemic) risk to the right to health of particularly vulnerable children, which states should address urgently. 2 2.1

The Right to Education General Scope of the Right Article 28 crc 1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

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(c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-​out rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention. 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries. Article 29 crc 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment. 2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

70 ­chapter  Article 2 Protocol 1 echr –​Right to education No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. Article 17 esc –​The right of children and young persons to social, legal and economic protection With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-​operation with public and private organisations, to take all appropriate and necessary measures designed:(…) 2 to provide to children and young persons a free primary and secondary education as well as to encourage regular attendance at schools. Article 14 cfr –​Right to education 1. Everyone has the right to education and to have access to vocational and continuing training. 2. This right includes the possibility to receive free compulsory education. 3. The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right. The right to education is a complex right that includes in fact a set of rights and duties for States Parties, children and their parents or other care-​givers. The many facets of the right make it difficult to put it in rigid categories. While commonly it is referred to as either a cultural or social right it has many aspects that link it closely to other socioeconomic but also civil and political rights (e.g. freedom of association, prohibition of inhuman or degrading treatment).159 As Nowak has pointed out, it is probably one of the few rights

159

Mieke Verheyde, Commentary on the United Nations Convention on the Rights of the Child, Article 28: The right to education (A commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Boston 2006) 1–​2.

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that span across all so-​called generations of rights, as it also includes international cooperation.160 A  first, common distinction is that between rights to education in a narrow sense (regarding primarily questions of availability and access) and rights in education (regarding particularly the content of education and the relations in education e.g. also questions of disciplinary measures).161 The crc captures these different aspects in a comprehensive and detailed but partly still vague manner. Other than most of the other rights stipulated by the crc, Article 28 is not crafted as a right of the individual (“every child has the right”) but as an abstract obligation of States Parties (“States Parties recognize the right”). Nevertheless, in the following, Article 28 lists, by way of example, several obligations states must fulfil, in order to ensure the right to education. These obligations need to result in concrete positive actions: the provision of free and compulsory162 primary education, progressive access to (free) secondary and higher education, information and guidance on educational matters, measures to encourage continuous attendance, school discipline in accordance with the dignity of children, as well as international cooperation. As a supplementary provision to Article 28, Article 29 § 1 crc gives a detailed understanding of what the crc considers as “core values” in and the aims of education: focused on the child’s development, respectful of human rights and children’s and their parents’ backgrounds, non-​discriminatory and liberal/​open-​minded. While Article 28 crc does not define what education is, Article 29 suggests a broad understanding, going beyond formal schooling and covering not only the provision of basic life skills but also the development of a child’s intellectual, moral and emotional capacities.163 Additionally, Article 29 § 2 recognises the freedom of individuals and organisations

160 Manfred Nowak, ‘The Right to Education’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd ed. Brill, Leiden 2001) 254. 161 Ann Quennerstedt, ‘Education and Children’s Rights’ in Wouter Vandenhole (ed), Routledge International Handbook of Children’s Rights Studies (Routledge, New York 2015) 201; Verheyde uses a third category, referring to the “right through education” as to the “indirect implementation of the CRC and other human rights standards by means of human rights education”.(Verheyde (n 159) 2) 162 Nowak highlights that the right to education is “(…) one of the few human rights for which it is universally agreed that the individual has a corresponding duty to exercise this right” (Nowak (n 160) 253). 163 Committee on the Rights of the Child, General Comment No. 1 (2001): Article 29 (1): The aims of education: CRC/​GC/​2001/​1 (2001) § 2; Verheyde (n 159) 11.

72 ­chapter  to establish and run educational institutions, as long as they conform to the principles of § 1. However, even more than Article 28, the wording of Article 29 does not imply individual rights, arguably not even specific international obligations but rather, principles States Parties have agreed on. Yet it is important to read it together with Article 28, as the Committee on the Rights of the Child has highlighted that a child’s rights to education (in the broad sense) “is not only a matter of access (…) but also of content”.164 The many aspects mentioned by Article 28 (and Article 29)  crc illustrate the broadness and importance of the right to education. It is not only an important right for children in itself but has two strong “enabling components”: supporting the child in its development and strengthening society as a whole. Academic literature has thus underlined the importance of the right to education as “linkage” and “key to the unlocking of other human rights”.165 Through the acquisition of basic skills it enables children to live independent lives but also allows them to participate fully in society, using e.g. their rights to freedom of information and expression or the right to vote. In turn, society benefits from these abilities and the fact that education aims to transport certain values (cf. Article 29 crc) ideally strengthens democracy, human rights and tolerance in society.166 Obviously also the crc’s core principles have specific bearings on the right to education that have to be considered in all interpretations of the right. The Committee on the Rights of the Child has not issued a General Comment on the right to education so far, however, some basic understandings are provided by General Comment No. 13 of the Committee on Economic, Social and Cultural Rights. It establishes States Parties’ “core obligations” with regard to the right to education as a) the non-​discriminatory access to public educational institutions, b) the provision of primary education for all in accordance with Article 13 § 2,167 c) the adoption and implementation of a national 1 64 165 166 167

Committee on the Rights of the Child (n 163) § 3. Koch (Chapter 1 n 19) 149. ibid 150; Nowak (n 160) 245. This reference to Article 13 § 2 icescr means that the Committee on Economic, Social and Cultural Rights understands the obligation to provide free and compulsory education for all as a core minimum obligation of states (Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (1st ed. Oxford Univ. Press, Oxford 2014) 1102). Article 14 ecsr supports this view as it obliges states (that do not already guarantee the right) to adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, of the principle of compulsory education free of charge for all.

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educational strategy, which includes provision for secondary, higher and fundamental education, and d) the free choice of education without interference from the state or third parties (i.e. states’ “obligations to respect and protect”), subject to conformity with “minimum educational standards”. Furthermore, States Parties must ensure, as a minimum core obligation, that education conforms to the objectives set out by Article 13 § 1 icescr, in particular the full development of the human personality, dignity and the respect of human rights.168 While Article 13 icescr and Article 28 crc are not identical, both the Committee on the Rights of the Child and doctrine have largely adopted this definition of core obligations.169 The Committee’s General Comment has also theorised the essential features of the right to education, namely availability, accessibility, acceptability (to parents and children) and adaptability (should remain flexible to adapt to needs of changing societies).170 On the European level, all three human rights instruments, which are the subject of this analysis, recognise a right to education, albeit in very different terms. The oldest of these provisions, Article 2 of Protocol No. 1 to the echr, uses an exclusively negative wording: Contracting Parties must not deny the right to education to anybody and shall respect the rights of parents to ensure an education according to their own religious or philosophical convictions. Hence it does not entitle children (and also adults) to education of any particular type or level and consequently, states are not obliged to create a public

168 Committee on Economic, Social and Cultural Rights, General Comment No. 13 –​The right to education (article 13 of the Covenant) (1999), § 57. 169 Verheyde (n 159) 54–​55. Verheyde argues that free and compulsory education is phrased as an immediate obligation in the icescr, while it is a progressive one in the crc. This view cannot be followed as such: Article 2 icescr establishes the principle of “progressive realisation” for all rights contained in the Covenant. However, the Committee on Economic, Social and Cultural Rights seems to interpret the obligation to provide compulsory and free education as a stronger requirement than a purely progressive one (cf. the action plans required from States Parties in this regard. In this sense see also: Sital Kalantry, Jocelyn E Getgen and Steven A Koh, ‘Enhancing Enforcement of Economic, Social, and Cultural Rights Using Indicators: A Focus on the Right to Education in the icescr’ (2010) 32 Human Rights Quarterly 253, 269–​70). In any case there are some differences between the two provisions, notably Article 13 icescr combines some of the elements of the Articles 28 and 29 crc. 170 Committee on Economic, Social and Cultural Rights (n 168) § 6. The first UN Special Rapporteur on the right to education, Katarina Tomaševski, developed an illustrative framework on states’ minimum obligations, structured around the “4 As”: Katarina Tomaševski, Human Rights Obligations in Education: The 4-​A Scheme (Wolf legal publishers, Nijmegen 2006).

74 ­chapter  education system of any type or to subsidise private schools.171 However, the common understanding of states’ minimum obligations under the echr is that they must provide (non-​discriminatory) access to the educational institutions they set up, and maintain these institutions.172 As we will see below, the ECtHR s case law has developed these minimum obligations further over time. The unusual wording of this provision is the result of a lengthy drafting history,173 during which CoE Member States discussed about the extent to which they were ready to ensure positive rights to education, in particular regarding the financial implications of the right to free choice of education. As a compromise, states should have the power to decide to which extent they wanted to allocate money for educational purposes. Nevertheless, in practice, all CoE Member States already provided free and compulsory primary education, a right that was not questioned during the negotiation process.174 Furthermore, it is important to note that other than Article 17 § 2 esc, Article 2 Protocol No. 1 is not limited to primary and secondary education and thus protects the right to education more widely, e.g. also higher education or further education of adults. The esc for its part, originally did not foresee an explicit provision on the right to education but only on vocational guidance (cf. Article 9 esc). However, indirectly it assumed the existence of compulsory education as Article 7 § 3 prohibited the employment of persons “still subject to compulsory education”. The Revised esc now contains the right to free primary and secondary education for children and young persons in Article 17 § 2 and also stipulates that States Parties should encourage regular attendance at schools. While the provision does not mention compulsory education, its existence –​ likely to varying lengths in different States Parties –​can be deduced from the unchanged provision on child labour in Article 7 § 3 esc. Nevertheless, the

171 Some authors argue that even from the negative wording of Article 2 Protocol No. 1 echr some positive duties can be deduced, such as (unconditional) access to primary education and the maintenance of a minimum of educational facilities (Nowak (n 160)  261; slightly more cautious: Koch (Chapter 1 n 19) 159 seq.). 172 Clements and Simmons (Chapter 1 n 18) 424. The first time the ECtHR formulated these principles was in the “Belgian linguistic Case” (Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium, no. 1474/​62; 1677/​62; 1691/​62; 1769/​63; 1994/​63; 2126/​64, 9 February 1967), which will be further analysed below. 173 Cf. e.g. Björn Blauensteiner and Michael Kalteis, ‘Artikel 14 –​ Recht auf Bildung’ in Michael Holoubek (ed), Charta der Grundrechte der Europäischen Union: GRC-​Kommentar (Manz, Wien 2014) 191. 174 Koch (Chapter 1 n 19) 156–​57.

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right to education under the esc is still imprecise compared to the crc. In particular, the esc does not provide any information on the content and aims of education, which is especially striking when comparing it to the echr’s strong focus on the rights of parents. Yet, reverting also to other provisions of the Charter –​e.g. the right of persons with disabilities to social integration (Article 15) or the non-​discrimination clause of Article E –​the ecsr has substantially broadened the understanding of the right to education under the esc. In addition, the esc contains two more rights, which are closely related to the right to education, the right to vocational guidance and the right to vocational training (Articles 9–​10 esc). Both are mentioned as aspects of the right to education by the crc (Article 28 § 1 lit. b and d) but the esc’s provisions are more detailed and not limited to children. In the periodic reporting procedure, the ecsr regularly evaluates States Parties’ performance on these rights based on the amount and quality of information provided regarding vocational and educational guidance,175 respectively on the availability of secondary, vocational and higher education and training opportunities, public spending in this sector, admission requirements and enrolment rates.176 It considered for example that States Parties were non-​compliant with Article 9 esc due to a lack of equal treatment of nationals of other States Parties. Regarding Article 10 esc, it found that discrimination in the access to financial assistance and tuition fees or inadequate training and retraining facilities for adult workers constituted a non-​compliance with this provision.177 In its decision on the collective complaint genop-​d ei and adedy v. Greece the Committee defined “apprenticeship” in the sense of Article 10 § 2 esc as a “training based on a contract between the young person and the employer”, which combined both theoretical and practical vocational training and maintained close ties between training establishments and the working world.178 As the relevant Greek provision did not regulate the key aspects of an apprenticeship relationship and did not provide for other systematic arrangements for the training of adolescents in their various forms of employment, the Committee

1 75 Cf. e.g. Conclusions XX-​1 –​Austria –​Article 9, 7 December 2012. 176 Cf. e.g. Conclusions 2012 –​Hungary –​Article 10-​1, 7 December 2012. 177 European Committee of Social Rights, Activity Report 2012 (2013) http://​www.coe.int/​en/​ web/​turin-​european-​social-​charter/​activity-​reports last accessed 19 June 2018, 21–​22. 178 General Federation of employees of the national electric power corporation (GENOP-​DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v.  Greece, Complaint No. 66/​2011, 23 May 2012, § 36. Other aspects of this case are analysed below (subsection 3.5.2).

76 ­chapter  concluded that the situation was not in conformity with Article 10 § 2 of the 1961 esc, which is identical to the same Article in the Revised esc.179 The cfr’s provision on the right to education has the closest resemblance with the crc, in that it guarantees an individual right to education, including access to vocational and continuing training. Even more explicitly than Article 28 crc it establishes the right to free compulsory education180 but leaves it to domestic law to define what limits it sets for compulsory education (e.g. it could not only cover primary but also parts of pre-​primary and/​or secondary education).181 Article 29 crc is partly covered by Article 14 § 3 cfr, however, this paragraph is closer to the second sentence of Article 2 Protocol No. 1 echr in guaranteeing the right to found educational institutions and have the rights and convictions of parents respected in the education of their children. Yet the content and scope of Article 14 cfr cannot be fully explored without taking also the development of the right to education under previous EU (free market) law into account. Its origins lie in the free movement of workers, the freedom of establishment and to provide services and later also the rights connected to EU citizenship. Based on these freedoms the ecj has developed an extensive set of case law, which primarily concerned the equal access to education of children of internal migrant workers, the right to reside for study purposes or ancillary rights such as benefits linked to the education or social security cover. Most of these rights deduced by the ecj were later consolidated by secondary law or Treaty amendments and now constitute established Union law.182 While Article 14 cfr goes potentially far beyond these traditional free movement rights, the few cases concerning the right to education decided by the ecj since the entry into force of the cfr still concerned rights linked to intra-​EU migration and the Court continued to afford protection (only) on the basis of the fundamental freedoms of free movement and residence 179 A further collective complaint concerning Article 10 in conjunction with Article E ESC did not concern children but teachers aiming for access to specialist training in support teaching:  Associazione sindacale “La Voce dei Giusti” v.  Italy, Complaint No. 105/​2014, 18 October 2016. 180 Commentaries of the CFR have underlined that Article 14 § 2 only guarantees the right that “each child has the possibility of attending an establishment which offers free education” but not the right that all educational institutions offering compulsory education –​ whether public or private ones –​have to be available free of charge (cf. Explanations relating to the Charter of Fundamental Rights (2007/​C 303/​02), explanation on Article 14). 181 In fact, the CFR does not directly mention that the Member States have to establish compulsory (primary) education. An explicit obligation in this regard was rejected during the drafting process (Blauensteiner and Kalteis (n 173) 4). 182 Gisella Gori, ‘Article 14 –​Right to education’ in Steve Peers (ed), The EU Charter of Fundamental Rights: A Commentary (Hart, Oxford 2014) 402.

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of Union citizens.183 This is partly linked to the fact that the Member States remain the providers of education, while the Union has very few competences in this area –​mostly limited to common policies and cooperation in higher education. Furthermore, most of the cases concerned the access to and benefits linked to higher education and thus the applicants were (young) adults and not children. However, there might be some potential for a wider application of Article 14 cfr in relation to the access to education for migrant children to whom the common rules on asylum and immigration apply. The following case law analysis will cover the core right to education in a narrow sense (right to access to education), the rights in education (in particular, the content of education and its compatibility with parents’ convictions) and the issue of non-​discrimination in education and the rights of minorities, which concern both the access to and the content of education. 2.2 Access to Education –​General Questions The right to receive education constitutes the core of the right to education under international human rights law.184 In a statement of interpretation on Article 17 § 2, the ecsr underlined that access to education is crucial for every child’s life and development.185 Children must therefore have an effective access to educational facilities –​whether publicly or privately operated –​which includes in particular that facilities must be available in sufficient quantity, physically reachable and that they apply objective admission criteria. As the right to education is not an absolute right, measures limiting a child’s access to education are in principle permissible but only if they follow a legitimate aim, are appropriate, proportionate and balanced against the child’s interests, in accordance with international human rights law.186 183

E.g. European Commission v Republic of Austria (2012), Case C-​ 75/​ 11 [2012] ECLI:EU:C:2012:605; Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française (2010), Case C-​73/​08 [2010] ECR I-​02735. Both cases concerned (indirect) discrimination of young Union citizens wishing to follow their university education, respectively already studying, in another Member State. 184 Nowak (n 160) 255. 1 85 Conclusions 2011 –​ Interpretive statement –​ Article 17-​2. 186 Neither the CRC nor any of the European human rights instruments provides clear  –​ and exhaustive –​criteria for assessing the legitimacy of restrictions (unlike Articles 8-​11 ECHR). However, the ECtHR has held, for example, that a limitation will only be compatible with Article 2 Protocol No. 1 if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Leyla Şahin v. Turkey [GC], no. 44774/​98, 10 November 2005, §§ 154 et seq.). In another judgment it held that restrictions had to be “foreseeable for those concerned and pursue a legitimate aim” (Ali v. the United Kingdom, no. 40385/​06, 11 January 2011, § 53).

78 ­chapter  First and foremost, states are therefore obliged to take financial and technical actions to ensure that an educational system of good quality is established and maintained but also to take adequate legislative and other measures that address possible obstacles regarding children’s access to education.187 However, the wording differs in the crc and various European documents and States Parties’ exact obligations cannot be deduced easily. In particular, the questions of whether the right to education entails a duty to provide certain forms and levels of education or if education has to be free of charge can be answered differently by looking at different instruments. While Article 2 Protocol No. 1 echr is entirely silent about these questions, the crc and the cfr foresee that states should provide “free compulsory education”188 and the esc establishes free access to “primary and secondary education”. Yet none of these instruments defines the length or content of compulsory education,189 primary and secondary education, respectively. Therefore, only the courts’ and treaty bodies’ case law and guidelines can provide an approximation to the minimum guarantees which must be assured by different national educational systems. In concluding observations evaluating States Parties’ periodic reports on the crc, the Committee on the Rights of the Child has repeatedly held that states should develop a minimum and maximum age for compulsory education and that the end of compulsory education should coincide with the minimum age for employment.190 This underlines that compulsory education also constitutes a strong protection against the economic exploitation of children, an idea that is also firmly rooted in the esc (cf. Article 7 § 3 esc). Another important aspect is the equality of access to education which should ensure a minimum of equal opportunities for all children. The crc underlines the importance of this principle by reconfirming in the chapeau of Article 28 § 1 crc the general non-​discrimination principle of Article 2 crc, thus making all following aspects of the right dependent upon it.191 Apart from 1 87 Verheyde (n 159) 15. 188 As mentioned above (cf. n 168), the Committee on Economic, Social and Cultural Rights perceives the provision of “free and compulsory primary education” as a core minimum obligation of states. 189 The Committee on Economic, Social and Cultural Rights has interpreted the term “compulsory” in the sense that “[t]‌he element of compulsion serves to highlight the fact that neither parents, nor guardians, nor the State are entitled to treat as optional the decision as to whether the child should have access to primary education”. (Committee on Economic, Social and Cultural Rights, General Comment No. 11: Plans of Action for Primary Education (Art. 14) (1999) 6. 190 Verheyde (n 159) 15–​16. 191 ibid 36. Verheyde convincingly argues that the reference to “equal opportunities” in Article 28 § 1 CRC is a stronger phrasing than “without discrimination” in Article 2 § 1 CRC,

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fair and transparent admission criteria, ensuring equal access could also entail certain secondary obligations for states, e.g. providing subsidies for children whose parents cannot afford to pay (all) education-​related costs. While the equality of access to education is important for all children, it is particularly crucial for disadvantaged children as the case law analysis below will show. In these cases, equality of access is obviously strongly linked to equality in education, meaning the non-​discrimination of certain groups of children within the educational system.192 According to the ecsr, an education system should be both accessible and effective to conform to Article 17 § 2 esc. In turn, an accessible and effective system of education must include inter alia a functioning system of primary and secondary education provided free of charge.193 In the periodic reporting procedure relating to Article 17 § 2 esc the ecsr regularly asks states to provide information on enrolment rates for primary and secondary education (and measures to increase them), rates of absenteeism and drop-​out (and measures to reduce them), access to education for children from vulnerable families, integration of children with disabilities,194 and assistance to cover “hidden costs” of education (e.g. schoolbooks, transport to school).195 2.2.1

Organisation of the Educational System, Access to Education and Possible Limitations In the landmark “Belgian linguistic case” the ECtHR clarified that while Article 2 Protocol No. 1 echr provided an individual right of non-​discriminatory

192

1 93 194 195

as it obliges states more explicitly to ensure not only formal equality but also substantive equality, which often requires affirmative action policies. The differentiation between (non-​)discrimination regarding the access to education and within the educational system is not always clear-​cut and many overlaps exist. For practical reasons the segregation of certain groups of children in special schools (arguably also an access to education issue) is dealt with under the subsection “Non-​discrimination in education and minority rights” in this analysis. Cf. e.g. Conclusions 2015 –​Austria –​Article 17-​2, 4 December 2015. For states, having accepted Article 15 § 1 ESC, the aspect of the integration of children with disabilities is primarily evaluated under that provision (see below). Cf. Conclusions 2015 –​Armenia –​Article 17-​2, 4 December 2015; Conclusions 2015 –​Estonia –​Article 17-​2, 4 December 2015; Conclusions 2015 –​Hungary –​Article 17-​2, 4 December 2015, Conclusions 2015 –​Norway –​Article 17-​2, 4 December 2015. Regarding “hidden costs” the ECSR stated in the case of European Committee for Home-​Based Priority Action for the Child and the Family (EUROCEF) v. France: “Article 17§2 implies that all hidden costs such as books or uniforms must be reasonable, and assistance must be available to limit their impact on the most vulnerable population groups so as not to undermine the goal being pursued”. (Complaint No. 82/​2012, 19 March 2013, § 31). This case is analysed in more detail below (section 3).

80 ­chapter  access to existing educational institutions, it did not oblige Contracting Parties to establish certain educational facilities.196 Furthermore and notwithstanding the right to found private schools according to the second sentence of Article 2, states are not obliged to subsidise any particular form of education. If, however, states provide funding for private educational institutions, Article 14 requires that any subsidies should not be made in a discriminatory fashion.197 While this argumentation is reasonable in light of the limited scope of Article 2 Protocol No. 1, a very narrow interpretation could violate a child’s right to access to education under the crc (and likely also the esc), in cases where there are not enough spaces at existing (public) institutions available in a certain geographical area to accommodate all school-​aged children. So far the ECtHR was not confronted with such a case; however, the “right to access to existing educational institutions” could also be interpreted more widely, in the sense that states are obliged to maintain existing educational institutions according to current/​ongoing needs. Another, more rights protection-​focused interpretation could be the understanding of Article 2 Protocol No.  1 in the light of present-​day conditions, in particular the recognition of the right to free primary education by the crc and other human rights instruments, especially the esc. Possibly due to the negative wording of Article 2 Protocol No. 1 echr, most of the ECtHR’s case law on this provision concerns less active claims for access to (certain forms of) education but rather objections on measures limiting existing rights to education. In particular, the ECtHR was confronted with a series of cases, where pupils were expelled from school for disciplinary or health reasons. In the case of Campbell and Cosans v. the United Kingdom already mentioned above, a 15-​year-​old pupil was suspended from school because of his refusal to accept corporal punishment. Since he and his parents did not accept that corporal punishment was part of the disciplinary requirements of the school, he was never allowed to return to school until he ceased to be of compulsory school age by the end of the same school year (more than eight months after the incident). The ECtHR considered that while the right to education as stipulated by the first sentence of Article 2 Protocol No. called for regulation by the state, such regulation “must never injure the substance of the right nor conflict with other rights enshrined in the Convention or its Protocols”. Thus a condition of access that conflicts with the parents’ rights to have their convictions 1 96 See above (n 172) and below (subsection 2.3.1). 197 In this sense cf. the decision by the European Commission of Human Rights Verein Gemeinsam Lernen v. Austria (dec.) no. 23419/​94, 6 September 1995.

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respected cannot be described as reasonable and falls outside the state’s power of regulation under Article 2 Protocol No.198 In absence of a positive right to education, the ECtHR therefore deduced the illegitimate interference with the pupil’s right not to be deprived of his right to education from his parents’ rights under the Convention. This is certainly the legally easier and “safer” solution, as the parents’ convictions are explicitly mentioned in Article 2 echr. However, a more progressive and child-​focused view would have likely paid more attention to the question if the expulsion was legitimate –​and in particular proportionate –​in relation to the substance of the pupil’s own right to education,199 especially given the effects of long absenteeism from school and the fact that in practice he had been denied any education during the time in question. In the case of Ali v. the United Kingdom, the applicant was excluded from school –​without a precise time limit –​as long as investigations were ongoing into an incident he and two fellow pupils were accused of. The ECtHR considered that the right to education did not “in principle exclude recourse to disciplinary measures such as suspension or expulsion from an educational institution in order to ensure compliance with its internal rules” since it was also part of the objective of schools to develop and mould the character and mental powers of its pupils.200 In the concrete case it found that the school had struck a fair balance because it only upheld the exclusion until the criminal investigations were terminated and alternative education was offered in the meantime (by the educational authority). The fact that procedural requirements established by domestic law had not been respected (especially, rights to appeal, maximum time of exclusion) was of minor importance to the Court in this balance of interests, as it considered that the school could not reintegrate the schoolboy as long as the investigations were ongoing.201 However, it could be 198

Campbell and Cosans v. the United Kingdom (n 108), § 41. In a later case the European Commission of Human Rights decided that the parents’ refusal of corporal punishment in lieu of the suspension was not decisive because after an initial “cooling off” phase, the school had only made the pupil’s return to school contingent upon undertakings from the parents and the boy as to his future conduct. In that case he was thus not suspended from school to put pressure on his parents to accept corporal punishment but as an alternative sanction (Whitman v. the United Kingdom (dec.), no. 13477/​87, 4 October 1989). 199 At that time there was no consensus yet on the European level about the prohibition of all forms of corporal punishment in schools (see above subsection 1.4.3). Otherwise ­Articles 3 or 8 ECHR might have provided protection for the child’s own rights too. 2 00 Ali v. the United Kingdom, no. 40385/​06, 11 January 2011, § 54. 201 The ECtHR vividly described the school’s dilemma: “[…] due consideration must be given to the extremely difficult position in which the school found itself on account of the continuing police investigation. After the expiry of the 45-​day period, the legislation required it either

82 ­chapter  questioned whether the length of the criminal investigations –​from the beginning of March to mid-​June, when they were finally discontinued –​might have indirectly violated the applicant’s right to education. Knowing that the investigations entailed the disciplinary exclusion of three pupils, the judicial authorities might have been under a special obligation to conduct the preliminary proceedings as speedily as possible. In the case of Memlika v. Greece the ECtHR recognised that the authorities’ failure to promptly conduct the necessary procedures had violated the right to education of the third and fourth applicants –​schoolchildren of 11 and 7 years respectively at the time of the events. While it recognised that initially the children’s temporary suspension from school, in reaction to the (mis-​)diagnosis that they suffered from leprosy, had followed a legitimate aim (i.e. the protection of the health of others), it held that particularly restrictive and coercive measures should only be maintained for the time strictly necessary to the purpose for which they were taken and be lifted as soon as the reason for their imposition ceased to exist, in order to minimise the potentially serious consequences for the individuals subject to them.202 In the case at issue it took the authorities more than five months to establish the public health commission, responsible according to the law to decide about the school attendance of the children, even after a medical report indicated that they were no longer likely to infect those close to them. By contrast the ECtHR considered inadmissible the application of six French pupils, who had been expelled from school for wearing conspicuous symbols of religious affiliation in violation of the French Education Code. The Court underlined the importance of the state’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs and reiterated that a spirit of compromise on the part of individuals was necessary in order to maintain the values of a democratic society. It considered that the punishment of definitive expulsion was not disproportionate, as the pupils still had the possibility of continuing their schooling by correspondence courses. The pupils’ complaints under Article 9 were thus rejected as manifestly ill-​founded and the ECtHR considered that no separate examination of the complaint under Article 2 Protocol No. 1 was necessary.203

202 203

to re-​integrate the applicant or exclude him permanently. In practice, it could do neither. The applicant could not be re-​integrated while the criminal investigation was ongoing, but it would have been equally inappropriate for the school to have excluded him permanently when it had not been established that he had committed any offence”. (ibid. § 63) Memlika v. Greece, no 37991/​12, 6 October 2015, § 55. Aktas v. France (dec.), no. 43563/​08, 30 June 2009; Bayrak v. France (dec.), no. 14308/​08, 30 June 2009; Gamaleddyn v. France (dec.), no. 18527/​08, 30 June 2009; Ghazal v. France

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Equally, the ECtHR did not find a violation of Article 2 Protocol No. 1 echr in the case of a pupil who could not complete his last year of high-​school education while serving a prison sentence. According to the Court’s view, neither did the prevention from continuing in full-​time education during the detention after a lawful conviction by a competent court, constitute a deprivation of the right to education, nor did the echr oblige the prison authorities to set up ad hoc courses for convicts.204 As, however, the ECtHR put importance to the fact that the applicant was able to attend some training and educational programmes in prison,205 it can be deduced from this case that Article 2 Protocol No. 1 echr entails the obligation for Contracting Parties to give inmates at least access to some form of general or vocational education. 2.2.2 Access to Education of Asylum-​Seeking and Migrant Children Access to education is of crucial importance for migrant or asylum-​seeking children. In addition to the benefits education entails for all children, it is the basis for their integration into their host country, including not only the mastering of the official language but also the acquisition of relevant social and vocational skills. However, many states restrict access to their educational systems, excluding in particular children not holding permanent residence permits (especially, irregular migrants or asylum-​seekers) from certain or all levels of education. Furthermore, as for other rights, the access to education of these children might be hampered in practice due to administrative requirements for documentation, a lack of information or financial resources, or fear of detection by the immigration authorities. Despite these legal and practical difficulties, it is important to note that the right to education, as stipulated by the crc, the Protocol No. 1 to the echr and the cfr is a right enjoyed by all persons under the jurisdiction of the States Parties. Limitations are therefore only permissible if they fulfil the general criteria for restrictions under international human rights law. In contrast, the scope of application of the esc is limited to citizens of Contracting Parties to the treaty, as has been described above. Nevertheless, the ecsr has recognised a (limited) right to access to education for all children, independent of their nationality or immigration status.

204 205

(dec.), no.29134/​08, 30 June 2009; Jasvir Singh v. France (dec.), no. 25463/​08, 30 June 2009; Ranjit Singh v. France (dec.), no. 27561/​08, 30 June 2009. In the cases of Bayrak and Gamaleddyn parents were representing their minor daughters. Epistatu v. Romania, no. 29343/​10, 24 September 2013, §§ 63–​64. ibid. § 65.

84 ­chapter  Building on its ground-​breaking decision in fidh v. France,206 the ecsr published an interpretative statement on Article 17 § 2 esc as part of its General Introduction to its Conclusions 2011. There it argued that “[t]‌he denial of access to education [would] exacerbate the vulnerability of an unlawfully present child. The States are required to ensure that children unlawfully present in their territory have effective access to education in keeping with any other child”.207 In the evaluation of the Contracting Parties’ reports on the implementation of Article 17 § 2 it did in fact find that some countries did not extend this right to children with irregular immigration status,208 while it asked some other states to provide further information on the access to education for migrant children.209 Only a couple of months later, the Committee was called to apply these principles in a concrete case. In the case of Médecins du Monde v. France it further elaborated that access to education was so “[…] crucial for every child’s life and development” that all children, whatever their status, enjoyed the right to free primary and secondary education guaranteed by Article 17 § 2 esc. As that provision also requires States Parties to encourage regular attendance at schools, the ecsr underlined that the educational system had to be accessible and effective in practice, particularly for disadvantaged children. This might oblige states to take special measures for the profit of these children to ensure that they can effectively enjoy their right to education.210 The ECtHR for its part, also stressed the importance of access to education for all children in its case law, however, less based on an individual rights-​ perspective but on the wider interests of society and the spirit of the echr as a whole. In the case of Timishev v. Russia the Court underlined that the right to education played such an important role in a democratic society that a 2 06 Cf. above (n 75). 207 Conclusions 2011  –​Interpretive statement  –​Article 17-​2. This principle has been reaffirmed in the 2015 evaluation of the Contracting Parties’ performance on Article 17 § ESC (cf. e.g. Conclusions 2015 –​Austria –​Article 17-​2, 4 December 2015: “Children, whatever their residence status, come within the personal scope of Article 17§ 2”). 208 European Committee of Social Rights (n 97) 21. Most recently it concluded that the situation in Turkey was not in conformity with Article 17 § 2 of the Charter on the ground that irregularly present children do not have effective access to education (Conclusions 2015 –​Turkey –​Article 17-​2, 4 December 2015). 209 Cf. e.g. Conclusions 2015 –​Andorra –​Article 17-​2, 4 December 2015; Conclusions 2015 –​ Austria –​Article 17-​2, 4 December 2015. 210 Médecins du Monde –​International v. France (n 77), §§ 128 et seq. A  case raising similar questions is currently pending before the ECSR: European Committee for Home-​Based Priority Action for the Child and the Family (EUROCEF) v. France, Complaint No.114/​2015 (decision on admissibility: 30 June 2015).

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restrictive interpretation would not be consistent with the aim and purpose of this right.211 In the instant case it thus decided that undoubtedly the right to education guaranteed access to primary education for the children of a Chechen father who had lost his residence status in the Russian republic they were living in. In reaching this conclusion, it underpinned its argumentation by referring also to other international instruments, in particular Article 28 crc and Article 13 icescr. Similarly, in the case of Ponomaryovi v. Bulgaria, the ECtHR elaborated that it considered access to education to be different to other public services, not only because it is a right directly guaranteed by the echr but also because it served broader societal functions in democracies.212 In the case at issue it further recognised that in the contemporary “knowledge–​based” societies, not only primary education but also secondary education played an “[…] ever–​­increasing role in successful personal development and in the social and professional integration of the individuals concerned”. Under particular circumstances Contracting Parties might thus be obliged to also provide (free) secondary education to irregular migrants on an equal footing to its nationals.213 Since this is the only case of this kind however, it is difficult to establish how strictly the ECtHR will apply these standards in future. The particular circumstances of the case at issue –​Bulgaria had no substantive objection to the continuous stay of the applicants in the country, as they had arrived as children and were fluent in Bulgarian –​might have influenced the Court to apply a more generous interpretation. 2.3 Equality in (the access to) Education and Minority Rights As mentioned in the previous subsection, equal access to education is at the core of the right to education. Historic examples show that there is a risk that authorities use the educational system as a means to consolidate existing power relations and to systematically discriminate against minorities or other vulnerable groups.214 On the other hand, education can be a powerful means to reduce or eliminate inequalities in society.215 Therefore, the protection of 211 Interestingly, the ECtHR referred to the similarity of the wording of Article 2 Protocol No. 1 and that of Articles 2 and 3, Article 4 § 1 and Article 7 ECHR (“No one shall…”), which, in the Court’s argumentation, together enshrine the most fundamental values of the democratic societies making up the CoE (Timishev v. Russia, nos. 55762/​00 and 55974/​00, 13 December 2005, § 64). 212 Ponomaryovi v. Bulgaria, no. 5335/​05, 21 June 2011, § 55. 213 ibid. §§ 57 et seq. 214 Nowak (n 160) 259. 215 Verheyde (n 159) 36.

86 ­chapter  minorities’ rights in relation to education has become an important concern of international law.216 Ensuring effective equality requires states not only to refrain from discriminating against certain groups of children but also to take positive measures to enable all children, including disadvantaged children or children from minority groups, to enjoy their right to education in practice. However, discrimination does not only occur in the access to education (i.e. possibility to enrol in educational programmes) but also in education itself (i.e. limited opportunities for certain children in the educational system or discrimination by teaching or administrative personnel). Obviously both aspects interrelate and some cases –​e.g. the non-​inclusion of children with disabilities in regular schools –​can be seen as both discrimination in the access to education and within education, depending on the perspective. Therefore both aspects will be dealt with together in this subsection. According to the 1960 unesco Convention against Discrimination in Education,217 discrimination in education is “any distinction, exclusion, limitation or preference which, being based on race, colour, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality of treatment in education”. In particular, the Convention prohibits practices of depriving any person or group access to education, limiting them to an inferior standard of education, maintaining separate educational systems or institutions for certain persons or groups or inflicting upon them conditions which are incompatible with human dignity.218 While none of the European human rights instruments provides such a detailed provision against discrimination in education as the unesco Convention, the monitoring bodies have developed a rich case law on this issue, based on the treaties’ general non-​discrimination clauses (Article 14 echr, Article E esc, Article 21 cfr) in conjunction with the provisions on the right to education. Based on Article 17 § 2 and Article E esc, the ecsr has also developed certain positive obligations Contracting Parties must undertake to ensure equal access to education for all children. The following analysis starts with minority rights in education and then takes a closer look at the case law regarding two groups of children highly affected by discriminatory practices in the access to or in education in Europe: children with disabilities and children of Roma origin. 2 16 Saul, Kinley and Mowbray (n 167) 1128. 217 As of 19 May 2018, 35 CoE Member States have ratified the Convention (cf. http://​www. unesco.org/​eri/​la/​convention.asp?KO=12949&language=E&order=alpha). 218 Convention against Discrimination in Education 1960, Article 1.

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2.3.1 Minority Rights in Education The crc contains a special provision on children belonging to minorities (Article 30), which does not particularly refer to education, however also Article 29 crc mentions the “development of respect for the child’s parents, his or her own cultural identity, language and values” as one of the aims of education. The general European human rights treaties analysed in this study do not include a specific provision on minorities nor do the rights to education refer to special needs or rights of minorities. Nevertheless, affiliation with a (national) minority is mentioned explicitly as a prohibited ground of discrimination in the general non-​ discrimination articles of all three instruments (Article 14 echr, Article E esc, Article 21 cfr and also Article 1 Protocol No. 12 echr). In addition, the right to use a minority language in private and public life, including in an educational setting, might also be covered by Article 8 echr. Furthermore, on the level of the Council of Europe, states have agreed on two specific treaties on minorities, first the European Charter for Regional or Minority Languages (ecrml), adopted in June 1992,219 and second, the Framework Convention for the Protection of National Minorities (fcnm), adopted in November 1994.220 The ecrml covers exclusively cultural rights in a wide sense and does not include e.g. special rights to political participation. Furthermore, the rights are not formulated as individual rights but as “soft” state obligations (“objectives and principles” /​“measures to promote the use of regional or minority languages”) and –​similar to the esc –​ States Parties have some discretion on the choice of principles they decide to guarantee.221 The Charter defines regional or minority language in a pragmatic way as a language “traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and [which is] different from the official language(s) of that State” (cf. Article 1 ecrml). Nevertheless, its provisions do not automatically cover all languages fulfilling these (rough) criteria but states must

219 As of 21 May 2018, 25 Member States of the CoE have either ratified or acceded to the ECRML (https://​www.coe.int/​en/​web/​conventions/​full-​list/​-​/​conventions/​treaty/​148/​signatures?p_​auth=8DEPdtbz). 220 As of 21 May 2018, 39 Member States of the CoE are parties to the FCNM; only four have neither signed nor ratified the treaty (Andorra, France, Monaco, Turkey). 221 Cf. Article 2 § 2 ecrml: “In respect of each language specified at the time of ratification, acceptance or approval, in accordance with Article 3, each Party undertakes to apply a minimum of thirty-​five paragraphs or sub-​paragraphs chosen from among the provisions of Part 3 of the Charter, including at least three chosen from each of the Articles 8 and 12 and one from each of the Articles 9, 10, 11 and 13”.

88 ­chapter  determine the languages to which the Charter (or the paragraphs chosen) shall apply.222 The fcnm, for its part, does not include a definition of “national minority”, since there was no agreement on a generally accepted definition of this term among Member States of the CoE (and there is still none to date).223 States Parties therefore have a wide margin of appreciation regarding which groups to recognise as “national minorities”.224 On the individual level though, persons shall decide themselves if they wish to be treated as belonging to a national minority (Article 3 fcnm). As the ecrml, it does not guarantee individual rights directly but States Parties are obliged to implement its principles through national legislation and governmental policies.225 Regarding education, both treaties (indirectly) guarantee a number of important rights to persons belonging to national minorities, respectively speaking a regional or minority language. In particular, states should make available education at all levels in minority languages within the territories in which such languages are used (cf. Article 8 ecrml; Article 14 fcnm)226 and the fcnm additionally mentions the right of minorities to set up and manage their own private educational and training establishments (cf. Article 13).227 222 Cf. Article 3 § 1 ecrml; This means that States Parties are not obliged to apply the measures and principles to all regional or minority languages on its territory:  Franz Pan, Der Minderheitenschutz im neuen Europa und seine historische Entwicklung (Ethnos, Braumüller, Wien 1999) 128. 223 ibid 133. 224 Minority groups have no remedy to enforce their recognition as “national minority” in the sense of the fcnm (cf. ibid 134). 225 While the fcnm is a legally binding instrument, its “framework character” manifests itself in the character of its provisions which often only stipulate a result but leave it to the States Parties to determine how they will achieve it (Marc Weller, ‘Conclusion: The Contribution of the European Framework Convention for the Protection of National Minorities to the development of minority rights’ in Marc Weller (ed), The rights of minorities in Europe: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford commentaries on international law, Oxford Univ. Press, Oxford 2005) 633). 226 There is some ambiguity in Article 14 § 2 fcnm regarding the obligation to provide education “in” or only “of” the minority language but the Advisory Committee has expressed a preference for bilingual schooling (Fernand de Varennes and Patrick Thornberry, ‘Article 14’ in Marc Weller (ed), The rights of minorities in Europe: A commentary on the European Framework Convention for the Protection of National Minorities (Oxford Commentaries on International Law, Oxford Univ. Press, Oxford 2005) 422–​23). In any case, Article 14 § 1 fcnm and Article 8 § 2 ecrml provide for the right to learn a minority language also outside traditional minority areas (the ecrml, however, in much softer terms). 227 However, states are not obliged to subsidise these institutions (cf. the second sentence of Article 13: “The exercise of this right shall not entail any financial obligation for the

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The latter is in fact, however, not an additional right granted to minorities but a “specification” of the general right to establish private institutions for specific purposes recognised in many human rights treaties (cf. e.g. Article 2 Protocol No. 1 echr).228 Apart from these primarily linguistic rights, the treaties aim to promote two more aspects related to education, first equal opportunities for access to education at all levels for persons belonging to national minorities (i.e. effective non-​discrimination) and second, fostering knowledge about the culture, history, language and religion of minorities through research and education (cf. Article 12 fcnm; Article 7 § 3 ecrml).229 They therefore go beyond mere non-​ discrimination and strive for achieving societies in which the heritage of minorities (or persons speaking regional/​minority languages) has an equal place, which is reflected e.g. in textbooks or other teaching materials. The two treaties do not directly guarantee individual rights and their implementation is only supervised by non-​judicial bodies –​a Committee of Experts in the case of the ecrml,230 and the Committee of Ministers of the Council of Europe, assisted by an Advisory Committee231 in the case of the fcnm. Nevertheless, their provisions can also inform the interpretation of rights contained in the echr or the esc. Most of the applications to the ECtHR arguing discrimination based on the association with a national minority or the language spoken in conjunction with Article 2 Protocol No. 1 echr concern the education of children in the mother tongue of a linguistic minority. Interestingly though, the cases do not relate to traditional national minorities but rather relatively large groups of the population who speak another language than the ruling part of the population. Parties”). This could be slightly contradictory to the broad wording of Article 8 ecrml (cf. “to promote” or “to favour” such institutions if the state has no direct competence e.g. in pre-​school or university education). However, in practice most states provide some form of subsidies also to private educational institutions of recognised minorities (Patrick Thornberry, ‘Article 13’ in Marc Weller (ed), The rights of minorities in Europe: A commentary on the European Framework Convention for the Protection of National Minorities (Oxford Commentaries on International Law, Oxford Univ. Press, Oxford 2005) 404). 228 ibid 396. 229 In a similar sense cf. Article 4 § 4 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Adopted by General Assembly resolution 47/​135 of 18 December 1992. 2 30 Cf. Articles 15–​17 ecrml. 231 States are required to submit, within one year of the entry into force, a report providing full information on legislative and other measures taken to give effect to the principles of the fcnm. Further reports have to be submitted on a periodical basis and whenever the Committee of Ministers requests so (cf. Article 25 fcnm).

90 ­chapter  The first –​landmark –​case in this regard was the “Belgian linguistic case”, based on several applications by French-​speaking families living in the Dutch-​ speaking region of Belgium, where no French-​language education was provided.232 While the French-​speaking community is obviously no minority in Belgium, its situation in Flanders might be considered as that of a regional linguistic minority. It was a very complex case, in which the ECtHR was not only required to deal with detailed provisions of the Belgian linguistic and educational legislation but also had to take the sensitivities of the Belgian language disputes of that time into account. Nevertheless, or maybe even because of the Court’s necessity to elaborate its judgment in such detail, it contains a number of important principles on the interpretation of the Articles 8 and 14 echr as well as Article 2 Protocol No. 1 echr, which are still influential to date. First of all, the ECtHR clarified that despite its unusual wording, Article 2 Protocol No. 1 undoubtedly enshrined an (individual) right. Secondly, it elaborated that even though the provision does not specify the language in which education must be conducted, the right would be meaningless if it did not imply “the right to be educated in the national language or in one of the national languages”.233 However, the principle of equality and non-​discrimination according to Article 14 echr does not necessarily guarantee the right to education in one’s language of choice.234 Neither does the second sentence of Article 2 Protocol No. 1 oblige states to respect the linguistic preferences of parents, as they cannot be interpreted as “religious or philosophical convictions”.235 In the application of these principles to the case at issue the ECtHR stuck primarily to the narrow interpretation of Article 2 Protocol No. 1, whereas the right to education does not require states to establish (or to subsidise) education of any particular type or at any particular level. It therefore left a wide margin of appreciation to Belgium (especially, regarding the determination of legitimate aims) and focused on the examination of whether the measures were arbitrary or disproportionate. In doing so, it generally accorded a greater weight to the public interest (i.e. the “legitimate aim” expressed in the linguistic 232 The reason for this situation was a series of linguistic laws, which aimed at the highest possible “linguistic homogeneity” within the two regions Flanders and Wallonia (in addition to the “mixed” Greater Brussels region). 233 “Belgian linguistic case” (n 172) B. Interpretation adopted by the Court § 3 (p. 28). 234 ibid. § 11 (p. 31): “The object of these two Articles (art. 14+P1-​2), read in conjunction, is more limited: it is to ensure that the right to education shall be secured by each Contracting Party to everyone within its jurisdiction without discrimination on the ground, for instance, of language. This is the natural and ordinary meaning of Article 14 read in conjunction with Article 2 (art. 14+P1-​2)”. 235 ibid. § 6 (p. 29).

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laws) than to the individual interest in education in the native language at the place of residence.236 Only in one case did it find discrimination, where French-​speaking children residing in Flanders were not admitted to French-​ speaking classes in the “special status communities” around Brussels, while the Dutch-​speaking classes in the same communities accepted children independently of their place of residence. This added an important element to the ECtHR’s basic interpretation of the right to education referred to above: while states are not required to establish particular institutions, the access to existing schools must be secured for everyone without discrimination.237 Furthermore, the ECtHR clarified that in order to be effective, the right to education as guaranteed by Article 2 Protocol No. 1 must also include the right to obtain official recognition of the studies completed (and thus the possibility to draw profit from this education).238 Two other significant cases concerned the linguistic rights of populations in disputed territories who are in a minority position compared to the ethnic or linguistic groups forming the (de facto) ruling authorities.239 The –​ complex –​ case Cyprus v. Turkey (already partially analysed above)240 raised two issues with regard to the right to education. The first aspect concerned the unavailability of secondary-​school facilities in Northern Cyprus, where Greek Cypriot children could follow education in their native language. Referring inter alia to the principles developed in the “Belgian linguistic case”, the ECtHR concluded that there was no denial of the right to education in the strict sense as the children could attend Turkish-​or English-​language schools 236 In principle, French-​speaking children were free to attend French-​speaking schools in other parts of the country, however that entailed other disadvantages for them which the ECtHR found proportionate though (in particular, the requirement to take an additional exam before a National Board if the school-​leaving certificate was not obtained in the official language of the region). 237 “Belgian linguistic case” (n 172), B. Interpretation adopted by the Court § 32 (p. 67). 238 ibid., B. Interpretation adopted by the Court § 4 (p. 28). 239 While there are no (reliable) up-​to-​date data, the Moldovan-​speaking part of the population of Transdniestria constitutes a large group, which can hardly be described as “minority”, in the spirit of the fcnm or the ecrml (the ECtHR’s judgment cites a census organised by the Soviet authorities in 1989, according to which the population of Transdniestria was assessed at 679,000, composed ethnically and linguistically of 40% Moldovan, 28% Ukrainian, 24% Russian and 8% others –​cf. § 8). Troebst cites a local (academic) source, according to which in 1998 there lived only less than 34% ethnic Moldovans/​Romanians in Transdniestria (Stefan Troebst, ‘The “Transnistrian Moldovan Republic: From Conflict-​ Driven State-​Building to State-​Driven Nation-​Building”‘ in Arie Bloed and others (eds), European Yearbook of Minority Issues 2002/​3 (Martinus Nijhoff Publishers; Brill, Leiden 2004) 8). 240 See section 1 (the right to health).

92 ­chapter  in the North. However, it argued that this option was unrealistic for children who had already followed primary schooling in Greek. As the authorities had assumed responsibility for the provision of Greek-​language primary schooling, it considered that the failure of making continuing provision for it at the secondary-​school level amounted to an effective denial of the right to education.241 While this judgment is strictly in line with the ECtHR’s interpretation of Article 2 Protocol No. 1 echr, as a right which guarantees access to existing educational facilities (and their continuous maintenance), one wonders whether this could lead to odd results –​would the Court not have found a violation if the Northern Cypriot de facto authorities had not maintained a Greek-​language primary school? As hypothetical as it is to wonder about a possible judgment of the Court, there might have been a chance that it would have still considered such a situation in violation of Article 2 Protocol No. 1 echr, as the children concerned did not have any realistic chance to follow education in their native language elsewhere (unlike the French-​speaking children of Flanders). The second education-​related aspect of this case concerned the censorship of school-​books by the de facto authorities of Northern Cyprus. The ECtHR found a violation of Article 10 echr, inasmuch as school books destined for use in the primary school of the “enclaved Greeks” were subject to excessive measures of censorship. Even though the Court recognised that, in principle, the vetting procedure was designed to identify material which might pose a risk to inter-​communal relations (and was thus carried out as “confidence–​building measure”), the practical result of the action was that a large number of school-​ books were unilaterally censored or rejected by the authorities.242 Even though this aspect was not directly linked to the right to education by either the applicant Government or the Court (but to Article 10 echr), it shows just another facet of this complex right: in particular for children belonging to minorities it is crucial to have access to teaching material in the language of instruction, in order to ensure effective education of high quality. In the case of Catan and Others v. Moldova and Russia the applicants, Moldovan pupils who lived in Transdniestria and complained –​together with their parents –​about the forced closure and relocation of their schools, which used the Moldovan/​Romanian language and the Latin script,243 as well as about further harassment after the reopening of the schools. They claimed that they either had to suffer the harassment or change to a school where teaching was 241 Cyprus v. Turkey [GC] (n 59) § 278. 242 ibid. § 252. 243 The use of the Latin script in schools is prohibited by a “law” enacted by the Transdniestrian de facto authorities in 2002 (cf. §§ 43 et seq. of the judgment).

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carried out in Russian, Ukrainian or “Moldavian” (that is, Moldovan/​Romanian written in the Cyrillic script, a language used during the Soviet era). The ECtHR noted that the schools concerned were at all times registered with the Moldovan Ministry of Education and provided teaching in the first official language of Moldova. Their closure and the subsequent measures of harassment therefore constituted interferences with the pupils’ rights of access to existing educational institutions and to be educated in their national language. Unlike in the “Belgian linguistic case” it also found a violation of the parents’ rights under the second sentence of Article 2 Protocol No. 1, as it could not identify a legitimate aim for the measures taken by the de facto Transdniestrian authorities, which restricted the applicant parents’ wish to have their children educated in the official language of their country, which was also their own mother tongue.244 It is interesting to note in the context of this case that while the Russian Federation has ratified the fcnm and recognises “Moldavians” as one of its 23 “traditional” national minorities,245 it is unlikely that the treaty could be applied to the territory of Transdniestria –​over which Russia exercises effective control and decisive influence –​as the state does not consider it as part of its territory.246 This obviates the potential “protection gap” for national/​linguistic minorities in disputed territories, in cases where the echr provides insufficient protection. 2.3.2 Children with Disabilities The crc pays particular attention to the rights and needs of children with disabilities and establishes in Article 23 a number of measures to assist and empower them, including effective access to education and training “[…] in a 244

Catan and Others v. Moldova and Russia [GC], nos. 43370/​04, 8252/​05 and 18454/​06, 19 October 2012, §§ 143–​144. The ECtHR stressed in this context that Article 2 Protocol No. 1 had to be read in the light of Article 8 echr, which safeguards, among others, the right to respect for private and family life. 245 (First) Report submitted by the Russian Federation pursuant to Article 25 Paragraph 1 of the Framework Convention for the Protection of National Minorities, 8 March 2000, ACFC/​SR(1999)015, Part 1. 2 46 While the fcnm does not contain a specific provision regarding its territorial scope, the treaty refers several times to the “territory” of the States Parties (cf. especially the preambular paragraph: “Being resolved to protect within their respective territories the existence of national minorities”). Unlike the echr, which speaks of the “jurisdiction” of states (cf. Article 1 echr), also Article 29 of the Vienna Convention on the law of treaties stipulates the “territory” of states as subsidiary factor for determining the scope of application (“Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory”).

94 ­chapter  manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development”. It is silent, however, on the forms of schooling to which children with disabilities should have access to. Nevertheless, the Committee on the Rights of the Child explained, in its General Comment Nº 9 that “[i]‌nclusive education247 should be the goal of educating children with disabilities. The manner and form of inclusion must be dictated by the individual educational needs of the child since the education of some children with disabilities requires a kind of support which may not be readily available in the regular school system”.248 The crpd, to which all CoE and EU Member States are parties,249 enshrined the principle of inclusive education at all levels in Article 24 § 1. The right to education for children with disabilities thus includes a state’s obligation to ensure that “[p]‌ersons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live” (Article 24 § 2 lit b). The esc contains a provision which is similar to Article 23 crc in foreseeing several supporting measures, but is not limited to children (cf. Article 15 esc). The ecsr has emphasised the chapeau of this provision (“[w]‌ith a view to ensuring […] the effective exercise of the right to independence, social integration and participation in the life of the community”) and outlined that the provision’s underlying vision “is one of equal citizenship for persons with disabilities”.250 According to the Committee, ensuring the right to education for children and other persons with disabilities, plays an important role in advancing these citizenship rights. Already in the General Introduction to its 247

unesco’s “Guidelines for Inclusion” provide the following definition for inclusion: “Inclusion is seen as a process of addressing and responding to the diversity of needs of all learners through increasing participation in learning, cultures and communities, and reducing exclusion within and from education. It involves changes and modifications in content, approaches, structures and strategies, with a common vision which covers all children of the appropriate age range and a conviction that it is the responsibility of the regular system to educate all children”. United Nations Educational, Scientific and Cultural Organization, Guidelines for Inclusion: Ensuring Access to Education for All (Paris 2005) http://​unesdoc.unesco.org/​images/​0014/​001402/​140224e.pdf last accessed 19 June 2018, 13. 248 Committee on the Rights of the Child, General Comment Nº 9 –​The rights of children with disabilities: CRC/​C/​GC/​9 (2006), § 66. 2 49 In addition, the crpd is the first international human rights treaty to which also the EU itself is a party. In total, 177 states are a party to this Convention (as of 21 May 2018). 2 50 International Association Autism-​Europe v. France (n 28), § 48; later recalled and generalised in: Conclusions 2007 –​Statement of interpretation –​Article 15-​1.

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Conclusions of 2003, the ecsr highlighted that it considered Article 15 esc as both reflecting and advancing a profound change in disability policy in Europe –​away from welfare and segregation and towards inclusion and choice.251 In the Committee’s view, Article 15 § 1 esc thus obliges states to adopt an effective non-​discrimination legislation, requiring “[…] a compelling justification for special or segregated educational systems and confer[ring] an effective remedy on those who are found to have been unlawfully excluded or segregated or otherwise denied an effective right to education”.252 In its most recent evaluation of Contracting Parties’ performance under Article 15, the ecsr noted especially two problems with regard to this provision:  firstly, inadequate or missing legislation explicitly prohibiting discrimination in education and, secondly, insufficient “mainstreaming” of persons with disabilities into general education schemes.253 According to the ecsr, the same spirit of “mainstreaming” is also embodied in Article 17 § 1 esc.254 In its first decision concerning the equal access to and enjoyment of education by children with disabilities, the Committee recalled that the implementation of the esc required the States Parties to take not merely legal but also practical action to give full effect to the rights enshrined therein. As the percentage of children with autism being educated in France was much lower than that of other children, it concluded that the state had failed to achieve sufficient progress in advancing the provision of education for children with autism in practice. It therefore found a violation of Articles 15 § 1 and 17 § 1 esc whether read alone or in conjunction with Article E.255 However, neither the applicant association nor the ecsr considered a violation of Article 17 § 2. In the decision of Mental Disability Advocacy Centre (mdac) v. Bulgaria the ecsr considered that both the first and the second paragraphs of Article 17 esc guarantee the right to education for all children. It underlined that while it was acceptable to make a distinction between children with and without disabilities in the application of Article 17  §  2, the integration of children with disabilities into mainstream schools –​including arrangements for their special needs –​should be the norm, whereas teaching in specialised schools must be the exception.256 In its evaluation of the case it relied on two central 2 51 252 253 254 255 256

Conclusions 2003 –​Interpretative Statement –​Article 15. Conclusions 2007 –​Statement of interpretation –​Article 15-​1. European Committee of Social Rights (n 177) 22. International Association Autism-​Europe v. France (n 28) § 49. ibid. § 54. Mental Disability Advocacy Centre (MDAC) v.  Bulgaria, Complaint No. 41/​2007, 3 June 2008, § 35.

96 ­chapter  concepts: the “4-​A-​framework” and the progressive realisation of rights. First, it stressed that if a right was particularly complex or expensive to implement, states must at least ensure a reasonable timeframe, measurable progress and a financing consistent with the maximum use of available resources.257 Second, it considered that there was insufficient evidence to show real attempts by the authorities to integrate children residing in homes for mentally disabled children into mainstream schools (i.e. lack of accessibility) and that when the children attended mainstream schools  –​which less than 3% did  –​teachers were insufficiently trained and teaching materials were inadequate (i.e. lack of adaptability). Furthermore, many of the children concerned did not receive any form of education. Therefore the ecsr considered that children residing in homes for mentally disabled children in Bulgaria did not have an effective right to education. In addition, it also found a violation of Article 17  §  2 in combination with Article E as figures showed that overall enrolment rates of children without disabilities were much higher. The echr for its part does not include any special provision on children/​ persons with disabilities and their specific situation has only rarely been the object of applications before the ECtHR. Similarly to the ecsr, the former European Commission of Human Rights underlined in the 1990s that the right to education is a right of all children and that states must take steps to ensure the enjoyment of this right in practice. It equally noted that an increasing number of opinions held that, whenever possible, children with disabilities should be brought up together with other children of their age. However, it granted the Contracting Parties a wider margin of appreciation on this question, in particular, to decide how to make the best use possible of the resources available, in the overall interests of children with disabilities. Even when parents were “deeply convinced” of inclusive education in the sense of the second sentence of Article 2 Protocol No. 1 echr, states were, for example, not automatically required to provide a place for a child with severe developmental delays in a mainstream private school rather than an available place in a special school for children with disabilities.258 In a recent judgment the ECtHR provided clearer guidelines on the exercise of this margin of appreciation, interpreting the echr also in light of the

257 258

The ecsr already elaborated on this “model of reasonableness” in its decision International Association Autism-​Europe v. France (n 28) § 53. Graeme v.  the United Kingdom (dec.), no.  13887/​88, 5 February 1990. In this sense see also: Klerks v. the Netherlands (dec.) no. 25212/​94, 4 July 1995; McIntyre v. the United Kingdom (dec.) no. 29046/​95, 21 October 1998.

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crpd.259 While it still considered that states were in principle better placed to assess the situation and local needs with regard to the education of children with disabilities, it underlined that authorities have to take their choices in this area with particular care, given their impact on children with disabilities, whose particular vulnerability cannot be ignored. Therefore it considered that a refusal to make reasonable adaptations to accommodate for the education of children with disabilities in regular educational facilities constituted discrimination based on disability (and hence a violation of Article 2 Protocol No. 1 in conjunction with Article 14 echr).260 Yet, in the case at issue, the national authorities did not even try to identify the needs of the applicant or specify how her severe visual impairments would be an obstacle to her access to music education, even though she had passed the entrance exam to a conservatory. 2.3.3 Children of Roma Origin According to various estimates, Roma constitute Europe’s biggest ethnic minority and different groups of Roma are present in virtually all CoE Member States.261 Children of Roma origin should thus obviously profit from the special educational rights for minorities, outlined above, including in particular, equal access to all levels of education and –​where applicable –​to education in their own mother tongue.262 However, reports and case law indicate that discrimination against them is so widespread263 that it merits special analysis here. In the context of the periodic reporting procedure, the ecsr has repeatedly stressed that under Article 17 § 2 esc states have positive obligations to ensure equal access to education for all children, while particular attention has to be paid to vulnerable groups. For this reason it frequently asks states to provide further information on the education of Roma children (including 259 The ECtHR referred expressly to Articles 2 and 24 crpd as well as to the principles of universality and non-​discrimination in education, underlining that international instruments have recognised inclusive education as the most appropriate way to ensure these fundamental principles (Çam v. Turkey, no. 51500/​08, 23 February 2016, §§ 64–​65). 260 ibid. §§ 66 seq. 261 Jean-​Pierre Liégeois, Roma in Europe (Council of Europe Publishing, Strasbourg 2008) 246. On the problem of numbers (census data): ibid 27–​33. 262 There are many local variations of Romani but not all European Roma speak anymore languages which are different to that of the majority populations of their countries (cf. ibid 39 et seq.). Furthermore, not all states where Roma live have recognised them as national minority and/​or speakers of a regional/​minority language in the sense of the fcnm and the ecrml. Some states (e.g. France, Turkey) are not even parties to either of the two treaties. 263 Council of Europe Commissioner for Human Rights, Human rights of Roma and travellers in Europe (Strasbourg 2012) 115 et seq.

98 ­chapter  their enrolment rates in primary and secondary education as well as the rate of absenteeism) and special measures aimed to improve access to (mainstream) education.264 During the latest monitoring cycle of Article 17 esc it concluded that Roma children were still subject to segregation in the education field in Hungary265 and disproportionately represented in special classes in the Slovak Republic.266 In addition, it considered that the measures taken to ensure that Roma children completed compulsory education were insufficient in the Republic of Moldova.267 In a first case concerning (among others) the access to education and vocational training of children of Roma origin in France, the ecsr recently found a violation of Article 17 § 2 as well as a violation of Article E taken in conjunction with Article 17 § 2 esc.268 While considering that the various levels of public authority, the legislation and regulations and the judicial authorities in France generally ensured that the rights of Roma children were implemented, these safeguards had failed, or partly failed, to operate in the situations referred to by the complainant organisation. In particular, it found that successive expulsion decisions within a short time lapse increased the difficulties for the groups concerned and contributed to permanent instability which in turn jeopardised schooling. By contrast, the ecsr neither found a violation of Article 10 § 3 nor Article 10  §  5 as  –​in the Committee’s view  –​the complainant organisation could not substantiate the particular difficulties for young Roma.269 The ECtHR was confronted with first cases regarding the right to education of children of Travellers270 in the late 1990s –​all of the applicants were citizens of the United Kingdom and presented similar claims and circumstances of their cases. In substance, the applicants claimed that as a result of the eviction from their land –​where they stationed their caravans without having obtained planning permission –​their children or grandchildren could no longer attend the schools close-​by. However, in these cases the ECtHR did not find a violation of Article 2 Protocol No. 1 regarding the children, as it considered that they had not been denied effective access to (stable) education as a result 264 Cf. e.g. Conclusions 2015 –​Bosnia and Herzegovina –​Article 17-​2, 4 December 2015; Conclusions 2015 –​Serbia –​Article 17-​2, 4 December 2015; Conclusions 2015 –​Ukraine –​Article 17-​2, 4 December 2015. 265 Conclusions 2015 –​Hungary –​Article 17-​2, 4 December 2015. 266 Conclusions 2015 –​Slovak Republic –​Article 17-​2, 4 December 2015. 267 Conclusions 2015 –​Moldova –​Article 17-​2, 4 December 2015. 268 European Roma and Travellers Forum (ERTF) v. France, Complaint No. 119/​2015, 5 December 2017. 269 ibid., §§ 88, 93. 270 The respective judgments still use the term “gypsies”.

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of the authorities’ planning measures.271 Both the summaries of the facts and the Court’s assessments in these cases are so short though, that the implications on the interpretation of the right to education are difficult to assess. If at all, this case law corroborates the ECtHR’s previous reasoning that the right to education does not oblige Contracting Parties to provide individuals access to specific schools. Similarly, the ecsr found no violation of Traveller children’s rights to education as a result of evictions and inadequate accommodation, since the complainant organisation could not substantiate the alleged violation.272 The cases concerning the education of Roma children that have reached the ECtHR in recent years are of a different nature though. In all of these cases the applicant children (and/​or their parents) complained that they were systematically discriminated against regarding the enjoyment of their right to education in the sense of a violation of Article 2 Protocol No. 1 echr in combination with Article 14 echr. The case of D.H. and Others v. the Czech Republic was the starting point for a progressive –​and not uncontroversial273 –​interpretation of the principle of non-​discrimination regarding the education of Roma children in Central and Eastern Europe. The applicants in this case argued that they had been placed in “special schools” (i.e. schools for children with mental disabilities) even though their intellectual capacity had not been reliably tested and their parents had not been adequately informed of the consequences of consenting to their placement in these schools. In its judgment the ECtHR referred extensively to reports by CoE bodies but also other international organisations, which revealed, among others, that the proportion of Roma children attending “special schools” in the Czech Republic was much higher than that of non-​Roma children. In the concrete case, it considered that while the figures submitted by

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Coster v. the United Kingdom [GC], no. 24876/​94, 18 January 2001; Jane Smith v. the United Kingdom [GC], no. 25154/​94, 18 January 2001; Lee v. the United Kingdom [GC], no. 25289/​94, 18 January 2001; Clark and Others v. the United Kingdom (dec.), no. 28575/​95, 22 May 2001. 272 European Roma Rights Centre (ERRC) v. Ireland, Complaint No. 100/​2013, 1 December 2015. 273 Cf. the dissenting opinions of Judge Zupančič, Judge Jungwiert, Judge Borrego Borrego, and Judge Šikuta annexed to the judgment. While focusing on different aspects of the judgment adopted by the majority of judges, they all considered that the Czech Republic had established “special schools” as a measure to accommodate for the special educational needs of certain groups of children, including those whose difficulties resulted from social factors, and that with this measure the country had (allegedly) reached nearly universal enrolment rates for primary education. The judges also argued that the decision on the placement of children in either “ordinary” or “special” schools followed objective criteria.

100 ­chapter  the applicants regarding the percentage of Roma children in “ordinary” respectively “special” schools in their hometown might not be entirely reliable, they showed a dominant trend. Based on its previous case law on Article 14 echr, according to which measures that have disproportionately prejudicial effects on a particular group are likely to be discriminatory, it argued that (alleged) racial discrimination required “special vigilance and vigorous reaction”.274 It thus concluded that even though the relevant domestic provisions regarding the placement decision were couched in neutral terms, they had, in practice, considerably more impact on Roma children –​a fact, for which the Court could not find any objective and reasonable justification.275 As it had established the disproportionately negative effect on the Roma community, it interestingly considered that the applicants as members of that community suffered the same (indirectly) discriminatory treatment, without the necessity to examine their individual cases. In a very similar case, the ECtHR equally found an indirect discrimination (under Article 2 Protocol No. 1 read in conjunction with Article 14 echr) of two Hungarian applicants, who had been placed in a remedial primary school (“special school”), as they had been diagnosed as having “mild” mental disabilities. Despite contradictory results and the fact that their diagnosis had later been questioned by independent experts, the applicants could not change to mainstream education. As in the case of D.H. and Others, the ECtHR noted that Roma children had been overrepresented in the remedial school in question and that these figures thus revealed a disproportionately prejudicial effect on the Roma. As the Court could not find that there was adequate protection in place safeguarding the applicants’ proper placement, the government could not provide a sufficient justification for the impugned measures.276 In slightly different circumstances, in Oršuš and Others v. Croatia, the applicants complained that they were assigned to separate Roma-​only classes in primary school, with a curriculum significantly reduced in volume and content compared to the official national curriculum, while the Croatian government maintained that this only happened because of their inadequate command

274 D.H. and Others v. the Czech Republic [GC], no. 57325/​00, 13 November 2007, §§ 175–​176. 275 In fact, the ECtHR argued that “[w]‌here the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible” (ibid, § 196). It considered that the tests that were carried out were not capable of constituting such a justification as reports indicated that there was a risk that they were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them (cf. §§ 199 et seq.). 276 Horváth and Kiss v. Hungary, no. 11146/​11, 29 January 2013.

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of Croatian. The ECtHR first noted that the temporary placement of children in a separate class on the grounds that they lacked adequate command of the language of instruction was not automatically contrary to Article 14 echr, as it could be used to adapt the education to the children’s specific needs e.g. provide them with extra language classes. However, when such measures disproportionately (or in this case even exclusively) affect members of a specific ethnic group, effective safeguards need to be put in place at each stage of the implementation of the measures.277 In the instant case, the ECtHR found that such safeguards were missing as there was e.g. no legal basis for placing children lacking adequate command of Croatian in separate classes, and it could not be demonstrated that this practice had been applied in respect of any other (non-​Roma) pupils in any other part of Croatia. In fact, in the case of the applicants, their command of Croatian was not even specifically tested.278 Additionally, there was no established procedure to immediately and automatically transfer the applicant children to “mixed” classes as soon as adequate language proficiency was attained. In the Court’s view, rather than simply reducing the curriculum, the authorities should have adopted positive measures e.g. to assist the applicants in acquiring the necessary language skills in the shortest time possible and to actively involve social services to decrease the high drop-​out rates among the Roma population. Even though there was no general policy to place Roma pupils automatically in separate classes, the ECtHR thus considered that the state had failed to pay sufficient regard to the children’s special needs as members of a disadvantaged group.279 These judgments show how difficult it is to prove individual discrimination in apparently objective procedures but they also convey the message that effective equality in (the access to) education goes beyond establishing objective criteria, in particular when vulnerable children are concerned. Referring to a report by the European Commission against Racism and Intolerance (ecri), the ECtHR pointed out in one of the cases that many children “are misdiagnosed because of socio-​economic disadvantage or cultural differences. These children are unlikely to break out of this system of inferior education, resulting in their lower educational achievement and poorer prospects of employment”.280 277 278 279 280

Oršuš and Others v. Croatia [GC], no. 15766/​03, 16 March 2010, § 157. ibid. §§ 158–​162. ibid. § 182. Horváth and Kiss v. Hungary, no. 11146/​11, 29 January 2013, § 115. The ECtHR also observed in this case “that the misplacement of Roma children in special schools has a long history across Europe”.

102 ­chapter  Furthermore the cases illustrate the multifaceted problems Roma children face, of which the (indirect) discrimination by school authorities is only one. Many of them grow up in a difficult environment and are facing ostracism by the majority community, not only but particularly also, when they are attending “mixed” schools. These factors are also enormous challenges for the states that need to find appropriate strategies for providing adequate and equal education opportunities for all children of Roma origin.281 Thus, while the ECtHR’s messages are clear that there is no justification for “racial segregation” in European schools –​even if it happens only indirectly –​much greater measures than a simple change of the relevant statutory provisions will be necessary. States need to increase programmes to support Roma children during their education to overcome their social disadvantages, awareness raising programmes need to target both non-​Roma and Roma parents (e.g. regarding the importance of education, overcoming prejudices) and general social policies need to address the underlying factors of the disadvantaged situation of Roma families. 2.4 Content of Education While the crc dedicates an entire provision to the content of education (Article 29), the European human right instruments are very limited in this regard. Instead of formulating (positively) core elements/​principles for the education of children, the drafters of the echr and cfr have confined themselves to defining negatively the limitations of the states’ scope to design national curricula and the esc is entirely silent about the (necessary) content of education. According to the pertinent provisions of the echr and cfr, states have to respect the right of parents to ensure education and teaching in conformity with their own religious, philosophical (and pedagogical) convictions, however –​as the cfr clearly stipulated –​only “in accordance with the national laws governing the exercise of such freedom and right”.282 However, some aims which education should achieve and values that it should convey can be deduced from the spirit of the instruments as a whole, in particular their aim to foster democratic societies and the respect for fundamental rights and the rule of law. Furthermore, the first sentence of Article 17 esc, which is inspired by the crc, could be interpreted as an indirect phrasing 281 In fact, in all three judgments the ECtHR recognised the efforts of the respective state in promoting education for Roma children. 282 The commentaries on the cfr provide no specific explanation for or interpretation of this limitation, however, as Article 14 § 3 is very similar to Article 2 Protocol No. 1, it can be understood as corresponding to the limits for national law the ECtHR has defined in its case law (see below).

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of (some of) the aims of education, even though it does not only cover the right to education stipulated in §  2 but the entire Article (“[…] the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities”). Regarding the echr, the ECtHR has interpreted the second sentence of Article 2 Protocol No. 1 (the respect of parents’ convictions) as aiming, among others, “(…) at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the ‘democratic society’ as conceived by the Convention”.283 The right is thus opposed to the uniform teaching of state doctrines and ideologies, which are a typical characteristic of illiberal and undemocratic states.284 By contrast, it should foster the teaching of a variety of opinions and ideas. The ECtHR has also elaborated in its jurisprudence, however, that the second sentence of Article 2 Protocol No. 1 is in an ancillary position with regard to the first sentence (the right to education). In Campbell and Cosans v.  the United Kingdom it stressed that “Article 2 of Protocol No. 1 constitutes a whole that is dominated by its first sentence, the right set out in the second sentence being an adjunct of the fundamental right to education”.285 While the right to education thus must always be read in conjunction with the rights of parents in this regard, the latter cannot gain preponderant weight over the basic right to education. Article 2 of Protocol No. 1 is thus not contrary to the states’ possibility to establish compulsory schooling and define standards for it. Parents may consequently not refuse, on the basis of their convictions, education of any kind for their child.286 This jurisprudence takes into account the additional function of (primary) schools as providing first experiences of society and recognises the state’s aim to avoid the emergence of parallel societies based on separate philosophical convictions and the importance of integrating minorities into society.287

283 See for the first time in the landmark judgment Kjeldsen, Busk Madsen and Pedersen v. Denmark, nos. 5095/​71, 5920/​72, 5926/​72, 7 December 1976 (§ 50), which will be further analysed below. 284 Nowak speaks of a “limitation against totalitarian tendencies of state education” (Nowak (n 160) 263). 285 Campbell and Cosans v. the United Kingdom (n 108), § 40. 286 Cf. e.g. Konrad and Others v. Germany (dec.), no. 35504/​03, 11 September 2006. In the instant case the ECtHR observed that there was no consensus among the Contracting States with regard to compulsory attendance of primary schools. While some countries permitted home education, other states (such as Germany) provided for compulsory attendance of State or private schools. 287 ibid. § 1.

104 ­chapter  Consequently states can also make the permission to attend special religious classes conditional to the prior completion of a recognised primary school education.288 Nevertheless, the requirement of the respect for parents’ religious or philosophical convictions is not limited to the matters taught but extends also to other aspects of the educational functions states assume289 e.g. the organisational or disciplinary functions.290 Strikingly, the right of the child to make his/​her own educational decisions is mentioned nowhere in the European instruments and in fact, both the echr and the cfr are phrased exclusively as parents’ rights in this regard.291 While the crc does not explicitly mention a right of the child on this matter either, the combined reading of Article 29 with Article 12 crc certainly obliges authorities to take children’s views into account and to support their informed and independent decision-​making as they are growing older. 2.4.1 Religious Education in Schools A considerable number of cases regarding the content of education brought before the ECtHR are related to the way religious education is taught or religious ideas are presented in schools. In Folgerø and Others v. Norway the applicants –​several parents of children in primary school –​claimed a violation of their rights under Article 2 Protocol No. 1 echr as they had been refused a full exemption of their children from the subject “Christianity, religion and philosophy”. This subject combined various aspects of the teaching about Christianity, other world religions, ethics and

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Çiftçi v. Turkey (dec.), no. 71860/​01, 17 June 2004. In this case, the ECtHR considered that the obligation to have obtained a primary school leaving certificate before enrolling in Koranic classes was intended to ensure that minors who wished to receive religious training in Koranic classes had attained a certain “maturity” through the elementary education provided by primary schools. Thus rather than attempting at indoctrination, the requirement was designed to limit the possible indoctrination of minors at an age when they wonder about many things and, moreover, when they may be easily influenced by Koranic study classes. 289 Campbell and Cosans v. the United Kingdom (n 108), § 33. 290 Cf. e.g. already above: Costello-​Roberts v. the United Kingdom (n 109) § 27. The ECtHR considered the question of school discipline to be an integral, even indispensable, part of an educational system, with the result that the question of discipline in general had to be regarded as “function assumed by the state” in the sense of the second sentence of Article 2 Protocol No. 1. According to the Court, “(…) the fact that a given function may be considered to be ancillary is of no moment in this context”, which means that states are required to respect parents’ convictions regarding school discipline. 2 91 Nowak highlights this problem from an international perspective in the broader context of the right to education e.g. regarding also the access to education (Nowak (n 160) 262).

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philosophic ideas, but paid preponderant weight to Christianity –​a fact that the state justified with the special place of Christianity in Norway’s national history and tradition. The ECtHR, in principle, accepted this justification and also recognised the state’s aim to avoid sectarianism and foster intercultural dialogue by bringing pupils together within one joint subject. However, it observed that the differences applied to the teaching of Christianity were not only quantitative but also qualitative, as the relevant legislation and curriculum relied on a “Christian object clause”, according to which the object of primary and lower secondary education was to help give pupils a Christian and moral upbringing. In light of this, it considered that the system of partial exemption –​parents could ask for exemption of their child from parts of the subject which contradicted their own convictions –​could put a heavy burden on parents who needed to keep themselves informed of the details of the lesson plans and might feel obliged to expose details of their private life in order to reason their request. The ECtHR thus found that Norway had not taken sufficient care to ensure that information and knowledge included in the curriculum was conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1 echr.292 Similarly, in two Turkish cases, parents asked for the exemption of their children from the mandatory lessons in religious culture and ethics, which according to them, paid preponderant weight to the Sunni Islam, while their families followed the Alevi denomination. The ECtHR found that in the religious culture and ethics lessons, the religious diversity which prevailed in Turkish society was not taken into account and hence, this instruction could not be considered as meeting the criteria of objectivity and pluralism. Furthermore, as in Folgerø, it considered that no appropriate exemption procedures existed that allowed parents to make a choice.293 Lastly, in Grzelak v. Poland, the third applicant and his parents complained that the school authorities had not organised a class in ethics for him during his entire schooling at primary and secondary level. As the parents were declared agnostics, he did not attend religious education classes –​and was not obliged to do so –​but as a result his school reports contained a straight line instead of a mark for “religion/​ethics”. This would immediately reveal to any 292 293

Folgerø and Others v. Norway [GC], no. 15472/​02, 29 June 2007, §§ 100–​102. Cf. Hasan and Eylem Zengin v. Turkey, no. 1448/​04, 9 October 2007. In Mansur Yalçın and Others v. Turkey the ECtHR considered that the significant changes made in 2011/​12 to the curriculum and textbooks for the compulsory religion and ethics classes, following its Hasan and Eylem Zengin judgment, were still insufficient to ensure respect for parents’ convictions (Mansur Yalçın and Others v. Turkey, no. 21163/​11, 16 September 2014).

106 ­chapter  outside observer that he was a person without religious beliefs.294 Moreover, from 2007 onwards, marks obtained for religious education or ethics were included in the calculation of the “average mark” obtained by a pupil in a given school year and at the end of a given level of schooling. This could have an adverse impact on the situation of pupils who were not provided with a course in ethics. Consequently, the ECtHR found a violation of Article 9 in conjunction with Article 14 echr, as it considered that the very essence of the third applicant’s right not to manifest his religion or convictions was infringed and the state had thus exceeded its margin of appreciation in this matter. However, the Court did not find a violation of Article 2 Protocol No. 1 echr with regard to the parents, since it considered the system of teaching religion and ethics as provided for by Polish law to fall within the state’s margin of appreciation.295 By contrast, the applicants in the case of Appel-​Irrgang v.  Germany complained that the mandatory (secular) ethics classes the first applicant had to attend, imposed views which conflicted with their religious convictions and that by introducing such classes the state had breached its duty of neutrality. In its assessment of the case the ECtHR first emphasised that the setting and planning of the curriculum fell in principle within the competence of the Contracting States, which nonetheless had to ensure that information or knowledge was conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind with regard to religion in a calm atmosphere, free of any misplaced proselytism. Further it recalled that states were not allowed to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions, as the parents are primarily responsible for the education and teaching of their children.296 In the case at issue it considered though that the aims of the ethics classes respected the principles of pluralism and objectivity, as they seemed to be neutral and did not give particular weight to any religion or faith. Further, it underlined that while one religion can occupy a greater place in view of a country’s history and tradition –​as e.g. held in Folgerø or the Turkish cases referred to above –​a state’s choice of a neutral course that made room for different beliefs

294 This relates to the ECtHR’s previous case law according to which the freedom to manifest one’s religious beliefs comprises also a negative aspect, namely the right of individuals not to be required to reveal their faith or religious beliefs and not to be compelled to assume a stance from which it may be inferred whether or not they have such beliefs (cf. e.g. also Hasan and Eylem Zengin v. Turkey cited above). 295 Grzelak v. Poland, no. 7710/​02, 15 June 2010. 296 Cf. the phrasing of these basic limits in the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark (n 283) § 53.

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and convictions did not, in itself, raise an issue under the echr, as there was no right not to be exposed to convictions contrary to one’s own.297 As mentioned above, children’s own convictions are not part of the protection conferred by the second sentence of Article 2 Protocol No. 1 and i­ ndeed, the views of the children concerned are mentioned nowhere in the cases ­analysed. Taking the crc’s general principles as central reference point, this situation is clearly undesirable as especially older children –​who should ­already be able to reflect upon various world views –​should be able to have their views taken into account and, in particular, decide themselves on the form of religious or ethics education they want to receive. 2.4.2

Respect for Religious/​Philosophical Beliefs in Schools and in the General Curriculum Another big group of cases concern the respect for parents’ (non-​)religious or philosophical beliefs in classes other than religious/​ethics education and the structure and set-​up of schools in general. A recurring topic since the 1970s is the teaching of sexual education in schools, which a number of applicant parents opposed as contrary to their religious beliefs and their rights as primary educators of their children. A milestone in this context was the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark concerning the compulsory sex education as introduced into state primary schools in Denmark in 1970. The three applicant couples, all parents of school-​aged children, had unsuccessfully asked the competent authorities to exempt their children from sex instruction. The ECtHR first clarified that the second sentence of Article 2 Protocol No. 1 echr applied to each of the state’s functions in relation to education and to teaching. Hence the Contracting Parties had to respect parents’ convictions throughout the entire state education programme (and not just with regard to religious education, as the Danish government had argued).298 It further considered that the curriculum introduced by the authorities aimed to give pupils better information that should prevent phenomena such as excessive frequency of births out of wedlock, induced abortions and venereal diseases. As such this was a legitimate public interest, even if it undeniably involved considerations of a moral order. Additionally, the ECtHR did not find evidence of indoctrination on this matter and considered that the classes provided did not “affect the right of parents to enlighten and advise their children, to exercise with regard to their children natural

297 298

Appel-​Irrgang v. Germany (dec.), no. 45216/​07, 6 October 2009. Kjeldsen, Busk Madsen and Pedersen v. Denmark (n 283) § 51.

108 ­chapter  parental functions as educators, or to guide their children on a path in line with the parents’ own religious or philosophical convictions”.299 Consequently, it found that the disputed legislation did not offend the applicants’ religious and philosophical convictions to the extent forbidden by the second sentence of Article 2 of the Protocol No.1. The main line of argumentation of this judgment –​i.e. that the provision of information in an objective, critical and pluralistic manner did not violate parents’ rights under Article 2 Protocol No. 1 –​was substantially confirmed by later decisions of the Court on this matter, e.g. in the case of Jiménez Alonso and Jiménez Merino v. Spain and, more recently, in Dojan and Others v. Germany.300 In addition, in a recent decision the ECtHR emphasised that one of the aims of sex education in schools was the prevention of sexual violence and exploitation, which posed a real threat to the physical and mental health of children and against which they had to be protected at all ages.301 In a more singular case, Greek parents of a school-​aged daughter complained that the obligation of all pupils to take part in a school parade on the National Day was contrary to their religious convictions as Jehovah’s Witnesses. According to them, pacifism was such a fundamental tenet of their religion that this forbade any conduct or practice associated with war or violence, even indirectly. While the ECtHR expressed surprise that pupils could be required to take part in such a parade on pain of suspension from school, (even if only for two days), it could not find anything –​either in the purpose of the parade or in the arrangements for it –​which could offend the applicants’ pacifist convictions to an extent prohibited by the second sentence of Article 2 of Protocol No. 1.302 In contrast, respect for parents’ non-​religious beliefs regarding the set-​up of schools was demanded by the applicants in the case of Lautsi and Others v. Italy. The first applicant argued that the presence of crucifixes in the classrooms of the public schools her sons attended, infringed the principle of secularism according to which she sought to educate her children. The ECtHR considered that the decision as to whether crucifixes should be present in classrooms of public schools fell, in principle, within the states’ margin of appreciation as there was no European consensus on the question of the presence of religious symbols in state schools. Nonetheless the crucifix was above all a religious 299 300 301 302

ibid. § 54. Jiménez Alonso and Jiménez Merino v. Spain (dec.), no. 51188/​99, 25 May 2000; Dojan and Others v. Germany (dec.), nos. 319/​08, 2455/​08, 7908/​10, 8152/​10, 8155/​10, 13 September 2011. A.R. and L.R. v. Switzerland (dec.), no. 22338/​15, 19 December 2017. Efstratiou v. Greece, no. 24095/​94, 18 December 1996, §§ 32 et seq.

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symbol and undoubtedly referred to Christianity, thus giving the majority religion in Italy preponderant visibility in the school environment. However, this was not in itself sufficient to indicate indoctrination on the state’s part, as a crucifix on a wall was an essentially “passive symbol” that could not be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.303 Considering all the circumstances  –​particularly, that the presence of crucifixes was not associated with compulsory teaching about Christianity, that Italy allowed pupils to wear symbols of (other) religions in school, and that there was no indication that the authorities were intolerant towards pupils who believed in other religions or were non-​ believers –​the Grand Chamber found that Italy had not exceeded its margin of appreciation.304 These cases illustrate the delicate balance courts must find between the legitimate interest of parents to have their children educated in a way that respects their own convictions and the likewise legitimate interest of states to design curricula and organise the set-​up of schools in a way it considers appropriate to respond to the needs of society at large. The issues which were at the origin of the cases analysed are or have been the subject of heated debates across Europe and especially the questions of the display of religious symbols or the religious neutrality of states are far from a European consensus. In this situation, the ECtHR has opted for the “easier” way of defining only the basic limits for state intervention in all matters related to education (in essence, the respect for pluralist societies and the prohibition of indoctrination) and to leave it largely up to the national authorities (including the courts) to decide on the appropriateness of concrete measures according to the domestic context. Nevertheless, it can be observed that the ECtHR applied stricter standards with regard to the teaching of religious content in school than to other aspects of school life, which could affect different religious or philosophical convictions. Apparently it saw a greater risk in these cases that children might be influenced from an early age in a way that could hinder their independent decision-​making about religious beliefs. It remains striking though that the children’s own opinions and convictions occupy only a marginal space in the Court’s case law. While in a number of cases children were co-​applicants alongside their parents, their own rights with regard to Articles 2 Protocol No. 1 or Article 9 were 303 Lautsi and Others v. Italy [GC], no. 30814/​06, 18 March 2011, §§ 71–​72. 304 ibid. § 74. The Chamber had previously decided unanimously on a violation of Article 2 Protocol No. 1 taken together with Article 9 echr (cf. Lautsi v. Italy, no. 30814/​06, 3 November 2009).

110 ­chapter  usually only summarily examined by the ECtHR. This exemplifies that the current wording of Article 2 Protocol No. 1 echr is insufficient to give children a say regarding the contents of their education and that more child-​friendly solutions could only be reached through a stronger consideration of the general principles of the crc in the interpretation of this provision in the light of “present day conditions”.305 Such a stronger consideration of children’s own views would not render parents’ convictions irrelevant –​it is understandable that parents wish to impart their own values and world views to their children –​but would add another (not necessarily different) aspect to the case. Indeed, the possibility to be heard on disputed issues regarding one’s own education might foster in pupils the critical thinking which is one of the aims of education in democratic societies. Furthermore it would avoid the risk of children becoming “background actors” in debates of principle which parents wish to pursue with school authorities. 2.5 Conclusions The right to education in a broad sense necessitates all three types of states’ obligations: the duty to respect (e.g. the establishment and running of private schools, study material compatible with religious beliefs), the duty to protect (against violations by other individuals or groups e.g. harassment or prevention of education for marginalised groups) and the duty to fulfil (building classrooms, develop an educational system and corresponding curricula, ensure that education is culturally appropriate for minorities).306 While these states’ obligations are reflected in the case law of European courts and bodies, the basic understanding of the right to education in the European human rights instruments is far less broad than that of the crc. For long, European perspectives have been dominated by the restrictive wording of the echr and the initial silence of the esc. However, the revised esc introduced a broad –​and importantly –​individual right to basic (i.e. primary and secondary) education and over the years the jurisprudence of the ECtHR has also slightly evolved to give Article 2 Protocol No. 1 a broader meaning, consistent with the overall spirit of the Convention.

305 Of course apart from a change in the wording of Article 2 Protocol No. 1 (which is highly improbable) or legislative changes on the domestic level of the Contradicting States, which take the views of children more strongly into account. 306 Cf. e.g. Beatrix Ferenci, ‘Right to Education’ in Manfred Nowak, Karolina M Januszewski and Tina Hofstätter (eds), All Human Rights for All: Vienna Manual on Human Rights (Neuer Wissenschaftlicher Verlag, Vienna 2012).

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The “minimum standard” the echr guarantees is that of an individual right to non-​discriminatory access to existing educational institutions and the official recognition of the studies successfully completed. Consequently, any limitations to this right –​including the temporary suspension of pupils –​must be interpreted strictly. According to commentaries on the cfr, this is also the core content of Article 14 cfr. While its wording might be broader than the echr, it does not provide an unlimited individual right to any form of education either but rather a “participatory” right to equal access with certain positive obligations for states (e.g. ensuring effective access, maintaining existing institutions, fostering tolerance and plurality).307 In addition to this core aspect, the ECtHR has strengthened the positive aspect of non-​discriminatory access to education in recent years: in order to guarantee effective equality, states must pay particular attention to vulnerable groups and take the necessary measures in law and practice. This more recent jurisprudence might be influenced by the esc (and also the crc), which strongly stresses the importance of effective equality in practice. The analysis of the conclusions and decisions of the ecsr shows that the Committee “pushes” states to monitor more carefully those indicators that may display inequalities e.g. by asking about rates of absenteeism, drop-​out rates, financial support for school-​related costs or specific measures to support vulnerable groups. The esc’s core right to education thus encompasses the effective right of all children to free primary and secondary education. However, there are no cases so far that elucidate the meaning of primary and secondary or compulsory education. The reason could be that all Member States of the Council of Europe provide some form of free primary and secondary education –​which is usually also compulsory –​and hence this question does not pose problems in practice. While none of the European instruments defines an explicit purpose of education, both the ECtHR and the ecsr have been making clear that the right to education is not only a “right in itself” but has an important function in democratic societies. Access to education is thus not only important for the individual child but also for the society as a whole. This basic idea is also reflected in decisions concerning the content of education and the rights parents have regarding the respect for their own religious or philosophical convictions. In detail, the interpretation of this general clause, enshrined in the second sentence of Article 2 Protocol No. 1 echr and Article 14 § 3 cfr, is always a delicate and often difficult balancing act. The ECtHR has carved out, however, 307 Blauensteiner and Kalteis (n 173) 198; Norbert Bernsdorff, ‘Artikel 14 –​Recht auf Bildung’ in Jürgen Meyer (ed), Charta der Grundrechte der Europäischen Union (Beck, 4th edition Nomos, Baden-​Baden 2014) 306.

112 ­chapter  some basic limits to which it consistently refers in its jurisprudence. Firstly, the right of parents relating to the content of education is an ancillary right to the basic right to education and must therefore not jeopardise the latter. In order words, the respect for parents’ convictions cannot go as far as to endanger the equal access of a child to education. Secondly, the ECtHR has recognised that states can also include disputed subjects in the curriculum against the will of parents, as long as facts are presented in an objective and pluralistic way. The absolute limit in this regard would thus be any form of indoctrination, which parents do not have to accept in a pluralistic society. These principles are also applied to the question of religious education in schools. Thus, as long as religious or ethics education presents information about various religions and philosophies in an objective and pluralistic way, without giving preponderant weight to one religion, it can be part of the mandatory curriculum. If, however, the primary goal is the teaching of the content of one religious faith, parents should have the possibility to have their children exempted from such classes without complicated procedures. While the standard applied in these cases might seem slightly stricter, it is thus consistent with the ECtHR’s general principles: the content of religions is primary a question of faith and less of objective information and it is at the core of “personal convictions”. The primary gaps the analysis has revealed, concern the equal access to education of children with disabilities and children of Roma origin, and their discrimination within the education system. Regarding children with disabilities, progress is certainly visible but difficulties remain primarily in practice. In particular, the ecsr has strongly emphasised the importance of inclusive education in its conclusions and decisions. It has been pointing out that adequate legislation was still missing in a number of countries and that there was a lack of mainstreaming and positive measures throughout the educational systems. Furthermore, the cases analysed reveal that there is still a lack of information about the requirements and possibilities of inclusive education on the side of those who have to take the final decisions on the ground. While the ECtHR has recognised that states have a certain margin of appreciation in balancing costs and advantages of inclusive education in individual cases, such balancing requires a thorough analysis, in which the child’s best interests are the guiding parameter. Concerning the rights of Roma children to and within education, the analysis illustrates first and foremost the complexity of the problem. Prejudices and discrimination still seem to be widespread in many European societies, which lead to intolerable practices such as the separation of Roma children in special classes or their systematic allocation to schools for children with

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mental disabilities. Where these prejudices persist, not only effective legislative measures are necessary but also awareness-​raising on the ground –​with school authorities, principals and also the non-​Roma population which opposes mixed schools. The cases analysed have also shown, however, that discrimination often happens indirectly, as school authorities pay insufficient attention to the different cultural and linguistic background of children of Roma origin (e.g. for testing their ability to enter primary school) and do not take measures to overcome their difficulties at an early stage. In this context, the ECtHR clearly stated that general “good intentions” cannot absolve the states from guaranteeing effective equality in practice and thus any form of direct or indirect discrimination violates children’s right to education read in conjunction with Article 14 echr. In the sense of the esc’s right to effective equality, states must, moreover, also address underlying social problems (e.g. poverty, lack of education of the parents), which might further hamper the educational careers of children of Roma origin and lead, in many European countries, to high rates of absenteeism and high drop-​out rates, especially in secondary schools. Minority rights and especially linguistic rights in education remain a complex issue in the European human rights landscape. While the Council of Europe framework provides some basic standards, their effect in practice remains limited, also due to the limited recognition of minority rights in some countries facing special linguistic challenges. Since the cases analysed are few and each of them is very special to the context in which it occurred, general conclusions are difficult to draw. The basic principle that can be deduced from the ECtHR’s jurisprudence is that while the right to education does not encompass a general right to be educated in the language of choice, children should have the possibility to follow education in their native language (in any school suitable), particularly if it is one of the state’s official languages or the language of large part of the population. From a child-​rights perspective, a huge gap that has emerged is the limited consideration of children’s views and wishes in all aspects related to education. This is particularly obvious regarding the choice of education but also the content of education and thus the child’s own beliefs and convictions with regard to education. This “systemic disregard” is already based on the legal instruments (cf. crc, echr, cfr), which guarantee the respect of parents’ convictions but do not mention any right of children to have their views taken into account. In addition, the ECtHR has so far not considered interpreting Article 2 Protocol No. 1 echr more progressively as requiring at least hearing also the child’s own views. While it is important in a democratic society to let parents (and not only the authorities) decide how they want their children to receive

114 ­chapter  education, children should –​at least from a certain age on –​not be forced to follow their parents’ convictions without any possibility to participate in the (contentious) decision-​making. 3 3.1







The Right to an Adequate Standard of Living General Scope of the Right Article 26 crc 1. States Parties shall recognize for every child the right to benefit from social security, including social insurance, and shall take the necessary measures to achieve the full realization of this right in accordance with their national law. 2. The benefits should, where appropriate, be granted, taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child, as well as any other consideration relevant to an application for benefits made by or on behalf of the child. Article 27 crc 1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development. 3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing. 4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.

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Article 13 esc –​The right to social and medical assistance With a view to ensuring the effective exercise of the right to social and medical assistance, the Parties undertake: 1. to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition; 2. to ensure that persons receiving such assistance shall not, for that reason, suffer from a diminution of their political or social rights; 3. to provide that everyone may receive by appropriate public or private services such advice and personal help as may be required to prevent, to remove, or to alleviate personal or family want; 4. to apply the provisions referred to in paragraphs 1, 2 and 3 of this article on an equal footing with their nationals to nationals of other Parties lawfully within their territories, in accordance with their obligations under the European Convention on Social and Medical Assistance, signed at Paris on 11 December 1953. Article 16 esc –​The right of the family to social, legal and economic protection With a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means. Article 17 esc –​The right of children and young persons to social, legal and economic protection With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-​operation with public and private organisations, to take all appropriate and necessary measures designed: 1 a to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose;(…)

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Article 31 esc –​The right to housing With a view to ensuring the effective exercise of the right to housing, the Parties undertake to take measures designed: 1. to promote access to housing of an adequate standard; 2. to prevent and reduce homelessness with a view to its gradual elimination; 3. to make the price of housing accessible to those without adequate resources. Article 33 cfr –​Family and professional life 1. The family shall enjoy legal, economic and social protection. 2. To reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child. Article 34 cfr –​Social security and social assistance 1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices. 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices. 3. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices.

The right to an adequate standard of living as it is phrased in Article 11 icescr is a very broad right that describes a certain condition or situation –​that of an adequate standard of living in dignity  –​but also mentions a number of concrete entitlements necessary for its enjoyment. Therefore, the provision encompasses a number of different rights, in particular –​but not exclusively –​ the right to adequate food, clothing and housing, and the continuous improvement of living conditions.308 The baseline is thus that every person should be 308 For the drafting history and scope of this “immense” provision see Saul, Kinley and Mowbray (n 167) 862–​67.

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able to secure their basic needs under conditions of dignity.309 Besides the access to basic necessities, the right to an adequate standard of living could require more elements, depending on the cultural conditions of the society concerned.310 Regarding the concrete obligations of each component of the right, the icescr provides no further definition but the Committee on Economic, Social and Cultural Rights and academic literature have distilled some of the necessary elements, especially concerning the availability, accessibility and adequacy of food, water, and housing.311 Closely connected to the right to an adequate standard of living (but also to the right to health) is the right to social security (Article 9 icescr), which can compensate for adverse conditions in life that make it impossible for individuals to uphold an adequate standard of living out of their own efforts. Nevertheless, the icescr does not elaborate on this right in detail and does not directly connect it to Article 11 either.312 Article 27 crc draws on Article 11 icescr by referring to each child’s right to an adequate standard of living but goes further by specifying that it has to be adequate in relation to its “physical, mental, spiritual, moral and social development”. It can thus also be seen as a further specification of children’s right to survival and development, enshrined in Article 6 crc as one of the Convention’s general principles.313 Because of this strong focus on the child’s development, Article 27 crc is broader than Article 11 ecsr and goes beyond purely material aspects. Focusing on the specific situation of children, its vision is that of conditions, which facilitate children’s development into fully capable adult persons.314 A peculiarity of Article 27 crc is its strong emphasis on the obligations of parents or other care-​givers. By expressly putting the primary responsibility 309 Some authors have defined it as “the right to live above the poverty line in a given society” (cf. Karin Lukas, ‘Right to an Adequate Standard of Living’ in Manfred Nowak, Karolina M Januszewski and Tina Hofstätter (eds), All Human Rights for All: Vienna Manual on Human Rights (Neuer Wissenschaftlicher Verlag, Vienna 2012) 317. 310 Asbjørn Eide, ‘The right to an adequate standard of living including the right to food’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd ed. Brill, Leiden 2001) 133. 311 The Committee on Economic, Social and Cultural Rights has published so far four General Comments related to Article 11 icescr (GC No. 4, 7, 12, 15) and one on Article 9 icescr (right to social security). Some of these elements will be explained below (subsections 3.2 and 3.3). 312 See also below in subsection 3.3. 313 Asbjørn Eide, Commentary on the United Nations Convention on the Rights of the Child, Article 27: The right to an adequate standard of living (A commentary on the United Nations Convention on the Rights of the Child, Brill; Martinus Nijhoff Publishers, Leiden 2006) 1. 314 ibid 17.

118 ­chapter  for securing the necessary living conditions on parents or other care-​givers, the crc treats the relationship between children and their care-​givers in fact as one of rights-​holders and duty-​bearers.315 This is unusual in international (human rights) law, which traditionally obliges states as duty-​bearers and only recognises limited “horizontal effects” (i.e. obligations among individuals).316 In this case, the primary responsibility of parents or other care-​givers can be seen as both a self-​limitation of states (i.e. states should only intervene in family affairs where necessary) and as an affirmation of the general principle of individual responsibility, which is also reflected in Article 11 icescr.317 However, the crc has recognised that under certain circumstances it might be difficult or even impossible for parents or other care-​givers to uphold a standard of living which is conducive to a child’s development; particularly, when they live in (extreme) poverty themselves. Parents’ obligations towards their children are therefore limited in line with their abilities and financial capacities. States for their part are not only obliged to ensure (e.g. through legislative measures) that parents or other care-​givers fulfil their obligations towards their children but also to provide financial and practical assistance to these persons when necessary. As Article 27 § 3 crc specifies, this concerns in particular material assistance and support programmes with regard to nutrition, clothing and housing. Regarding children, states’ obligations concerning the right to an adequate standard of living are thus rather geared towards assisting parents and other care-​givers to fulfil their responsibilities than towards fulfilling obligations directly vis-​à-​vis children. The icescr unusually refers not only to the single individual either but also to families (“for himself and his family”),318 which illustrates that the drafters of the text have considered that this right includes a strong aspect of “care for others”. Not only should everybody enjoy an adequate standard of living for themselves but he/​she should also be able to ensure this standard for those for whose care they are responsible. Hence, without mentioning children, Article 11 icescr arguably shares the crc’s presumption that parents or other

315 316 317 318

ibid 19. Detrick (Chapter 1 n 1) 31; Nowak (Chapter 2 n 3) 51–​52. Eide has strongly emphasised this aspect of personal responsibility: Eide (n 310) 139–​40. As the Committee on Economic, Social and Cultural Rights has emphasised in each of its General comments “the reference in Article 11.1 to ‘himself and his family’ does not imply any limitation upon the applicability of this right to individuals or to female-​headed households” (cf. e.g. Committee on Economic, Social and Cultural Rights, General Comment No. 12: The right to adequate food (art. 11) E/​C.12/​1999/​5 (1999)).

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care-​givers are those primarily responsible for ensuring the living conditions necessary for the child’s development. None of the European human rights instruments includes a general right to an adequate standard of living similar to the icescr or the crc. However, the cfr and particularly the esc guarantee a number of rights, which cover aspects of Article 11 icescr and Article  27 crc, partly even in more detail. Whereas the crc focuses mainly on the basic necessities of children (nutrition, water, housing, clothing), the European instruments have a stronger focus on families as a characteristic unit, which should be protected and supported by the state (cf. particularly Article 33 cfr, partly Article 34 cfr, Article 16 esc).319 An exception is Article 17 esc, which clearly shares the vision of Article 27 crc to ensure to children conditions that are favourable to their physical and moral development. However, this provision assembles very different rights –​some of them have already been mentioned above –​and only § 1 lit. a can be considered as covering similar aspects as Article 27 crc with regard to all children. Yet, despite the focus on the assistance to families, European instruments also contain important individual rights related to an adequate standard of living, especially the right to housing (Article 31 esc) and the right to social security (Article 12 esc, Article 34 cfr), which is not covered by Article 11 icescr but partly overlaps with its aims. The content and scope of these rights will be elaborated in more detail below; however, Article 16 esc merits some general attention, as it is the most comprehensive of the esc’s rights defining adequate standards of living. Article 16 is one of the Charter’s nine core provisions, of which Parties must accept at least six, and requires States Parties to “promote the economic, legal and social protection of family life”. It is thus a very broad provision that is closely connected to and partly overlaps with other provisions of the esc. Under Article 16, the ecsr examines e.g. housing for families, childcare facilities, family counselling services and family benefits but also rights and obligations of spouses, mediation services and domestic violence against women.320 While Article 16 does not stipulate direct rights expressly for children, they are the direct or indirect beneficiaries of a number of measures that this provision requires states to undertake. This concerns, in particular, child (care) allowances or childcare facilities such as nurseries or kindergartens. Any unlawful

319 Additionally, Article 4 esc mentions “(…) the right of workers to a remuneration such as will give them and their families a decent standard of living”, which is similar to Article 11 icescr mentioned above. 320 European Committee of Social Rights (n 116) 28–​29.

120 ­chapter  interference that targets these benefits or institutions is thus a violation of the right of children to enjoy their rights under Article 16 esc. Similarly to Article 16 esc but much less detailed in substance, Article 33 § 1 cfr stipulates that the “[t]‌he family shall enjoy legal, economic and social protection”. Yet, the provision does not provide any further guidance on the measures required to ensure such protection and the context of the norm –​§ 2 refers to measures to reconcile family and professional life –​leaves the reader at first to wonder about its concrete scope in practice.321 Costello has pointed to the fact though, that the reference to Article 16 esc in the Explanations can open up the possibility to draw guidance from the ecsr’s abundant case law –​ including conclusions in the context of the reporting procedure –​on the interpretation of “economic, legal and social protection”.322 In fact, this very broad and general provision could apply in many areas of the Union’s legislative and other activities, which have a potential effect on the legal, economic or social situation of families. Thus, even if it is regarded only as a principle and not as an individual right, Article 33 § 1 cfr can be seen as an important cross-​cutting obligation, against which all Union laws and policies must be measured.323 A comparison of the texts of the European standards with that of the crc shows that not only the target groups of the various provisions differ but also the core content. While all provisions have as their basis the vision of a life in dignity, the provisions of the icescr and crc have a strong focus on basic necessities, while the esc (and also the cfr) aim to ensure social security more broadly. As already pointed out above with regard to the right to health, the difference in the focus of the texts might be explained with the different contexts prevailing in Europe and globally (particularly, in developing countries). However, there cannot be any doubt that the right of children and families to social, legal and economic protection must also include assistance to 321 Commentaries refer to the explanations prepared under the authority of the Praesidium of the Convention (2007/​C 303/​02), which indicate simply that Article 33 § 1 was based on Article 16 esc. According to these authors Article 33 § 1 provides an even stronger wording as it uses “shall enjoy” as compared to “with a view to ensuring” (cf. e.g. Beate Rudolf, ‘Artikel 33  –​Familien-​und Berufsleben’ in Jürgen Meyer (ed), Charta der Grundrechte der Europäischen Union (Beck, 4th edition Nomos, Baden-​Baden 2014) 1; Elisabeth Wutzl and Thomas Ziniel, ‘Artikel 33 –​Familien-​und Berufsleben’ in Michael Holoubek (ed), Charta der Grundrechte der Europäischen Union: GRC-​Kommentar (Manz, Wien 2014) 7; 22–​23). However, neither the drafters nor academic literature has elaborated on concrete state obligations so far and there is disagreement among authors if the paragraph is to be regarded as a right (cf. Rudolf) or principle (cf. Costello; Wutzl/​Ziniel). 322 Cathryn Costello, ‘Article 33 –​ Family and Professional Life’ in Steve Peers (ed), The EU Charter of Fundamental Rights: A Commentary (Hart, Oxford 2014) 33.83. 323 ibid 33.02.

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cover basic necessities, if required. Nevertheless, the case law analysis below will focus on the two main aspects guaranteed by European human rights law, namely the right to housing and the right to social benefits, including social security benefits. The echr does not contain any rights that guarantee an adequate standard of living. However, under specific circumstances, certain aspects of the right to an adequate standard of living (e.g. right to housing, social assistance and social security) can be deduced from states’ obligations under Article 8 or –​in severe cases –​even Articles 2 and 3 echr.324 The following case law analysis will elaborate on the potential and limits of such an interpretation, bearing particularly in mind that the right to the protection of the home as guaranteed by Article 8 echr is much more limited than the right to housing.325 3.2 The Right to Housing The right to housing is expressly mentioned by Article 11 icescr as one of the essential components of an adequate standard of living and also Article 27 § 3 crc refers to “material assistance and support programmes, particularly with regard to nutrition, clothing and housing”.326 Since children should not live on their own, their housing rights are usually closely connected to those of their parents or foster families. If children cannot live with families, states have specific obligations to provide adequate accommodation in institutions (cf. also section 3.4 below) and to address the situation of children living on the streets. States’ obligation to protect and promote the right to housing does not mean that they are required to build housing for the entire population or to guarantee housing free of charge to everyone but that certain minimum standards (“core elements”) need to be ensured.327 The Committee on Economic, Social and Cultural Rights has underlined that –​in the light of the underlying spirit of the icescr –​this right should not be interpreted in the narrow sense 3 24 Koch (Chapter 1 n 19) 180 et seq. 325 The right to protection of the home in the sense of Article 8 entails primarily the duty of states not to interfere with the peaceful enjoyment of individuals’ home (William A Schabas, The European Convention on Human Rights: A Commentary (Oxford Commentaries on International Law, Oxford Univ. Press, Oxford 2015) 399. 326 Since the Committee on the Rights of the Child has not issued yet a General Comment on the right to an adequate standard of living or specifically on the right to housing, much of the further theoretical considerations build on the General Comments by the Committee on Economic, Social and Cultural Rights. 327 Scott Leckie, ‘The Human Right to Adequate Housing’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights:  A Textbook (2nd ed. Brill, Leiden 2001) 150.

122 ­chapter  of “having a shelter” or “a roof over one’s head”. Rather, it should be viewed as the “right to live somewhere in security, peace and dignity”.328 The adequacy of housing is thus a crucial element in determining whether the right to housing is fulfilled. While adequacy always depends on social, economic, cultural, climatic, ecological and other factors, the Committee has nevertheless identified certain criteria as particularly important: legal security of tenure, availability of services, materials, facilities and infrastructure,329 affordability,330 habitability,331 accessibility, location, and cultural adequacy.332 Furthermore, the Committee on Economic, Social and Cultural Rights has stressed that while the full enjoyment of the right to housing may be realised progressively, certain obligations are of immediate effect. Apart from obligations to respect, which are always of immediate effect, states have to commit to facilitating “self–​help” by affected groups. Furthermore, priority attention should be given to groups living in unfavourable conditions and coordination among authorities as well as with related policies should be ensured. Finally, states should regularly monitor the housing situation to ascertain the extent of homelessness and inadequate housing and provide domestic legal remedies e.g. in cases of forced eviction,333 demolition or unhealthy housing conditions.334 Originally the esc did not include a general right to housing but only contained specific housing rights of families (Article 16), migrant workers (Article 19  §  4) and the elderly (Article 4 Additional Protocol esc). Article 31 of the revised esc, however, provides detailed obligations for Contracting Parties

328 Committee on Economic, Social and Cultural Rights, General comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant) (1991) § 7. 329 E.g. sustainable access to natural and common resources, safe drinking water, refuse disposal. 330 I.e. financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. 331 I.e. adequate space and protection from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. 332 Committee on Economic, Social and Cultural Rights (n 328) § 8. 333 In view of the scale of the problem worldwide, the Committee on Economic, Social and Cultural Rights has issued a specific General Comment on states’ obligations in the context of forced evictions:  Committee on Economic, Social and Cultural Rights, General comment No. 7: The right to adequate housing (art. 11 (1) of the Covenant): Forced evictions (1997). 334 Committee on Economic, Social and Cultural Rights (n 328) §§ 10–​18. Leckie pointed out that “virtually all elements of housing rights exhibit fully justiciable components”, including security of tenure, landlord-​tenant relations but also non-​discrimination and equality of access (Leckie (n 327) 158).

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regarding the access to adequate and affordable housing and the prevention and reduction of homelessness. It has three different components, which can also be accepted separately by States Parties, in accordance with the esc’s general rules concerning the acceptance of articles and single paragraphs. Article 31 § 1 obliges States Parties to promote access to housing of an adequate standard (“adequacy of housing conditions”), § 2 concerns the prevention and reduction of homelessness (“the right to shelter”) and finally, § 3 requires Parties to make the price of housing accessible to those without adequate resources (“accessibility of housing”). The revised esc thus understands the right to housing in a wide sense and encompasses not only the right to adequate housing as such –​including the security of tenure (cf. above on Article 11 icescr) –​ but also the right to (temporary) shelter. These two rights might have different scopes of application, as we will see below. The ecsr has considered that these obligations cannot be interpreted as imposing “obligations of results” but rather as the responsibility to take practical and effective legal, financial and operational measures to ensure progress.335 In this sense, it requires states to define in their domestic contexts what “adequate housing” means and to supervise these standards, including the implementation of any relevant legislation.336 However, other than Article 1 Protocol No. 1 echr, Article 31 esc does not provide protection for the ownership of a specific piece of property. Regarding the prevention of homelessness (§ 2), states should aim to find durable solutions and the ecsr adopted in 2015 an interpretative statement, which stressed that eviction from shelters without the provision of alternative accommodation was prohibited.337

335

Cf. International Movement ATD Fourth World v. France, Complaint No. 33/​2006, 5 December 2007, § 59. Since then the ecsr has consistently repeated this interpretation in its case law and conclusions. See e.g. also European Committee of Social Rights (n 116) 32. In the same way it has interpreted Article 16 esc, cf. e.g. European Roma Rights Centre v. Greece, Complaint No. 15/​2003, 8 December 2004, § 43. 336 Khaliq and Churchill (Chapter 1 n 27) 450. Article 31 § 1 applies, for instance, not only to tenancy law but also to laws on sanitation and structural safety, which have to be brought in line with the standards of the esc. Cf. e.g. Conclusions 2015 –​Netherlands –​Article 31–​1, 4 December 2015. The ecsr itself has interpreted “adequate housing” as “a dwelling which is safe from a sanitary and health point of view, i.e. it must possess all basic amenities, such as water, heating, waste disposal, sanitation facilities and electricity and must also be structurally secure, not overcrowded and with secure tenure supported by the law” (cf. Defence for Children International (DCI) v. the Netherlands, Complaint No. 47/​2008, 20 October 2009, § 43). 3 37 Conclusions 2015 –​Statement of interpretation –​Article 31-​2, 4 December 2015.

124 ­chapter  In its periodic evaluation of states’ performance under Article 31, the ecsr regularly asks about information concerning housing conditions and monitoring thereof, measures in favour of vulnerable groups (especially Roma and non-​ sedentary populations) or legal protection and procedural safeguards e.g. in tenancy law (§ 1),338 as well as measures to prevent and reduce homelessness, legal protection for persons threatened by eviction, access to shelter/​emergency accommodation (§ 2),339 and the availability of and access to social housing, housing benefits or the affordability ratio (rent-​to-​income ratio) of the poorest applicants for housing.340 The Committee’s latest conclusions on Article 31 esc reflect a low degree of compliance with the provisions of this article among the still relatively few states which have accepted (one or more of) these paragraphs: in 14 cases (or 63%) it concluded that states were not in conformity with the esc. Contracting Parties showed particular difficulties in implementing measures to improve the substandard housing conditions of Roma and to ensure sufficient supervision for adequate housing or social housing, as well as in implementing legal protection for persons threatened by eviction.341 In its decision European Federation of National Organisations working with the Homeless (feantsa) v. France the ecsr elaborated on many aspects it considers as states obligations under Article 31 esc (and found multiple violations by France in this regard):  progress on the eradication of substandard housing and lack of proper amenities, (implementation of) legislation on the prevention of evictions and measures to provide rehousing solutions, measures to reduce the number of homeless persons, sufficient supply of social housing accessible to low-​income groups, a functioning allocation system for social housing, and (implementation of) legislation on stopping places for

338 Cf. e.g. Conclusions 2011 –​Italy –​Article 31-​1, 9 December 2011; Conclusions 2015 –​Latvia –​Article 31-​1, 4 December 2015; Conclusions 2015 –​Netherlands –​Article 31-​1, 4 December 2015. 339 Cf. e.g. Conclusions 2015 –​Lithuania –​Article 31-​2, 4 December 2015; Conclusions 2015 –​ Slovenia –​Article 31-​2, 4 December 2015. 340 Cf. e.g. Conclusions 2015  –​Netherlands  –​Article 31-​3, 4 December 2015; Conclusions 2015 –​Sweden –​Article 31-​3, 4 December 2015; Conclusions 2015 –​Turkey –​Article 31-​ 3, 4 December 2015. The ecsr has held that housing is affordable, “when the household can pay the initial costs (deposit, advance rent), the current rent and/​or other costs (utility, maintenance and management charges) on a long-​term basis and still be able to maintain a minimum standard of living, as defined by the society in which the household is located” (Conclusions 2003 –​Sweden –​Article 31-​3, 30 June 2003). 341 European Committee of Social Rights (n 116) 32. For a similar conclusion in the previous monitoring cycle see: European Committee of Social Rights (n 97) 22.

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Travellers.342 This decision is therefore a good reference point for assessing a state’s compliance with Article 31, however, it does not specifically refer to the rights of children. Apart from Article 31 esc, Articles 16 and 30 esc also provide some guarantees, which the ecsr has already used to uphold housing rights under specific circumstances. In light of its goal to combat poverty and social exclusion, Article 30 obliges states to promote access to affordable housing, in particular for excluded or disadvantaged groups.343 Article 16, for its part, addresses specifically the right to housing of families. The ecsr has pointed out in this context that Articles 16 and 31 partially overlap regarding the right to housing and that, in this respect, the notions of adequate housing and forced eviction are identical.344 It thus regularly asks states to provide information on social housing (e.g. waiting times and conditions), protection from evictions, and the specific situation of Roma families, when examining their performance under Article 16 esc.345 Hence Article 16 esc also serves as a minimum protection of the housing rights of families in states which are not parties to the revised esc or have not yet accepted Article 31 esc. Lastly, also Article 17 esc includes an aspect of children’s right to adequate housing. Under Article 17 § 1 lit. c the ecsr examines the housing conditions of children living in welfare institutions.346 As mentioned above, the echr does not include a right to an adequate standard of living and no specific right to housing either. In a number of cases, the ECtHR has confirmed that neither Article 8 echr nor any other article of the Convention requires states to provide a specific form of accommodation to individuals under its jurisdiction.347 Nevertheless, it has afforded in its case 342 343

344 345 346

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European Federation of National Organisations working with the Homeless (FEANTSA) v. France, Complaint No. 39/​2006, 5 December 2007 (conclusion). Cf. e.g. Conclusions 2013 –​Belgium –​Article 30, 6 December 2013; Conclusions 2013 –​Portugal –​Article 30, 6 December 2013 (cf. also below the case law on the situation in these states: International Federation of Human Rights (FIDH) v. Belgium, Complaint No. 62/​2010, 21 March 2012; European Roma Rights Centre v. Portugal (ERRC), Complaint No. 61/​2010, 30 June 2011). European Roma Rights Centre (ERRC) v.  Bulgaria, Complaint No. 31/​2005, 18 October 2006, § 17. Conclusions XX-​4 –​Luxembourg –​Article 16, 17 March 2016; Conclusions XX-​4 –​Germany –​Article 16, 4 December 2015. Cf. e.g. Conclusions 2005 –​France –​Article 17-​1, 30 June 2005; Conclusions 2005 –​Slovenia –​Article 17-​1, 30 June 2005: “A unit in a child welfare institution shall resemble the home environment and shall not accommodate more than 10 children”. This aspect will be dealt with in more detail below. See e.g. in the context of the British “Gypsy cases” were the ECtHR stated that “[i]‌t is important to recall that Article 8 does not in terms recognise a right to be provided with a home.

126 ­chapter  law a protection against (large-​scale) evictions based on Article 8 echr and has recognised rent control measures as reflecting a “legitimate aim in the general interest” (and thus as compatible with Article 1 Protocol No. 1 echr).348 Furthermore, it has considered that states’ obligations under Article 8 echr require them to protect the enjoyment of the private and family life in one’s home against (potential) risks.349 Under specific circumstances, the ECtHR has even recognised in some instances specific rights to an accommodation under Article 8 echr, the content of which will be briefly analysed below. It has thereby further advanced the protection afforded by Article 8, which guarantees respect for a person’s home but generally does not impose an obligation on Contracting Parties to provide individuals with any home. However, for a house/​flat/​plot to be considered a “home” in the sense of Article 8 echr it is not necessary that the person concerned is the owner or occupies the accommodation lawfully.350 The cfr, for its part, does not include an explicit right to housing either but Article 34 § 3 mentions the “right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources”. Interestingly, the Explanations prepared by the Praesidium of the Convention indicate that this provision draws on Articles 13, 30 and 31 esc. However, as for the entire article, the wording of § 3 is very cautious: it only guarantees the right “in accordance with the rules laid down by Union law and national laws and practices”. It could thus be argued that the provisions of Article 34 are to be understood less as full-​fledged rights but as principles that need to be implemented in Union and national law.351 Therefore, as a minimum, the provision serves as

3 48 349 350

351

Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being have a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision”. (Chapman v. the United Kingdom, no. 27238/​95, 18 January 2001, §§ 98–​99). Leckie (n 327) 160. For examples in the ECtHR’s case law see below. Cf. the cases of López Ostra v Spain and Öneryıldız v. Turkey (n 103) mentioned above in the context of the right to health. Christina Binder and Elisabeth Steiner, ‘Housing Related Rights’ in Christina Binder and others (eds), Social rights in the case law of regional human rights monitoring institutions: The European Court of Human Rights, the Inter-​American Court of Human Rights and the African Commission on Human and Peoples’ Rights (All human rights for all, Neuer Wissenschaftlicher Verlag; Intersentia N.V. Wien, Graz, Mortsel 2016) 238–​39. Robin White, ‘Article 34 –​Social Security and Social Assistance’ in Steve Peers (ed), The EU Charter of Fundamental Rights: A Commentary (Hart, Oxford 2014) § 34.39.

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an important standard of interpretation in areas where secondary legislation affects certain housing and subsistence-​related rights.352 For example, in the context of the harmonised European asylum legislation, the Reception Conditions Directive requires Member States to provide minimum livelihood subsistence to asylum-​seekers as long as they are allowed to remain on their territory.353 The ecj has stressed that if a Member State opted to provide financial allowances instead of in-​kind support, the total amount of the allowances had to be “sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence, enabling them in particular to find housing”.354 Furthermore, as the best interests of the child shall be a primary consideration when implementing the Reception Conditions Directive (cf. Article 23 of the 2013 Directive), the amount of these allowances has to be sufficient to enable minor children to be housed with their parents, so that the family unity can be maintained.355 In another case (not related to children’s rights) the ecj referred to Article 34 § 3 cfr in determining the obligations of Member States to provide housing assistance to long-​term residing third-​country nationals356 and to clarify the meaning of “core benefits” in this regard.357 3.2.1 Availability of and Access to Adequate Housing The ecsr has had to decide, during the last decade, on a series of cases concerning the access to housing by irregular migrant children and their families, and in particular, the availability of shelters. In a first decision concerning access to housing for irregular migrant children, the ecsr considered that while it was legitimate for states to treat differently, children lawfully residing and children irregularly present, states’ immigration policy objectives and their human rights obligations would not be reconciled if children were denied basic 352 The inclusion of this provision in the cfr can also be seen as a sign that the Charter underlines “the obligation of states to recognise and respect entitlement to support for those who fall on hard times” (ibid § 34.41). 353 Directive 2013/​33/​EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection. 354 Federaal agentschap voor de opvang van asielzoekers v Selver Saciri and others (2014) Case C-​79/​13 [2014] ECLI:EU:C:2014:103, § 46 (the case still concerned the 2003 Reception Conditions Directive). 355 ibid. § 41. Interestingly though, the ecj did not refer to Article 34 § 3 cfr in its judgment but only very briefly to Article 1 (human dignity). 356 In the sense of Council Directive 2003/​109/​EC of 25 November 2003 concerning the status of third-​country nationals who are long-​term residents. 357 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others (2012), Case C-​571/​10 [2012] ECLI:EU:C:2012:233.

128 ­chapter  care and intolerable living conditions were ignored.358 Regarding the right to shelter in the sense of Article 31 § 2 (i.e. the prevention of homelessness), it concluded that this right was so closely connected to the right to life and crucial for the respect of every person’s human dignity that children, whatever their residence status, come within its personal scope. Consequently, preventing homelessness in the case of the vulnerable group of children unlawfully staying, required States Parties to provide adequate shelter to children for as long as they were under their jurisdiction.359 By contrast, it considered that irregularly-​staying children do not come within the personal scope of Article 31 § 1 as providing such lasting housing would run counter to the aims of the state’s immigration policies.360 Furthermore, the Committee held that the obligations related to the provision of shelter under Article 17 § 1 lit c esc (protection and special aid for children temporarily or definitively deprived of their family’s support) are identical in substance with those related to the provision of shelter under Article 31 § 2 esc. Insofar as the Committee found a violation under Article 31 § 2 on the ground that shelter is not provided to children unlawfully present, this fact also constituted a violation of Article 17 § 1 lit c. A similar case, brought before the ecsr by the same ngo, concerned the saturation of accommodation services for unaccompanied minors and irregular migrant families with minor children (who are also entitled to material assistance under Belgian law). The ecsr found that due to the lack of reception places, Belgium had failed to take the “necessary and appropriate measures to guarantee the minors in question the care and assistance they need[ed] and to protect them from negligence, violence and exploitation […]” thereby violating Article 17 §1 of the esc.361 The ecsr thus followed the complainant organisation’s argument that the lack of accommodation rendered ineffective the minors’ access to all other measures provided for legal, economic, medical and social protection. This illustrates the close connection between the right to shelter guaranteed by Article 31 § 2 and children’s right to protection stipulated by Article 17 § 1 esc.362 Furthermore, the ecsr considered that the

358 359 360 361 362

Defence for Children International (DCI) v. the Netherlands (n 21), §§ 41–​44. ibid. § 64. ibid. § 44–​45. Defence for Children International (DCI) v. Belgium (n 79), § 82. dci could not argue a violation of Article 31  §  2 in this case as Belgium has not accepted this provision (cf. the table of accepted provisions (as of 20 June 2018): http://​ rm.coe.int/​CoERMPublicCommonSearchServices/​DisplayDCTMContent?document Id=0900001680630742).

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authorities’ incapacity to provide housing for a significant number of minors exposed those children to serious physical and moral hazards, including trafficking, exploitation of begging and sexual exploitation. As a result, it also found a violation of Article 7 § 10, i.e. the right of children and young persons to protection, in particular against physical and moral hazards.363 In a number of further cases, the ecsr confirmed its line of jurisprudence that basic housing rights, especially the right to shelter, had to be guaranteed to all children, irrespective of their migration status. Under certain circumstances, it recognised the right to shelter also for irregularly staying adults.364 As mentioned above, the ECtHR has occasionally recognised in its case law specific housing rights under Article 8 echr, regarding children or families. For example, in the case of Moldovan and Others v. Romania (no. 2), which involved allegations concerning the violation of various rights, the ECtHR found that the applicants’ living conditions and especially their housing situation over some years, amounted to a violation of their right to respect for their family and private lives as well as for their homes. Following a deadly row between Roma and non-​Roma villagers, three Roma men had been killed and 13 houses of Roma families had been completely destroyed by an angry mob, allegedly with the involvement of local police officers. Having been expelled from their village and homes, the applicants had been obliged to live in crowded and unsuitable conditions, some even in stables or windowless cellars, while the judicial proceedings were protracted and the final damage awarded in relation to the houses and belongings destroyed was insufficient. Furthermore, the competent domestic court had decided to award only half of the maintenance allowance for a widow’s minor child on the ground that her late husband had allegedly provoked the crimes.365 In the Court’s view, these elements taken together disclosed a general attitude of the authorities that had perpetuated the applicants’ feelings of insecurity and amounted to a serious violation of Article 8 echr of a continuing nature.366 363 364

Defence for Children International (DCI) v. Belgium (n 79), §§ 94–​98. Cf. European Federation of National Organisations working with the Homeless (FEANTSA) v The Netherlands, Complaint No. 86/​2012, 2 July 2014; Conference of European Churches (CEC) v. the Netherlands, Complaint No. 90/​2013, 1 July 2014. See also below on the protection from eviction. 365 The domestic court found that it was impossible to establish how much the late father used to spend on his child’s maintenance, and applied the minimum granted by the Family Code, that is one quarter of the minimum wage. However, as it considered that the deceased victims had provoked the crimes committed, it decided to halve the amount and thus only awarded rol 312,500 (around € 9) per month in maintenance allowance. Cf. Moldovan and Others v. Romania (No.2), nos. 41138/​98 and 64320/​01, 12 July 2005, § 76. 3 66 ibid. §§ 108–​109.

130 ­chapter  While the exact line is difficult to draw, this case can thus be seen as one of the few examples where the ECtHR went slightly beyond the core content of the “protection of the home” and recognised at least a positive duty of states to support individuals in re-​establishing decent living conditions, where the protection of their homes had been violated. In addition, the ECtHR found that under the special circumstances of the case (particularly, the racial discrimination to which the applicants had been publicly subjected), the applicants’ living conditions over more than ten years had even amounted to “degrading treatment” in the sense of Article 3 echr.367 While all of the applicants in this case were adults, the allegations they raised –​which the ECtHR recognised as violations of the echr –​concerned all their family members living in the same household, including children. In this context, it is important to note that the ECtHR interpreted the right to respect for the family and private life and the home as encompassing also the conditions of living. The authorities’ contribution to the applicants’ adverse housing and living conditions over such a long period of time has led the ECtHR to find a responsibility by the state. Although the ECtHR has only mentioned the cutback of the maintenance allowance for the half-​orphan in the context of the (insufficient) damage awarded to the applicant, it should not be overlooked that the Romanian authorities have applied a sort of “kin liability” in this case. Whatever the role of the murdered father in the outbreak of the clash, it was certainly not the child’s fault that their father died, which makes the cutback of the maintenance allowance highly problematic from the viewpoint of the child’s right to an adequate standard of living. This even more so, as it happened in an already difficult situation for the family, who had no fixed abode at that time. In a number of similar cases, the ECtHR considered that the destruction of the applicants’ homes by security forces violated their rights under Article 8 echr and/​or their right to the peaceful enjoyment of their property guaranteed by Article 1 Protocol No. 1 echr.368 However, these cases are strictly 367 The ECtHR pointed out that “the severely overcrowded and unsanitary environment and its detrimental effect on the applicants’ health and wellbeing, combined with the length of the period during which the applicants have had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement”. (ibid. § 110). 368 Cf. e.g. Selçuk and Asker v. Turkey, no. 12/​1997/​796/​998-​999, 24 April 1998 (in this case the ECtHR considered that the circumstances of the destruction of the houses even constituted a violation of Article 3 echr); Dulaş v.  Turkey, no.  25801/​94, 30 January 2001; Khamzayev and Others v. Russia, no. 1503/​02, 3 May 2011.

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argued on the basis of the right to family life and property rights and do not establish any general obligations regarding the housing situation of the applicants (e.g. regarding the living conditions after the destruction of the homes). Neither are there specific references to the situation of children. In a very particular case, the ECtHR found that a violation of Article 3 echr could also be caused by a state’s complete disregard for the living conditions of a minor (without any direct contribution by the authorities to these living conditions). The applicant in the case at issue was an unaccompanied minor, seeking asylum in Greece. After an initial period of immigration detention on an island –​the conditions of which led to another complaint in this case –​he was released without any further support or protection. In particular, no accommodation or shelter was offered to him and there was generally no policy to search for the families of unaccompanied minors or to ensure the basic means for their survival. The ECtHR considered that the applicant’s situation was characterised by his young age and the fact that he was in an irregular migration status in an unknown country, unaccompanied and thus left by himself. He therefore undoubtedly belonged to the group of most vulnerable persons in society and Greece had a particular duty to protect him and to care for him, by taking appropriate measures deriving from its positive obligations under Article 3.369 Yet, the Court considered that as a result of the authorities’ indifference towards his difficult situation, the applicant must have experienced profound anxiety and concern. Consequently, it concluded that the circumstances of the case, in particular the Greek authorities’ failure to provide the applicant with any accommodation, means of subsistence or protection against violence and exploitation, reached the level of severity required by Article 3.370 The situation that led the ECtHR to a conclusion on a violation of Article 3 in this case was not only the absence of adequate housing or at least shelter (as in the cases before the ecsr, see below) but was influenced by further aggravating circumstances. This was also confirmed by a case concerning a return order of an Afghan family from Switzerland to Italy in the context of the common European asylum system. In this case the ECtHR decided that the Swiss authorities were obliged to obtain assurances from their Italian counterparts that the family would be kept together and that on their arrival in Italy the applicants would be received in facilities and conditions adapted to the age of the children. Without such individual assurances, the applicants’ removal would constitute a violation of Article 3 echr in view of the difficulties in the

369 370

Rahimi v. Greece, no. 8687/​08, 5 April 2011, § 87. ibid. §§ 87–​94

132 ­chapter  Italian reception system at that time. In particular, the ECtHR considered that a significant number of asylum seekers removed to Italy might be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, which was clearly inappropriate to the age of the children.371 While the Italian authorities were not addressed in this case, the judgment also illustrates that Contracting States are under an obligation to guarantee a basic standard of living –​compatible with human dignity –​to all persons under its jurisdiction, for whom it has assumed responsibility. By contrast, if there are no particularly aggravating circumstances concerning an applicant’s living conditions, the ECtHR applies a much stricter standard regarding the application of Article 8 echr (and even more so Article 3, which always requires a “certain level of severity”). In this sense it considered, for example, that the British authorities had not violated the rights of the applicant and her minor son under Article 8 echr (in conjunction with Article 14) by not granting them priority in the access to social housing,372 as the son was only allowed to join his mother in the United Kingdom on the condition that he did not have recourse to public funds. The ECtHR reiterated in this context that there was no right to be provided with housing under Article 8 echr, however, where a Contracting State decides to provide social benefits, it must do so in a way that is compliant with Article 14 echr. While it thus acknowledged that the case fell under the ambit of Article 8, it considered that it was legitimate to put in place criteria according to which a benefit such as social housing can be allocated –​since there were limited places available and the legislation aimed to allocate them fairly. It considered that the categories used by domestic legislation were neither arbitrary nor discriminatory. Regarding the consequences for the family, it observed that the applicant and her son were in fact never homeless and received practical assistance from the authorities in finding new accommodation. It thus also paid attention to the authorities’ duties regarding the prevention of homelessness. Following from that, it concluded that the effects of the differential treatment were not disproportionate to the legitimate aim pursued.373

371 Tarakhel v. Switzerland [GC], no. 29217/​12, 4 November 2014. 372 According to domestic law, unintentionally homeless persons with a minor child are granted priority in the allocation of social housing. However, persons subject to immigration control are not eligible for housing assistance and are disregarded when determining whether another person has a priority need for accommodation. As the applicant’s son was thus not eligible, the applicant did not have a priority need. 373 Bah v. the United Kingdom, no. 56328/​07, 27 September 2011.

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3.2.2 Housing Conditions of Roma Families The access to adequate housing of Roma families and the conditions under which they are living have been the subject of several collective complaints before the ecsr during the last decade. The specificity of these cases and the systemic deficits they reveal merit separate inspection although they thematically fall under subsection 3.2.1. However, the protection against eviction, which has also been addressed in some of the cases, will be dealt with in more detail in subsection 3.2.3. In the first case of this kind, the ecsr underlined that the right to housing was important for the exercise of many other rights and of central importance to families. In order to satisfy Article 16 esc states must, among others, promote the provision of an adequate supply of housing for families and ensure that existing housing is of an adequate standard and includes essential services (such as heating and electricity).374 In the instant case it found that a significant number of Roma families in Greece were living in conditions that failed to meet minimum standards (e.g. settlements with inadequate infrastructure and limited or no access to basic amenities and public services) and that the authorities had not taken sufficient measures to improve living conditions. In addition, it found that there was insufficient supply of appropriate stopping sites for itinerant Roma. Consequently the situation was in breach of the obligation to promote the right of families to adequate housing laid down in Article 16.375 Similarly, the ecsr found violations of families’ right to housing as guaranteed by articles 16 and 31 esc in cases against Italy,376 Bulgaria,377 France,378

374 375 376

377 378

European Roma Rights Centre v. Greece (n 335) § 42. ibid. §§ 42; 46. European Roma Rights Centre v. Italy, Complaint No. 27/​2004, 7 December 2005 (Article 31 § 1 esc in conjunction with Article E: insufficient and inadequate camping sites); Centre on Housing Rights and Evictions (COHRE) v. Italy, Complaint No. 58/​2009, 25 June 2010 (unsatisfactory living conditions of Roma and Sinti in camps or similar settlements). See also: Aoife Nolan, ‘‘Aggravated Violations’, Roma Housing Rights and Forced Expulsions in Italy, Recent Developments under the European Social Charter Collective Complaints System’ (2011) 11 Human Rights Law Review 343. European Roma Rights Centre (ERRC) v. Bulgaria, Complaint No. 31/​2005, 18 October 2006 (Article 16 in conjunction with Article E: inadequate housing and the lack of proper amenities). European Roma Rights Centre (ERRC) v. France, Complaint No. 51/​2008, 19 October 2009 (violations of Article 31 § 1, Article 31 in conjunction with Article E, Article 16, Article 16 in conjunction with Article E and Article 30); European Roma and Travellers Forum (ERTF) v. France, Complaint No. 64/​2011, 24 January 2012 (Article 31 § 1 esc in conjunction with Article E: deficient legislation on stopping places for Travellers and Roma of Romanian and Bulgarian origin); Médecins du Monde –​International v. France (n 77).

134 ­chapter  Portugal,379 Belgium,380 Ireland,381 the Czech Republic,382 and one more case against Greece.383 In all of these cases it considered that the authorities had taken insufficient action to improve the housing conditions of Roma families such as to raise them to the level of “adequate housing” and in many cases it also found discrimination regarding the application of housing policies and programmes. Nevertheless, there are notable differences between the cases concerning the groups of Roma concerned and the contexts of their living conditions. In particular, some cases concerned primarily the housing needs of itinerant Roma (cf. e.g. the cases against Italy, Belgium, and Ireland), while others addressed the conditions in informal settlements (cf. e.g. the cases against Bulgaria and Belgium). Additionally, also the scope of the protection guaranteed varies depending on the residence status of the families concerned –​they might be citizens of the country in which they live, legally residing or irregular migrants (cf. in particular the cases against France). While many of the cases mentioned in the previous paragraph refer to families with children, the situation of the children concerned is only very sporadically mentioned in the case law384 and their specific housing needs do not form part of the substantial arguments of the complaints or the esc’s reasoning. 3.2.3 Forced Evictions Forced evictions have a significant impact on the right to housing and hence require careful legislation and sensitive balancing of interests in implementing 379 380 381 382 383

384

European Roma Rights Centre v. Portugal, Complaint No. 61/​2010, 30 June 2011 (precarious housing conditions for a large part of the Roma community and insufficient measures by the government; re-​housing programmes often lead to segregation). International Federation of Human Rights (FIDH) v. Belgium, Complaint No. 62/​2010, 21 March 2012 (violations of Article 16 esc in conjunction with Article E and Article 30 in conjunction with Article E). European Roma Rights Centre (ERRC) v. Ireland (n 272): violation of Article 16 esc (partly in conjunction with Article E but no violation of Article 30 (in conjunction with Article E). European Roma and Travellers Forum (ERTF) v. Czech Republic, Complaint No. 104/​2014, 17 May 2016. International Centre for the Legal Protection of Human Rights (INTERIGHTS) v.  Greece, Complaint No. 49/​2008, 11 December 2009. In this decision the ecsr recalled its previous findings and concluded that the authorities failed to take appropriate measures to improve the situation of the significant number of Roma who were continuing to live in conditions that failed to meet minimum standards. Cf. e.g. Médecins du Monde –​International v. France (n 77) § 77; European Roma and Travellers Forum (ERTF) v. France, Complaint No. 119/​2015, 5 December 2017 (regarding evictions).

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laws and decisions. The ecsr has defined forced eviction as the “deprivation of housing which a person occupied, on account of insolvency or wrongful occupation”.385 Eviction can thus result from occupation which was illegal from the outset (settlement on a plot of land without the authorisation of the owner and/​or public construction permits) or which turned illegal as the tenant did not fulfil his/​her contractual obligations to pay the rent. In both cases evictions can therefore help to protect the property rights of others or public interests regarding e.g. sanitary or environmental provisions. However, evictions necessarily entail that persons are deprived of their current dwelling and can therefore lead to homelessness, if no alternative accommodation is provided or the persons concerned cannot easily find one themselves. In their case law, the ecsr but also the ECtHR have thus established certain criteria for carrying out evictions in accordance with the right to housing. In particular, the criteria of illegal occupation must not be unduly wide, the eviction must be carried out in accordance with the applicable rules of procedure and these rules should be sufficiently protective of the rights of the persons concerned.386 The ecsr has also repeatedly emphasised that States Parties must make sure that evictions are carried out in conditions that respect the dignity of the persons concerned even when they are illegal occupants, and that alternative accommodation or other compensatory measures are available.387 As the risk of homelessness is particularly high when families are evicted from temporary accommodation, the ecsr has applied a strict interpretation of Article 32 § 2 esc in cases concerning the eviction from shelters. In the case of dci v the Netherlands it held that the eviction of irregularly-​staying families from shelters was prohibited precisely because states were not required to provide persons without a regular residence permit with alternative accommodation. The eviction from the temporary accommodation, however, “would place the persons concerned, particularly children, in a situation of extreme helplessness which is contrary to the respect for their human dignity”.388 3 85 Conclusions 2003 –​Sweden –​Article 31-​2, 30 June 2003. 386 European Roma Rights Centre v. Greece (n 335) § 51. In International Movement ATD Fourth World v. France (n 335) the ecsr has further defined the standards of legal protection, especially an obligation to consult the affected parties in order to find alternative solutions and the obligation to fix a reasonable notice period before eviction. Additionally, the law must prohibit evictions carried out at night or during winter and provide legal remedies and offer legal aid (to those in need) to seek redress from the courts (§ 78). 387 Cf. e.g. Conclusions 2003 –​Sweden –​Article 31-​2, 30 June 2003; European Roma Rights Centre v. Bulgaria (n 377) § 56. 388 DCI v the Netherlands (n 21) § 63. Regarding the eviction of migrants from temporary accommodation see also ERTF v. France (n 378) concerning Roma from Romania and Bulgaria.

136 ­chapter  Many of the cases brought before the European bodies during the last years concerned Roma families, who are particularly affected by forced evictions, as they often find it difficult to access regular housing due to economic reasons or discrimination.389 Those pursuing an itinerant lifestyle frequently reject housing in permanent establishments but are confronted with a lack of stopping places for caravans.390 In the latter cases the ecsr has emphasised that states are required to do their utmost to foster acceptance of the different lifestyle of itinerant persons and to take into account the precarious nature of their tenancy as they are often forced to settle on unlawful sites when they cannot find a place on an authorised site.391 As regards itinerant groups it thus concluded that the implementation of Article 16 implied that adequate stopping places be provided.392 In many cases the ecsr considered that the states concerned had failed to fulfil the procedural obligations arising from the Articles 16 and 31  §  2 esc, in particular prior consultation before an eviction is carried out, provision of alternative accommodation and legal aid.393 Laws regulating evictions therefore have to provide adequate safeguards for those in occupation and in need of genuine accommodation. By contrast, the ecsr generally considered the substantive laws which “triggered” evictions (e.g. road safety or sanitary provisions, which might also allow for emergency measures) to be compatible with human rights.394 In the case of Centre on Housing Rights and Evictions (cohre) v. France the ecsr was confronted with particular circumstances as the French authorities carried out forced evictions from unlawful settlements and expulsions of Roma 389 390

See e.g. European Roma Rights Centre v. Greece (n 335), INTERIGHTS v. Greece (n 383). See e.g. International Federation of Human Rights (FIDH) v. Belgium (n 380); ERTF v. France (n 378) concerning Travellers. 391 International Federation of Human Rights (FIDH) v. Belgium (n 380) §§ 160, 166. The ecsr highlighted in several decisions that “[p]‌ersons or groups of persons who cannot effectively benefit from rights enshrined in national legislation such as the right to housing may be forced to adopt reprehensible behaviour in order to satisfy their needs. However, this circumstance can neither be held to justify any sanction or measure towards these persons, nor be held to continue depriving them of benefiting from their rights” (cf. European Roma Rights Centre v. Bulgaria (n 377), § 53). 392 European Roma Rights Center v. Greece (n 335) § 25. The ecsr considered that in this respect Article 16 esc contains similar obligations to Article 8 echr. 3 93 In its decisions the ecsr did not only refer to the case law of the ECtHR (see below) but also to the General Comment No 7 of the UN Committee on Economic, Social and Cultural Rights (Committee on Economic, Social and Cultural Rights (n 333), which establishes a number of procedural protections in case of forced eviction. 3 94 Cf. e.g. European Roma Rights Centre (ERRC) v. Ireland (n 272), §§ 140; 148–​157.

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families on a large scale during the summer of 2010.395 The Committee considered that the Government had failed to demonstrate that the forced evictions of Roma of Romanian and Bulgarian origin in the summer of 2010 were carried out in conditions that respected their dignity or that they were offered alternative accommodation. Rather it concluded that these evictions “took place against a background of ethnic discrimination, involving the stigmatisation of Roma, and constraint, in the form of the threat of immediate expulsion from France”.396 Furthermore it considered that the authorities did not only fail to take due account of the distinctive features of the group concerned but that the policies were targeted directly at persons of Roma origin. The nature and scale of these measures set them apart from “ordinary” Charter violations and revealed “a failure to respect essential values enshrined in the European Social Charter”.397 While forced evictions often have especially detrimental effects on children –​they may lose access to education and medical care as a result of the (temporary) homelessness and become more vulnerable to forms of exploitation –​few cases refer specifically to their situation. In the case of European Roma Rights Centre (errc) v.  Ireland the complainant organisation argued that both evictions and inadequate accommodation had a negative impact on Traveller children’s wellbeing and in particular their school attendance, which amounted to a violation of Article 17 esc. However, the ecsr considered that these allegations lacked specificity and did not disclose any breach of the Charter.398 While the substance of the complaint regarding Article 17 esc is indeed very poor, the ecsr could have investigated these allegations more profoundly, in particular by also asking the parties for more detailed information concerning other aspects of Article 17 esc. In its recent decision in the case ertf v. France, however, the Committee recognised that successive evictions within a short time lapse and without prior consultation with the persons concerned had a particularly negative effect on the rights of children and young adults to schooling and vocational training. It therefore held that in this case there were several violations by the State party concerned, among others a violation of Article E taken in conjunction with Article 30 esc.399 395 The eviction and expulsion of Roma of Romanian and Bulgarian origin from France was also raised in the collective complaint ERTF v. France (n 378). 396 Centre on Housing Rights and Evictions (COHRE) v. France, Complaint No. 63/​2010, 28 June 2011, § 47. 397 ibid. § 54. 398 European Roma Rights Centre (ERRC) v. Ireland (n 272) §§ 178–​179. 399 European Roma and Travellers Forum (ERTF) v. France (n 384), §§ 103–​129.

138 ­chapter  The ECtHR for its part, has also elaborated in a number of cases on the rights afforded by the echr in the context of forced evictions. However, as in the ecsr’s case law, little reference is made to the specific needs of children. In its jurisprudence the ECtHR focuses on the procedural safeguards in eviction proceedings and –​as the ecsr –​usually does not question the substantive laws providing the legal basis for evictions.400 The criteria the Court has developed for rights-​compatible evictions are based on the general criteria for legitimate interferences established by Article 8 echr. As a result, the criteria are similar to that of the ecsr:  the ECtHR examines if the measure was in accordance with the law, if it pursued a legitimate aim and was proportionate (“necessary in a democratic society”), if effective judicial review was possible, and if an equivalent accommodation or adequate monetary compensation was provided.401 In the case of Stanková v Slovakia the ECtHR concluded that the eviction of the applicant together with her minor daughter without the provision of any alternative accommodation was incompatible with her right to respect for her private and family life as well as her home. The case was particular however, in that the Slovakian Constitutional Court had already found a violation –​also giving special consideration to the protection of families and children afforded by the Slovakian constitution –​but that it had no power to provide effective redress.402 The ECtHR thus limited itself to confirming the Constitutional Court’s reasoning and awarded the applicant compensation in respect of non-​ pecuniary damage. In its case law the ECtHR has also given special consideration to the housing needs of Roma or Travellers families, however, the state obligations it has derived from Article 8 echr in this regard have evolved over the years. In order to fall under the protection of Article 8 echr, the decisive element for the ECtHR in these cases was not the lawfulness of the occupation but whether the individuals concerned had “sufficiently close and continuing links” with the non-​permanent establishments such as caravans or huts located on a certain piece of land. The ECtHR also recognised that the occupation of their caravans was an integral part of the applicants’ identity, even when they no longer led a nomadic lifestyle.403 Nevertheless, in evaluating the proportionality of the eviction measures, the ECtHR initially differentiated strongly whether 4 00 401 402 403

Binder and Steiner (n 350) 215. See e.g. Saghinadze and Others v. Georgia, no. 18768/​05, 27 May 2010. Stanková v. Slovakia, no. 7205/​02, 9 October 2007, §§ 29, 60. See e.g. Coster v. the United Kingdom [GC] (n 271), § 87; Chapman v. the United Kingdom [GC] (n 347), § 73.

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the establishment of the home in a particular place had been lawful or unlawful and considered that in a balance of interests the interests of unlawful occupants were weaker. As long as the domestic proceedings complied with basic procedural safeguards, it thus accorded a wide margin of appreciation to the Member States.404 Still it recognised the vulnerable position of Travellers/​ Gypsies as minorities and consequently emphasised that a decisive factor of whether the impugned measure was proportionate was also the availability and suitability of an alternative accommodation.405 In more recent cases, the ECtHR has paid increased attention to the special housing needs of Roma and Travellers/​Gypsies. For example, in Yordanova and Others v. Bulgaria it emphasised that the specificity of the affected persons as a social group needed to be one of the relevant factors in the proportionality assessment and that marginalised groups may need some assistance to enjoy the same rights as the majority. Consequently, it criticised that no alternative solutions to the eviction –​mainly on ground of public health reasons –​were studied and that the authorities did not consider the risk of homelessness if the applicants were removed from the land they were occupying.406 Similarly, in Winterstein and Others v. France, the Court noted that the eviction of a community of about a hundred people would have “inevitable repercussions on their way of life and their social and family ties”.407 It reaffirmed that the principle of proportionality required that particular consideration be given to the consequences of the eviction and that an eviction should not leave the applicants in a highly precarious position. 3.3 Access to Social Benefits Targeted at Children and Families Social welfare benefits can be distinguished from social security benefits in that the latter are based on an insurance-​like system of contributions (e.g. healthcare insurance or old-​age pensions), while the former are needs-​based benefits paid from public funds, which are usually raised through tax revenues. However, both terms can also be understood in a wider sense, which would each include the other.408 In the context of this research “social benefits” is understood as covering all forms of child or family benefits –​whether contributory

404 405 406 407 408

Chapman v. the United Kingdom [GC] (n 347) § 102. ibid. §§ 103–​104. Yordanova and Others v. Bulgaria, no. 25446/​06, 24 April 2012. Winterstein and Others v. France, no. 27013/​07, 17 October 2013, § 143. Martin Scheinin, ‘The right to social security’ in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd ed. Brill, Leiden 2001) 211.

140 ­chapter  or needs-​based –​which aim to support the upbringing and (material) wellbeing of children. In practice, most of these benefits are needs-​based however. While cash benefits are the primary form of benefits allocated to children and families, social services or benefits in kind can also be regarded as a form of social benefit.409 Although social-​security systems have been established in most European countries since the end of the 19th and beginning of the 20th century, it has long been disputed, whether benefits paid from these funds –​and even more from non-​contributory ones –​can be regarded as individual entitlements.410 As already mentioned in the introduction to this section, the crc assigns the primary responsibility for the material wellbeing of children to their parents or other care-​givers, but States Parties are obliged nonetheless to provide material assistance and support for the realisation of a standard of living adequate for the child’s physical, mental, spiritual, moral and social development, in the sense of Article 27 crc. This includes especially material assistance and support programmes to assist parents and others responsible for the care of a child (cf. Article 27 § 3), while the crc does not mention access to social security for children. The esc marked the turn in understanding  –​certain  –​social benefits as individual human rights in the European context. Several provisions of the esc aim at guaranteeing rights to social benefits in a wide sense, in particular Article 12, which refers to the level guaranteed by the European Code of Social Security,411 Article 13 (social assistance), Article 14 (social welfare service), and Articles 16 and 17 (social protection of families and children). The revised esc has also added a specific right of elderly persons to social protection (Article 23) and a right to protection against poverty and social exclusion (Article 30), which can both serve as bases for the entitlement to social benefits.412 Particularly Article 13 esc has contributed to the understanding that those in need have a genuine right to social assistance, which is not subject to the free discretion of the authorities.413 This means, in particular, that individual 409 ibid 213. 410 Eberhard Eichenhofer, ‘Social Security as a Human Right:  A European Perspective’ in Frans Pennings and Gijsbert Vonk (eds), Research Handbook on European Social Security Law (Research handbooks in European law, Edward Elgar Publishing, Cheltenham 2015) 5 et seq. 411 European Code of Social Security, cets No. 048, 16 April 1964. The 1961 esc referred to the (lower) standards of the ilo Social Security (Minimum Standards) Convention (No. 102, 28 June 1952). 412 Yet, so far few states have accepted these non-​mandatory provisions (cf. European Committee of Social Rights (n 84) 22–​23. 413 ibid 21.

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entitlements are enforceable and that proceedings regarding the allocation or termination of social benefits have to respect procedural guarantees.414 This understanding has also influenced the interpretation of the Articles 16 and 17, which are particularly relevant for children and their families. However, none of the esc’s provisions orders States Parties explicitly to grant specific social benefits but rather defines social standards that have to be met. The categories of benefits they mention by way of example should help to meet these standards but the concrete implementation is left to the domestic legislations. With regard to Article 16 esc, the ecsr has emphasised, for example, that since the right set out therein can be secured by different means, states are free to choose how they ensure the social, legal and economic protection of the various types of families.415 Yet the general principle applies that whenever states grant certain social benefits, they have to do so without discrimination and any interference has to be legal, legitimate and proportionate. In the case of eurocef v. France the ecsr concluded, for instance, that the possibility of suspending family allowances in the event of truancy constituted a violation of Article 16 esc.416 While it considered that the procedural aspects did not raise any concerns, it criticised that the impugned measure applied the punishment to only one of the parties with specific obligations (i.e. the parents), even though truancy was a complex phenomenon and different stakeholders had various obligations to address it. This meant, in the ecsr’s view, that the state had failed to fulfil its own positive obligations in the sphere of education (cf. Article 17 § 3 esc). Furthermore, the Committee considered that the measure rendered socially vulnerable families even more vulnerable (also financially), while there was no evidence that it helped to achieve the aim of returning children to school.417 A similar case concerning certain restrictions to the allocation of the monthly child allowance in Bulgaria is currently pending before the ecsr.418 Concretising the generic wording of Article 16 esc, the ecsr regularly asks States Parties to provide information and data especially about general family benefits, measures to ensure the economic protection of various categories of

4 14 Scheinin (Chapter 1 n 22) 44. 415 Conclusions 2006 –​Statement of interpretation –​Article 16. 416 However, as the contested measures had been abrogated in the meantime, the ecsr did not find a violation of Article 16 in the instant case. 417 European Committee for Home-​Based Priority Action for the Child and the Family (EUROCEF) v. France (n 195). 418 Equal Rights Trust (ERT) v. Bulgaria, Complaint No. 121/​2016 (decision on admissibility: 5 July 2016).

142 ­chapter  vulnerable families e.g. Roma families or single parent families, or the equal treatment of foreign nationals and stateless persons with regard to family benefits.419 To ensure consistency between the conclusions on Articles 12 § 1, 13 § 1 and 16, the Committee has decided to use the “median equivalised income” indicator as calculated by Eurostat in relation to the at-​risk-​of-​poverty threshold in its assessments under all three provisions.420 With regard to child allowances the ecsr has repeatedly stated that in order to comply with Article 16 esc, these benefits must constitute an adequate income supplement, which is the case when they represent a significant percentage of the median equivalised income, and that they have to be provided to a significant number of families.421 In its conclusions and case law, the ecsr has also interpreted the scope of Article 13 esc in a wide sense. It has concluded, for example, that states which have accepted not only § 1 but also § 4 were under an obligation to provide adequate medical and social assistance on an equal footing with their own nationals to persons in need who are nationals of other States Parties and lawfully resident or working regularly within their territories, or otherwise lawfully present.422 Irregularly-​staying migrants hence do not fall under the protection of § 4 but can be covered exceptionally by the more general right established in § 1. In this sense the ecsr considers that States Parties are obliged to provide irregularly-​staying migrants not only with urgent medical assistance423 but also with such basic social assistance as is necessary to cope with an immediate state of need (e.g. accommodation, food, and clothing).424 Furthermore, the ecsr does not only examine monetary benefits but also in-​kind benefits, particularly in the form of social services. The main legal 419 Cf. e.g. Conclusions XX-​4 –​Denmark –​Article 16, 4 December 2015; Conclusions XX-​4 –​ Czech Republic –​Article 16, 4 December 2015. 420 The income of a household is established by summing all monetary income received from any source by each member of the household. In order to reflect differences in household size and composition, this total is divided by the number of “equivalent adults” using a standard scale (the so-​called modified oecd equivalence scale). The resulting figure is attributed to each member of the household (cf. Conclusions 2006 –​Statement of interpretation –​ Article 16). 421 Cf. e.g. Conclusions XX-​4  –​Luxembourg  –​Article 16, 17 March 2016 (6.5% of the median equivalised income, supplemented by other benefits and measures to assist families  =  conformity); Conclusions XX-​4 –​ Czech Republic –​ Article 16, 4  December 2015 (range from 2.8% of the median equivalised income for children aged under 6 to 3.9% for children aged 15 to 26, paid only to 19.6% of families = non-​conformity). 422 Conclusions 2013 –​Statement of interpretation –​Articles 13 § 1 and 13 § 4. 423 Cf. above the cases on the access to health care for irregularly staying children (section 1.3). 424 Conclusions 2013 –​Statement of interpretation –​Articles 13 § 1 and 13 § 4.

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basis is Article 14 esc425 but Article 16 esc also calls for a wide range of measures that are not limited to cash benefits. While the right to benefit from social assistance concerns everybody who finds themselves in a situation of dependency, the ecsr has identified particularly vulnerable groups and individuals, among them children and minorities, and monitors that social services are available to all persons who are likely to need them.426 For example, in the case of International Federation for Human Rights (fidh) v. Belgium (No. 75) it found that in Belgium there was a shortage of appropriate care solutions and social services adapted to the needs of persons with severe disabilities. This caused many families to live in precarious circumstances and amounted to a violation of the Articles 14 § 1, 16, and 30 esc (partly in conjunction with Article E).427 As the echr does not grant any right to family allowances or other social benefits targeted at children, the ECtHR’s main line of jurisprudence is that Contracting Parties are not required to establish any specific social benefit scheme. However, if they do so, the criteria for the allocation have to be non-​discriminatory.428 Furthermore, over the years the ECtHR has extended the procedural guarantees of Article 6 § 1 echr –​regarding the determination of civil rights –​first to insurance-​type forms of social security429 and later partly also to statute-​based social assistance benefits. In the latter cases the ECtHR argued that the administrative authorities were not acting in the exercise of discretionary powers but decided on individual, economic rights flowing from specific statutory rules. Thus there was no convincing

425

Cf. the ecsr’s interpretative statement on Article 14 esc: “Under Article 14§1 the Committee reviews rules governing the eligibility conditions to benefit from the right to social welfare services (effective and equal access) and the quality and supervision of the social services as well as issues of rights of beneficiaries and their participation in the establishment and maintenance of social welfare services (Article 14§2)”. (Conclusions 2009 –​Statement of interpretation –​ Article 14-​1). 426 Conclusions 2009 –​Statement of interpretation –​Article 14-​1. 4 27 International Federation for Human Rights (FIDH) v. Belgium, Complaint No. 75/​2011, 18 March 2013. The case concerned primarily highly dependent adults (and not children) with disabilities. 4 28 Cf. e.g. Weller v. Hungary, no. 44399/​05, 31 March 2009, § 34: “[…] the lack of a common standard does not absolve those States which adopt family allowance schemes from making such grants without discrimination”. The case is analysed below. 4 29 Cf. e.g. Gaygusuz v. Austria, no. 17371/​90, 16 September 1996. In this case the ECtHR found a violation of Article 1 Protocol No. 1 in conjunction with Article 14 echr as the foreign applicant was refused “emergency assistance” (a benefit paid by the unemployment insurance), even though he had contributed before to the unemployment insurance fund on the same basis as Austrian employees.

144 ­chapter  reason for distinguishing between such welfare benefits guaranteed by law and the right to social insurance benefits.430 The ECtHR hence recognised that the entitlement to certain social benefits constituted an individual and justiciable right, which is –​in this regard –​very close to the ecsr’s case law described above. Apart from procedural guarantees, the ECtHR has also recognised that the respect for family life in the sense of Article 8 echr may oblige Contracting Parties to undertake certain positive measures to facilitate the enjoyment of this right, including appropriate financial or social assistance to families. In its case law it has repeatedly held that “[b]‌y granting child benefits, States are able to demonstrate their respect for family life within the meaning of Article 8 of the Convention (…)”. Therefore, child allowances come within the scope of that provision.431 This does not mean, however, that Article 8 obliges states to generally provide any form of child or family allowance. Other than the ecsr’s conclusions in some cases referred to above, according to which the financial assistance granted to families was insufficient on a general level, the cases brought before the ECtHR concerned the alleged discriminatory denial of benefits, which were already foreseen by domestic law.432 Regarding the entitlement of non-​nationals to family benefits, the ECtHR has adopted a strict approach on acceptable limitations. While it generally accords a wide margin of appreciation to states when it comes to measures of economic or social strategy, it has repeatedly emphasised that very weighty reasons need to be put forward to justify a difference in treatment based exclusively on the ground of nationality. In the case of Dhahbi v. Italy it considered, for instance, that there was no legitimate justification to deny the applicant a special family allowance, as he was lawfully staying and working in Italy and

430

Cf. e.g. Salesi v. Italy, no. 13023/​87, 26 February 1993. Tóth, Magyar and Tóthné v Hungary, no. 35701/​04, 6 December 2005. The latter concerned the lengths of proceedings regarding a special family allowance. 431 Cf. Okpisz v. Germany, no. 59140/​00, 25 October 2005, § 32; Petrovic v. Austria, no. 156/​1996/​ 775/​976, 27 March 1998, § 29. 432 For example, in the case of Weller v. Hungary the ECtHR found an unjustified discrimination concerning the payment of maternity benefit, which was granted only to mothers, adoptive parents and guardians with Hungarian citizenship, while Hungarian fathers with foreign spouses were excluded (Weller v. Hungary (n 428). In the earlier case of Petrovic v. Austria (n 431) the ECtHR still considered that the Austrian authorities had not exceeded their margin of appreciation by refusing to grant the applicant father a parental leave allowance, which was at the relevant time only allocated to mothers. The change in the jurisprudence can be seen as a sign of the changed social perceptions in Europe regarding the responsibilities for child care.

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thus contributed to public funds in the same way as Italians or nationals of other EU Member States.433 Within the scope of application of Union law, Article 34 cfr is not limited to social security –​which is formulated as an entitlement in § 2 –​but also covers social and housing assistance.434 Nevertheless, the article might provide little protection regarding social allowances for the benefit of children and families, as it is strongly linked to the context of the free movement of workers within the Union and concerns primarily social security benefits of economically active citizens.435 Furthermore, family or child benefits are usually determined by national law and are thus likely to fall outside the scope of application of the cfr. In the case of Dano, which concerned the refusal of certain social benefits to a Romanian woman and her minor son, the ecj clarified that when Member States lay down the conditions for the grant of special non-​contributory cash benefits and the extent of such benefits, they are not implementing Union law. Hence the cfr does not apply in such cases.436 However, as mentioned above in the context of housing rights, certain entitlements to social benefits are established by secondary law and in these cases, Article 34 cfr serves at least as a parameter for interpretation to determine concrete obligations. Yet this concerns not so much basic entitlements for children in general –​as they are normally governed by domestic law437 –​ but 433

Dhahbi v. Italy, no. 17120/​09, 8 April 2014. Similarly: Okpisz v. Germany (n 431). In Dhahbi the ECtHR found also a violation of Article 6 § 1 echr as the Italian Court of Cassation had dismissed –​without giving any reasons for its refusal –​the applicant’s request that a question be referred to the ecj for a preliminary ruling as to whether, under Article 65 of the Euro-​Mediterranean Agreement, a Tunisian worker could be refused the family allowance provided for by Italian law. 434 Concerning the interpretation of this provision see already above on the right to housing. 4 35 Commentators point out that while the drafters of the cfr decided to leave out the reference to the status of a worker in the final version of the text, the exemplary risks that are mentioned in Article 34 § 1 seem to refer to such a condition (cf. Björn Blauensteiner, Kerstin Tobisch and Elisabeth Wutzl, ‘Artikel 34 –​Soziale Sicherheit und soziale Unterstützung’ in Michael Holoubek (ed), Charta der Grundrechte der Europäischen Union:  GRC-​ Kommentar (Manz, Wien 2014) 458). 4 36 Elisabeta Dano and Florin Dano v Jobcenter Leipzig (2014) Case C-​ 333/​ 13 [2014] ECLI:EU:C:2014:2358. One of the questions of the referring court was whether Articles 1 (human dignity), 20 (equality before the law) and 51 (field of application) cfr must be interpreted as requiring the Member States to grant Union citizens non-​contributory cash benefits by way of basic provision such as to enable permanent residence or whether those States may limit their grant to the provision of funds necessary for return to the home State. 437 An important exception are minimum subsistence allowances for asylum-​seekers, which have to be granted under the conditions laid down by the “Reception Conditions Directive” (cf. above on the right to housing).

146 ­chapter  primarily the equal treatment of Union citizens with regard to social benefits already granted by Member States. While generally Article 18 tfeu prohibits any discrimination of Union citizens on the ground of nationality within the scope of application of the Treaties and Article 4 of Regulation No 883/​2004438 prohibits any discrimination against Union citizens with regard to social security benefits, certain limitations with regard to non-​contributory cash benefits are permissible.439 In the cases of Dano and Alimanovic, concerning the withdrawal of certain social welfare benefits (including family allowances), the ecj recently clarified that regarding access to social benefits, Union citizens can claim equal treatment only if their residence in the Member State concerned complies with the conditions for lawful residence established by the Citizenship Directive.440 It is interesting to note in the context of the European Union, that the 1989 Community Charter of the Fundamental Social Rights of Workers incorporated the workers’ right to social security and the general right to social assistance for those in need into the same provision.441 While this instrument is of limited practical impact, as it has never been incorporated into Union law and thus only serves as an interpretative guide for legislation and jurisprudence,442 the explanation on Article 34 cfr refers to point 10 of the Community Charter as one of the provisions on which Article 34 § 3 is based.

438 Regulation (EC) No 883/​2004 of the European Parliament and of the Council on the coordination of social security systems, as amended by Regulation (EC) No 988/​2009. 439 Cf. especially Article 17 of Regulation No 883/​2004 and the provisions of the “Citizenship Directive” (Directive 2004/​38/​EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No 1612/​68 and repealing Directives 64/​221/​EEC, 68/​360/​EEC, 72/​194/​EEC, 73/​148/​EEC, 75/​34/​ EEC, 75/​35/​EEC, 90/​364/​EEC, 90/​365/​EEC and 93/​96/​EEC). 440 This means, particularly, the status of worker (i.e. economically active Union citizen). Elisabeta Dano and Florin Dano v Jobcenter Leipzig (n 436); Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others (2015) Case C-​67/​14 [2015] ECLI:EU:C:2015:597. 441 Cf. point 10: “Every worker of the European Community shall have a right to adequate social protection and shall, whatever his status and whatever the size of the undertaking in which he is employed, enjoy an adequate level of social security benefits. Persons who have been unable either to enter or re-​enter the labour market and have no means of subsistence must be able to receive sufficient resources and social assistance in keeping with their particular situation”. 442 On the Charter and its impact on Union law see e.g.:  Brian Bercusson, ‘The European Community’s Charter of Fundamental Social Rights of Workers’ (1990) 53 The Modern Law Review 624; Myriam Benlolo-​Carabot, ‘Chapitre 2. Les droits sociaux dans l’ordre juridique de l’Union Européenne’ (2012) La Revue des droits de l’homme 84, 90.

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3.4 Conclusions The right to an adequate standard of living is a complex right and aspects of it are scattered among various European human rights provisions. What is most obvious in the analysis –​also compared to other rights analysed in this study –​ is that there is hardly any case law exclusively regarding children. Most of the rights European instruments guarantee to uphold an adequate standard of living are strongly related to the family context or are rather designed to match the needs of adult individuals (often in their quality as workers, as with most social security-​related rights). With the exception of Article 17 esc, children are invisible in these provisions and also in the interpretation and implementation of the general rights the specific needs of children often disappear in the overall concern for what seem to be the basic needs of “the family” (which is, however, not an abstract construct but a social entity composed of members with different needs). In the broader context of children’s rights, it has to be borne in mind that also Article 27 crc conceives family benefits or child allowances first and foremost as material assistance to support parents in their roles as primary duty-​ bearers, responsible for guaranteeing an adequate standard of living for their children. However, Article 27 does so under the premise of children’s needs for their “physical, mental, spiritual, moral and social development”. Furthermore, the right to an adequate standard of living in Article 27 crc has a very specific meaning that goes beyond material assistance and requires states also to establish e.g. social services targeted towards the needs of children. Even if the echr, esc and cfr are general instruments that might not pay specific attention to children in all aspects, the crc should arguably have also changed the attitude of how states deal with child and family benefits in practice. Concretely, social benefits and social services should be interpreted in a way that goes beyond a purely welfare-​based system of protection towards one that regards children as actors and rights-​holders. This means, as a minimum, that even when parents are primarily responsible or when measures concern the whole family, the specific needs of children have to be taken adequately into consideration. With these fundamental observations in mind, the analysis still shows that European human rights instruments provide basic protection regarding adequate living standards of children, especially concerning housing conditions and basic subsistence. The esc’s various rights that relate to an adequate standard of living are –​in total –​very comprehensive and cover all main aspects of living in dignity (housing, social and medical assistance, subsistence benefits, social security). The breadth of these rights is exemplified by the many aspects that the ecsr considers under Article 16 esc alone, which is moreover one of

148 ­chapter  the few provisions that is accepted by nearly all states which have ratified the Charter. In its case law, the Committee has proved that it interprets the rights relating to an adequate standard of living in a way that is based on the concrete needs of individuals and that aims to address also the underlying reasons for economic or social hardship. In particular, the standards it has developed for adequate housing or forced evictions provide concrete guidance for states on how to respect the fundamental rights of those concerned. Case law also shows that the esc’s rights partly overlap (e.g. Articles 13–​17; Article 16 and Articles 30–​31) as a specific situation can be covered by various provisions. This has proved to be beneficial, as not all states have accepted all of these articles or even paragraphs. For an  –​indirect  –​protection of an adequate standard of living by the echr, Article 8 serves as the key “entrance point”. The ECtHR has derived a number of concrete positive obligations from the right to respect for the private and family life as well as the home of individuals. In particular, it has developed procedural guarantees for eviction proceedings and requires states to take appropriate measures to protect homes from outside risks. Furthermore, Article 8 echr (in conjunction with Article 14 echr) guarantees equality in the access to social benefits, even though this is only limited to such benefits which states have already established. While the echr hence does not require states to provide particular social benefits to ensure a certain standard of living, these equal treatment cases show that the ECtHR recognises that social benefits can constitute an important component of the private and family life of individuals. This recognition could be the basis for a broader interpretation of Article 8, in the sense of more extensive positive obligations of states to enable the enjoyment of a private and family life in dignity. In fact, as the analysis has shown, the ECtHR has already recognised certain positive obligations to provide material (or in-​kind) assistance in specific cases –​not only under Article 8 but also under Article 3 echr, which provides further proof that an adequate standard of living is closely connected to human dignity. The jurisprudence of the ecsr and ECtHR harmonise to a large extent with regard to the protection they afford against unlawful evictions and for the equal access to social benefits. Concerning concrete standards of social assistance and housing conditions, the esc goes, however, far beyond what the echr currently provides in terms of positive obligations of the Contracting Parties. The relevant provisions of the cfr in this area –​Articles 33 and 34 –​are inspired by the esc but their specific composition and cautious wording raise many questions regarding their concrete meaning in terms of individual

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entitlements. In the academic literature it is even questioned if they constitute individual rights or are rather principles that guide legislation, implementation and jurisdiction (especially, Article 33 and Article 34 § 3). Furthermore, many competences in this area are the domaine reservé of Member States, in which the cfr does not apply. While in future the ecj might draw important standards from Articles 33 and 34 cfr for those areas which are in fact governed by Union law (e.g. access to social security in the context of free movement, common asylum and migration regime), these provisions currently seem to have little potential to protect social rights of children in general. As a common observation, case law on social security and social benefits of all three European bodies is strongly linked to national provisions, while there seem to be few parameters that are shared by all states and hence constitute “European minimum standards” (one such example might be the granting of family allowances  –​however in different forms  –​which is evaluated by the ecsr under Article 16 esc). The analysis has also demonstrated that there exist systemic deficiencies in ensuring the right to adequate housing conditions for Roma and Traveller families in virtually all European countries. As already highlighted in previous sections, this seems to be a very complex problem, where there are likely no easy solutions to ensure lastingly rights-​compatible situations. However, the complexity of the problem does not absolve states from their human rights obligations to seek satisfactory solutions in consultation with those concerned and, as a minimum, to refrain from direct interferences such as unlawful evictions. Lastly, the analysis of the case law in the area of child or family allowances raises the question of whether –​from a child rights’ perspective –​such benefits can be legitimately reduced or suspended. This question arises in particular in cases where parents (or other beneficiaries) have made false declarations to the authorities or do not comply with the conditions for the benefit (e.g. because they have not fulfilled certain obligations). While it is clear that authorities have to ensure that public funds are not abused and that children in need can actually benefit from allowances, it is also clear that any reduction –​or even the withdrawal –​of social benefits renders families more vulnerable and indirectly punishes children. From a child rights perspective it is thus necessary to find solutions that allow children to profit from social benefits even in cases where authorities refuse to allocate monetary benefits to parents. Whether in-​kind support instead of monetary assistance could be a rights-​compatible solution in some of these cases, is one of the questions raised in a case currently pending before the ecsr (ert v. Bulgaria). In any case, the high social

150 ­chapter  vulnerability of families who are strongly dependent on financial assistance illustrates the necessity for taking another state’s obligation seriously, namely providing sufficient and adequate social assistance (counselling) services for those individuals and families at risk. 4 4.1











The Rights to Appropriate Care and Contacts with Parents General Scope of the Rights Article 3 crc 1. 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. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. Article 7 crc 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. Article 8 crc 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

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2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-​establishing speedily his or her identity. Article 9 crc 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the wellbeing of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned. Article 16 crc 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks.

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Article 20 crc 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. Article 21 crc States Parties that recognize and/​or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-​country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-​country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-​country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.

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Article 17 esc –​The right of children and young persons to social, legal and economic protection With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-​operation with public and private organisations, to take all appropriate and necessary measures designed: 1.   a) to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose; b) to protect children and young persons against negligence, violence or exploitation; c) to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family’s support;(…) Article 24 cfr –​The rights of the child 1. Children shall have the right to such protection and care as is necessary for their wellbeing. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. Article 8 echr –​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 wellbeing 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.

154 ­chapter  The right to appropriate care is one of the four general principles of the crc and underlines the protection needs of children, who are not yet able to (fully) care for themselves. When speaking about care in this section it therefore does not mean specific forms of care (e.g. healthcare, day care etc.) but generally any form of care in the sense of providing the attention, protection and support children need for their physical and mental development. The right is thus a very child-​specific human r​ ights obligation that is only partly included in general human rights instruments (cf. e.g. Article 24 iccpr). In defining states’ concrete obligations to provide necessary protection and care to children, the crc starts from the “standard model” that children grow up in families and ideally with their parents. In this case Article 3  §  2 crc obliges the States Parties to ensure overall appropriate care to children; however, they must take the rights and duties of parents or other care-​givers in this regard into account. This is significant, as the crc itself assigns a number of duties to care-​givers, which can be seen as specific aspects of the general right to care and protection. In particular, parents or other care-​givers are primarily responsible for the upbringing and development of (Article 18) or for ensuring an adequate standard of living for the child (Article 27 –​cf. section 3.3 above).443 Furthermore, Article 5 crc requires states to generally respect the responsibilities, rights and duties of parents or others legally responsible for the child, to provide (age-​) appropriate direction and guidance to the child in the exercise of her or his rights. Hence, states’ obligations under Article 3 §§ 2 and 3 crc entail mainly “duties to protect” and “to fulfil”: they have to put in place adequate legislation and monitoring (including through the judiciary) and have to provide facilities and services to support care-​givers and children. In addition, Article 3 § 2 crc –​also in conjunction with the “best interests –​ principle” defined in § 1 –​can be seen as a “backup provision”, intended to fill eventual lacunae of the crc if none of the specific provisions applies in a certain situation.444 Perhaps this is the reason why the crc does not define what it understands exactly as care in the sense of Article 3 § 2. While it mentions

443 Freeman (Chapter 1 n 37) 65. Rights and duties of parents are not defined anywhere in the crc and vary among different legal systems. As Freeman points out, these typically cover matters such as the right to bring up one’s child, to have contact with them, to give consent to medical treatment, to choose an education, or to instruct (or not) in a religion (ibid 69). Article 18 § 1 crc speaks about the parental “responsibilities for the upbringing and development of the child”. 444 ibid 66.

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care in several specific contexts throughout the treaty, the generic context of Article 3 suggests a broad understanding that includes all of the specific obligations (e.g. Articles 18, 20–​24 crc) but ultimately depends on the circumstances and environment of the particular child.445 The general obligations of Article 3 crc are supplemented by Article 7, which does not only stipulate birth registration –​an administrative act with enormous consequences for the enjoyment of many rights later on in life446 –​ but the right to know and be cared for by one’s parents. States are therefore obliged to adopt legislation, programmes and policies, which strengthen families in their function of caring for children. Additionally, there should be laws in place which allow children to trace their origins, if they do not know one or both parents.447 It is important, however, to briefly note in this context that nowhere does the crc itself, define how it understands “parents”. Is this term restricted to either legal parents (i.e. those persons who are recognised by law as a child’s parents) or biological parents or does the crc also recognise various forms of “social parents”, in the sense of persons who are unrelated to the child but have assumed caring functions? The crc’s openness towards different legal and cultural traditions seems to favour a broad interpretation,448 while the addition “or other caregivers or legal guardians”, which is used in many provisions, rather suggests that “parents” are to be understood in a legal and/​or biological sense.449 Additionally, where various persons fulfil the definition of parents (e.g. biological and legal parents such as adoptive parents), national legislation has to clarify the kind of rights and obligations that are linked to those different relationships. In cases where the “standard family model” does not apply for whatever reasons, the crc provides detailed safeguards in a number of further articles, 445 ibid 68. 446 Cf. Committee on the Rights of the Child, General Comment No. 7 (2005): Implementing Child Rights in Early Childhood: CRC/​C/​GC/​7/​Rev.1 (2005) § 25. Article 7 also foresees the right of the child to a name and to acquire a nationality, which go both hand in hand with birth registration. 447 The possibilities of medically assisted procreation have caused new challenges for the implementation of this right –​and also Article 8 crc –​which are further discussed below in section 4.2. 448 Brigitte Clark, ‘A Balancing Act? The Rights of Donor-​Conceived Children to Know Their Biological Origins’ (2012) 40 Georgia Journal of International and Comparative Law 619, 629. 449 The Committee on the Rights of the Child has interpreted Article 7 as encompassing both biological and legal parents, while it does not explicitly refer to “social parents” (cf. below section 4.2).

156 ­chapter  which should ensure that children both receive appropriate alternative care and can maintain contacts with their original families –​as far as possible and in their best interests. The most pertinent provisions in this regard are Article 8 (preservation of identity, including family relations),450 Article 9 (rights of children who are separated from their parents), Article 10 (family reunification and personal relations in cross-​border contexts), Article 20 (alternative care) and Article 21 crc (adoption). The right to maintain contacts with one’s parents is thus directly linked to the right to care and applies when parents (temporarily or permanently) cannot care for their children. This concerns especially cases were parents are not living together or where children have been placed in alternative care as a result of neglect or abuse. The crc’s idea, which is chiefly reflected in Article 9, is that, in principle, children and parents should not be separated.451 Separation by the state is thus only lawful under certain conditions and if specific rules of procedure are respected.452 However, even if the separation is justifiable (or even necessary), children have the right to maintain direct and regular contacts with their parents, provided that this is in their best interests. The crc implicitly assumes that normally contacts are in a child’s best interests, hence they can only be denied in an individual situation if it is established that they are not. Furthermore, since regular and direct contacts are a child’s individual right, his/​her views should play an important role in the proceedings leading to a decision on contact rights, taking into consideration their age and maturity (cf. Article 12 crc).453 The crc does not define what “direct contact on a regular basis” entails and leaves it to the States Parties to establish adequate laws and procedures, which allow for the concrete assessment in individual cases. However, since Article 9 § 3 mentions both personal relations and direct contact, it could be argued

450 Article 8 is a quite particular provisions that is only understandable in light of its drafting history, namely in context with the forced disappearances of children in Latin America during the 1970s and 1980s. It establishes an obligation for states to prevent disappearances of children and to provide assistance and protection to return disappeared children to their parents and families. Therefore its context differs from Articles 9 or 10 (Jaap E Doek, Article 8: The right to preservation of identity; Article 9; the right not to be separated from his or her parents (A commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Leiden, Boston 2006) 8–​9). 451 Any separation of a child from his/​her parents also interferes with the right of the child to respect for her/​his family life in the sense of Article 16 crc. 452 Cf. Article 9 §§ 1 and 2. The concrete requirements are analysed below in subsections 4.2 and 4.3. 453 Doek (n 450) 29.

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that personal relations go beyond direct contact, e.g. staying in touch via telephone, e-​mail or other correspondence in situations where parents and children live geographically distant from each other. The right to contact on a regular basis entails both negative and positive obligations for States Parties. First, they must refrain from rendering direct contacts impossible, where either children or parents are under their direct authority (e.g. in prison or an institution). Secondly, they also have to facilitate contacts in other situations –​not only through appropriate legislation and judicial procedures but also through practical assistance e.g. the establishment of family mediation services.454 The European human rights instruments analysed in this study all include some provisions that (indirectly) protect children’s right to care and that should allow them to know their parents and maintain regular contacts with them. However, those provisions are far less detailed than the various provisions of the crc in this regard and the concrete obligations need to be developed by the respective (quasi-​)judicial bodies. The revised esc reflects the crc’s provisions on children’s right to care, mainly in Article 17 § 1, which is a very broad provision that includes many different aspects of care and protection obligations. It conforms, however, to the traditional “child welfare”-​model as it does neither refer to the “best interests –​ principle” of Article 3 crc nor to the right to be heard established by Article 12 (and reflected also in Article 9 crc). In the context of the reporting procedure the ecsr requests from states information mainly about legislation and practice regarding the legal status of children, about children in public care and the assistance to children whose parents are unable to provide appropriate care. Regarding the right to assistance, however, the ecsr has focused its attention in recent years nearly exclusively on unaccompanied minors or children in an irregular situation and asks states about the care and assistance they provide to this group of children to protect them from negligence, violence or exploitation.455 In addition, the ecsr has derived many obligations in respect of children’s right to appropriate care and their relationships with parents from Article 16 esc. In particular, it has considered the number, quality and affordability of childcare facilities and family counselling and mediation services to be integral parts of the “right of the family to social, legal and economic protection”. Moreover, it has also derived parental rights and duties from this provision, 454 ibid 28–​29. 455 Conclusions 2015 –​Bosnia and Herzegovina –​Article 17-​1, 4 December 2015; Conclusions 2015 –​Romania –​Article 17-​1, 4 December 2015. For a detailed analysis see the sections 4.2–​4.4 below.

158 ­chapter  especially maintenance obligations of parents towards their children but also rights in family law procedures and substantive law on custody.456 Yet, Article 16 and indeed the whole Charter are silent about children’s right to know and have contact with their parents.457 Lastly, also Article 13 § 3 and Article 14 esc foresee specific obligations which should facilitate the realisation of adequate care for all children. As a supplement to and partly overlapping with Article 16, these rights concern primarily material assistance for those in need and appropriate social welfare services e.g. counselling and practical support to parents in difficult situations.458 Although the echr does not foresee specific rights to care and contact for children, the right to respect for one’s family life in the sense of Article 8 echr entails many obligations on the part of the Contracting Parties to ensure that children can truly enjoy these rights. Above all, this concerns the right to know one’s parents and to live or at least to maintain regular contact with them. Regarding the procedural limb, this entails that care or custody proceedings must comply with standards that respect the rights of children. In this context, the ECtHR has recognised that the mutual enjoyment by parent and child of each other’s company constituted a fundamental element of family life, which states must respect.459 Furthermore, the ECtHR has interpreted Article 8 as obliging states to ensure appropriate standards for alternative care e.g. in (educational) institutions but also in foster families. The ECtHR has thus developed both a substantive positive obligation to protect family life and a procedural duty to ensure that parents and children are involved in the proceedings.460 However, applications in this area are usually filed by parents, who are seeking to challenge national decisions by claiming a violation of their rights to family life, while it is rare that children file such applications and if they do, it is often together with one parent.461 Even though protecting a parent’s right 456 Conclusions XX-​4 –​Luxembourg –​Article 16, 17 March 2016; Conclusions XX-​4 –​Netherlands Aruba –​Article 16, 4 December 2015. 457 The ecsr has interpreted Article 17 § 1 esc as covering also the right to know one’s origins though (see below subsection 4.2.1). 458 The ecsr has defined social welfare services in the sense of Article 14 esc as “services which use ‘methods of social work’ and ‘contribute to the welfare and development of both individuals and groups in the community and to their adjustment to the social environment’ “ (Conclusions I –​Statement of interpretation –​Article 14). On states’ obligations with regard to social services and social assistance see also above section 3.3. 459 Cf. e.g. Olsson v. Sweden (No. 1), no. 10465/​83, 24 March 1988, § 59. 460 Kilkelly (Chapter 2 n 20) 199. 461 ibid. Apart from judicial proceedings concerning custody/​access rights, the Court has never been asked by a child applicant as to whether Article 8 requires that he or she be heard in judicial or administrative proceedings at national level.

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under Article 8 might at the same time protect a child’s right under this provision (e.g. concerning contact rights),462 it is important to emphasise that these rights do not necessarily correspond  –​in particular considering the child’s right to be heard and have his or her wishes taken into consideration. The cfr’s broad provision on children’s rights covers both the right to care and protection (cf. Article 24 § 1 cfr, which is in fact a combination of ­Articles 3 and 12 crc) and the right to contact with both parents (cf. Article 24 § 3, which was inspired by Article 9 crc). The explanation on this article refers specifically to § 3 and points out that the legislation of the Union on civil matters, which has cross-​border implications, may touch i.a. upon visiting rights, which should ensure children’s right to regular and direct contacts with both parents.463 In fact, concerning cross-​border family law disputes, Union law already had a strong influence on children’s rights before the entry into force of the cfr464 and in practice, it is in this area, in which so far most references to Article 24 cfr have been made before the ecj.465 However, in particular the wide scope of Article 24 § 1, which must be interpreted in the light of the crc from which it drew inspiration, bears potential to also impact many other areas of secondary Union law (e.g. in the field of asylum and migration).466 4.2 The Right to Know and Maintain Contact with One’s Parents 4.2.1 The Right to Know One’s Parents and Establish One’s Identity The crc does not specify what kind of concrete obligations the right to know one’s parents in the sense of Article 7  §  1 entails for states.467 As this right is linked to the right to birth registration, it can be assumed though, that 4 62 Choudhry and Herring (Chapter 2 n 27) 222. 463 Cf. especially Council Regulation (EC) No 2201/​2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/​2000 (“Brussels IIbis Regulation”). 464 The increased mobility of families inside the EU required an enhanced interaction between national family law and Union law and cooperation between national authorities. Other than the original Regulation, the Brussels IIbis Regulation refers specifically to children’s rights and emphasises the need to hear children in proceedings that affect them and to take all decisions in their best interests (Lamont (Chapter 2 n 53) 665–​66). 465 Cf. the case law analysed below in section 4.3. 466 Lamont (Chapter 2 n 53) 681; 690–​691. 467 This subsection covers the right to know one’s parents as a child’s right in itself, while of course also other important interests or rights might justify a claim to receive information about one’s biological parents (e.g. the interest to know one’s genetic predisposition or inheritance rights).

160 ­chapter  authorities should keep, as a minimum, accurate records of every child’s birth registration as well as of all child welfare decisions, such as placement in foster families or adoption.468 However, the crc does not grant an unconditional right to trace one’s origins but states must only provide relevant data “as far as possible”. The Convention therefore assumes that there might be circumstances which could limit the right of the child to know their (biological) parents but the different interests at stake –​in particular those of the parents or donor and that of the child need to be carefully balanced.469 Moreover, it has been argued that the right to know one’s parents does not automatically imply the right to meet them or even to stay with them but that Article 7 (“to know and be cared by”) must be read together with other provisions establishing obligations of parents, legal guardians or other caregivers and is subject to a balance of interests.470 While adoptive parents can be and usually are (legal) parents to the child in accordance with domestic laws, the Committee on the Rights of the Child has interpreted Article 7 crc to include biological parents in case of adoption. Consequently, it has objected to national laws which absolutely prohibit that adopted children can receive information on who their biological parents are. Equally, fathers should, as far as possible, always be identified in birth certificates, even when parents are unmarried.471 Article 8 crc, for its part, obliges states to prevent disappearances of children, as well as to provide assistance and protection in case such a disappearance occurs. Apart from speedy investigations to return a disappeared child to his or her family, Article 8 could also oblige states to provide children concerned with all necessary information to help them tracing their original identity.472 Given the particular historic context of this provision, there is no similar right in any of the European human rights instruments but the right to 468 Samantha Besson, ‘Enforcing the Child’s Right to Know Her Origins:  Contrasting Approaches under the Convention on the Rights of the Child and the European Convention on Human Rights’ (2007) 21 International Journal of Law, Policy and the Family 137, 145. 469 Ineta Ziemele, Commentary on the United Nations Convention on the Rights of the Child, Article 7: The right to birth registration, name and nationality and the right to know and be cared for by parents (A commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Boston 2007) 27. It could also be argued that “as far as possible” does not mean any substantial limitation but that it means that the right should be implemented as far as it is factually possible. However, this view has been rejected by most authors and also the Committee on the Rights of the Child seems to interpret “as far as possible” in a substantial sense (cf. Besson (n 468) 150). 470 Besson (n 468) 145–​46. 471 Ziemele (n 469) 26–​27. 472 Doek (n 450) 8–​9.

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know one’s parents and receive information about one’s real identity would likely be covered by Article 8 echr. The right to know one’s parents and to have one’s identity established is a particular right in that its core content does not lose its significance when children reach majority. In this sense, it could even be seen as a right not only of individuals under the age of 18 (i.e. children in the sense of the crc) but of all “children” in the sense of family relations.473 The ecsr has repeatedly interpreted Article 17 § 1 as guaranteeing, in principle, the right of a child to know his or her origins. Under this provision it therefore examines national legislation and case law on adoptions and the establishment of paternity and focuses especially on situations, where the establishment of maternity or paternity is not possible or where the right of a child to know his or her origins is restricted.474 However, so far it has not decided on any non-​conformities on this aspect and has thus not yet spelt out what it regards as states’ indispensable (minimum) obligations in this context. During the last decades, cases related to the right to know one’s parents, which have been argued under Article 8 echr before the ECtHR, have mostly concerned adopted children or children born out of wedlock who wanted to know who their biological father was. However, in many of these cases the applicants were already adults at the time they filed the respective claims. In a long row of cases concerning the establishment of paternity, the case of Mikulić v. Croatia set some important principles regarding the balance to be made between the conflicting interests of a child and his or her putative father. The applicant in this case, an infant during the relevant period, alleged that the domestic proceedings to establish paternity had not been concluded within a reasonable time and that her right to respect for her private and family life had been violated because the domestic courts had been inefficient in deciding her claim and had therefore left her uncertain about her identity. The ECtHR first considered that in view of what was at stake for the applicant the competent national authorities were required to act with particular diligence in ensuring the progress of the proceedings. Second, it held that paternity proceedings fell within the scope of Article 8 echr, even though a family relationship between

473 In this sense see the ECtHR’s case law starting with its judgment in Jäggi v. Switzerland, no. 58757/​00, 13 July 2006 (cf. § 40: “(…) it must be admitted that an individual’s interest in discovering his parentage does not disappear with age, quite the reverse”). 474 E.g. under what circumstances the right of an adopted child to know his/​her origins can be restricted. Cf. Conclusions 2015 –​Romania –​Article 17-​1, 4 December 2015; Conclusions 2015 –​Slovak Republic –​Article 17-​1, 4 December 2015; Conclusions 2011 –​Ukraine –​ Article 17-​1, 9 December 2011.

162 ­chapter  the applicant and her putative father had not yet been established but the issue strongly concerned her private life. The respect for her private life finally required that she should be able to establish details of her identity and that her entitlement to such information was of importance because of its formative implications for any individual’s personality.475 Yet the ECtHR considered that the procedure available to the applicant did not strike a fair balance between her right to have her personal identity established without unnecessary delay and that of her presumed father not to undergo a dna test. It further considered that the protection of the interests involved was not proportionate. According to the Court there should have been either procedural measures in place to compel the alleged father to comply with the court order or alternative means to establish paternity by an independent authority.476 Very similarly, in A.M.M. v. Romania the ECtHR considered that the domestic courts did not strike a fair balance between the right of the applicant’s putative father not to undergo a paternity test or even to take part in the proceedings and the child’s right to have his interests safeguarded. Thus Romania failed to fulfil its positive obligations regarding the applicant’s right to respect for his private life. In this case the Court criticised in particular the domestic proceedings, which were not only lengthy but appropriate representation of the child’s interests –​in particular through the guardianship office –​was not ensured.477 It is interesting to note that the Court derived these procedural obligations directly from Article 8 echr without having recourse to Article 6 § 1. In another recent judgment concerning Romania, the ECtHR also emphasised that rigid time limits or other (absolute) barriers to paternity actions that apply even if the applicants had no knowledge of the identity of the alleged father before the expiry of the limitation period, are in breach of Article 8.478 In a very specific case, the ECtHR recently had to balance the different interests –​including that of the minor child –​in a case where the proceedings for establishing paternity were initiated by the presumed biological father. The child, his mother and her husband (who had taken over the role as the child’s father) strongly opposed these proceedings. The Court concluded 475 476

Mikulić v. Croatia, no. 53176/​99, 7 February 2002, §§ 50–​55. ibid. §§ 64–​65. On dna tests see e.g. also: Pascaud v. France, no. 19535/​08, 16 June 2011; Jäggi v. Switzerland (n 473). In the latter case dna should be extracted from a deceased man’s remains. 477 A.M.M. v. Romania, no. 2151/​10, 14 February 2012. 478 The former Romanian Family Code (which was in force when the –​meanwhile adult –​ applicants were born) made the child’s right to bring a paternity action subject to very short statutory periods of limitation (Călin and Others v. Romania, nos. 25057/​11, 34739/​11 and 20316/​12, 19 July 2016).

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that the French authorities had not overstepped their margin of appreciation by assuming that the child’s best interests lay less in preserving the parent-​child relationship that had been created by his mother’s husband’s recognition of paternity but in establishing his real parental filiation. It thus afforded stronger protection to the child’s right to know his biological origins  –​even if he had not claimed this right himself  –​than to the family relationships de facto established, which might have been altered as a result of the paternity proceedings.479 Although it has to be noted that the Court attached importance to the fact that the exercise of parental responsibility had remained with the child’s mother and that the boy could continue to live with her and her husband, it seems awkward from a child rights-​ perspective that the right to know ones parents can de facto be turned into an obligation, if deemed in the best interests of the child. This is even more surprising in the instant case as the child concerned was already eight years old when the domestic proceedings started in 2005 and 19 years old (and thus an adult!) when the ECtHR delivered its judgement in January 2016. However, the Court does not explain why it considered the establishment of the parental filiation of a teenager to be in his best interests, even if he opposes it. The line of argumentation of the ECtHR (and the French courts) is thus only understandable if considering that the paternity proceedings were argued from the perspective of the biological father’s right to private life and not from the child’s right to know his father. The child’s best interests would have thus only been a limit to the interference, which was considered justified by the rights of the biological father. Regarding the right to know one’s biological parents in connection with adoptions, legal problems arise particularly where domestic law allows for anonymous birth or secret adoptions. In the first case, the historical reason for allowing mothers to abandon their children anonymously at birth was to prevent (illegal) abortions, infanticides or the exposure of newborn babies.480 In the second case, arguments in favour of the privacy of both biological and adoptive parents prevail. However, from the perspective of a child’s right to know his or her origins both possibilities constitute a severe  –​and permanent –​interference that can only be legitimate after a careful examination of all interests involved. 479

Mandet v. France, no 30955/​12, 14 January 2016. For a different conclusion in a similar case see: Nylund v. Finland (dec.), no. 27110/​95, 29 June 1999. 480 See the historical background in the case of Odièvre v. France [GC], no. 42326/​98, 13 February 2003.

164 ­chapter  The first case the ECtHR had to decide in this regard was Odièvre v. France. The applicant, who was already an adult at the time of the proceedings, alleged that the fact that her birth had been kept secret at her mother’s request made it impossible for her to find out her origins, which amounted to a violation of her rights to private life under Article 8 and to a discrimination on the ground of birth in the sense of Article 14 echr. The Court concluded, however, that the French legislation on secret births fell within the state’s margin of appreciation, as there were not only severe conflicting interests concerning the private lives of the applicant, her biological parents and siblings and her adoptive parents but that there was also no consensus on the issue of anonymous or secret births among European states. Additionally, the Court noted that the applicant was given access to non-​identifying information about her mother and natural family that enabled her to trace some of her roots, while ensuring the protection of third-​party interests. Interestingly, the ECtHR also attached importance to the fact that the conflict of interests was not between a child and an adult but between adults. However, it did not elaborate further on this issue and thus it remains unclear what –​if any –​difference it would have made if the applicant would have still been a minor.481 The ECtHR’s judgment in Odièvre was not unanimous though. The dissenting judges criticised, in particular, that the states’ margin of appreciation should not be regarded as exempting the Court from its duty to review the way in which the rights had been balanced. In the concrete case, they considered that French law, by giving absolute priority to the right of the mother, precluded any balancing of the interests at stake.482 As a result, and without acknowledging it, the ECtHR accorded to the mother’s right absolute priority and thus violated the core of Ms Odièvre’s right to know her origins.483 Arguably still in line with its main argumentation in the Odièvre judgment, but more nuanced, the ECtHR found a violation of Article 8 echr in another case concerning Italy. The applicant –​whose situation was very similar to that of Ms. Odièvre’s –​had totally and definitively been refused any information about her origins, without any balancing of the competing interests and any prospect of a remedy. The Court thus considered that the Italian authorities failed to strike a fair balance and to achieve proportionality and hence exceeded the limits of their margin of appreciation under Article 8 echr.484 481 Odièvre v. France [GC] (n 480). See particularly §§ 44, 47, 48. 482 Cf. the Joint Dissenting Opinion of Judges Wildhaber, Sir Nicolas Bratza, Bonello, Loucaides, Cabral Barreto, Tulkens and Pellonpää but also the Concurring Opinion of Judge Rozakis. 483 Besson (n 468) 151. 484 Godelli v. Italy, no. 33783/​09, 25 September 2012.

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While there are strong arguments in favour of the possibility to allow for anonymous births –​in particular, the protection of the life and safety of mother and child –​485 the ECtHR has thus also recognised that the denial of any information about his or her origins constitutes a very severe interference with a child’s rights that can only be justified in very exceptional circumstances and should not be plainly foreseen by national legislation. The progress reproductive medicine has made during the last decades, has opened up new possibilities for medically assisted procreation that entail new and difficult ethical but also legal questions. In addition, the progress made in genetic research has facilitated the formal identification of a child’s biological parents also later on in life or even when a parent has already passed away.486 In the context of children’s rights, this raises in particular the question of whether children who have been conceived through donor-​assisted conception have the right to know their biological parents but also how states should construct the legal relationships of children who have been born by surrogate mothers.487 All European states currently struggle with these questions and legal regimes often lag behind medical possibilities.488 In such a context it is not surprising that the ECtHR has been called several times during the last years to assess the implications of (missing) regulations on the family lives of the applicants. The crc sends a powerful message in this regard: as far as possible, children should have the possibility to know their (biological) parents. In addition, it has been argued that Article 8 crc might oblige states to enact legislation that allows children –​at least when they reach majority –​to receive information about their biological father or mother in order to establish their own identity.489 In this sense, the situation of children who have been conceived with the help of donated gametes might be comparable to that of adopted children or children who have been abandoned at birth. This would mean that in each case

485

Besson mentions, for example, exceptional circumstances (e.g. adultery or rape), where mothers would prefer to remain anonymous and both her and the child’s life would be threatened if she gave birth secretly, without medical assistance (Besson (n 468) 147). 486 ibid 138. 487 See in more detail: Paula Gerber and Katie O’Byrne, ‘Souls in the House of Tomorrow: The Rights of Children Born via Surrogacy’ in Paula Gerber and Katie O’Byrne (eds), Surrogacy, law and human rights (Ashgate, Farnham, Surrey, England, Burlington, Vermont 2015). 4 88 These issues are currently also the subject of public debates throughout Europe and beyond. In the context of this research only the legal consequences are analysed from a child rights perspective, leaving out difficult ethical questions or those related to the rights of surrogate mothers. 4 89 Doek (n 450) 11–​12.

166 ­chapter  a careful balance of the different interests has to be made when deciding on the rights of children to receive information about their biological parents.490 However, drawing an analogy of donor-​assisted conception to adoption is controversial491 and so far there is no case law by European human rights bodies concerning this question. The Committee on the Rights of the Child itself has not issued any guidance so far either on how to balance the right of the child to know their parents and her or his best interests, as well as the rights of other persons involved. Regarding the legal relationships of children born to surrogate mothers, the crc does not provide any specific rules –​as this possibility did not exist when the Convention was drafted –​but instead obligations need to be drawn from its general principles, especially Article 3. The first cases the ECtHR had to decide on this matter were the cases of Labassee v. France and Mennesson v. France. Both cases concerned the French authorities’ refusal to grant legal recognition to parent-​child relationships that had been legally established in the United States between children born as a result of surrogacy treatment and the French couples who had had recourse to that treatment.492 In its judgments the ECtHR distinguished between the right of all applicants (children and intended parents) to respect for their family life and the children’s right to respect for their private life. With regard to the former, the Court considered that the French authorities struck a fair balance between the interests of the applicants and those of the state. It noted that on the one hand there was no consensus on the recognition of surrogacy agreements among European states, while on the other hand the legal parent-​child relationship represented an essential aspect of the identity of individuals and thus the margin of appreciation left to the Contracting States must be restricted. However, in the instant case it could not find that the practical difficulties that resulted from the non-​recognition of the parent-​child

490 Blanket prohibitions by national law to receive any (also non-​identifiable) information about one’s biological parents are thus likely not to correspond to states’ obligations under the crc and the echr. This could turn out to create particular problems when states allow for anonymous sperm donations and the (secret) data about the donor is not even in the possession of the authorities but of private clinics or doctors. 491 Clark (n 448) 622. 492 French authorities had argued that they could not enter the particulars of the children’s birth certificates into the French civil register, in execution of the relevant US judgments establishing parenthood, as they considered these judgments contrary to the French conception of international public policy and of French public policy (at the material time Articles 16-​7 and 16-​9 of the French Civil Code expressly provided that surrogacy agreements were null and void).

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relationship under French law had prevented the applicants from enjoying in France their right to respect for their family life. Yet, with regard to the children’s right to privacy, the ECtHR noted the discrepancy that resulted from the French authorities’ acknowledgment of the parent-​child relationship (in so far as it had been established under Californian law), while at the same time it was denying the children that status under French law. Furthermore, it considered that preventing the children from even having their legal relationships with their biological fathers recognised or established under domestic law, overstepped the permissible limits of France’s margin of appreciation.493 The lengthy considerations of these judgments illustrate the complexity of the topic and the many interests at stake. Several times throughout its line of argumentation the ECtHR pointed out that the best interests of the child are paramount whenever a child is concerned and states have to strike a balance between competing interests.494 However, in these cases it seems in fact hard to assess what the best interests of the children are. On the one hand, they might never be able to know who their biological mothers are or the women who had carried them to term. On the other hand, they have started living with couples whom the authorities of their country of origin had recognised as their parents. As there is most likely no possibility for adoption by the French couples in this case,495 the children have a strong interest in having a permanent legal relationship between them and the intended parents either recognised or established under French law. Any other solution, such as their placement in care or their adoption by another couple in the usa might not be in the children’s best interests.496 While it is certainly unpleasant for states that individuals can present them with a fait accompli in obvious circumvention of 493

Labassee v. France, no. 65941/​11, 26 June 2014; Mennesson v. France, no. 65192/​11, 26 June 2014. In those two cases the two husbands were also the biological fathers of the babies. The Court later confirmed this line of argumentation in the case Laborie v. France, no. 44024/​13, 19 January 2017. 494 Cf. e.g. Mennesson v. France (n 493) § 81. 495 According to International Private Law, jurisdiction in adoption matters is generally vested in the authorities of the state where the adopter habitually resides or is a national of. The authorities who have jurisdiction shall then also apply their internal law to the conditions governing an adoption, except for consents and consultations on which the national law of the child applies (cf. Articles 3-​5 Convention of 15 November 1965 on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions). In the instant cases this would mean that generally French courts would apply French civil law while with regard to the consent of the parents US law applies. However, under US law the parents of the children are already the French couples. 4 96 In this context see below the recent judgment in the case of Paradiso and Campanelli v. Italy.

168 ­chapter  national law, children’s best interests might oblige them to legally recognise parent-​child relations that have been established abroad as a result of surrogacy agreements. However, in such cases a thorough examination should establish the parents’ ability and willingness to provide a loving and caring environment and to put the child’s interests first. From a child rights-​perspective it is certainly not desirable that children can be conceived “on demand”, primarily to contribute to the self-​fulfilment of adults. While children have a right to be cared for by parents, there is no comparably strong human right of adults to have a child.497 Meanwhile several similar cases have been decided by the ECtHR, in which it maintained its main line of reasoning that, in principle, Contracting Parties enjoyed a wide margin of appreciation regarding the recognition of foreign surrogacy agreements in national law but that the fundamental interests of children to enjoy certainty about their identity, needs to be given due weight.498 Most recently the Court’s Grand Chamber pronounced a judgment that is likely to further stir up political and legal debates in Europe and might even lead to legal changes. In the case of Paradiso and Campanelli v. Italy the Court concluded that the placement into social-​service care in Italy of a nine-​month-​ old baby who had been born in Russia following a gestational surrogacy contract entered into by the Italian applicants, did not violate their rights under Article 8 echr. In particular it considered that in the absence of any biological tie between the child and the applicants, the short duration of their relationship with the child and the uncertainty of their legal relations, there did not even exist a family life between them. While it recognised the impact of the removal of the child on the applicants’ private life, it attached less weight to the applicants’ interest in their personal development than to the Italian authorities’ interest in upholding important rules of domestic law. Furthermore it noted that the national proceedings had established that –​due to the short period together with the applicants –​the child was not likely to suffer irreparable

497 With regard to adoption the ECtHR has noted that its aim was “to provide children with a family and not a family with a child” (see below section 4.4). Nevertheless it has recognised that the right to respect for private life also comprised the right to fulfil the wish for a child –​which has to be weighed against other interests though (cf. e.g. S.H. and Others v. Austria [GC], no. 57813/​00, 3 November 2011). 498 Foulon and Bouvet v. France, nos. 9063/​14 and 10410/​14, 21 July 2016. The case of D. and Others v. Belgium (dec.), has been partly struck out of the list of cases and partly been considered inadmissible, as the child had meanwhile been granted a laissez-​passer and had arrived in Belgium where it lived with the applicants (no. 29176/​13, 8 July 2014).

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trauma but that by contrast the applicants’ behaviour499 raised doubts on their affective and educational abilities500 4.2.2 The Right to Regular and Direct Contact with Parents As mentioned in the introduction to this section, the right to have regular and direct contact with one’s parents is closely linked to the right to know and be cared for by one’s parents. The aim of Article 9 § 3 crc could thus be interpreted in the sense that where children cannot live with their parents they should at least be able to keep regular contacts to maintain the special ties between them. Article 9 crc mentions a number of reasons for the separation of children and their parents –​both those states have directly caused (e.g. placement of the child, detention of the parent) and others, which are the result of private interaction (e.g. divorce or separation of the parents). Also, however, other possible reasons for separation, which are not mentioned by Article 9, entitle a child to that right. A majority of the cases relating to the child’s right to contact with her or his parents, that have reached European fora, concerned protracted cross-​border custody proceedings,501 or issues of access or visiting rights concerning children born out of wedlock. However, most of the cases were filed by parents or argued primarily from their perspectives, the genuine right of the child being just an addendum to their argumentation that their rights under Article 8 echr (or Article 7 crf) had been violated. While in these proceedings the ECtHR and ecj have repeatedly referred to the “best interests –​principle”, this question was often not the main consideration in the judgments or was even considered again with the parents’ interests in mind (e.g. in cases of severe conflicts between parents). In some cases –​especially concerning meanwhile abrogated provisions of German civil

499 The applicants had obtained an authorisation for adoption under Italian law but had decided to pursue with the surrogacy treatment, in circumvention of the Italian Adoption Act. 500 Paradiso and Campanelli v. Italy [GC], no. 25358/​12, 24 January 2017. 501 Nearly all of these cases related to the (non-​)enforcement of foreign return orders or custody decisions in accordance with the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Hague Convention”). Cf. among others e.g. M.A. v. Austria, no. 4097/​13, 15 January 2015 (the same facts of the case were also the subject of a preliminary ruling of the ecj concerning the application of the Brussels IIbis Regulation: Doris Povse v Mauro Alpago (2010), C-​211/​10 PPU [2010] ECR I-​06673); Hromadka and Hromadkova v.  Russia, no.  22909/​10, 11 December 2014; Karrer v.  Romania, no. 16965/​10, 21 February 2012; Bianchi v. Switzerland, no. 7548/​04, 22 June 2006; Iglesias Gil and A.U.I. v. Spain, no. 56673/​00, 29 April 2003.

170 ­chapter  law –​fathers of children born out of wedlock could only be granted access/​ visiting rights if either the mother consented to it or it was “in the child’s best interests”. This led to many proceedings where the child’s best interests were primarily viewed in light of the biological father’s wish to maintain regular contact (respectively, the mother’s opposition to it) and less in the light of the child’s own right to contact.502 Furthermore, it must be admitted that in practice it is very difficult to determine a child’s best interests, when custody proceedings have already been going on for years and children have undoubtedly been marked by the continuous tensions. The ECtHR itself considered that the best interests of children in custody proceedings comprised two limbs: first, ties with their parents (or families) must be maintained, except in cases where the family has proved particularly unfit and second, their development in a sound environment must be ensured. Consequently, family ties may only be severed in very exceptional circumstances and a parent cannot be entitled under Article 8 to have such measures taken that would harm the child’s health or development.503 Given that many cases were not filed by or on behalf of children, a detailed analysis of these cases would not fit the scope of this study. Some aspects related to the children’s own rights to contact, reflected in these cases, should nevertheless be briefly highlighted. For example, it is interesting to note that the ECtHR has been paying increasing attention to the question of the child’s participation in national proceedings in a number of cases concerning custody or access rights, even though it does not view it as an absolute obligation. In the case of Sahin v. Germany, the Grand Chamber considered that [i]‌t would be going too far to say that domestic courts are always required to hear a child in court on the issue of access to a parent not having custody, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned.504 In the instant case the Grand Chamber argued that the national courts had relied in their decisions on the carefully drafted opinion by an expert who had

502

503 504

See e.g. Schneider v.  Germany, no.  17080/​07, 15 September 2011; Anayo v.  Germany, no. 20578/​07, 21 December 2010; Zaunegger v. Germany, no. 22028/​04, 3 December 2009; Elsholz v. Germany [GC], no. 25735/​94, 13 July 2000 (in the latter case the Court found a violation of the father’s rights under Article 8 due to his insufficient involvement in the decision-​making process). Neulinger and Shuruk v. Switzerland [GC], no. 41615/​07, 6 July 2010, § 136. Sahin v. Germany [GC] no. 30943/​96, 8 July 2003, § 73.

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considered that neither the child’s hearing before the court nor direct contact with her father would be in her best interests, given the strained relations between the parents. Consequently, the German courts’ approach was reasonable and did not overstep the margin of appreciation under Article 8 echr.505 Nevertheless, it can be deduced from the Grand Chamber’s line of argumentation that in principle the ECtHR recognises that children of a sufficient age and maturity should be heard by courts in family proceedings and that these courts should also seek expert advice when taking such decisions.506 The principle that children should be heard in custody or access proceedings in order to determine what is in their best interests, can also raise the question, however, of whether children are always “free” to express their own will or if they could be influenced or pressurised by the parent they are staying with. The ECtHR has rejected the claim that in all cases a psychological expert opinion has to be sought in addition to hearing the child, if the national courts are able to evaluate the child’s statements as to whether he or she was able to make up their own mind.507 It can thus be concluded that while it is important to hear what children have to say, the ECtHR sees some flexibility as to how those views find their way into the decision-​making process and the role they play according to the age and maturity of the child.508 In a recent judgment, it gave ample room to assessing the children’s best interests and, by doing so, it carefully considered the relevant international standards, in particular Articles 3, 9 and 12 crc. The three young boys concerned, who had been living with their maternal grandparents and aunts since their mother’s death, complained about the Georgian authorities’ failure to comply with the procedural requirements of Article 8 echr and to act in their best 505 By contrast, the Chamber had previously decided, by five votes to two, that there had been a violation of Article 8 echr as well as a violation of Article 14 in conjunction with Article 8. It found that the failure to hear the child in court had entailed insufficient protection of the applicant’s interests in the access proceedings (Chamber judgment of 11 October 2001). The Grand Chamber, however, also found a violation of Article 14 taken in conjunction with Article 8 echr as fathers of children born of out of wedlock were treated differently compared to fathers whose children were born of a marriage-​based relationship regarding both custody and access/​visiting rights. 506 Kilkelly (Chapter 2 n 20) 200. In this sense see also the recent judgment Iglesias Casarrubios and Cantalapiedra Iglesias v. Spain, no. 23298/​12, 11 October 2016 (however, for formal reasons, only the mother’s but not the two minor daughters’ complaints in this case were considered admissible). 507 Sommerfeld v. Germany [GC], no. 31871/​96, 8 July 2003. For a similar case, in which the father argued that too much weight had been attached to the children’s preference not to be in contact with him, see: C v. Finland, no. 18249/​02, 9 May 2006. 508 Kilkelly (Chapter 2 n 20) 202.

172 ­chapter  interests. The ECtHR first noted that none of the children was heard in person by either of the judicial instances nor that they were adequately represented by the welfare authority (“Social Service Agency”). Secondly, it considered that when the domestic courts were making their own assessment of the best interests of the children, they failed to give adequate consideration to the important fact that the boys did not want to be reunited with their father. It highlighted that whatever manipulative role the maternal family might have played, the evidence before the domestic courts clearly showed the hostile attitude of the children towards their father and various psychological reports had referred to the potential danger to their mental health in the event of their forced return to their father. Consequently, Georgia had violated the boys’ right to respect for their family and private life, as guaranteed by Article 8 echr.509 It can thus be concluded that in cases where children’s right to be in contact with both parents is at stake, the decisive assessment the ECtHR makes is whether a fair balance has been struck between the competing interests –​ those of the child, of the parents, and of public order –​within the margin of appreciation afforded to states and bearing in mind that the child’s best interests must be the primary consideration.510 Nevertheless, in defining the margin of appreciation and the child’s best interests, case-​to-​case assessments are required and the ECtHR has avoided establishing rigid criteria. Concerning cases of international child abduction, the ECtHR has deduced from Article 8 echr that a child’s return cannot be ordered automatically when international law (in particular, the “Hague Convention”) foresees it. According to the Court, children’s best interests, from a personal development perspective, depend on a variety of individual circumstances, in particular their age and level of maturity, the presence or absence of their parents and their environment and experiences. It noted in this context, that the “Hague Convention” was essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis. However, if a return order in accordance with that treaty should be enforced after a certain time following the child’s abduction, the child’s circumstances might have changed in the meantime.511 Hence, a child’s best interests must be assessed in each individual case and the domestic decision-​making process must be fair and allow those concerned –​the children but also both parents –​to fully present their case. Consequently, such a careful assessment could lead to the conclusion that the return of the child to his or her country of last residence before 509 N.Ts. and Others v. Georgia, no. 71776/​12, 2 February 2016. 5 10 In this sense see Neulinger and Shuruk v. Switzerland (n 503), § 134. 511 ibid., §145.

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the abduction is not in his or her best interests,512 while on the other hand, children’s objections are not necessarily sufficient to prevent their return.513 In a number of cases before the ecj concerning international child abduction, the Court has used Article 24 § 3 cfr to interpret the Brussels iibis Regulation.514 Such an interpretation is supported by the explanation to Article 24, which explicitly refers to legislation of the Union on civil matters having cross-​border implications. Based on Article 24 § 3 cfr the Court has justified the order to return children to the state from which they were unlawfully removed or retained, as otherwise the contact with the left-​behind parent would have been significantly negatively affected.515 However, as such custody proceedings often go on for years, abducted or retained children have often already integrated into the new social environment and have (de facto) lost contact with their left-​behind parent when the judgment ordering their return is ultimately final. Here again a “best interests –​dilemma” might arise as on the one hand states cannot tolerate that one parent creates a fait accompli by abducting or retaining the child, while on the other hand the child might not want to be returned to a, by-​then-​unfamiliar, parent and environment. This dilemma is particularly obvious in Detiček, where the ecj took a very formal decision and emphasised that the grounds of jurisdiction in matters of parental responsibility established by the Brussels IIbis Regulation were shaped in the light of the best interests of the child, in particular the criterion of proximity. Furthermore, the respect for the right to maintain regular contacts with both parents in the sense of Article 24 § 3 cfr would “undeniably merge into the best interests of any child”.516 In addition, it underlined that allowing that a protective measure granted (provisional) custody to the mother (because of the changed circumstances in the life of the child)517 would 512

Cf. e.g. Neulinger and Shuruk v. Switzerland (n 503) in particular §§ 138–​139, 147–​148 (“…the significant disturbance that the second applicant’s forced return is likely to cause in his mind must be weighed against any benefit that he may gain from it”). 513 Cf. e.g. Raw and Others v. France, no. 10131/​11, 7 March 2013. 514 Council Regulation (EC) No 2201/​2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/​2000. 5 15 “Wrongful removal of a child, following a decision taken unilaterally by one of the parents, more often than not deprives the child of the possibility of maintaining on a regular basis a personal relationship and direct contact with the other parent”. (Jasna Detiček v Maurizio Sgueglia (2009), C-​403/​09 PPU [2009] ECR I-​12193, § 56). See e.g. also the Aguirre Zarraga judgment analysed below or J. McB. v L. E. (2010), C-​400/​10 PPU [2010] ECR I-​08965. 516 Jasna Detiček v Maurizio Sgueglia (n 515) § 54. 517 According to Article 20 § 1 Brussels IIbis Regulation, non-​competent courts may take provisional or protective measures if three cumulative conditions are satisfied, namely that

174 ­chapter  amount to consolidating a factual situation deriving from wrongful conduct and thus to strengthening the position of the parent responsible for the illegal removal. However, the enforcement of the (original) Italian custody decision in this case resulted in taking the child away from her mother, with whom she had lived for some years in Slovenia, and placing her in a children’s home in Rome.518 In the case of Aguirre Zarraga, the child concerned, who was unlawfully retained by her mother in Germany, expressed before a German court that she was resolutely opposed to her return to Spain requested by her father. In the further substantive proceedings, the competent Spanish court gave the child the opportunity to be heard but she was not actually heard because her mother did want to travel with her to Spain, while the Spanish court did not agree to the request to hear the girl by video conference. The ecj decided that while the competent Spanish court was obliged to hear the child in accordance with Article 24 § 1, it was not for the German court –​which was only competent for enforcing the judgment –​to assess to what extent that obligation had been fulfilled. A judgment ordering the return of a child handed down by the competent court in accordance with the Brussels IIbis Regulation was to be recognised and automatically enforceable in another Member State, without any possibility of opposing its recognition. Furthermore, the ecj interpreted Article 24  §  1 cfr (and the corresponding Article 42  §  2 lit. a Brussels IIbis Regulation) as not guaranteeing the hearing of the child as such but only the child’s opportunity to be heard. It was thus no absolute right but one that was limited by the age and maturity of the child, as well as the child’s best interests in accordance with Article 24 § 2 cfr. The latter need to be determined individually in each case.519 While the purely jurisdictional consequences of this judgment are undoubtedly in accordance with Union law, it must be questioned whether children’s right to be heard should really be understood in such a restrictive way. If the child  –​who in the instant case was already 7  years old when the proceedings started –​is not heard at all in legal proceedings deliberating about many

518

519

the measures concerned must be urgent, must be taken in respect of persons or assets in the Member State where those courts are situated, and must be provisional. Jasna Detiček v Maurizio Sgueglia (n 515). The original Italian decision on the provisional placement of the child was taken in the context of the ongoing divorce proceedings of the parents. In the procedure before the ecj no reasons for this placement decision or the procedure leading to it are given. Therefore it cannot be assessed if this measure was (originally) in the best interests of the child. On the dilemma of a fait accompli see also the case of Doris Povse v Mauro Alpago (2010), C-​211/​10 PPU [2010] ECR I-​06673. Joseba Andoni Aguirre Zarraga v Simone Pelz (2010), C-​491/​10 PPU, [2010] ECR I-​14247.

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aspects of her or his life, then the final judgment highly risks not corresponding to her or his best interests. However, as the ecj rightly pointed out, in the instant case it was for the Spanish appellate courts to assess if the right to be heard had been violated in the main proceedings. Finally, it should be noted that the right of children to maintain regular contacts with parents also applies when children are living in institutions or foster families. This aspect will be further analysed below. 4.3 The Right to Appropriate Care by Parents and Care Proceedings As has been outlined in the introduction to this section, children have a right to receive care and protection, first and foremost from their parents but there can be situations where parents are unable to care for their children or this is not in the best interests of the child. To avoid such situations, a state’s duty to protect includes the establishment of a legislative framework, which is conducive to children’s wellbeing, as well as of all necessary measures to support parents in their duties towards their children. This encompasses e.g. material support and family counselling services but also appropriate protection by family or child welfare law, in accordance with states’ obligations under Articles 16 and 17 esc. The ecsr requires from the Contracting Parties, for instance, information on the availability and affordability –​throughout the whole country –​of family counselling and mediation services, as well as services providing psychological support for families. It has held that since the aim of such services was to avoid the deterioration of family conflicts, they must be easily accessible.520 However, such family counselling and mediation services do not necessarily provide also specific guidance on childcare and (non-​violent) forms of education. So far, the ecsr has not specifically enquired states on these aspects. The ECtHR has repeatedly held in its case law that children and other vulnerable individuals are entitled to support services and legislative measures e.g. in the form of effective deterrence against serious breaches of personal integrity, on the basis of Articles 3 and 8 echr.521 Furthermore, the Court has partly recognised states’ duty to provide material or practical support to prevent the disintegration of families. In Wallová and Walla v. the Czech Republic it considered, for example, that it would be precisely the role of the social welfare authorities to help people in difficulty and to advise them, among other things, on the different types of social allowances, opportunities for social housing or 520 Cf. e.g. Conclusions XX-​4 –​Luxembourg –​Article 16, 17 March 2016; Conclusions XX-​4 –​ Netherlands Aruba –​Article 16, 4 December 2015. 521 Clements and Simmons (Chapter  1 n 18)  422. Cf. also above section 1.4 (prevention of health risks caused by third parties).

176 ­chapter  regarding other ways to overcome difficulties.522 In fact, the welfare authorities’ failure to address the material hardship of parents in any appropriate way, could put the proportionality of the removal of custody into question.523 Nevertheless, the protection of the wellbeing of children, in particular their physical and mental health, may require states to take certain coercive measures if parents or other care-​givers inflict violence upon them, expose them to unhealthy conditions or endanger, through their behaviour or living conditions, children’s wellbeing in any other way. Typically such measures require a careful balance of interests, as any measure taken by the authorities interferes with both parents’ and children’s right to protection of family life, guaranteed by Article 8 echr and Article 7 cfr, as well as possibly Articles 16 and 17 esc. The more intensely such measures interfere with the right to respect for the family life, the more carefully rights have to be balanced –​notably when the authorities plan to remove children from their parents and place them in a foster family or childcare institution. In such cases, particular attention has to be paid to the child’s best interests. Article 9 §§ 1 and 2 crc establish that children and their parents must not be separated against their will, except if there are very convincing arguments in favour of the best interests of the child. Given the intrusive and exceptional character of the measure, procedural aspects are particularly important. Decisions which result in a separation of children and parents thus must always be based on appropriate laws and procedures, they have to be taken by the competent authority, all interested parties  –​including notably the children concerned –​need to be able to participate in the proceedings and they have to be subject to judicial review. In addition, the measure should be taken for the shortest time possible and authorities themselves must review periodically whether it is still necessary, in accordance with Article 25 crc. Concerning the circumstances that may lead to an assessment that a separation is in the best interests of the child, the crc limits itself to two examples. Apart from cases where parents are living separately, it only mentions cases involving abuse and neglect by parents. However, it is clear from the drafting history of this provision that these examples are just illustrations and not an exhaustive list.524

522

Wallová and Walla v. the Czech Republic, no. 23848/​04, 26 October 2006, § 74. The material conditions of the family were the only reason for the authorities’ decision to remove the children from their parents’ care (see also below on the conditions for the removal/​placement of children). 523 See also Soares de Melo v. Portugal, no. 72850/​14, 16 February 2016, §§ 106, 118. 524 Doek (n 450) 24.

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Under Articles 16 and 17 esc, the ecsr has been examining, in particular, national laws and policies regarding the adequate supervision of the child welfare system, the criteria for the restriction of custody or parental rights and the procedural safeguards to ensure that children are only removed from their families in exceptional circumstances.525 In its statement of interpretation on Articles 16 and 17 § 1 esc, it held […] that any restrictions or limitations of custodial rights of parents’ should be based on adequate and reasonable criteria laid down in legislation and should not go beyond what is necessary for the protection and best interest of child [sic] and the rehabilitation of the family.526 It underlined that placement must be an exceptional measure, which is only justified when it is based on the needs of the child (i.e. if remaining in the family environment would represent a danger for the child), while purely material circumstances of the family should not be the sole reason for placement. In any event, appropriate alternatives to placement should first be explored, taking into account the views and wishes of the child and his or her family. Furthermore the ecsr considered that whenever placement was necessary, it should be considered as a temporary solution, during which continuity of the relationship with the family should be maintained and that whenever possible, placement in a foster family or in a family-​type environment should have preference over placement in an institution.527 The echr does not contain specific rules regarding the separation of children from their parents, such as Article 9 crc, but the ECtHR uses Article 8 echr  –​which corresponds (nearly literally) to Article 16 crc  –​to assess if a separation was lawful in the light of the procedural guarantees of this article. It has held repeatedly that it did not consider it as its task to substitute itself for the domestic authorities in the exercise of their responsibilities for the regulation of the public care of children, but rather to review under the echr the decisions taken by those authorities in the exercise of their power of appreciation.528 The ECtHR has thus established a number of standards, on the basis of which it assesses whether the measures taken by states are in accordance with the requirements of Article 8 echr. Generally, a restrictive 525 Conclusions 2015 –​Bosnia and Herzegovina –​Article 17-​1, 4 December 2015; Conclusions 2015 –​Sweden –​Article 17-​1, 4 December 2015. 526 Conclusions 2011 –​Statement of interpretation –​Article 16, 17-​1. 527 ibid. 528 Cf. e.g. Haase v. Germany, no. 11057/​02, 8 April 2004, § 89.

178 ­chapter  approach is necessary, resulting from the positive obligations of states under this article: where the existence of a family tie has been established, the states must in principle act in a manner, which enables that tie to be developed.529 In specification of the general requirements for legitimate interferences under Article 8 echr, the Court has held, in particular, that (1) a coercive measure can only be considered necessary if there is no other possibility available to provide the child with the necessary protection, that (2) generally a measure should be temporary and for the shortest time possible, that (3) parents –​and where possible also children –​should be heard in the proceedings and that (4) the placement decision should be carried out in such a way that children concerned can maintain direct and regular contact with their parents.530 Regarding legitimate aims, it has consistently emphasised that 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. On the contrary, there must be other circumstances pointing to the necessity for such an interference with the parents’ and children’s right to enjoy a family life.531 Such circumstances could be, in particular, patterns of violence or abuse, the parents’ inability to give their children satisfactory care and education, including appropriate food, medical care and intellectual stimulation, or any other behaviour that endangers the physical, mental and psychological wellbeing of children. In such cases, both the “protection of the health or morals” and the “rights and freedoms” of the children concerned could be legitimate aims for interfering with parents’ –​and also the children’s –​rights to the respect for their family life. For example, the ECtHR has recognised that parents are obliged to care for their children and to protect them against any form of violence or abuse. Consequently, if parents fail to fulfil these duties, this may give rise to child protection measures by the authorities. The case of Y.C. v. the United Kingdom, for instance, concerned a case where the local authority had obtained an emergency protection order after a 7-​year old boy had been injured during a violent altercation between his parents. Given that there had also been previous incidents of domestic violence and alcohol abuse by the parents, the emergency order was followed by an interim care order and the boy was placed in foster care, while the proceedings continued. Finally, the competent appellate court had 5 29 Cf., among others, Kutzner v. Germany, no. 46544/​99, 26 February 2002, § 61. 530 Cf. e.g. L. v. Finland, no. 25651/​94, 27 April 2000; Saviny v. Ukraine, no. 39948/​06, 18 December 2008;B. v. Romania (no. 2), no. 1285/​03, 19 February 2013. The criteria are analysed in more detail below. 531 Cf. e.g. K.A. v. Finland, no. 27751/​95, 14 January 2003, § 92; Haase v. Germany (n 528) § 95.

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decided to refuse a further assessment of the mother’s parenting abilities, even though she had claimed that she had separated from her husband. Instead the court made a placement order and the boy was placed with a prospective adoptive parent.532 The ECtHR considered that while it is in a child’s best interests that his or her family ties be maintained where possible, it was clear that in the instant case this was outweighed by the need to ensure the boy’s development in a safe and secure environment. It recalled that in cases concerning the placement of a child for adoption, which entails the permanent severance of family ties, decisions must be subject to “the closest scrutiny” and the best interests of the child are paramount. Therefore, in seeking to identify the best interests of the child, domestic courts must demonstrate that they have had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his/​her original family and the relationship the child has with relatives. In this context the authorities have to bear in mind that once placed with prospective adoptive parents, it is likely to be in the child’s interests not to have their family situation changed again. This fact has to be considered when deciding on the possible return of the child to their original family. As the mother (i.e. the applicant) in the instant case had been given every opportunity to present her case and was fully involved in the decision-​making process, the Court considered that the decision taken by the British authorities and courts did not exceed the margin of appreciation left to the state.533 However, the judgment does not elaborate in detail if (and how) the boy concerned was involved in the decision-​making process. Equally, in T.P. and K.M. v. the United Kingdom, the ECtHR concluded that the use of an emergency procedure to take a five-​year old girl –​the second applicant –​into care could be regarded as a proportionate measure. Even if later inconsistencies had been discovered with regard to the allegations of sexual abuse by the mother’s boyfriend, the Court found that the taking into care was supported by relevant and sufficient reasons, namely, the strong suspicion that the girl had been abused and the doubts which existed as to her mother’s –​the first applicant’s –​ability to protect her. Nevertheless, the Court found a violation of the girl’s and her mother’s rights under Article 8 echr with regard to the further procedures, in particular, the mother’s possibility to be adequately involved in the decision-​making process.534

532 Y.C. v. the United Kingdom, no. 4547/​10, 13 March 2012. 533 ibid. §§ 135, 141, 146. 534 T.P. and K.M. v. the United Kingdom [GC], no. 28945/​95, 10 May 2001.

180 ­chapter  Conversely, if states fail to protect children against severe neglect and abuse, this may result in a violation of children’s rights under Article 8 or even Article 3 echr. In the case of Z and Others v. the United Kingdom the ECtHR concluded, for instance, that the appalling neglect and emotional abuse four siblings had suffered for several years on the part of their parents, reached the level of severity prohibited by Article 3 and that the authorities had failed in their positive obligation to provide the applicants with adequate protection against inhuman and degrading treatment. The Court recalled that the competent local authorities were under a statutory duty to protect the children and had a range of powers available to them, including the removal of the children from their home, however they did not adequately respond to the children’s needs for several years.535 There are also cases, where authorities did not find an imminent danger to the life or health of children but where they considered that the children concerned suffered from neglect, unhealthy living conditions or other deficiencies, as a result of parents’ carelessness and/​or the fact that they were effectively overburdened. In these cases, the ECtHR has particularly emphasised the need to seek less intrusive means first to ensure the wellbeing of children and to pursuing to the removal of custody only when alternative solutions fail or there is an imminent danger. In Olsson v. Sweden (No. 1) the ECtHR considered that the decisions to take the three children of the applicants into care and the refusals to terminate the care were legitimate, as they were intended to safeguard the development of the children and they were based on social reports supported by statements of experts well acquainted with the case. Moreover, the parents had been involved in the decision-​making process to a degree sufficient to provide protection of their interests and the decisions were confirmed by courts and not reversed on appeal. In addition, preceding the care decision, preventive measures had been tried for several years, including psychological and social assistance to the family, but without any resulting improvement.536 Nevertheless, the Court found a violation of the applicants’ right to family life with regard to the implementation of the care-​decisions, in particular because the children were separated and two of them placed at long distance from their parents’ home and their brother’s foster family, which must have adversely affected the possibility of contact between them. Moreover, the parents’ visiting rights had been restricted. These factors were considered as detrimental to a possible reunification of the family, which should have been

535 536

Z and Others v. the United Kingdom [GC], no. 29392/​95, 10 May 2001. Olsson v. Sweden (No. 1) (n 459).

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sought, given the temporary nature of the measures.537 It is striking that in this (early) judgment, the case is exclusively analysed from the parents’ perspective and there is no mention of the best interests of the children,538 let alone their own rights for the respect of their private and family lives (which after a while could include those with their foster parents). While the analytical framework of this judgment was essentially confirmed by later judgments, considering the procedural aspects, the ECtHR has started to pay increasing attention to the rights of the child in its examination of similar cases. In the case of Haase v. Germany, for example, it emphasised that consideration of what lies in the best interests of the child was of crucial importance, when determining if the measures taken by the authorities were “necessary in a democratic society”. It considered that while the authorities enjoyed a wide margin of appreciation in assessing the necessity of taking a child into care, in particular where an emergency situation arises, it was for the respondent state to establish that a careful assessment was carried out prior to the implementation of the care measure on the effects of this measure on both parents and the child, as well as of possible alternatives to taking the child into care.539 While the Court underlined that it was not its role to speculate as to the best child-​care measures in the instant case, it concluded that there was no emergency situation that justified the drastic measures taken by the German authorities.540 In particular it held that there must be extraordinarily compelling reasons for physically removing a baby from his or her mother, immediately after birth as a consequence of a procedure in which neither of the parents of the child had been involved. In view of the ECtHR, such a measure would lead to the child’s alienation from her parents and siblings and entail the danger that the family relations between the parents and the young child might be effectively curtailed.541 In the recent judgment in the case of Soares de Melo v. Portugal the ECtHR highlighted that in such care proceedings the conflict of interests is not only one between the children’s right to protection and the parents’ right to have their family lives respected but also one between different rights of the child,

537 ibid. § 81. 538 As this judgment predates the adoption of the crc, the concept of “best interests” was maybe not so well established in the legal context though. 539 Haase v. Germany (n 528). 540 Namely, taking away seven children within a couple of days, without hearing the parents or children and apparently without considering alternative solutions. 541 Ibid., in particular §§ 100–​105.

182 ­chapter  as their established family ties are equally affected.542 In the instant case it observed that neither an enquiry of the children, or at least the older ones, took place, nor had psychological expertise on them, been obtained. Moreover, the placement of six children in three different institutions did not only result in the breakdown of the relationship between them and their mother but also among the siblings, contrary to the best interests of the children. Consequently, as the Court found that neither the placement decision, nor the restriction of access to the children, nor the process leading to these decisions was justified under Article 8, it invited the national authorities to review the situation of the applicant and her children concerned in the light of the judgment and to take appropriate action in the best interests of children.543 In any case, the ECtHR has repeatedly emphasised that independent of the (legitimate) reason why children have been separated from their parents, adequate possibilities for regular contact need to be ensured –​except, where it is not in the best interests of the child –​and the removal or placement decision has to be regularly reviewed. In the Court’s view this follows from the recognition that the natural family relationship is not terminated by reason of the fact that the child is taken into public care.544 However, parents might not always be directly responsible for causing (potential) harm to their children’s wellbeing and development but there might be situations where they are unable to provide appropriate care, due to their physical or mental conditions. The ECtHR was addressed, for example, by a number of cases, where authorities considered parents to be unable to appropriately care for their children due to their disabilities. In the case of Kutzner v. Germany, domestic courts withdrew the parental rights of the applicants, who suffered from an intellectual disability, on the ground that they were not fit to bring up their children because they did not possess the requisite intellectual capacity and had failed to cooperate with the social services. The ECtHR considered that while the authorities may have had legitimate concerns about the late development of the children, the care order itself and, above all, the manner in which it was implemented had been unsatisfactory. In particular, 542

543 544

“On the one hand, it is certain that guaranteeing children a development in a healthy environment falls under the child’s interests and that Article 8 of the Convention does not permit a parent to take actions detrimental to the health and development of their children. On the other hand, it is clear that it is as much in the child’s interest that the relationship between them and their family are kept, except in cases where they have comported themselves particularly indignantly: breaking the link means cutting the child of its roots”. (Soares de Melo v. Portugal (n 523), § 93; own translation from the French original). ibid., §§ 107; 114–​115; 130. Olsson v. Sweden (No. 1) (n 459) § 59.

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it doubted that the national authorities had given sufficient consideration to additional measures of educational support as an alternative to the removal of care, since there were no allegations of neglect or ill-​treatment by the parents. Without directly referring to the best interests of the children, the ECtHR furthermore noted that the children themselves had at no stage been heard by the judges and that as a result of the placement decision, the two sisters had been placed in separate, unidentified, foster homes and all contact with their parents was severed for the first six months. The additional restrictions on visiting rights could, in the Court’s opinion, only lead to the children’s increased alienation from their parents and from each other.545 Very similarly, the ECtHR recently found a violation of both a father’s and a child’s rights under Article 8 echr as in that case the Russian authorities could not sufficiently demonstrate the necessity to restrict the parental authority of the father, who suffered from a mild intellectual disability.546 In a case, where children had been removed from the care of their blind parents, the ECtHR first of all doubted the adequacy of the requisite evidentiary basis for the domestic authorities’ finding that the children’s living conditions were dangerous to their life and health. Furthermore, it criticised that the authorities had failed to assess to which extent the alleged inadequacies were attributable to the applicants’ irremediable incapacity to provide appropriate care, as opposed to their financial difficulties, which could have been overcome by targeted financial and social assistance and effective counselling. No analysis had been made of the applicants’ attempts to improve their situation and the children concerned had not heard at any stage of the proceedings. The ECtHR was thus not convinced that the effectiveness of less far-​reaching alternatives had been sufficiently explored before seeking to separate the children from their parents.547 In the case of B. v. Romania (no. 2) the ECtHR found that the lack of special protection for the applicant regarding her own psychiatric confinement led to severe deficiencies in the decision-​making process that resulted in the placement of her two minor children. In particular, she had not been able to participate effectively in the proceedings or to have her interests defended. Moreover, her family situation had been insufficiently examined and there was no evidence that the social workers had been regularly in contact with the applicant, which would have afforded a good opportunity to make her views known to the authorities.548 However, in this judgment the ECtHR limited itself to 545 546 547 548

Kutzner v. Germany (n 529) §§ 70, 74–​75, 77, 79. Kocherov and Sergeyeva v. Russia, no. 16899/​13, 29 March 2016. Saviny v. Ukraine (n 530) §§ 56–​59. B. v. Romania (no. 2) (n 530).

184 ­chapter  examining whether the procedural rights of the applicant mother were guaranteed without entering into the substance of the placement decision, which would have also required an assessment of the children’s best interests. Given that that their mother was suffering from a severe mental disorder and they were found in her house in a state of destitution, their initial taking into (emergency) care might have been in their best interests but the background of the case displays no indication that the children have been heard or examined by an expert at any time throughout the years they spent in public care. Conversely, where no instances of violence or abuse, lack of emotional support, educational deficiencies, worrying health conditions or a mental instability of the parents could be established, but the latter’s problems in fulfilling their child-​caring duties result solely from their material difficulties, it is the states’ duty to assist parents in overcoming their difficulties. Where the precarious situation of the parents can be addressed by less radical means than the breakup of the family, e.g. by targeted financial assistance and social counselling, the removal of custody from the parents lacks justification.549 The backgrounds of these cases depict that these families had been in difficulties for years, given especially their socio-​economic situation and particular vulnerabilities, such as low education, disability, unemployment, (de facto) single parent households or precarious immigration status. Hence, in such cases also the states obligations under Article 16 esc would be concerned, which require  –​according to the interpretation of the ecsr  –​special attention to the needs of vulnerable families.550 Additionally, the ECtHR might be called to look closer into possibly discriminatory practices of removing children from (economically) disadvantaged families. In two similar Finnish cases the ECtHR concluded, for example, that the respective emergency care orders were justified as concrete allegations of sexual abuse of the children had been raised. It emphasised, however, that whereas the authorities enjoyed a wide margin of appreciation in assessing 549 In this sense see e.g.: Wallová and Walla v. the Czech Republic (n 522); Soares de Melo v. Portugal (n 523); Moser v. Austria, no.  12643/​02, 21 September 2006 (unclear personal and financial situation of the mother and her lack of a residence permit would endanger the child’s welfare). 550 Cf. also the Council of Europe Recommendation Rec(2006)19 on policy to support positive parenting, adopted by the Committee of Ministers on 13 December 2006. The Recommendation aims at making Member States aware of the necessity to provide parents with sufficient support to meet their child-​rearing responsibilities. Accordingly, governments should ensure that children and parents have access to an appropriate level and diversity of resources and special attention should be paid to difficult social and economic circumstances.

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the necessity of taking the children into (temporary) care, any further limitations required a stricter scrutiny, as well as legal safeguards designed to secure an effective protection of the rights of parents and children to respect for their family life. Such further limitations –​as restrictions on parental rights and access  –​would entail the danger that the family relations between the parents and (young) children were effectively curtailed.551 In the two cases at issue the ECtHR also found that the further (ordinary) care decisions were justified, even though the allegations of sexual abuse did not substantiate but serious concerns about the children’s wellbeing persisted.552 Regarding these decisions it carefully examined, however, the involvement of the parents and children in the decision-​making process and the consideration of the evidence available by the competent courts.553 In the Court’s view, even outside emergency care, placement into public care should usually be regarded as a temporary measure to be discontinued as soon as circumstances permit and it should serve the ultimate aim of reuniting the family (under improved conditions). Bearing the best interests of the child in mind, a fair balance has to be struck in this regard between the interests of the children in remaining in public care (e.g. because they have already adapted to the new situation) and those of the parents in being reunited with their children. The children’s interests may thus override those of the parents, in particular when a considerable period of time has passed since the first placement into care.554 While in both cases, the access of the parents to the children had been severely restricted by the domestic courts, the ECtHR considered in the case of L. v. Finland that regular contact was still possible and that the children’s interest had made it justifiable for the Finnish authorities to reduce the right of access in that way.)555 Yet, in K.A. v. Finland it concluded that the authorities had failed to take sufficient steps directed towards the possible reunification of the children with their father but had instead pursued long-​term placement, without seriously considering other options. In this context, the ECtHR criticised that the children –​who had been heard in the procedure and who had

551

L. v. Finland (n 530), § 118; K.A. v. Finland (n 531), § 139; see e.g. also Soares de Melo v. Portugal (n 523), § 93. 552 These concerned the capability to provide children with the stimulation for their development, domestic violence and mental illness/​alcohol abuse by the parents. 5 53 L. v. Finland (n 530), § 121; K.A. v. Finland (n 531), §§ 121–​123. 554 L. v. Finland (n 530), § 122; K.A. v. Finland (n 531), § 138; see also Haase v. Germany (n 528), § 92; Kutzner v. Germany (n 529), § 67. 555 L. v. Finland (n 530), § 127.

186 ­chapter  neither expressed any wish for additional meetings with their parents nor to return to (either of) them –​had only been presented with the option to stay in the children’s home or to be placed with foster parents. In this context, the Court considered that the possibilities of reunification would be progressively diminished and eventually destroyed if the biological parents and the child were not allowed to meet each other at all, or only so rarely that no natural bonding between them was likely to occur.556 The minimum to be expected of the authorities would thus be to regularly re-​examine the situation to see whether there has been any improvement in the family’s situation.557 Another case, where the background facts were quite similar –​the allegation of physical abuse, which was the reason for the initial emergency care order, did not substantiate but the child nevertheless remained in public care –​ illustrates very clearly the conflicting interests between parents and children. In that case the child had been removed from the care of his father at the age of 4 and was 12 years old when the case was examined by the ECtHR. In the meantime, he had only seen his father three times and had integrated well into his foster family. While the Court recognised that the few possibilities of direct contact between father and son had undoubtedly disrupted the ties between them,558 it attributed the small number of visits largely to the father’s attitude during these meetings. Furthermore, it was evident from the files –​even if the ECtHR did not elaborate on this aspect –​that the child was afraid of meetings with his father and clearly opposed returning to him. In such a context, the best interests of the child, which according to the ECtHR’s case law cited above must receive primary consideration in care proceedings, strongly argue against a reunion of the child with his original family. It is important to consider that while most of the cases analysed above were filed by parents, these measures always entailed an interference with the children’s rights to family life too. This is important to consider because the interference might be justified by their interests, in particular their rights or the protection of their health and morals. From a child rights perspective, it is thus 556 K.A. v. Finland (n 531), §§ 139, 142. 557 See also the case of K. and T. v. Finland concerning the placement of two children because of the mother’s inability to care for them due to her psychiatric problems: while the ECtHR found that both the emergency and the normal care orders regarding the applicants’ children were justified, it found a violation of Article 8 echr regarding the access restrictions and the authorities’ failure to take proper steps to reunite the family (K. and T. v. Finland [GC], no. 25702/​94, 12 July 2001). 558 The Court concluded that “a situation that should have been temporary has become permanent, thus creating an insurmountable obstacle to the reunion of the applicant with his son”. Gnahoré v. France, no. 40031/​98, 19 September 2000, § 61.

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necessary that the “best interests”-​assessment in such cases considers both of the fundamental rights of the child, and that the removal from their parents is only ordered if their protection needs weigh higher than their interest for maintaining their current family lives. In most of the cases, the ECtHR leaves a wide margin of appreciation and confines itself to examining the procedure. Such an approach is arguable, given that the domestic courts had direct contact with all persons involved and direct access to the evidence. However, such a limited approach might lead to different standards being applied, in particular regarding the consideration of the best interests of children.559 4.4 The Right to Appropriate Care Outside the Family Context The previous section has illustrated that parents have specific obligations for the care of their children and that if they fail to fulfil these obligations (or are unable to do so), states might be required to provide alternative care solutions for children that are adequate to their needs. Apart from the general obligation of Article 3 § 2 crc, this duty for states follows from Article 19 § 1 crc, according to which States Parties must take all necessary 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”. Paragraph 2 of this provision mentions, in particular, “effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child” as necessary measures in this regard but does not directly refer to child welfare systems and legislation on care proceedings. The fundamental standard regarding alternative care is again Article 3 § 2 crc but the crc includes additional guarantees for children living in alternative care, i.e. mostly with foster families or in institutions. Article 20 crc in particular, is a very broad provision that includes all children who are not able to live with their families, either because they have lost or become separated from them or because a competent authority has determined that it is in the child’s best interests to be removed from his or her family environment.560 It 5 59 Kilkelly (Chapter 2 n 20) 199. 560 Nigel Cantwell and Anna Holzscheiter, Commentary on the United Nations Convention on the Rights of the Child, Article 20: Children deprived of their family environment (A commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Boston 2008) 1. The authors emphasise that the Committee on the Rights of the Child understands Article 20 crc as being applicable to all children deprived of a broader family environment and not “only” to those living without their biological parents. This would entail that states are not obliged under Article 20 to ensure alternative

188 ­chapter  thus covers a wide variety of situations in which children can find themselves, in particular, orphans, homeless children, unaccompanied minor asylum-​ seekers, children raised by grandparents or other members of the extended family, or children living in foster or institutional care.561 From a systemic viewpoint, the provision can be said to apply to situations where other articles of the crc addressing the parents’, family’s or state’s obligations (especially Articles 7, 9, 18 and 27) have already failed to produce a suitable environment for a child’s wellbeing and development.562 With regard to some situations, where children risk being separated from their family environment, the crc provides specific provisions, in particular for refugee and migrant children (Article 22), children with disabilities (Article 23), child victims of trafficking (Article 35), juveniles in detention or under arrest (Article 37)563 and children in armed conflict (Article 38). Article 20 crc provides two basic guarantees for children deprived of their family environment. First, they are entitled to special protection and assistance by the state (cf. § 1, which is thus a specification of Article 3 § 2 crc) and second, states should ensure alternative care for such children “in accordance with their national laws” (§ 2). However, the obligation to ensure alternative care does not imply that care must be provided directly by a public structure or facility but states must ensure that children requiring alternative care receive it. Care can thus also be provided by a private entity but as duty-​bearers states must ensure that such care is effectively provided and that the standards established by the competent authorities are met.564 Article 20 § 3 mentions various (non-​exhaustive) examples for alternative care: foster placement, kafalah of Islamic law, adoption or “if necessary placement in suitable institutions for the care of children”. While this last option is vaguely formulated –​both regarding the meaning of “institutions” and “if necessary” –​the Committee on the Rights of the Child has interpreted it as favouring deinstitutionalisation. Consequently it encourages the States Parties to pursue this aim.565 When planning alternative care for a child, in accordance with § 2, states are thus care for a child who, for whatever reason, is not in the care of his or her parents but is being looked after by a member of the extended family (ibid 37). 561 For a non-​exhaustive list see e.g. ibid 39. 5 62 ibid 9. 563 Children deprived of their liberty because they are suspected or convicted of being in conflict with the law, are not covered by Article 20 crc, as there is no mention of such an intention in the Travaux Préparatoires (ibid 40). 5 64 ibid 51. 5 65 ibid 56.

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required to assess which of the possible options corresponds best to the situation and needs of the child concerned. Interestingly, the only procedural requirement Article 20 establishes is, that “the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” should be considered when assessing alternative care solutions. In contrast the “best interests-​principle”, the child’s right to be heard or the consultation with the child’s family are not explicitly mentioned but follow from other provisions of the crc. Likewise, there are no indicators in the crc as to the “suitability” of institutions, e.g. regarding basic requirements such as the size, location, regime or ultimate goal of a facility, but Article 3 § 3 crc refers at least generally to the “standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision”. However, whether an institution is suitable as alternative care for a certain child will also depend on other factors, such as the condition of the child and possibilities the institution offers. In addition, Article 25 crc requires states to regularly review the placement of children, which should not only entail an evaluation of the placement decision as such but also an assessment regarding the suitability of the care. This also means that children should only remain in institutional or other alternative care for as long as it is necessary in accordance with Article 20 § 1. Bearing in mind the primacy of care within a family structure, expressed by Articles 7, 9 and also 20 § 1 crc, this implies that states should seek long-​term solutions for children living in alternative care, in particular their return to their original families or their integration into a new family environment (especially, through adoption).566 On the European level, the Recommendation of the CoE Committee of Ministers on the rights of children living in residential institutions provides (non-​binding) guidance to the Member States of the CoE on implementing Articles 20 and 25 crc with regard to children living in institutional care. It recalls not only the basic principles regarding children’s right to care but also establishes specific rights for children living in residential institutions, as well as guidelines and quality standards for such institutions. The text foresees, among others, regular reviews, which take the views of the child concerned into account, the right of siblings to remain together or stay in contact whenever possible, or the right to maintain contact with the child’s family or other people who are significant for the child. This right should only be restricted where necessary in the best interests of the child. Regarding quality standards, 566

ibid 59.

190 ­chapter  the Recommendation refers, in particular, to small, family-​style living units, individual care plans, high professional standards and stability of the staff, as well as an efficient system of monitoring and external control.567 The (revised) esc provides two major guarantees for children living outside their family environment. First, Article § 1 lit c esc –​which is very similar to Article 20 § 1 crc –​requires states explicitly to provide protection and special aid for children and young persons temporarily or definitively deprived of their family’s support. Secondly, lit. a sets an obligation for states to establish or maintain institutions and services sufficient and adequate for the care, the assistance, the education and the training of children. While this provision is broad and encompasses e.g. also health care institutions or day-​care facilities for children –​as already mentioned above –​it applies, of course, to children in need of alternative care and particularly, to children living in institutions. The ecsr has repeatedly recalled in its conclusions under Article 17 esc that placement must be an exceptional measure, and is only justified when it is based on the needs of the child, namely if remaining in the family environment represents a danger for the child. Furthermore, it has held that when placement is necessary, it should be considered as a temporary solution, during which continuity of the relationship with the family should be maintained and the child’s re-​integration within the family should be pursued.568 Long-​term care of children outside their home should primarily take place in foster families suitable for their upbringing and only if necessary in institutions.569 The Committee regularly asks states to provide data on the number children in institutions and in foster care –​including the maximum number in a single institution  –​570 and has stated in that context that a unit in a child welfare institution should be of such a size as to resemble the home environment. It should not therefore accommodate more than 10 children per unit.571 According to the ecsr, children placed in institutions are entitled to the highest degree of satisfaction of their emotional needs and physical wellbeing as well as to special protection and assistance. Such institutions must provide conditions promoting all aspects of children’s physical, mental and social growth. Furthermore, a procedure must exist for complaining about the care and treatment in

567 Recommendation Rec (2005) 5 of the Committee of Ministers to member states on the rights of children living in residential institutions, 16 March 2005. 568 Conclusions 2011 –​Statement of interpretation –​Article 16, 17-​1. 569 Cf. e.g. Conclusions 2015 –​Serbia –​Article 17-​1, 4 December 2015. 570 Cf. e.g. Conclusions 2015 –​Slovak Republic –​Article 17-​1, 4 December 2015. 571 Conclusions 2005 –​Moldova –​Article 17-​1, 30 June 2005.

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institutions. There must be adequate supervision of the child welfare system and in particular of the institutions involved.572 During the latest monitoring cycle, the Committee noted that in the majority of states the procedures for placement of children in care were well established and observed. However, the removal of children from their families solely due to financial difficulties was still possible in the Republic of Moldova, while an amended provision of the Czech Civil Code now explicitly stipulated that inadequate housing conditions and the material situation of parents could per se not be a reason for placement of children.573 Furthermore, the Committee observed that some states had taken steps to de-​institutionalise public care by closing down large institutions and favouring placement of children in foster care or in another family-​type environment.574 As the echr does not contain any provision on the care of children, there are no general guarantees for children in need of care outside their family context. In a couple of cases the ECtHR has recognised, however, that certain aspects concerning placement decisions or the children’s living conditions in care institutions fall under their right to respect for their private or family life or their right to liberty. In the case of Scozzari and Giunta v. Italy the ECtHR found that the removal of the first applicant’s children from her care was justified, however, it found a violation of Article 8 echr with regard to the contact between the mother and the children, as well as the children’s placement in a particular community. It expressed especially strong reservations about the fact that two people who had in the past been convicted of the ill-​treatment and abuse of persons entrusted into their care were, apparently, actively involved in the education of the first applicant’s children. This was even more worrying, as the elder son had previously been subject to sexual abuse by a family friend and the fact that his mother had not been able to protect him against these assaults was one of the reasons for the care order. The Court concluded that the combination of the absence of any time-​limit on the care order, the negative influence of the people responsible for the children at the community, coupled with the attitude and conduct of the social services (which failed to exercise effective supervision), were in the process of driving the children away from their mother and towards a long-​term integration within the community. In the Court’s 572 Cf. e.g. Conclusions 2005 –​Lithuania –​Article 17-​1, 30 June 2005; Conclusions 2015 –​Serbia –​Article 17-​1, 4 December 2015. 573 This is likely to be a consequence of the ECtHR’s judgment in the case of Wallová and Walla v. the Czech Republic (n 522) analysed above. 574 European Committee of Social Rights (n 116) 30.

192 ­chapter  view, this failure of prudence and vigilance on the part of the authorities was not just contrary to the first applicant’s rights under Article 8 echr but also to the superior interests of the children.575 In the recent case D.L. v. Bulgaria the minor applicant had been placed in an educational centre /​boarding school at the age of 13, on the ground that a more lenient measure –​namely the prolongation of her stay in a crisis centre –​had not worked as she had not respected the internal rules (notably her aggressive conduct and her attempts to run away). In the interest of both the applicant and society (!) it would have thus been necessary to take her out of the negative influence of her acquaintances, so that she was protected against prostitution and could develop her personality. The ECtHR found that the applicant’s placement was in conformity with Article 5 § 1 lit d echr, which authorised the detention of minors for the purpose of educational supervision. While it acknowledged the shortcomings in Bulgarian institutions of this kind, the Court noted that the applicant had been able to follow a school curriculum and to obtain a professional qualification enabling her to potentially reintegrate into the community at a later date. It was thus satisfied that the detention served educational purposes and it did not find any procedural shortcomings in this regard either. However, it found a violation of Article 5 § 4 echr on the ground that the placement decision was not regularly reviewed and that the applicant herself was not authorised to apply for a review of her detention. Furthermore, the Court considered that the general surveillance regime regarding the applicant’s correspondence and phone calls, which also included the conversations with her lawyer and ngos, violated her rights under Article 8 echr, as this measure had not been based on any individualised analysis of the risks involved and, as a result, had limited her possibilities to communicate (confidentially) with the outside world.576 Concerning adoption, the ECtHR has held in a number of judgments that the child’s best interests should always build the focus of the decision, as the key purpose of adoption was “providing a child with a family and not a family with a child”.577 Furthermore, increasing with children’s maturity, their own views concerning the adoption should be duly taken into account. For example, in the case of Pini and Others v. Romania it decided that –​from the perspective of the adoptive parents –​the failure by the Romanian authorities to enforce two adoption orders did not violate the applicants’ rights under Article 575 576 577

Scozzari and Giunta v. Italy, nos. 39221/​98 and 41963/​98, 13 July 2000. D.L. v. Bulgaria, no. 7472/​14, 19 May 2016. Pini and Others v. Romania, nos. 78028/​01 and 78030/​01, 22 June 2004, § 156 (referring to Fretté v. France, no. 36515/​97, 26 February 2002).

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8 echr, as these refusals were justified by the best interests of the children concerned, in particular their wishes to stay in a centre in Romania, instead of moving to their adoptive parents in Italy, whom they had known only vaguely. The Court considered it particularly regrettable in this case that the children had not received any psychological support capable of preparing them for the adoption. It However, it unequivocally stated that in any case the children’s interests outweighed those of the adoptive parents, as the latter’s interest to form new family lives with the children could not enjoy protection over the children’s refusal to be adopted by a foreign family. In the ECtHR’s view, the children’s interests dictated that their opinions on the subject were taken into account once they had attained the necessary maturity to express them.578 The obligation to provide special care and assistance to children temporarily or permanently deprived of their family’s support, implies that states have a special care obligations vis-​à-​vis unaccompanied minor asylum-​seekers or refugees. In the case of Defence for Children International (dci) v. Belgium, already mentioned above, in the context of the right to health, the ecsr concluded that states were obliged to provide to unaccompanied foreign minors –​even if residing illegally –​the care and assistance they needed and to protect them from negligence, violence or exploitation.579 The ECtHR for its part has found a violation of various articles of the echr in a case where the Belgian authorities had detained an unaccompanied 5-​year old girl for two months in a centre for adults, pending her deportation, as she lacked the required documents for travelling onwards to join her mother who had obtained refugee status in Canada. The Court found that the care provided to the young girl was insufficient to meet her needs and that generally no specific legal framework regarding the situation of unaccompanied minors in detention existed at that time in Belgium, even though this group was in an extremely vulnerable situation. It concluded that the authorities had failed to take action to avoid or remedy the alleged shortcomings and to fulfil their obligation to provide care for the minor, despite being expressly informed of her very difficult situation. It thus found a violation of Article 3 echr regarding the girl’s conditions of detention and her deportation to the drc (where she had no relatives who could look after her) as well as of Article 8 as both her and her mother’s right 578 ibid. For a similar case, where a child had opposed the (initial) adoption order see: Jucius and Juciuvienė v. Lithuania, no. 14414/​03, 25 November 2008. 579 Defence for Children International (DCI) v. Belgium (n 79). In the instant case it found that Belgium had failed to take sufficient measures to guarantee non-​asylum seeking, unaccompanied foreign minors the care and assistance they needed, thereby exposing a large number of children and young persons to serious risks for their lives and health.

194 ­chapter  to respect for their family life had been disproportionally interfered with as a result of her detention and the circumstances of her deportation. In this context, it observed that the Belgian authorities could have used other measures, which would have been more conducive to the best interests of the child, e.g. her (temporary) placement in a specialised centre or with foster parents.580 Furthermore, it concluded that her right to liberty had not been adequately protected, as she had been detained under a law which contained no provisions specific to minors and in a centre without age-​appropriate care. Moreover, her right to appeal under Article 5 § 4 had been rendered ineffective, as she was deported without regard to a judgment that had ordered her release.581 4.5 Conclusions This section has analysed a set of rights with a common aim  –​namely, the right of children to appropriate care and protection whether in-​or outside the family and based upon that, their right to maintain regular contact with their parents or other close family members. However, states obligations differ according to different scenarios, as the various provisions of the crc in this context demonstrate. Furthermore, similar to the right to an adequate standard of living, the crc accords the primary responsibility for the appropriate care of children to their parents or other care-​givers, while states are in principle in a supporting respectively subsidiary role. The right to maintain regular contact requires more immediate action from states though, both in the form of positive and negative obligations e.g. a child-​focused child-​welfare system and practical measures to facilitate contact in complex situations. The common denominator of all the specific provisions in the context of the separation of children and parents or alternative care measures is Article 3 crc, including first and foremost, the “best interests-​principle”. The more states’ obligations depend on the concrete circumstances, the more attention has to be paid to a careful examination of a child’s needs and his or her short-​and long-​term interests. The corresponding provisions on the European level are much more generic and less detailed than those of the crc, which entails that many concrete obligations had and still have to be developed by case law. The analysis shows that partly the crc’s standards have been absorbed well by the European human 580 As the girl was an unaccompanied foreign minor, international law (including the crc and the Convention and Protocol Relating to the Status of Refugees) would have required Belgium to facilitate the family’s reunification. This has also been recognised by the ECtHR in its previous case law, cited in this case (cf. § 85 of the judgment). 581 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/​03, 12 October 2006.

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rights system, however, it also illustrates that considerable weaknesses concerning both procedural and substantial guarantees persist in this area. First, both regarding the right to appropriate care and the right to maintain regular contact, very few cases have been filed by children themselves or solely on their behalf (i.e. without parents’ rights being involved). Exceptions are cases concerning the right to know one’s origins, which are mostly filed by children, even though in this case some of the applicants had already attained majority. The “adult-​centred” perspective of most cases makes it difficult to discern the guarantees courts afford exclusively to children, as in many cases children’s rights are only marginally concerned, while the main focus of the deliberations is the alleged violation of the right(s) of parents. Second, in such cases, where the focus of the attention is on the rights of adults, domestic authorities and European bodies struggle to interpret and implement the concept of the best interests of the child. In both care and custody proceedings children concerned often become the bone of contention between parents and/​or authorities and each side tries to back up their claims with the best interests of the child. Children’s own wishes and needs, however, often take a back seat in such proceedings and it appears from the case law that often there is no strong representation of children’s interests in custody or care proceedings. Even admitting that the best interests depend very much on the individual circumstances and needs of a child, it is thus regrettable that there are no common standards on the European level on how to determine the best interests of a child in custody or care proceedings. Such parameters could be e.g. the wishes a child has expressed in an age-​appropriate setting, where she or he was able to freely express themselves, psychological expertise or educational or medical needs. Yet, so far courts interpret the “best ­interests–​ principle” and the right to be heard in a rather flexible and pragmatic way, which does not provide concrete guidance on how to ensure a child’s perspective in such proceedings and to balance conflicting interests.582 From the perspective of children’s rights it seems awkward, for example, if authorities consider that contacts to both parents are not in the child’s best interests solely due to tensions between the adults. Rather than rejecting the right to regular contacts on this basis, the authorities would be obliged to provide assistance (e.g. in the form of mediation services or family counselling) for creating an 582 The ECtHR has repeatedly emphasised that the obligation to hear a child (note: not the right of the child to be heard!) was not an absolute obligation but one that depended on the age and maturity of the child. While this corresponds in principle to Article 12 crc, it is somewhat striking that the Court has stressed several times that a child’s wishes are just one argument and not necessarily decisive (thus, not even a primary consideration).

196 ­chapter  atmosphere that allows the child to have direct and regular contact with both parents, if it wishes so. Of course, also parents should bear the best interests of their children in mind but as Articles 3 and 9 crc have no horizontal effects, they cannot directly be obliged to do so. Therefore, it is even more important that authorities emphasise this aspect in any proceedings concerning the child and strongly remind parents of its importance whenever necessary. Third, both Article 17 esc and Article 8 echr –​as interpreted by the ECtHR –​ correspond rather to traditional child welfare concepts and less to the crc’s approach which puts the child as rights-​holder with specific needs and wishes, first. Only through the influence of the crc’s “best interests –​principle” a more child (rights)-​centred approach has entered the case law but as illustrated above, the implementation of this principle also encounters difficulties in practice. Article 24 cfr, however, is based on the crc and emphasises indeed the position of children as rights-​holders. However, so far the full scope of this provision has not unfolded yet in the case law of the ecj. The cases analysed in this section concerned primarily (cross-​border) custody or access disputes, in which the ecj gave its rulings based mainly on formal, procedural considerations, that only marginally considered the best interests of the children concerned. The ECtHR has been interpreting the right to respect for the private and family life in a broad sense that covers a number of aspects related to children’s right to care and regular contact with their parents. However, very often it has done so from the perspective of parents. This concerns, in particular, custody or care proceedings, where it has only slowly started to emphasise the importance of the best interests of the child and the adequate participation of children in the domestic proceedings. Yet, even where it formally stressed these principles, it afforded a wide margin of appreciation to states and only sanctioned particularly obvious procedural or substantive lacunae. The analysis of the case law has shown, moreover, that in proceedings concerning custody or visiting rights, not only the opinions but also the best interests of children and their parents often do not match. While from a children’s rights perspective it is clear that the right to contact does not include a corresponding duty to accept a certain form of regular contact, the central question in many of these cases is, whether contact can be enforced even if the child opposes it. To a certain extent, the right to contact with both parents –​which is generally assumed to be in the best interests of the child –​has thus developed a life of its own: regular contact might be considered in the best interests of the child even if the child themselves has expressed that they did not want (to exercise) it. Putting aside considerations such as that the child’s opinion might have been influenced by the other parent, this displays –​at first –​ignorance of the content of a child’s right to contact and its implications. However, in this context the perspective has

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to be widened, and it has to be acknowledged that parents also have a right to regular contact with their children in accordance with their right to respect for their family life. This right has to be reconciled with the children’s right to contact and above all, the children’s best interests. In accordance with the right of children to express their views in all matters affecting them, their opinion should be given due weight in balancing the conflicting rights and an assumption that this opinion is not in their best interests, must be well-​reasoned. Concerning the right to know one’s (biological) origins, the ECtHR has generally afforded children’s interests (and even that of “grown up children”) substantial weight in the proceedings. Yet, there is incoherent case law with regard to the permissibility of secret birth or adoptions and in this area the ECtHR has left a very wide margin of appreciation to the states, without entering into a detailed analysis of the rights of children. This is also significant for legal questions that have been arising in the context of new possibilities of medically assisted procreation. The legal gaps that currently exist in many European countries especially with regard to the recognition of legal relationships between parents and children, who have been procreated with the help of methods not permitted by domestic law, are likely to produce many more complex cases during the coming years that need to be solved in the best interests of the child. This concerns in particular gestational surrogacy but also cases of (secret) ova or sperm donation, for which there exist no common European rules that balance the different interests at stake. The insufficiency of current legislation in this area is even more problematic as these issues go beyond the right of children to know their origins and touch the more fundamental question of whether adults should be allowed to “order” a “custom-​made” child and if so, how this decision affects their relationship to the child. Article 17 § 1 esc is also broadly interpreted by the ecsr in the context of the reporting procedure. The Committee has thus recognised both the children’s right to appropriate care and their right to know and enjoy regular contact with their parents, although the latter is not explicitly established by the esc. Partly, it did so by relying on the –​equally broad –​provision of Article 16 esc, especially with regard to the parents-​child relationship and necessary assistance by the authorities. Furthermore, it has derived very concrete obligations from Article 17 § 1 lit c esc regarding the standards of alternative care for children. It has, for example, defined a clear order of steps concerning childcare measures: first states need to provide all necessary support and assistance to families in difficulties and only if these measures are unsuccessful (or are inappropriate from the outset due to the imminent danger for the child), are coercive measures appropriate. This line of consideration has also been adopted by the ECtHR (cf. in particular cases of material difficulties of families), albeit whilst leaving a wide

198 ­chapter  margin of appreciation to the Contracting States with regard to the assessment of appropriate measures. In this context, it can be observed that the more recent case law of the ECtHR applies a more restrictive standard concerning the justification of placement decisions but it has still not defined it as “measure of last resort” as the ecsr did in its interpretative statement on Articles 16 and 17 § 1. However, it has to be noted that apart from the assistance to be granted to unaccompanied foreign minors, no collective complaint regarding the necessary care of children or their contact with parents has so far reached the ecsr. It is therefore difficult to assess how the Committee would interpret the obligations of Article 17 § 1 esc in concrete cases. The amount of cases before the ECtHR might even suggest that the echr’s strong complaints procedure coupled with the ECtHR’s broad interpretation of the right to respect for an individual’s private and family life, might currently provide a stronger protection for the rights of children in this regard than the esc and cfr are able to. Concerning alternative care for children, the analysis has shown that very few cases concerning placement procedures or the conditions of care in institutions or foster families have reached European bodies. This is surprising, as the ecsr has repeatedly noted shortcomings (including those of a systemic nature) in the reporting procedure, concerning both living conditions in institutions and the access to remedies/​regular review. Moreover, the case law analysis regarding the right to health in institutions (see above subsection 1.5) has also revealed a number of systemic deficits in some European countries. Alternative care thus seems to be a “grey area”: on the one hand, common standards (e.g. selection of institutions/​foster families, set-​up of facilities, contact with parents) are lacking and on the other hand it might be very difficult for children in such situations to invoke their rights or find adults who help them to do so. It is telling in this regard, that only one of the cases concerning the alternative care of children analysed above, was filed by a minor herself, with the help of a ngo (D.L. v. Bulgaria). 5 5.1

The Right to Protection against Economic and Other Forms of Exploitation General Scope of the Right Article 32 crc 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be

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harmful to the child’s health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. Article 34 crc States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials. Article 36 crc States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare. Article 39 crc States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-​respect and dignity of the child. Article 7 esc –​The right of children and young persons to protection With a view to ensuring the effective exercise of the right of children and young persons to protection, the Parties undertake:

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1. to provide that the minimum age of admission to employment shall be 15  years, subject to exceptions for children employed in prescribed light work without harm to their health, morals or education; 2. to provide that the minimum age of admission to employment shall be 18 years with respect to prescribed occupations regarded as dangerous or unhealthy; 3. to provide that persons who are still subject to compulsory education shall not be employed in such work as would deprive them of the full benefit of their education; 4. to provide that the working hours of persons under 18  years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training; 5. to recognise the right of young workers and apprentices to a fair wage or other appropriate allowances; 6. to provide that the time spent by young persons in vocational training during the normal working hours with the consent of the employer shall be treated as forming part of the working day; 7. to provide that employed persons of under 18  years of age shall be entitled to a minimum of four weeks’ annual holiday with pay; 8. to provide that persons under 18 years of age shall not be employed in night work with the exception of certain occupations provided for by national laws or regulations; 9. to provide that persons under 18  years of age employed in occupations prescribed by national laws or regulations shall be subject to regular medical control; 10. to ensure special protection against physical and moral dangers to which children and young persons are exposed, and particularly against those resulting directly or indirectly from their work. Article 17 esc –​The right of children and young persons to social, legal and economic protection With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-​operation with public and private organisations, to take all appropriate and necessary measures designed: 1. a. to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing

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for the establishment or maintenance of institutions and services sufficient and adequate for this purpose; b to protect children and young persons against negligence, violence or exploitation; c to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family’s support;(…) Article 32 cfr –​Prohibition of child labour and protection of young people at work The employment of children is prohibited. The minimum age of admission to employment may not be lower than the minimum school-​leaving age, without prejudice to such rules as may be more favourable to young people and except for limited derogations. Young people admitted to work must have working conditions appropriate to their age and be protected against economic exploitation and any work likely to harm their safety, health or physical, mental, moral or social development or to interfere with their education.



Article 4 echr –​Prohibition of slavery and forced labour 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term “forced or compulsory labour” shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or wellbeing of the community; (d) any work or service which forms part of normal civic obligations.

The right to protection against any form of exploitation is not unique to children but it has a specific scope and meaning with regard to children. Concerning adults the protection against exploitation is usually considered as a traditional civil or economic right (in the latter case, mainly concerning labour exploitation) that entails primarily obligations to respect and protect on the part of the state –​specifically, in the form of legislative measures and strong enforcement mechanisms.

202 ­chapter  In particular, due to their age (and thus reduced experience and knowledge), their dependency on adults and their physical weakness, children are much more vulnerable to any form of exploitation. Adverse living conditions increase children’s vulnerability and poverty is the main cause why children have to work. Furthermore, every form of exploitation has severe negative consequences on children’s physical and mental development, as well as the enjoyment of –​not only –​their rights to education and health. The protection of children against exploitation has thus also a strong social component. The crc underlines this aspect by obliging states to protect children against a number of specific forms of exploitation to which they might be especially exposed (cf. Articles 32–​35 crc) but also to “all other forms of exploitation prejudicial to any aspects of the child’s welfare” (cf. Article 36 crc).583 Article 32 crc protects children generally from all forms of economic exploitation but focuses mainly on child labour, in particular hazardous and harmful forms of work. While the crc neither sets an absolute prohibition nor defines detailed standards regarding the conditions of child labour, several parameters are important: first, children have a right to be protected against any hazardous work, the work must not interfere with their education, and it must not be harmful to their health or physical, mental, spiritual, moral or social development. As in the drafting process no agreement could be found on a minimum age for employment, the crc only obliges states to set such a minimum age (respectively minimum ages, e.g. to differentiate between light forms of work or dangerous work) and to regulate the conditions of work done by children in an appropriate way.584 Nevertheless, the provision refers to “other international instruments” in this regard and the Committee on the Rights of the Child has repeatedly recalled the standards of the ilo treaties,585 in examining states’ performance under Article 32. In particular, it uses Convention No.  138, which sets the minimum age for employment of work to 15 years (or the end of compulsory schooling, whichever is higher), as de facto standard also for the fulfilment of 583 Interestingly, the first draft of Article 32 crc referred to “all forms of neglect, cruelty and exploitation”, later versions to “social exploitation” respectively “social and economic exploitation” and only in the last stages of the drafting process the (reduced) term “economic exploitation” was associated directly in the same paragraph with work by children (Lee Swepston, Article 32:  Protection from economic exploitation (Commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Leiden 2012) 20). 584 ibid 29. 585 In particular, Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (“Worst Forms of Child Labour Convention”),

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states’ obligations under the crc.586 It is important to note, however, that independent of the minimum age set, the protection against economic exploitation and hence the parameters outlined above, extend to all children in the meaning of the crc.587 Article 34 obliges States Parties to the crc to take comprehensive measures against the sexual exploitation and sexual abuse of children, without providing a definition of these terms though.588 In a simplified way, it could be said that sexual abuse implies some form of sexual violence committed against the child in non-​commercial situations (e.g. in the family, schools or institutions), while sexual exploitation rather refers to commercial situations (e.g. prostitution, pornography).589 However, there is no binding definition in any international instrument.590 Article 34 does not foresee specific measures to be taken by States Parties but only refers generally to “all appropriate national, bilateral and multilateral measures” concerning, in particular, the prevention of sexual abuse of children, child prostitution and child pornography. In these areas the more specific norms of the Optional Protocol to the crc on the sale of children, child prostitution and child pornography (OP-​c rc-​SC) provide guidance on the interpretation of Article 34 crc and have partly replaced the latter as relevant standard for those states which are also a party to that treaty. As another provision addressing a specific context, Article 33 crc protects children against the illicit use of narcotic drugs and psychotropic substances, including their use in the illicit production and trafficking of such substances. Furthermore, Article 35 obliges states to take all necessary measures to prevent the abduction, sale of or trafficking in children. Both provisions are rather rudimentary though, while more substantive provisions in this regard are No. 182, 17 June 1999; and Convention concerning Minimum Age for Admission to Employment (“Minimum Age Convention”) No. 138, 26 June 1973. 586 Swepston (n 583) 30. Additionally, in its Concluding Observations the Committee consistently urges states that have not yet done so to ratify ilo Conventions Nos. 138 and 182 or, if they are already parties, to fully implement them (ibid 28). 5 87 ibid 19. 588 Also Articles 19 and 39 crc refer to the “abuse” or “exploitation” of children. 589 Vitit Muntarbhorn, Artical 34: Sexual Exploitation and Sexual Abuse of Children (A commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Leiden, Biggleswade 2007) 2. 590 The Optional Protocol to the crc on the Sale of Children, Child Prostitution and Child Pornography (OP-​c rc-​SC) provides only definitions of “child pornography”, “child prostitution” and “sale of children” (an aspect of trafficking in children). The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, in turn, defines child pornography.

204 ­chapter  established by the op-​c rc-​s c or relevant treaties in the field of crime prevention and criminal justice.591 It is also important to briefly mention Article 19 crc, which equally provides protection against all forms of exploitation, however, exclusively, while children are in the care of parent(s), legal guardian(s) or any other person who has the care of the child. This aspect has already been covered by the analysis in sections 3.1 and 3.4 and will not be repeated here. On the European level, Article 7 esc establishes the right of children and young persons592 to protection. It provides a very detailed legal framework that prohibits, in particular, the employment of children under the age of 15 and protects (older) children against possible risks in relation to dangerous forms of labour, as well as unfair labour or vocational training arrangements. Furthermore, it guarantees special protection against physical and moral dangers to which children and young persons are exposed –​not only but particularly resulting from their work. Lastly, and more generally, also Article 17 esc establishes a duty for states to protect children (and young persons) against negligence, violence or exploitation. A strong protection against the economic exploitation of children is also provided by the cfr. Article 32  §  1 links the minimum age of employment directly to compulsory education and establishes that it may not be lower than the minimum school-​leaving age. Those children already admitted to work must be granted fair and safe working conditions that do not harm their social development or interfere with their education.593 Yet, the cfr does not provide any specific guarantee against other forms of exploitation of children. The echr, as an instrument granting traditional civil and political rights, only provides protection against slavery and forced labour to all individuals, independent of age. There is, however, no general protection against child labour. While exploitation (of children) is not defined, it thus has to attain a certain level of severity (e.g. use of coercion or threat) to fall under this provision. 591 Cf. especially: Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, General Assembly Resolution 55/​25, 15 November 2000 and the Convention against Transnational Organized Crime itself. 592 The esc does not define below what age it considers individuals as “young persons”. As this study focuses only on children in the sense of the crc’s definition (i.e. persons below 18 years of age) any further meaning of “young persons” is irrelevant in this context. 593 According to the Explanations provided by the Praesidium of the Convention, Article 32 cfr is based on Directive 94/​33/​EC on the protection of young people at work, Article 7 of the European Social Charter and points 20 to 23 of the Community Charter of the Fundamental Social Rights of Workers.

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In particular, the ECtHR has found violations of the Contracting Parties’ duties to protect under Article 4 echr in cases concerning trafficking for the purpose of labour or sexual exploitation.594 Within the CoE area, the Lanzarote Convention595 and the Council of Europe Convention on Action against Trafficking in Human Beings596 provide additional standards for the protection of children against specific forms of exploitation. Some of the provisions of these treaties will be analysed in more detail below. Protection against Child Labour and Labour Exploitation of Young Persons In line with the relevant ilo Conventions, the Committee on the Rights of the Child distinguishes between the prohibition of the employment of children below a certain minimum age (usually, below 15 or a higher age of compulsory education) and the protection against hazardous or otherwise harmful working conditions of children who are already legally allowed to work. The term “economic exploitation” was never defined in the drafting process of the crc and the Committee on the Rights of the Child has so far not elaborated on it either.597 However, the grammatical structure of Article 32 § 1 crc (“from economic exploitation and from performing any work that is likely…”)598 suggests that it is not the same as working under hazardous or harmful conditions but it might also go beyond labour exploitation, which is limited to exploitation through work. It could thus be seen as any form of unfairly drawing profit from children, including through labour exploitation but e.g. also for the purpose of drug trafficking, begging or sexual abuse. Even beyond the crc any form of economic exploitation, including labour exploitation, is prohibited with regard to children of all ages (and moreover also with regard to adults).599 5.2

594 See, for the first time in Siliadin v. France, no. 73316/​01, 26 July 2005 (forced labour and servitude) and Rantsev v. Cyprus and Russia, no. 25965/​04, 7 January 2010. 595 Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (“Lanzarote Convention”), cets No. 201, 25 October 2007. As of 21 May 2018, 42 Member States of the CoE are parties to this treaty. 596 Council of Europe Convention on Action against Trafficking in Human Beings, cets No. 197, 16 May 2005. As of 21 May 2018, 46 Member States of the CoE and Belarus are parties to this treaty. 597 Swepston (n 583) 20. 598 Emphasis added. 599 The ilo Forced Labour Convention defines forced or compulsory labour as “all work or service which is exacted from any person under the menace of any penalty and for which the

206 ­chapter  Article 7 of the revised esc also uses the ilo standards with regard to the work of children. Paragraph 1 establishes that the minimum age of admission to employment is 15 years, while § 2 sets the limit for work regarded as dangerous or unhealthy to 18 (and thus the attainment of majority). However, there is an exception for so-​called light labour, which has to be “prescribed” and without harm to children’s health, morals or education. If domestic law defines such forms of light work, even children below the age of 15 years can be employed lawfully for such activities. Article 32 cfr instead is a less detailed provision that reflects existing international law (including, the ilo standards mentioned above) as well as Union law, particularly, the Young Workers Directive.600 Similarly to the Directive –​ which does though, differentiate in even more detail –​Article 32 crf introduces a special category of children, namely “young people”, who are already above the minimum school-​leaving age and thus allowed to work. While this distinction between children below and above the minimum school-​leaving age might be objectively justified, it is also characteristic of the heterogeneous definitions of (categories of) children in Union law. In substance, Article 32 cfr contains a negative obligation for states to prohibit the employment of children below the compulsory school-​leaving age. While this provision allows for “limited derogations” it does not give any indication under what circumstances or for what kind of work exceptions could be permissible. Assuming that the drafters of the cfr had the Young Workers Directive in mind when phrasing Article 32 –​as the Explanations indicate –​ Articles 4 and 5 of the said Directive provide a specific framework for lawful exceptions, in particular for cultural, artistic, sports or advertising activities.601 In addition, Article 32 cfr provides a number of positive obligations for “young persons” who are already allowed to work. In particular, Member States are required to put in place effective health and safety measures and safeguards against the economic exploitation of these children. However, as has been pointed out in literature, there remain some contradictions between the protection of children from work and their protection in said person has not offered himself voluntarily” (Convention concerning Forced or Compulsory Labour, No. 29, 28 June 1930, Article 2). There is no specific definition of “labour exploitation” in international law though. It is at times used to cover forced or compulsory labour, while other times going beyond, covering e.g. also severe forms of under-​payment. 600 Helen Stalford, ‘Article 32 –​ Prohibition of Child Labour and Protection of Young People at Work’ in Steve Peers (ed), The EU Charter of Fundamental Rights: A Commentary (Hart, Oxford 2014) 879. Council Directive 94/​33/​EC of 22 June 1994 on the protection of young people at work. 6 01 Stalford (n 600) 884–​85.

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work. In particular, children who are not permitted to work or only under specific circumstances can often not rely on the full protection of (Union) labour legislation. This discrepancy makes working children even more vulnerable.602 The discussions in this regard refer to the broader debate about the absolute prohibition of child labour and children’s potential status as workers in their own right, which will not be elaborated in more detail here.603 However, gaps in the protection of young workers might also invoke EU non-​discrimination law, which prohibits any discrimination on the ground of age.604 As we have already noted above, the right to free and compulsory education until a certain age contributes –​if effectively implemented –​substantially to reducing or preventing child labour.605 By contrast, work interferes with children’s possibility to follow education and an eventual drop out from school or a low level of education perpetuate the cycle of poverty. The Committee on the Rights of the Child has recognised this close link and has regularly asked states to ensure the right to education (Article 28 crc) also in the context of the prevention or conditions of child labour.606 Equally, Article 7 § 3 esc provides as an additional safeguard to the general age limits that children still subject to compulsory education must not be employed in such work that would deprive them of the full benefit of their education. Furthermore, the protection against child labour or other forms of economic exploitation is also closely linked to the yet underdeveloped right to leisure, recreation and play (Article 31 crc). Cases of severe forms of child labour amounting to labour exploitation seem to be rare in Europe, although it ought to be admitted that data is vague in this regard and it is likely that there is a much higher number of unreported cases.607 Mostly (but not always) such cases of labour exploitation of children are directly linked to the trafficking of children to or within Europe. In these cases, 602 ibid 882. 603 This discussion is more prevalent with regard to children living in developing countries (and contributing with their work to the family income) than with regard to children in Europe. Cf. e.g. Manfred Liebel, ‘Do children have a right to work? Working children’s movements in the struggle for social justice’ in Karl Hanson (ed), Reconceptualizing children’s rights in international development: Living rights, social justice, translations (1st publ Cambridge University Press, Cambridge 2013). 604 As mentioned above, Article 21 cfr prohibits any discrimination, i.a. on the grounds of age. While not concerning children, the ecj has already applied the principle of non-​ discrimination with regard to the less advantageous treatment of young workers (cf. Seda Kücükdeveci v Swedex GmbH & Co. KG (2010), Case C-​555/​07 [2010] ECR I-​365). 605 Cf. section 3.2. See also Koch (Chapter 1 n 19) 149; Swepston (n 583) 22. 606 Swepston (n 583) 22. 607 European Union Agency for Fundamental Rights, Severe labour exploitation:  Workers moving within or into the European Union; states’ obligations and victims’ rights (Vienna

208 ­chapter  states’ special duties vis-​à-​vis victims of (child) trafficking also apply, in addition to the right to protection against child labour or economic exploitation. The case of Siliadin v. France was the first case regarding trafficking for the purpose of labour exploitation before the ECtHR and concerned a then 15-​ year-​old Togolese girl, who was brought to France to perform domestic work. Her passport was confiscated by her employer who forced her to work without adequate rest for approximately fifteen hours per day, with no day off, for several years, without ever receiving wages or being sent to school, and without her immigration status being regularised. In this case the ECtHR affirmed the existence of certain positive obligations under Article 4 echr, which required the Contracting States to adopt criminal-​law provisions which penalise the practices referred to in Article 4 and to apply these provisions in practice. In this context, it referred in particular to Article 32 crc, as well as to Article 4 § 1 of the Forced Labour Convention, which is ratified by France and provides that states “shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations”.608 Furthermore, the Court emphasised that Article 4 enshrined one of the fundamental values of democratic societies and did not make any provision for exceptions. In the instant case it found that although the applicant had not been threatened by a “penalty” in the sense of the “Forced Labour Convention”, she had been in an equivalent situation in terms of the perceived seriousness of the threat due to her personal and legal situation as an adolescent girl irregularly staying –​without close family members –​in a foreign country. It thus concluded that the applicant had been subject to forced labour and was also held in servitude, given the circumstances of her labour and living conditions, which made her completely dependent on her employers. Yet, French criminal law did not enable her to see those responsible for the wrongdoing convicted. Consequently, the Court found that France had violated its positive obligations under Article 4 echr to provide the applicant with practical and effective protection against the actions of which she was a victim.609

2015)  http://​fra.europa.eu/​sites/​default/​files/​fra-​2015-​severe-​labour-​exploitation_​en.pdf last accessed 23 June 2018, 40. Nils Muižnieks, at that time CoE Commissioner for Human Rights, noted in a blog that the information on the situation in Europe was “sparse” but that his office had accumulated “enough information to see a grim picture” (see: http://​ www.coe.int/​da/​web/​commissioner/​-​/​child-​labour-​in-​europe-​a-​persisting-​challen-​1 last accessed 23 June 2018). 608 Siliadin v. France (n 594) §§ 84–​89. 609 ibid., §§ 118 et seq., 126 et seq., 145 et seq.

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Very similarly, the ECtHR also found a violation of France’s positive obligations under Article 4 echr in the case of C.N. and V. v. France, which concerned allegations by two orphaned Burundi sisters, who had worked in their aunt and uncles’ household in France for several years. In this case, the Court further clarified the different meanings of forced or compulsory labour and servitude. Accordingly, the fundamental distinguishing feature between servitude and forced or compulsory labour lay in the victims’ feeling that their condition was permanent and that the situation was unlikely to change.610 In the instant case –​as in Siliadin –​this feeling of an “unchangeable” situation resulted especially from the applicants’ immigration status, their isolation and their dependency on their employers. Apart from –​isolated –​cases of severe forms of economic exploitation of children, some problematic aspects of the employment of children have been found by European bodies concerning the conditions of work and “light work” carried out by young children. Domestic regulation concerning the work of children under the age of 15 or still attending compulsory education was also the subject of the very first collective complaint submitted to the ecsr. In this case the ecsr reiterated what it had already previously stated in its conclusions examining national reports, namely that Article 7  §  1 esc covered all economic sectors and all types of enterprises, including family businesses, as well as all forms of work, whether paid or not. Furthermore, agricultural and domestic work could not automatically be considered to be light work. If work qualifies as “light” is assessed on the basis of the circumstances of each case, the determining factor being the nature of the work (i.e. if it does not entail any risk to the health, moral welfare, development or education of children). In the Committee’s view, states are thus required to define the types of work which may be considered light, or at the very least to draw up a list of those which are not. Furthermore, states should set out the conditions for the performance of “light work”, especially the maximum permitted duration and the prescribed rest periods so as to allow adequate supervision.

610

C.N. and V. v. France, no. 67724/​09, 11 October 2012, § 91. In this case the ECtHR differentiated, however, between the two sisters: while the elder one was made to work in the house all day long, the younger one could attend school and had time to do her homework when she returned from school. Only then she had to help her sister with the household chores. It thus found that only the first applicant was subject to forced or compulsory labour.  In a further, similar case concerning labour exploitation in a private household, the applicants (i.e. victims) had already attained majority at the relevant time: C.N. v. the United Kingdom, no. 4239/​08, 13 November 2012.

210 ­chapter  In the case at issue, it considered that although the statutory measures to implement Article 7 § 1 esc in Portuguese law were rigorous, the authorities failed to adequately supervise the implementation of these provisions, especially within the family and in private dwellings. This resulted also from a wrong understanding of what activities carried out by children constituted work. Additionally, the ecsr considered that the duration of work declared in a study submitted by the government exceeded that, which may be considered compatible with children’s health or schooling.611 Consequently, and despite progress made, it concluded that the situation in Portugal was not in conformity with Article 7 § 1 esc.612 During the latest monitoring cycle, the ecsr found that in many states “light work” was still not adequately regulated. It noted, in particular, that the legislation of several states613 did not define the notion of “light work” with sufficient precision. Moreover, some other states614 authorised excessively long hours of “light work” during school holidays, namely more than 6 hours a day or 30 hours a week. In the Committee’s view, this amount of work performed by children ceased to be “light” in nature and thus was not in conformity with Article 7 § 1 esc.615 Article 7 also guarantees the right of young workers and apprentices to a fair wage as well as fair and safe conditions of work (cf. §§ 4–​9). The ecsr determines the fairness of the wage of a young worker with reference to the adult starting wage and/​or (where applicable) the statutory minimum wage for adults. The difference between the adult reference wage and the wage paid to the young worker must not exceed 20%. In the most recent monitoring cycle, the Committee found that that a significant number of States (e.g. Spain, the Czech Republic, Andorra, the Netherlands, the Slovak Republic, Romania, the United Kingdom and Ukraine) did not comply with this fairness criterion as young workers’ wages were falling too far below the level of adult wages”.616 In the case of genop-​d ei and adedy v. Greece the ecsr was called to decide if the provision of a new Greek law, which had introduced a “special 611 According to this survey, 31.6% of the children concerned worked on average for more than 4 hours per day across all sectors (cf. §§ 13, 37 of the decision). 612 International Commission of Jurists v. Portugal, Complaint No. 1/​1998, 9 September 1999. 613 Conclusions 2015 –​Armenia –​Article 7-​1, 4 December 2015; Conclusions 2015 –​Hungary –​ Article 7-​1, 4 December 2015; Conclusions 2015 –​Moldova –​Article 7-​1, 4 December 2015; Conclusions 2015 –​Ukraine –​Article 7-​1, 4 December 2015. 614 Conclusions 2015 –​Cyprus –​Article 7-​1, 4 December 2015; Conclusions 2015 –​Estonia –​ Article 7-​1, 4 December 2015; Conclusions 2015 –​Lithuania –​Article 7-​1, 4 December 2015. 615 European Committee of Social Rights (n 116) 27. 616 ibid 27–​28.

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apprenticeship contract” between employers and individuals aged 15 to 18 violated, among others, Articles 7 §§ 2, 7, and 9 of the 1961 esc.617 The Committee considered that although the “special apprenticeship contracts” did not generally come under the framework of labour law, legal provisions still ensured that the requirements of age limits in respect of dangerous or unhealthy occupations (§ 2) as well as the requirements regarding regular medical control (§ 9) were fulfilled. However, it found a violation of Article 7 § 7 of the 1961 Charter on the ground that the minors employed in such apprenticeship contracts were not entitled to three weeks of annual holiday with pay.618 In its decision on a further collective complaint, which concerned the legislation adopted in Greece between 2010 and 2014 in response to the economic and financial crisis, the escr held that there were violations of Article 7 § 5 and §  7 of the 1961 esc as the minimum wage of young workers aged 15 to 18  years was not fair and apprentices were still not entitled to three weeks’ annual holiday with pay. In this case it specified that for fifteen/​sixteen year-​ olds, a wage of 30% lower than the adult starting wage was acceptable and for sixteen/​eighteen year-​olds a difference of not more than 20%. However, in any case the adult reference wage must itself be sufficient to comply with Article 4 § 1 esc.619 Protection against Child Trafficking and Sexual Exploitation of Children Within the Council of Europe area, two specific treaties foresee obligations for States Parties to protect children against all forms of sexual exploitation, as well as –​children and adults alike –​against trafficking in human beings. The Council of Europe Convention on Action against Trafficking in Human Beings already mentions in its preamble that all actions or initiatives against trafficking in human beings must be non-​discriminatory, take gender equality into account as well as a child-​rights approach. This obligation is repeated –​in binding form –​under Article 5 § 3 of the Convention. Furthermore, it 5.3

617 Article 7 § 9 of the 1961 esc and the Revised esc are identical, while § 2 and § 7 differ slightly (the 1961 esc only provides a “higher minimum age” for the admission to dangerous or unhealthy employment, while the Revised esc sets the minimum age to 18 and § 7 foresees a minimum annual holiday of three instead of four weeks). 618 General Federation of employees of the national electric power corporation (GENOP-​DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, (n 178). 619 Greek General Confederation of Labour (GSEE) v. Greece, Complaint No. 111/​2014, 23 March 2017, §§ 216–​230.

212 ­chapter  establishes that unlike the trafficking in adult individuals, trafficking of children (i.e. the “recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation”) does not necessarily have to involve any means of threat or use of force or other illicit means to obtain the consent of the person concerned. The Convention thus takes the reduced experience of children into account and the fact that they are more vulnerable to be lured into exploitative activities under false promises. Throughout the text, the Convention establishes a number of child-​specific obligations and refers to child-​specific aspects concerning the implementation of general obligations. In particular, it requires states to take specific measures to reduce children’s vulnerability to trafficking, notably by creating a protective environment for them (Article 5 § 5). Assistance to child victims needs to include at least access to education and all assistance measures have to take the rights of children in terms of accommodation, education and appropriate health care into account (Article 12). Moreover, the Convention provides for a “presumption of minority”, when the age of a victim of trafficking is uncertain (Article 10 § 3) and lays down specific safeguards for unaccompanied children identified as victims (Article 10 § 4). Finally, child victims shall not be returned to a State, if there is an indication that such a return would not be in the best interests of the child (Article 16 § 7) and they should receive special assistance during court proceedings (Articles 28 and 30). In terms of the penalisation of the crime of trafficking, the Convention regards the committal against a child as an aggravating circumstance (Article 24 lit b). In its latest (5th) General Report, the Group of Experts on Action against Trafficking in Human Beings (greta), which monitors the implementation of the Convention, highlighted particularly the risks of trafficking of unaccompanied minors and separated children in Europe. It pointed out that the first evaluation round revealed deficits in the identification of and assistance to child victims of trafficking in nearly all countries and that these gaps became even more serious in view of the ongoing refugee protection crisis in Europe.620 In its previous General Reports on its activities greta did not dedicate specific thematic chapters to child trafficking, although the States Parties’ laws, policies and implementation measures concerning this group of victims are regularly examined in the evaluation of the periodic country reports.621 The Committee of 620 Group of Experts on Action against Trafficking in Human Beings (greta), 5th General Report on GRETA’s activities:  covering the period from 1 October 2014 to 31 December 2015 (2016) 36–​39. 621 The Convention on Action against Trafficking in Human Beings does not foresee any possibility for individual or collective complaints to greta.

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the Parties has also repeatedly adopted recommendations specifically on child victims and has underlined the importance of the “best interests”-​principle for all procedural and institutional decisions.622 The Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (“Lanzarote Convention”) aims to prevent and combat sexual exploitation and sexual abuse of children in all its forms, to protect the rights of child victims and to promote national and international cooperation in this field (Article 1). It foresees a set of preventive and protective measures and assistance to victims and establishes detailed norms and procedures regarding the implementation into national laws and by specialised authorities. In particular, it requires States Parties to criminalise all forms of sexual offences against children (Chapter 4: Articles 18–​29)623 and to provide adequate assistance to child victims in all stages of the procedure, as well as to facilitate their recovery (Chapters 4 and 7). Regarding both the substantive and procedural guarantees for children it thus goes far beyond the crc but also specialised instruments such as the Palermo Protocol, which does not provide a strong child rights perspective. Unlike many other human rights conventions adopted in the framework of the CoE, the Lanzarote Convention does not have a strong, independent monitoring mechanism though. Instead, the implementation is monitored by a Committee of the Parties, composed of representatives of the States Parties to the Convention and of some CoE institutions. There is no possibility for individual or collective complaints to this body. The Committee of the Parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse (“Lanzarote Committee”) published in December 2015 its report on the first monitoring round of the implementation of the Lanzarote Convention. It focuses on the protection of children against sexual abuse in the circle of trust and does not contain a specific analysis with regard to the sexual exploitation or trafficking of children.624

622 Cf. e.g. Committee of the Parties to the Council of Europe Convention on Action against Trafficking in Human Beings, Recommendation CP(2011)1 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Austria (2011); Committee of the Parties to the Council of Europe Convention on Action against Trafficking in Human Beings, Recommendation CP(2015)2 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Germany (2015). 623 The acts defined in Articles 18 to 23 (including, notably, sexual abuse, child prostitution, and child pornography) constitute “sexual exploitation and sexual abuse of children” and thus delimit the scope of the Convention’s application (cf. Article 3 lit b). 624 Committee of the Parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse, 1st implementation report: Protection of children against sexual abuse in the circle of trust (2015).

214 ­chapter  Apart from these specific standards, also the general human rights instruments provide protection against trafficking in children, as well as the sexual exploitation of children. As mentioned in the introduction to this section, the relevant provisions in this regard are, in particular, Articles 7 and 17 § 1 esc and Article 4 echr. The cfr does not provide any specific protection to adult or child victims of trafficking or concerning the sexual exploitation of children. An obligation to protect children against such acts within the scope of application of Union law, might arise though from the general right to care and protection under Article 24 cfr.625 However, also regarding the ecsr and echr, cases in this field are rare. As mentioned above, the ECtHR has already recognised in its case law that trafficking, including for the purpose of sexual exploitation, falls under the scope of Article 4 echr and thus, that states are required to provide an effective legal and institutional framework to protect individuals against such acts.626 However, it has not decided yet on any application regarding the sexual exploitation of children or concerning any form of trafficking of children. In the case of Siliadin v. France, analysed above, the Court did not enter the question whether the exploitation of the applicant also constituted a form of trafficking.627 In M.  and Others v.  Italy and Bulgaria, however, it considered the allegations regarding Article 4 echr inadmissible –​as it did not find sufficient evidence that the minor concerned was a victim of trafficking –​and only found, among other things, a lack of adequate steps to prevent her ill-​ treatment as well as a lack of an effective investigation into that ill-​treatment by the Italian authorities (i.e. a violation of Article 3 echr).628 The esc provides protection against the exploitation of children under Article 17 § 1 and, more specifically, under Article 7 § 10, which establishes that states must ensure special protection against physical and moral dangers to 625 In addition, secondary legislation –​most notably Directive 2011/​36/​EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/​629/​JHA –​has established common European provisions concerning the protection of victims of trafficking. 626 See, in particular, Rantsev v. Cyprus and Russia (n 594). 627 As the applicant was brought to France by a person who had agreed with her father that she would work in her household until the air ticket was paid back (and thus, possibly, already with the purpose of labour exploitation), a claim concerning trafficking for the purpose of labour exploitation might have been arguable and was, in fact, also argued by the applicant. Nevertheless, the ECtHR limited itself to the examination of whether the situation suffered by the applicant constituted forced labour and servitude (cf. above Siliadin v. France n 594). 628 M. and Others v. Italy and Bulgaria, no. 40020/​03, 31 July 2012.

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which children are exposed. In its conclusions regarding these provisions the ecsr has repeatedly held that under Article 7 § 10 esc, states were under a positive obligation to adopt an adequate legislative framework and an action plan to combat sexual exploitation. Furthermore, all acts of sexual exploitation of children –​covering child prostitution, child pornography and trafficking of children –​must be criminalised.629 In addition, the Committee held that states must prohibit the trafficking of children not only for sexual exploitation but also for other forms, such as domestic/​labour exploitation, begging, or the removal of organs. In all of these cases, States Parties were required to ensure not only that adequate legislation to prevent exploitation and protect children was in force but also that this legislation was effective in practice (e.g. through an adequate supervisory mechanism and sanctions).630 During the previous monitoring cycle the ecsr found that the main violations identified under Article 7 § 10 had to do with a lack of or insufficient protection of children against the misuse of information technologies, as well as against trafficking and sexual exploitation of children, including child pornography and prostitution.631 In its most recent conclusions on the implementation of Article 7 esc by the States Parties, the ecsr moreover observed that in some states the legislation did not fully protect all children against all forms of sexual exploitation. For example, in Estonia children between 14 and 18 years were not protected against all forms of child pornography, whereas in Ukraine child prostitution was only criminalised until the age of 16 and simple possession of child pornography was not a criminal offence. Nevertheless, it noted that the majority of states had taken significant measures to address the problem of trafficking of children.632 In the only collective complaint so far regarding Article 7  §  10, the ecsr recalled that this provision imposed on the States Parties obligations as to both results and means and that eradicating trafficking of children required appropriate measures and action. In its examination of the substance of the collective complained it observed that Ireland had a comprehensive legal and solid institutional framework in the field of action against trafficking in human beings. Additionally, it acknowledged the measures undertaken by the government during the previous years, especially regarding the improvement 629 Cf. e.g. Conclusions xvii-​2 –​United Kingdom –​Article 7-​10, 30 June 2005; Conclusions 2004 –​Bulgaria –​Article 7-​10, 31 May 2004. 630 Cf. e.g. Conclusions xviii-​2  –​Luxembourg  –​Article 7-​10, 30 Juni 2007; Conclusions 2006 –​Albania –​Article 7-​10, 30 June 2006. 631 European Committee of Social Rights (n 97) 21. 632 European Committee of Social Rights (n 116) 28.

216 ­chapter  of the situation of unaccompanied minors, who were particularly vulnerable to trafficking. It thus considered that low identification and conviction rates were not in themselves sufficient indicators of a violation of Article 7 § 10 and found that the allegations by the complainant organisation were not sufficiently grounded in evidence.633 As the ecsr recalled and summarised many of its previous conclusions on Article 7 § 10 in this judgment, it can serve as guidance of what the Committee understands as indispensable state obligations under that provision. 5.4 Conclusions Articles 32–​35 crc oblige states to take specific measures to protect children against any form of exploitation. These provisions are supplemented by Article 39 crc, which requires appropriate measures to promote the physical and psychological recovery and social reintegration of child victims. Albeit with different focuses, these provisions are well-​reflected in European human rights instruments and their interpretations. The two most comprehensive instruments in this regard, the CoE Convention on Action against Trafficking in Human Beings and the Lanzarote Convention provide a child-​centred perspective on measures to combat the exploitation of children and go far beyond the framework of the crc regarding the detailedness of the standards established. As most European states are parties to these treaties, high legal standards apply nearly throughout the continent. However, there are gaps in some areas of the implementation and especially, the full dimension of the exploitation of children for economic or other purposes in Europe can only be estimated. Regarding the general human rights instruments, the esc provides strong protection against various forms of exploitation of children, with a focus on economic exploitation. However, the ecsr has interpreted the specific provisions of Article 7 esc (and also the generic Article 17 § 1) in a wide sense, which covers all forms of exploitation. It has thus elaborated detailed obligations of states, concerning e.g. prevention measures or the criminalisation of certain acts. These are close to the obligations provided by the crc and partly also echo the more specific CoE conventions. Concerning the “core content” of Article 7 esc, the provision itself already provides for very detailed obligations for States Parties, in particular regarding the minimum age for employment and the conditions of work for young persons. In this context, the Committee has especially insisted on a restrictive interpretation of “light work”, to protect

633

Federation of Catholic Family Associations in Europe (FAFCE) v. Ireland, Complaint No. 89/​ 2013, 12 September 2014.

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both the physical and mental wellbeing of younger children and the progress of their education. By contrast, Article 4 echr has a very limited focus and only provides protection against exploitation that amounts to forced or compulsory labour, servitude or slavery. Although the ECtHR has interpreted this provision as covering both labour exploitation and trafficking, it has also emphasised the high threshold of this provision. Work by children carried out without coercion, threat or other forms of extreme dependency on the employer, are thus likely not covered by the echr, even if the extent of the work goes far beyond what the esc permits as “light work”. This has been exemplified by the judgment in the case of C.N. and V. v. France, where the Court did not find any violation of Convention rights with regard to the younger of the two sisters, even if she had to work several hours per day in the household, while she was still subject to compulsory school. Article 32 cfr has potential to provide a strong protection for children, especially regarding economic exploitation. However, so far there is case law on neither this provision, nor on comparable provisions of the Young Workers Directive. While on the basis of only a handful of cases it is difficult to draw general conclusions, the fact that only few cases have reached European fora could either indicate that national remedies work efficiently or that children in such situations face strong challenges in enforcing their rights. As the conclusions of various CoE monitoring bodies indicate that the phenomena of economic or sexual exploitation of children might be bigger than what is visible, the second option seems to be more likely. As such, the small number of cases could itself already point to a systemic gap in the implementation of children’s right to protection against any form of exploitation.

­c hapter 4

Summary and Overall Research Conclusions The analysis has demonstrated that European human rights instruments provide many guarantees for children regarding the five social rights selected for this study. However, it has also revealed persisting legal deficits, gaps in the implementation and systemic failures that deprive children of their rights. The crc, which has been used as the standard of comparison, has had a visible influence on the European human rights instruments, respectively their interpretation. The revised esc and the cfr include both provisions for which the drafters took inspiration from the crc (cf. Article 17 esc and Article 24 cfr) and also more specific (recent) European human rights treaties refer directly or indirectly to it (cf. e.g. the Convention on Action against Trafficking in Human Beings and the Lanzarote Convention). However, the influence has been even more substantial in the European policy-​making processes –​as various strategies developed in the framework of the CoE and the EU illustrate –​ and in the jurisprudence of the ECtHR, ecsr and ecj. In the case law analysed there are numerous references to crc rights and especially the Convention’s four general principles are frequently used to interpret general human rights with regard to children in the more recent case law. The crc has thus certainly changed the way in which children and their rights are regarded by European policy-​makers and judicial bodies. Yet the reference to principles such as non-​discrimination or the best interests of the child –​which can both now also be regarded as European standards –​is sometimes superficial and does not always live up to the intention of the crc, as will be further elaborated below. With regard to the specific rights analysed in this study, the summaries of the separate sections have illustrated that European human rights instruments guarantee a certain level of protection with regard to each of the rights, however, with considerable differences both among the different texts and jurisprudences and in their relation to the crc. The different approaches on how they regard children’s rights in general and especially their social rights as defined by this study are due to their different drafting backgrounds and aims but also to the interpretative principles developed by the case law of their monitoring bodies or courts. The echr as the oldest but (still) most influential of the three treaties, is also the one which pays –​on paper –​the least attention to the social rights of children. Over the decades, the ECtHR has widened the scope of the rights

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guaranteed by the echr but it has remained, essentially, a court for the adjudication of civil and political rights. Against this background a clearer picture unfolds of both the Court’s progressive steps towards and its wide interpretation of some rights and its hesitance on others. While it has considerably broadened, for example, the understanding of degrading treatment or the definition of private or family life, it has been very prudent on giving rights explicitly the meaning of social rights or on recognising aspects that might considerably increase the financial burden for states (e.g. various forms of social assistance as a component of the right to private life or a life in dignity). However, despite the Court’s general cautiousness on social rights, its understanding of children and their rights has evolved positively over time. Historically –​and still in judgments until the late 1990s –​children’s interests or their rights played little role in the Court’s judgments and its deliberations were clearly influenced by an adult-​focused view on children. In the more recent case law regarding children though, there is at least frequent reference to the “best interests”-​principle and other rights guaranteed by the crc –​ even if the ECtHR still rarely undertakes an in-​depth examination of what this entails for the concrete case. This change in the Court’s jurisprudence might be influenced by national laws requiring “best interests”-​assessments (which are in turn required by states’ obligations under the crc) and also by the generally greater awareness about children’s rights in international law. Additionally, as the analysis illustrates, the echr bears the potential to (indirectly) protect certain aspects of children’s social rights, if applicants can convincingly argue their case from the perspective of one of the rights guaranteed by the Convention, even if at the origin there might be a clear violation of a social right. In this regard it might at first be surprising that by far the most cases analysed in this study were decided by the ECtHR, which illustrates that –​even when concerning traditional social rights –​the Court continues to be an attractive forum for enforcing children’s rights in Europe. This aspect is, however, less due to the promising case law it offers but to the limited complaint mechanisms available under the esc. In fact, in an overall perspective, the ECtHR’s case law remains piecemeal as even an increased sensitivity towards children and a broader interpretation of some of the rights guaranteed by the echr cannot remedy the fact that the echr does not explicitly recognise social rights (with the exception of the right to education, which is, however, very narrowly worded as demonstrated). This makes the ECtHR’s jurisprudence on social rights very casuistic and many of the cases analysed –​ where the Court had found violations –​were in some aspect very specific or revealed particularly drastic failures by the states. For example, the recognition of certain obligations to ensure decent housing conditions to individuals in

220 ­chapter  specific (and isolated) cases does not mean a general recognition of a “right to housing” under Article 8 echr. In many situations it might thus be difficult to find an effective international forum in Europe to enforce children’s social rights if domestic authorities fail to fulfil their duties. The esc guarantees a broad range of social rights, which are comprehensively interpreted by the ecsr, yet only the Articles 7 and 17 are specific to children. Even if in its recent case law the ecsr pays more attention to children’s rights –​ whether based on an increased awareness among complainant organisations or the increased sensitivity of the Committee itself –​its case law on children’s rights remains limited. In particular, it is striking that nearly all of the collective complaints regarding children, so far decided by the ecsr, can be grouped in a handful of categories. This points to a systemic gap of the esc:  due to the structure of the collective complaints system –​only European ngos, registered with the CoE, may file a complaint that refer to a collective and not individual problem –​the cases that reach the Committee represent the choice by the ngos entitled to file complaints. As a result, violations of children’s rights that do not receive enough attention by a competent ngo might be underrepresented among the ecsr’s case law. For example, the ECtHR’s case law shows deficits regarding children in care, as well as in placement or custody procedures. The ecsr has also referred to such deficiencies in many countries in its conclusions in the framework of the reporting procedure. Nevertheless, there is not a single collective complaint on these issues yet under Article 17 § 2 esc. The cfr has the potential to give children’s social rights a stronger voice in the EU’s legal system and policy-​making processes but its application is always limited by the applicability of Union law. Furthermore, the ecj has so far chosen a rather restrictive interpretation of Charter rights and has, in particular, only resorted to Article 24 cfr in a handful of cases. Maybe in the future it will thus rather be the (more fundamental rights-​acquainted) domestic Supreme or Constitutional Courts, that will advance the interpretation of children’s rights guaranteed by the Charter when implementing Union law. In an overall view, it can be concluded on the basis of the analysis that –​ even if the crc’s general principles are widely acknowledged by laws, policies and their judicial interpretation in Europe –​there remain multiple shortcomings with regard to their fulfilment in practice: 1. Legal gaps: Most rights guaranteed by the crc in the selected areas are (in some way) recognised by the European human rights system and –​as the case law analysis indicates –​also by European states. In this sense, there are few legal gaps concerning the five selected social rights of children in Europe. Nevertheless, the analysis has also

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highlighted the generally cautious approach of European human rights instruments towards social rights. While the echr represents not only the legal but also the political human rights consensus in Europe  –​its ratification is a requirement for accession to both the CoE and the EU –​the esc is in various ways “more optional”: its ratification is not mandatory for membership in any regional organisation and states even have a choice of which rights to accept. This voluntariness implies that social rights are not uniformly guaranteed throughout Europe and that in some countries specific rights of children might not be explicitly guaranteed. Despite solemn reiterations of the principles of equality, indivisibility and interdependence of all human rights, the historic divide into civil and political and economic, social and cultural rights, has not been overcome in Europe. The subordinate status of social rights is also reflected in the different qualities of the complaints systems linked to the echr and esc. While the echr offers a powerful individual complaints system, the ecsr can only consider collective complaints filed by specific ngos, and only if the state concerned has accepted the collective complaints procedure. Furthermore in some countries there continue to be legal gaps regarding the protection of children from violence, abuse and exploitation –​ especially concerning the prohibition of violence against children in all settings and the prohibition of child labour. In this case, however, there is an even greater implementation gap, in the sense that there exist good laws but states fail to put in place effective implementation mechanisms in practice. 2. Persistent discrimination: The analysis has further revealed that discrimination against certain groups of children is still widespread throughout Europe. While there are also cases of discrimination by law (e.g. if states are hesitant to guarantee irregularly residing children the same rights to health care or education), discrimination is mostly based on the inefficiency or reluctance of states to take the necessary measures to ensure equality in practice. The case law analysis shows that children living in institutions or detention, children of Roma origin, children with disabilities or migrant children (case law points primarily to irregularly staying children) face particular challenges in accessing their rights or are even systematically hindered from their enjoyment. It would go far beyond the scope of this study to analyse the reasons for this discrimination but based on the case law it is safe to say that the lack of equality in the enjoyment of rights

222 ­chapter  constitutes a systemic gap that concerns many –​if not all –​European countries. Furthermore, the analysis has also shown that –​apart from some cases of direct discrimination by the authorities –​discrimination often happens in an indirect or even subtle matter. On the one hand, the specificity of their situation often makes it difficult for these children (and also their parents) to invoke their rights and on the other hand treating them “just like all other kids” might not be sufficient to ensure e.g. their equal access to health care, education or social assistance. That is to say that effective equality goes beyond objective criteria if the factual situation of children differs significantly. Therefore, states do not only need to address any forms of direct discrimination, where it still exists, but they also need to ensure effective equality in practice through appropriate (positive) measures. 3. Implementation gaps: Apart from legal gaps and persistent discrimination against certain groups of children, failures in the effective implementation of existing laws and policies pose the biggest challenges to the full realisation of the social rights of all children in Europe. These implementation gaps in the narrow sense concern many areas of states action  –​from the unwillingness to address existing problems, the ignorance or incorrect interpretation of legal standards, to financial or logistic difficulties. In this context, it needs to be reiterated that states also have an organisational duty to realise children’s rights, which means that they must put in place the necessary systems or procedures and raise awareness for the specific needs of children. Adequate attention to children’s rights also means that their specific needs have to be adequately considered in the budgetary planning. Particularly concerning the rights to health, education or an adequate standard of living, cases have disclosed however, failures of states to invest in children and their specific needs, even if risks were already known. A systemic implementation gap that concerns all five thematic areas selected, is the insufficient consideration of the views of children and their lack of involvement in proceedings that concern them (especially, in custody or care proceedings but also concerning medical treatments or their education). This can also be a legal gap, if an adequate participation of children in e.g. judicial or medical proceedings is neither required nor even foreseen by law. Furthermore, where participation rights are foreseen (e.g. consultation of older children in custody proceedings), this involvement is often insufficient due to a lack of awareness by the authorities or insufficient procedures.

Summary and Overall Research Conclusions







223

In this context, the analysis has also shown that while the “best interests”-​principle is mentioned in many cases, it is interpreted in a flexible and often superficial manner. Frequently it seems to be used as a buzzword, while there is insufficient participation of children in policy-​making processes that affect them and little attention is paid to the consideration of children’s needs in social debates. As in concrete situations legal parameters on how to determine a child’s “best interest” are missing, the interpretation is dominated by what adults close to the child –​often parents –​believe to be right. This is particularly striking in the custody and care proceedings analysed, where often both parents and/​or the authorities put forward arguments based on the child’s “best interests” to underpin their own positions. Similarly, considerations are often dominated by an adult perspective regarding decisions on specific medical treatments of children, a specific form of education or also if children should be allowed to know their origins. In the latter context it is telling, for example, that debates about gestational surrogacy tend to focus on ethical and legal questions. While there are undoubtedly also other legitimate concerns in these debates (especially the rights of surrogate mothers), we must not forget that we are talking about children’s fates and their best interests –​as difficult as it may be to establish them in a concrete situation (cf. the recent Grand Chamber judgment Paradiso and Campanelli v. Italy). European legislators are thus called to find solutions that primarily pay attention to the best interests of children and are able to sufficiently guide those who are called to implement and/​or live up to them. Related to insufficient application of the “best interests”-​principle is the overall conclusion that judicial bodies tend to see cases from an adult’s instead of a child’s perspective. Apart from the problem that complaints are often filed by adults on behalf of children, observed in various parts of this book, this is also due to the “adult perspective” already underlying the general human rights instruments. Other than the crc, these instruments were written by (predominately male) adults with adults, their concerns and needs in mind. This original omission of children has lived on in the interpretation of these instruments and child-​focused interpretations of rights only slowly enter the judicial discourse. A further overall gap that has emerged from the analysis is the lack of or insufficient provision of information and counselling services for children. On the one hand, children are often not aware of their

224 ­chapter 



rights and the possibilities to invoke them. On the other hand, there also seems to be insufficient information and awareness-​raising about children’s rights and their specific needs among law-​enforcing personnel or medical staff. Policy documents such as the CoE principles on child-​friendly health care or on child-​friendly justice can provide a useful incentive in this regard but of course need to be appropriately implemented on the national level. Finally, the gaps in the implementation of children’s rights reflect the overall problems concerning the implementation of specific social rights in general and also the lack of attention paid by states to specific concerns and persisting problems. Members of the Roma community or other minority groups, migrants, poor or otherwise socially disadvantaged groups face considerably more problems in enjoying their rights and find it also considerably more difficult to enforce these rights, as states often fail to effectively implement rights in particularly vulnerable situations.

Looking, in a very condensed way, on what has been achieved to realise the social rights of children in Europe and on what still needs to be (urgently) done, two underlying understandings appear as particularly important. On the one hand, states need to fully recognise social rights as rights and not as social welfare measures and, on the other hand, they need to anchor the “best interests”-​ principle, in a child-​focused, inclusive and participatory sense, in both policy making and the interpretation of existing laws by all state institutions.

Bibliography 1

Legal and Policy Instruments

(in chronological order) EU Guidelines for the Promotion and Protection of the Rights of the Child, 2016 Directive 2013/​33/​EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (“Reception Conditions Directive”) Council of Europe, Council of Europe Strategy for the Rights of the Child (2012–​2015), 15 February 2012 Charter of Fundamental Rights of the European Union: 2012/​C 326/​02, 26 October 2012 Committee of Ministers of the Council of Europe, Guidelines on child-​friendly health care, 21 September 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence (“Istanbul Convention”), CETS No. 210, 11 May 2011 Directive 2011/​36/​EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/​629/​JHA Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Agenda for the Rights of the Child: COM (2011) 60 final, 15 February 2011 EU Guidelines on Children and Armed Conflicts, revised 2008 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Special Place for Children in EU External Action: COM (2008) 55 final, 5 February 2008 Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse (“Lanzarote Convention”), CETS No. 201, 25 October 2007 Explanations relating to the Charter of Fundamental Rights: 2007/​C 303/​02, 14 December 2007 Convention on the Rights of Persons with Disabilities, resolution A/​RES/​61/​106, 13 December 2006 Recommendation Rec(2006)19 of the Committee of Ministers [of the CoE] to member states on policy to support positive parenting, 13 December 2006 Committee on the Rights of the Child, General Comment Nº 9: The rights of children with disabilities, CRC/​C/​GC/​9, 29 September 2006 United Nations Educational, Scientific and Cultural Organization, Guidelines for Inclusion: Ensuring Access to Education for All, 2005

226 Bibliography Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 16 May 2005 Recommendation Rec (2005) 5 of the Committee of Ministers [of the CoE] to member states on the rights of children living in residential institutions, 16 March 2005 Regulation (EC) No 883/​2004 of the European Parliament and of the Council on the coordination of social security systems, as amended by Regulation (EC) No 988/​2009 Directive 2004/​38/​EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/​68 and repealing Directives 64/​221/​EEC, 68/​360/​EEC, 72/​194/​EEC, 73/​148/​EEC, 75/​34/​EEC, 75/​35/​EEC, 90/​364/​EEC, 90/​365/​EEC and 93/​96/​EEC (“Citizenship Directive”) Council Regulation (EC) No 2201/​2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/​2000 (“Brussels IIbis Regulation”) Council Directive 2003/​109/​EC of 25 November 2003 concerning the status of third-​ country nationals who are long-​term residents Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, General Assembly Resolution 55/​25, 15 November 2000 United Nations Convention against Transnational Organized Crime, General Assembly Resolution 55/​25, 15 November 2000 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, General Assembly resolution 54/​ 263, 25 May 2000 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (“Worst Forms of Child Labour Convention”), No. 182, 17 June 1999 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, CETS No. 164, 4 April 1997 European Social Charter (revised), CETS No. 163, 3 May 1996 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, CETS No. 158, 9 November 1995 Framework Convention for the Protection of National Minorities, CETS No. 157, 10 November 1994 Council Directive 94/​33/​EC of 22 June 1994 on the protection of young people at work Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, General Assembly Resolution 47/​135, 18 December 1992

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European Charter for Regional or Minority Languages, CETS No. 148, 25 June 1992 Protocol amending the European Social Charter, CETS No. 142, 21 October 1991 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“the Havana Rules”), General Assembly Resolution 45/​113, 14 December 1990 Community Charter of the Fundamental Social Rights of Workers, 8 December 1989 Convention on the Rights of the Child, General Assembly Resolution 44/​25, 20 November 1989 Convention on the Civil Aspects of International Child Abduction, 25 October 1980 Convention concerning Minimum Age for Admission to Employment (“Minimum Age Convention”) No. 138, 26 June 1973 Vienna Convention on the law of treaties, 23 May 1969 Convention of 15 November 1965 on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions European Code of Social Security, CETS No. 048, 16 April 1964 European Social Charter, CETS No. 035, 18 October 1961 UNESCO Convention against Discrimination in Education, 14 December 1960 Declaration on the Rights of the Child, General Assembly Resolution 1386(XIV) 20 November 1959 ilo Social Security (Minimum Standards) Convention, No. 102, 28 June 1952 Convention for the Protection of Human Rights and Fundamental Freedoms as amended by its Protocol No. 14, CETS No. 005, 4 November 1950 Statute of the Council of Europe, CETS No. 001, 5 May 1949 Convention concerning Forced or Compulsory Labour (“Forced Labour Convention”), No. 29, 28 June 1930

2

Authoritative Treaty Interpretations

Committee on the Rights of the Child, General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4): CRC/​C/​GC/​19 (2016) Committee on the Rights of the Child, General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24): CRC/​C/​ GC/​15 (2013) Committee on Economic, Social and Cultural Rights, General Comment No.19: The right to social security (art. 9): E/​C.12/​GC/​19 (2008) Explanations relating to the Charter of Fundamental Rights (2007/​C 303/​02) Committee on the Rights of the Child, General Comment Nº 9 –​The rights of children with disabilities: CRC/​C/​GC/​9 (2006) Committee on the Rights of the Child, General Comment No. 7 (2005): Implementing Child Rights in Early Childhood: CRC/​C/​GC/​7/​Rev.1 (2005)

228 Bibliography Committee on the Rights of the Child, General Comment No. 5 (2003): General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6): CRC/​GC/​2003/​5 (2003) Committee on the Rights of the Child, General Comment No. 1 (2001): Article 29 (1): The aims of education: CRC/​GC/​2001/​1 (2001) Committee on Economic, Social and Cultural Rights, General Comment No. 13 –​The right to education (article 13 of the Covenant): E/​C.12/​1999/​10 (1999) Committee on Economic, Social and Cultural Rights, General Comment No. 12: The right to adequate food (art. 11): E/​C.12/​1999/​5 (1999) Committee on Economic, Social and Cultural Rights, General Comment No. 11: Plans of Action for Primary Education (Art. 14): E/​1992/​23 (1999) Committee on Economic, Social and Cultural Rights, General comment No. 7: The right to adequate housing (art. 11 (1) of the Covenant): Forced evictions: E/​1998/​22 (1997) Committee on Economic, Social and Cultural Rights, General comment No. 4: The right to adequate housing (art. 11 (1) of the Covenant): E/​1992/​23 (1991)

3

Case Law

3.1

Court of Justice of the European Union

Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others (2015) Case C-​67/​14 [2015] ECLI:EU:C:2015:597 Opinion pursuant to Article 218(11) TFEU –​Draft international agreement –​Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms –​Compatibility of the draft agreement with the EU and FEU Treaties (2014), Opinion 2/​13 [2014] ECLI:EU:C:2014:2454 Elisabeta Dano and Florin Dano v Jobcenter Leipzig (2014) Case C-​333/​ 13 [2014] ECLI:EU:C:2014:2358 Federaal agentschap voor de opvang van asielzoekers v Selver Saciri and others (2014) Case C-​79/​13 [2014] ECLI:EU:C:2014:103 Åklagaren v Hans Åkerberg Fransson (2013), Case C-​617/​10 [2013] ECLI:EU:C:2013:105 European Commission v Republic of Austria (2012), Case C-​75/​11 [2012] ECLI:EU:C:2012:605 Deutsches Weintor eG v Land Rheinland-​ Pfalz (2012), Case C-​ 544/​ 10 [2012] ECLI:EU:C:2012:526 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (ipes) and Others (2012), Case C-​571/​10 [2012] ECLI:EU:C:2012:233 Joseba Andoni Aguirre Zarraga v Simone Pelz (2010), C-​491/​10 PPU, [2010] ECR I-​14247 Doris Povse v Mauro Alpago (2010), C-​211/​10 PPU [2010] ECR I-​6673 J. McB. v L. E. (2010), C-​400/​10 PPU [2010] ECR I-​08965

Bibliography

229

Nicolas Bressol and Others and Céline Chaverot and Others v Gouvernement de la Communauté française (2010), Case C-​73/​08 [2010] ECR I-​2735 Seda Kücükdeveci v Swedex GmbH & Co. KG (2010), Case C-​555/​07 [2010] ECR I-​365 Jasna Detiček v Maurizio Sgueglia (2009), C-​403/​09 PPU [2009] ECR I-​12193 European Parliament v Council of the European Union (2006), Case C-​540/​03 [2006] ECR I-​5769 Baumbast and R v Secretary of State for the Home Department (2002), C-​413/​99 [2002] ECR I-​7091 J. Nold, Kohlen-​und Baustoffgroßhandlung v Commission of the European Communities (1974), Case 4/​73 [1974] ECR 491 Internationale Handelsgesellschaft mbH v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel (1970), Case C-​11/​70 [1970] ECR 1125 Erich Stauder v City of Ulm (1969), Case C-​29/​69 [1969] ECR 419

3.2

European Committee of Social Rights

Equal Rights Trust (ERT) v. Bulgaria, Complaint No. 121/​2016 (decision on admissibility: 5 July 2016) European Committee for Home-​Based Priority Action for the Child and the Family (EUROCEF) v. France, Complaint No.114/​2015, 24 January 2018 European Roma and Travellers Forum (ERTF) v. France, Complaint No. 119/​2015, 5 December 2017 Greek General Confederation of Labour (GSEE) v. Greece, Complaint No. 111/​2014, 23 March 2017 Associazione sindacale “La Voce dei Giusti” v. Italy, Complaint No. 105/​2014, 18 October 2016 European Roma and Travellers Forum (ERTF) v. Czech Republic, Complaint No. 104/​2014, 17 May 2016 European Roma Rights Centre (ERRC) v. Ireland, Complaint No. 100/​2013, 1 December 2015 Association for the Protection of all Children (APPROACH) Ltd v. Belgium, Complaint No. 98/​2013, 20 January 2015 Association for the Protection of all Children (APPROACH) Ltd v. Czech Republic, Complaint No. 96/​2013, 20 January 2015 Association for the protection of All Children (APPROACH) Ltd v. Slovenia, Complaint No. 95/​2013, 5 December 2014 Association for the Protection of All Children (APPROACH) v. Italy, Complaint No. 2013, 5 December 2014 Association for the Protection of all Children (APPROACH) Ltd v. Ireland, Complaint No. 93/​2013, 2 December 2014

230 Bibliography Association for the Protection of All Children (APPROACH) Ltd. v. France, Complaint No. 92/​2013, 12 September 2014 Federation of Catholic Family Associations in Europe (FAFCE) v. Ireland, Complaint No. 89/​2013, 12 September 2014 European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands, Complaint No. 86/​2012, 2 July 2014 Conference of European Churches (CEC) v. the Netherlands, Complaint No. 90/​2013, 1 July 2014 European Committee for Home-​Based Priority Action for the Child and the Family (EUROCEF) v. France, Complaint No. 82/​2012, 19 March 2013 International Federation for Human Rights (FIDH) v. Belgium, Complaint No. 75/​2011, 18 March 2013 International Federation of Human Rights Leagues (FIDH) v. Greece, Complaint No. 72/​ 2011, 23 January 2013 Defence for Children International (DCI) v. Belgium, Complaint No. 69/​2011, 23 October 2012 Médecins du Monde –​International v. France, Complaint No. 67/​2011, 11 September 2012 General Federation of employees of the national electric power corporation (GENOP-​DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece, Complaint No. 66/​2011, 23 May 2012 International Federation of Human Rights (FIDH) v. Belgium, Complaint No. 62/​2010, 21 March 2012 European Roma and Travellers Forum (ERTF) v. France, Complaint No. 64/​2011, 24 January 2012 European Roma Rights Centre v. Portugal (ERRC), Complaint No. 61/​2010, 30 June 2011 Centre on Housing Rights and Evictions (COHRE) v. France, Complaint No. 63/​2010, 28 June 2011 Centre on Housing Rights and Evictions (COHRE) v. Italy, Complaint No. 58/​2009, 25 June 2010 International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Greece, Complaint No. 49/​2008, 11 December 2009 Defence for Children International (DCI) v. the Netherlands, Complaint No. 47/​2008, 20 October 2009 European Roma Rights Centre (ERRC) v. France, Complaint No. 51/​2008, 19 October 2009 International Centre for the Legal Protection of Human Rights (INTERIGHTS) v. Croatia, Complaint No. 45/​2007, 30 March 2009 Mental Disability Advocacy Centre (MDAC) v. Bulgaria, Complaint No. 41/​2007, 3 June 2008 European Federation of National Organisations working with the Homeless (FEANTSA) v. France, Complaint No. 39/​2006, 5 December 2007

Bibliography

231

International Movement ATD Fourth World v. France, Complaint No. 33/​ 2006, 5 December 2007 World Organisation against Torture (OMCT) v. Portugal, Complaint No. 34/​2006, 6 December 2006 European Roma Rights Centre (ERRC) v. Bulgaria, Complaint No. 31/​2005, 18 October 2006 Marangopoulos Foundation for Human Rights (MFHR) v. Greece, Complaint No. 30/​ 2005, 6 December 2006 European Roma Rights Centre v. Italy, Complaint No. 27/​2004, 7 December 2005 European Roma Rights Centre v. Greece, Complaint No. 15/​2003, 8 December 2004 World Organisation against Torture (OMCT) v, Belgium, Complaint No. 21/​ 2003, 7 December 2004 World Organisation against Torture (OMCT) v. Portugal, Complaint No. 20/​2003, 7 December 2004 World Organisation against Torture (OMCT) v. Italy, Complaint No. 19/​2003, 7 December 2004 World Organisation against Torture (OMCT) v. Ireland, Complaint No. 18/​ 2003, 7 December 2004 World Organisation against Torture (OMCT) v. Greece, Complaint No. 17/​2003, 7 December 2004 International Federation of Human Rights Leagues (FIDH) v. France, Complaint No. 14/​ 2003, 8 September 2004 International Association Autism-​Europe v. France, Complaint No. 13/​2002, 4 November 2003 International Commission of Jurists v. Portugal, Complaint No. 1/​1998, 9 September 1999

3.3

European Court of Human Rights

A.R. and L.R. v. Switzerland (dec.), no. 22338/​15, 19 December 2017 Paradiso and Campanelli v. Italy [GC], no. 25358/​12, 24 January 2017 Laborie v. France, no. 44024/​13, 19 January 2017 Iglesias Casarrubios and Cantalapiedra Iglesias v. Spain, no. 23298/​12, 11 October 2016 Aydoğdu v. Turkey, no. 40448/​06, 30 August 2016 Adam v. Slovakia, no. 68066/​12, 26 July 2016 Foulon and Bouvet v. France, nos. 9063/​14 and 10410/​14, 21 July 2016 Călin and Others v. Romania, nos. 25057/​11, 34739/​11 and 20316/​12, 19 July 2016 D.L. v. Bulgaria, no. 7472/​14, 19 May 2016 Kocherov and Sergeyeva v. Russia, no. 16899/​13, 29 March 2016 Korneykova and Korneykov v. Ukraine, no. 56660/​12, 24 March 2016 Blokhin v. Russia [GC], no. 47152/​06, 23 March 2016 Çam v. Turkey, no. 51500/​08, 23 February 2016 Soares de Melo v. Portugal, no. 72850/​14, 16 February 2016

232 Bibliography N.Ts. and Others v. Georgia, no. 71776/​12, 2 February 2016 Mandet v. France, no 30955/​12, 14 January 2016 Memlika v. Greece, no 37991/​12, 6 October 2015 M. and M. v. Croatia, no. 10161/​13, 3 September 2015 Asiye Genç v. Turkey, no. 24109/​07, 27 January 2015 Hromadka and Hromadkova v. Russia, no. 22909/​10, 11 December 2014 Tarakhel v. Switzerland [GC], no. 29217/​12, 4 November 2014 Mansur Yalçın and Others v. Turkey, no. 21163/​11, 16 September 2014 Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, no. 47848/​08, 17 July 2014 Labassee v. France, no. 65941/​11, 26 June 2014 Mennesson v. France, no. 65192/​11, 26 June 2014 D. and Others v. Belgium (dec.), no. 29176/​13, 8 July 2014 Dhahbi v. Italy, no. 17120/​09, 8 April 2014 O’Keeffe v. Ireland [GC], no. 35810/​09, 28 January 2014 Winterstein and Others v. France, no. 27013/​07, 17 October 2013 Epistatu v. Romania, no. 29343/​10, 24 September 2013 Nencheva and others v. Bulgaria, no. 48609/​06, 18 June 2013 Raw and Others v. France, no. 10131/​11, 7 March 2013 Oyğur v. Turkey, no. 6649/​10, 5 March 2013 Horváth and Kiss v. Hungary, no. 11146/​11, 29 January 2013 Csoma v. Romania, no. 8759/​05, 15 January 2013 C.N. v. the United Kingdom, no. 4239/​08, 13 November 2012 Catan and Others v. Moldova and Russia [GC], nos. 43370/​04, 8252/​05 and 18454/​06, 19 October 2012 C.N. and V. v. France, no. 67724/​09, 11 October 2012 Godelli v. Italy, no. 33783/​09, 25 September 2012 Spyra and Kranczkowski v. Poland, no. 19764/​07, 25 September 2012 M. and Others v. Italy and Bulgaria, no. 40020/​03, 31 July 2012 Yordanova and Others v. Bulgaria, no. 25446/​06, 24 April 2012 C.A.S. and C.S. v. Romania, no. 26692/​05, 20 March 2012 Y.C. v. the United Kingdom, no. 4547/​10, 13 March 2012 Karrer v. Romania, no. 16965/​10, 21 February 2012 A.M.M. v. Romania, no. 2151/​10, 14 February 2012 V.C. v. Slovakia, no. 18968/​07, 8 November 2011 Bah v. the United Kingdom, no. 56328/​07, 27 September 2011 M. and C. v. Romania, no. 29032/​04, 27 September 2011 Schneider v. Germany, no. 17080/​07, 15 September 2011 Dojan and Others v. Germany (dec.), nos. 319/​08, 2455/​08, 7908/​10, 8152/​10, 8155/​10, 13 September 2011

Bibliography

233

Ponomaryovi v. Bulgaria, no. 5335/​05, 21 June 2011 Pascaud v. France, no. 19535/​08, 16 June 2011 Saghinadze and Others v. Georgia, no. 18768/​05, 27 May 2010 Khamzayev and Others v. Russia, no. 1503/​02, 3 May 2011 Rahimi v. Greece, no. 8687/​08, 5 April 2011 Ali v. the United Kingdom, no. 40385/​06, 11 January 2011 Anayo v. Germany, no. 20578/​07, 21 December 2010 A, B and C v. Ireland [GC], no. 25579/​05, 16 December 2010 P. and S. v. Poland, no. 57375/​08, 30 October 2010 Neulinger and Shuruk v. Switzerland [GC], no. 41615/​07, 6 July 2010 Grzelak v. Poland, no. 7710/​02, 15 June 2010 M.A.K. and R.K. v. the United Kingdom, nos. 45901/​05 and 40146/​06, 23 March 2010 Oyal v. Turkey, no. 4864/​05, 23 March 2010 Oršuš and Others v. Croatia [GC], no. 15766/​03, 16 March 2010 Rantsev v. Cyprus and Russia, no. 25965/​04, 7 January 2010 Yardımcı v. Turkey, no. 25266/​05, 5 January 2010 Zaunegger v. Germany, no. 22028/​04, 3 December 2009 Appel-​Irrgang v. Germany (dec.), no. 45216/​07, 6 October 2009 E. S. and Others v. Slovakia, no. 8227/​04, 15 September 2009 Aktas v. France (dec.), no. 43563/​08, 30 June 2009; Bayrak v. France (dec.), no. 14308/​ 08, 30 June 2009; Gamaleddyn v. France (dec.), no. 18527/​08, 30 June 2009; Ghazal v. France (dec.), no.29134/​08, 30 June 2009; Jasvir Singh v. France (dec.), no. 25463/​08, 30 June 2009; Ranjit Singh v. France (dec.), no. 27561/​08, 30 June 2009 Weller v. Hungary, no. 44399/​05, 31 March 2009 Güveç v. Turkey, no. 70337/​01, 20 January 2009 Saviny v. Ukraine, no. 39948/​06, 18 December 2008 Jucius and Juciuvienė v. Lithuania, no. 14414/​03, 25 November 2008 D.H. and Others v. the Czech Republic [GC], no. 57325/​00, 13 November 2007 Hasan and Eylem Zengin v. Turkey, no. 1448/​04, 9 October 2007 Stanková v. Slovakia, no. 7205/​02, 9 October 2007 Folgerø and Others v. Norway [GC], no. 15472/​02, 29 June 2007 Wallová and Walla v. the Czech Republic, no. 23848/​04, 26 October 2006 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/​03, 12 October 2006 Trocellier v. France (dec.), no. 75725/​01, 5 October 2006 Moser v. Austria, no. 12643/​02, 21 September 2006 Konrad and Others v. Germany (dec.), no. 35504/​03, 11 September 2006 Jäggi v. Switzerland, no. 58757/​00, 13 July 2006 Byrzykowski v. Poland, no. 11562/​05, 27 June 2006 Bianchi v. Switzerland, no. 7548/​04, 22 June 2006 C v. Finland, no. 18249/​02, 9 May 2006

234 Bibliography Timishev v. Russia, nos. 55762/​00 and 55974/​00, 13 December 2005 Tóth, Magyar and Tóthné v Hungary, no. 35701/​04, 6 December 2005 Leyla Şahin v. Turkey [GC], no. 44774/​98, 10 November 2005 Okpisz v. Germany, no. 59140/​00, 25 October 2005 Siliadin v. France, no. 73316/​01, 26 July 2005 Moldovan and Others v. Romania (No.2), nos. 41138/​98 and 64320/​01, 12 July 2005 Pentiacova and Others v. Moldova (dec.), no. 14462/​03, 4 January 2005 Öneryıldız v. Turkey [GC], no. 48939/​99, 30 November 2004 Pini and Others v. Romania, nos. 78028/​01 and 78030/​01, 22 June 2004 Çiftçi v. Turkey (dec.) no. 71860/​01, 17 June 2004 Haase v. Germany, no. 11057/​02, 8 April 2004 Glass v. the United Kingdom, no. 61827/​00, 9 March 2004 Sentges v. the Netherlands (dec.), no. 27677/​02, 8 July 2003 Sommerfeld v. Germany [GC], no. 31871/​96, 8 July 2003 Sahin v. Germany [GC] no. 30943/​96, 8 July 2003 Iglesias Gil and A.U.I. v. Spain, no. 56673/​00, 29 April 2003 Odièvre v. France [GC], no. 42326/​98, 13 February 2003 K.A. v. Finland, no. 27751/​95, 14 January 2003 Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/​97, 14 May 2002 Kutzner v. Germany, no. 46544/​99, 26 February 2002 Mikulić v. Croatia, no. 53176/​99, 7 February 2002 Calvelli and Ciglio v. Italy [GC], no. 32967/​96, 17 January 2002 K. and T. v. Finland [GC], no. 25702/​94, 12 July 2001 Clark and Others v. the United Kingdom (dec.), no. 28575/​95, 22 May 2001 Z and Others v. the United Kingdom [GC], no. 29392/​95, 10 May 2001 T.P. and K.M. v. the United Kingdom [GC], no. 28945/​95, 10 May 2001 Cyprus v. Turkey [GC], no. 25781/​94, 10 May 2001 Dulaş v. Turkey, no. 25801/​94, 30 January 2001 Chapman v. the United Kingdom [GC], no. 27238/​95, 18 January 2001 Lee v. the United Kingdom [GC], no. 25289/​94, 18 January 2001 Jane Smith v. the United Kingdom [GC], no. 25154/​94, 18 January 2001 Coster v. the United Kingdom [GC], no. 24876/​94, 18 January 2001 Gnahoré v. France, no. 40031/​98, 19 September 2000 Scozzari and Giunta v. Italy, nos. 39221/​98 and 41963/​98, 13 July 2000 Elsholz v. Germany [GC], no. 25735/​94, 13 July 2000 L. v. Finland, no. 25651/​94, 27 April 2000 Jiménez Alonso and Jiménez Merino v. Spain (dec.), no. 51188/​99, 25 May 2000 Erikson v. Italy (dec.), no. 37900/​97, 26 October 1999 Nylund v. Finland (dec.), no. 27110/​95, 29 June 1999 Osman v. the United Kingdom, no. 87/​1997/​871/​1083, 28 October 1998

Bibliography

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A. v. the United Kingdom, no. 100/​1997/​884/​1096, 23 September 1998 L.C.B. v. the United Kingdom, no. 14/​1997/​798/​1001, 9 June 1998 Selçuk and Asker v. Turkey, no. 12/​1997/​796/​998–​999, 24 April 1998 Petrovic v. Austria, no. 156/​1996/​775/​976, 27 March 1998 Guerra and Others v. Italy [GC], no. 116/​1996/​735/​932, 19 February 1998 Efstratiou v. Greece, no. 24095/​94, 18 December 1996 Gaygusuz v. Austria, no. 17371/​90, 16 September 1996 López Ostra v. Spain, no. 16798/​90, 9 December 1994 Costello-​Roberts v. the United Kingdom, no. 13134/​87, 25 March 1993 Salesi v. Italy, no. 13023/​87, 26 February 1993 Nielsen v. Denmark, no. 10929/​84, 28 November 1988 Olsson v. Sweden (No. 1), no. 10465/​83, 24 March 1988 Campbell and Cosans v. the United Kingdom, no. 7511/​76, 7743/​76, 25 February 1982 Airey v. Ireland, no. 6289/​73, 9 October 1979 Tyrer v. United Kingdom, no. 5856/​72, 25 April 1978 Kjeldsen, Busk Madsen and Pedersen v. Denmark, nos. 5095/​71, 5920/​72, 5926/​72, 7 December 1976 Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (“Belgian linguistic case”) [plenary], nos. 1474/​62; 1677/​62; 1691/​62; 1769/​63; 1994/​63; 2126/​64, 9 February 1967

3.4

European Commission of Human Rights (until 31 October 1998)

3.5

National Case Law

4

Conclusions by the ECSR (Reporting Procedure)

McIntyre v. the United Kingdom (dec.), no. 29046/​95, 21 October 1998 Verein Gemeinsam Lernen v. Austria (dec.), no. 23419/​94, 6 September 1995 Klerks v. the Netherlands (dec.), no. 25212/​94, 4 July 1995 Graeme v. the United Kingdom (dec.), no. 13887/​88, 5 February 1990 Whitman v. the United Kingdom (dec.), no. 13477/​87, 4 October 1989

Solange I (1974), 2 BvL 52/​71, BVerfGE 37, 271 (Bundesverfassungsgericht/​German Federal Constitutional Court, 29 May 1974)

Conclusions XX-​4 –​Luxembourg –​Article 16, 17 March 2016 Conclusions 2015 –​Netherlands –​Article 31–​3, 4 December 2015 Conclusions 2015 –​Sweden –​Article 31–​3, 4 December 2015 Conclusions 2015 –​Turkey –​Article 31–​3, 4 December 2015 Conclusions 2015 –​Statement of interpretation –​Article 31–​2, 4 December 2015

236 Bibliography Conclusions 2015 –​Lithuania –​Article 31–​2, 4 December 2015 Conclusions 2015 –​Slovenia –​Article 31–​2, 4 December 2015 Conclusions 2015 –​Latvia –​Article 31–​1, 4 December 2015 Conclusions 2015 –​Netherlands –​Article 31–​1, 4 December 2015 Conclusions 2015 –​Andorra –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Armenia –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Austria –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Bosnia and Herzegovina –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Estonia –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Hungary –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Norway –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Serbia –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Slovak Republic –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Turkey –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Ukraine –​Article 17–​2, 4 December 2015 Conclusions 2015 –​Bosnia and Herzegovina –​Article 17–​1, 4 December 2015 Conclusions 2015 –​Romania –​Article 17–​1, 4 December 2015 Conclusions 2015 –​Slovak Republic –​Article 17–​1, 4 December 2015 Conclusions XX-​4 –​Czech Republic –​Article 16, 4 December 2015 Conclusions XX-​4 –​Denmark –​Article 16, 4 December 2015 Conclusions XX-​4 –​Germany –​Article 16, 4 December 2015 Conclusions XX-​4 –​Netherlands Aruba –​Article 16, 4 December 2015 Conclusions 2015 –​Georgia –​Article 11–​1, 4 December 2015 Conclusions 2015 –​Armenia –​Article 7–​1, 4 December 2015 Conclusions 2015 –​Cyprus –​Article 7–​1, 4 December 2015 Conclusions 2015 –​Estonia –​Article 7–​1, 4 December 2015 Conclusions 2015 –​Hungary –​Article 7–​1, 4 December 2015 Conclusions 2015 –​Lithuania –​Article 7–​1, 4 December 2015 Conclusions 2015 –​Moldova –​Article 7–​1, 4 December 2015 Conclusions 2015 –​Ukraine –​Article 7–​1, 4 December 2015 Conclusions 2013 –​Belgium –​Article 30, 6 December 2013 Conclusions 2013 –​Portugal –​Article 30, 6 December 2013 Conclusions 2013 –​Albania –​Article 11–​1, 6 December 2013 Conclusions 2013 –​Bulgaria –​Article 11–​1, 6 December 2013 Conclusions 2013 –​Cyprus –​Article 11–​1, 6 December 2013 Conclusions 2013 –​France –​Article 11–​1, 6 December 2013 Conclusions XX-​2 –​Spain –​Article 11–​1, 6 December 2013 Conclusions 2013 –​Statement of interpretation –​Articles 13§1 and 13§4 Conclusions 2011 –​Statement of interpretation –​Article 17–​2 Conclusions 2011 –​Statement of interpretation –​Article 16, 17–​1

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5

Academic Literature

(in alphabetical order) Jean-​François Akandji-​Kombé, ‘The Material Impact of the Jurisprudence of the European Committee of Social Rights’ in Gráinne de Búrca, Bruno de Witte and Larissa Ogertschnig (eds), Social rights in Europe (Oxford Univ. Press, New York 2005) Philip Alston, ‘Assessing the Strengths and Weaknesses of the European Social Charter’s Supervisory System’ in Gráinne de Búrca, Bruno de Witte and Larissa Ogertschnig (eds), Social rights in Europe (Oxford Univ. Press, New York 2005) Philip Alston and Joseph H H Weiler, ‘An ‘Ever Closer Union’ in Need of a Human Rights Policy’ (1998) 9 European Journal of International Law 658 Wolfgang Benedek and Matthias C Kettemann (eds), European Yearbook on Human Rights 2011 (Intersentia and BWV Berliner Wissenschafts-​Verlag and Neuer Wissenschaftlicher Verlag, Antwerp and Berlin and Wien 2011) Myriam Benlolo-​Carabot, ‘Chapitre 2. Les droits sociaux dans l’ordre juridique de l’Union Européenne’ (2012) La Revue des droits de l’homme 84 Florence Benoît-​Rohmer, ‘La Charte des droits fondamentaux de l’Union européenne dix ans après sa proclamation’ in Wolfgang Benedek and Matthias C Kettemann (eds), European Yearbook on Human Rights 2011 (Intersentia and Berliner Wissenschafts-​Verlag and Neuer Wissenschaftlicher Verlag, Antwerp and Berlin and Wien 2011)

238 Bibliography Brian Bercusson,‘ The European Community’s Charter of Fundamental Social Rights of Workers’ (1990) 53 The Modern Law Review 624 Norbert Bernsdorff, ‘Artikel 14 –​Recht auf Bildung’ in Jürgen Meyer (ed), Charta der Grundrechte der Europäischen Union (Beck, 4th edition Nomos, Baden-​Baden 2014) Samantha Besson, ‘Enforcing the Child’s Right to Know Her Origins: Contrasting Approaches under the Convention on the Rights of the Child and the European Convention on Human Rights’ (2007) 21 International Journal of Law, Policy and the Family 137 Christina Binder and Elisabeth Steiner, ‘Housing Related Rights’ in Christina Binder and others (eds), Social rights in the case law of regional human rights monitoring institutions: The European Court of Human Rights, the Inter-​American Court of Human Rights and the African Commission on Human and Peoples’ Rights (All human rights for all, Neuer Wissenschaftlicher Verlag; Intersentia N.V. Wien, Graz, Mortsel 2016) Björn Blauensteiner and Michael Kalteis, ‘Artikel 14 –​Recht auf Bildung’ in Michael Holoubek (ed), Charta der Grundrechte der Europäischen Union: GRC-​Kommentar (Manz, Wien 2014) Björn Blauensteiner, Kerstin Tobisch and Elisabeth Wutzl, ‘Artikel 34 –​Soziale Sicherheit und soziale Unterstützung’ in Michael Holoubek (ed), Charta der Grundrechte der Europäischen Union: GRC-​Kommentar (Manz, Wien 2014) Régis Brillat, ‘The Supervisory Machinery of the European Social Charter: Recent Developments and their Impact’ in Gráinne de Búrca, Bruno de Witte and Larissa Ogertschnig (eds), Social rights in Europe (Oxford Univ. Press, New York 2005) Nigel Cantwell, ‘Are Children’s Rights still Human?’ in Antonella Invernizzi and Jane Williams (eds), The Human Rights of Children: From Visions to Implementation (Ashgate, Farnham 2011) Nigel Cantwell and Anna Holzscheiter, Commentary on the United Nations Convention on the Rights of the Child, Article 20: Children deprived of their family environment (A commentary on the United Nations Convention on the Rights of the Child, Martinus Nijhoff Publishers, Boston 2008) Audrey Chapman and Sage Russel, ‘Introduction’ in Audrey Chapman and Sage Russel (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia, Antwerp 2002) Shazia Choudhry and Jonathan Herring, European human rights and family law (Hart, Oxford 2010) Robin R Churchill and Urfan Kaliq, ‘The Collective Complaints System of the European Social Charter, An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’ (2004) 15 European Journal of International Law 417 Ioana Cismas, ‘The Intersection of Economic, Social, and Cultural Rights and Civil and Political Rights’ in Eibe Riedel, Gilles Giacca and Christophe Golay (eds), Economic,

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6 Reports Committee of the Parties to the Council of Europe Convention on Action against Trafficking in Human Beings, Recommendation CP(2011)1 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Austria (2011) Committee of the Parties to the Council of Europe Convention on Action against Trafficking in Human Beings, Recommendation CP(2015)2 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Germany (2015) Committee of the Parties to the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse, 1st implementation report: Protection of children against sexual abuse in the circle of trust (2015) Council of Europe, Council of Europe Strategy for the Rights of the Child (2016–​2021) (2016) Council of Europe, The best interests of child: A dialogue between theory and practice (2016) Council of Europe, Council of Europe Strategy for the Rights of the Child (2012–​2015) (2012) Council of Europe, Eliminating corporal punishment: a human rights imperative for Europe’s children (2nd edition, Strasbourg 2008) Council of Europe, Explanatory Report to the European Convention on the Exercise of Children’s Rights (1996) Council of Europe Commissioner for Human Rights, Human rights of Roma and travellers in Europe (2012) Aoife Daly, Sandy Ruxton and Mieke Schuurman, Challenges to children’s rights today: What do children think?: A desktop study on children’s views and priorities to inform the next Council of Europe Strategy for the Rights of the Child (2016), available online: https://​rm.coe.int/​CoERMPublicCommonSearchServices/​ ­DisplayDCTMContent?documentId=0900001680643ded last accessed 18  June 2018 Directorate General Human Rights and Rule of Law, Practical impact of the Council of Europe monitoring mechanisms in improving respect for human rights and the rule of law in member states (2014)

246 Bibliography European Commission, For a Europe of civic and social rights: Report by the Comité des Sages chaired by Maria de Lourdes Pintasilgo (1996) European Committee of Social Rights, Activity Report 2011 (2012) European Committee of Social Rights, Activity Report 2015 (2016) European Committee of Social Rights, Activity Report 2013 (2014) European Committee of Social Rights, Activity Report 2012 (2013) European Union Agency for Fundamental Rights, Severe labour exploitation: Workers moving within or into the European Union; states’ obligations and victims’ rights (2015) European Union Agency for Fundamental Rights, European Court of Human Rights and Council of Europe, Handbook on European law relating to the rights of the child (2015) European Union Agency for Fundamental Rights, Child trafficking in the European Union: Challenges, perspectives and good practices (2009) Global Initiative to End All Corporal Punishment of Children, Progress towards prohibiting all corporal punishment in Europe and Central Asia, September 2017, available online: http://​www.endcorporalpunishment.org/​assets/​pdfs/​legality-​tables/​ Europe-​and-​Central-​Asia-​progress-​table-​commitment.pdf accessed 19 May 2018 Group of Experts on Action against Trafficking in Human Beings (GRETA), 5th General Report on GRETA’s activities: covering the period from 1 October 2014 to 31 December 2015 (2016) Manfred Nowak, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment: Study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention, A/​HRC/​13/​39/​Add.5 (2010) (First) Report submitted by the Russian Federation pursuant to Article 25 Paragraph 1 of the Framework Convention for the Protection of National Minorities, 8 March 2000, ACFC/​SR(1999)015 Peter S Smith and Lucy Gampell, Children of imprisoned parents (2011) http://​ childrenofprisoners.eu/​wp- ​content/​uploads/​2014/​01/​Full-​report- ​Children- ​of-​ Imprisoned-​parents.pdf last accessed 18 June 2018

Index abduction (of children) 169, 172–​173, 203 see also Hague Convention abortion 43, 107, 163 adoption 15, 160–​161, 166, 167–​169, 179, 188, 192–​193 secret adoption 163, 197 see also foster parents (families) alternative care 156, 158, 187–​190, 194, 197–​198 see also care (institutional/​public); placement anonymous birth 163, 165, 197 see also origins (knowing one’s) autonomous (independent) decision-​ making 36, 104 birth registration 155, 159–​160 Brussels IIbis Regulation 159, 169, 173–​174 care/​custody proceedings 16, 37, 158, 169–​181, 186–​187, 195–​196, 222–​223 care (institutional/​public) 60–​61, 63, 151, 157, 177–​178, 182, 184–​186, 191 see also alternative care; placement care (right to care) 154, 156–​157, 159, 189, 196, 214 Charter of Fundamental Rights of the European Union (cfr)  development (of the) 20 minimum core obligations 34 principles 21, 149 scope of application 21 see also specific rights/​topics child (definition) 7, 23, 204, 206 child labour 15, 22, 74, 202, 204–​208, 221 see also labour exploitation; trafficking collective complaints procedure 8, 13–​14, 221 contact (with parents) 156–​157, 159–​173, 175, 178, 180, 182–​183, 185, 189, 194 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction  see Hague Convention Convention on Action against Trafficking in Human Beings 205, 211–​213, 216, 218

Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse  see Lanzarote Convention Convention on the Rights of the Child (crc)  development (of the) 1, 10 best interests-​principle 10, 22–​23, 25, 31, 34, 38, 45, 57, 112, 127, 154, 157, 169, 172–​173, 181, 187, 189, 194 general principles 18, 22, 31, 35, 107, 110, 117, 154, 166, 218, 220 (minimum) core obligations 6, 31, 73 Optional Protocols (to the) 9, 203 see also specific rights/​topics; OP-CRC-SC corporal punishment 5, 47, 51–​55, 68, 80–​81 Council of Europe  Committee of Ministers (of the) 8, 13, 17–​18, 33, 89, 189 Guidelines on child-​friendly health care 33, 36 Strategy for the Rights of the Child 17–​18 see also specific rights/​topics custody (parental)  see care/​custody proceedings disabilities (children with) 37, 60, 63–​64, 68, 75, 79, 86, 93–​97, 112–​113, 143, 182, 221 domestic violence 55–​56, 66, 119, 178, 185 donor-​assisted conception 165–​166 see also surrogate mother(s); medically assisted procreation economic exploitation  see labour exploitation; trafficking economic, social and cultural rights  definition 4, 6 in the cfr 20–​21 in the echr 11–​12 justiciability (of) 5, 122, 144 see also social rights European Charter for Regional or Minority Languages (ecrml) 87, 89, 91, 97 European Committee of Social Rights (ecsr)  procedure (of the) 13 see also specific rights/​topics

248 Index European Convention on the Exercise of Children’s Rights 16–​17 European Convention on Human Rights (echr)  development (of the) 11 “living instrument” 5, 54 social or economic „dimensions“ 12 see also specific rights/​topics European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children 7, 15 European Court of Human Rights (ECtHR)  development of case law 5 see also echr “living instrument”; specific rights/​topics European Court of Justice (ecj)  fundamental rights jurisprudence 19 case law on children’s rights 8, 23, 76, 127, 173, 220 see also specific rights/​topics European Social Charter (esc)  1961 esc 4, 12, 13, 140, 211 core rights (of the) 13, 15, 32 Revised Social Charter 4, 12, 16, 22 scope of application 13, 44, 66, 83, 127 see also specific rights/​topics European Union  Agency for Fundamental Rights 24, 34 Agenda on the Rights of Children 24 Guidelines for the Promotion and Protection of the Rights of the Child 24 Guidelines on Children and Armed Conflicts 24 see also specific rights/​topics eviction 98–​99, 122–​126, 133, 134–​139, 148–​149 procedural obligations (safeguards) 136, 138–​139 family counselling 119, 157, 175, 195 foster family (parents) 121, 158, 160, 175–​178, 180–​181, 186–​188, 190–​191, 194, 198 Framework Convention for the Protection of National Minorities (fcnm) 87–​89, 91, 93, 97

Hague Convention 169, 172 see also abduction (of children) International Covenant on Economic, Social and Cultural Rights (icescr)  core obligations 6, 72–​73 development (of the) 2, 6 see also specific rights/​topics labour exploitation 201, 205–​209, 214–​215, 217 see also child labour Lanzarote Convention 7, 9, 15, 57, 205, 213, 216, 218 median equivalised income 142 medically assisted procreation 155, 165, 197 see also donor-​assisted conception; surrogate mother(s) minimum age (for employment) 78, 202–​206, 211, 216 minority (national or ethnic) 40, 85–​97, 103, 110, 113, 139, 143, 224 neglect (of children) 66, 128, 156–​157, 176, 180, 183, 187 placement (of children) 176–​178 right to an adequate standard of living  asylum-​seeker(s) 127, 145 child (family) allowances 141, 143 discrimination 137, 146 equality 122, 145, 148 family (child) benefits 119, 139, 145 homelessness 121, 132, 135, 137, 139 housing conditions 122–​125, 133, 147–​149 housing assistance 126–​127, 145 irregular migrant(s) 127–​128, 134 minimum standards 121, 133–​134, 149 shelter (right to) 123–​124, 128–​129, 135 social assistance/​services 140, 142–​143, 145–​146 social benefits 132, 141, 143, 145 social housing 124–​125, 132, 175 see also eviction(s); family counselling; right to housing; social security right to be heard 35, 67, 110, 113, 157, 159, 171, 174–​175, 189, 195

Index right to housing 119, 121, 125–​126, 135 see also right to an adequate standard of living right to education  access to education 77–​80, 83–​86, 89, 93, 97, 111–​112, 137, 212 aims (purpose) of education 71, 75, 87, 102–​103, 110–​111 compulsory education 72–​74, 76, 78, 98, 103, 111, 204–​205, 207, 209 convictions (of parents) 103–​109, 111–​112, 114 convicts (detention) 83 educational institutions 72, 74, 76, 80, 89, 93, 111 equality 78–​79, 85–​86, 90, 101, 111, 113 ethics (education) 105–​107, 112 expulsion/​suspension (from school)  80–​82, 108, 111 inclusion 86, 94–​96, 112 migrant children 83–​85 minority (rights) 85–​93, 113 (non-​)discrimination 79, 86, 91, 111, 113 objective, critical, pluralistic (manner) 105–​109, 112 primary education 71–​72, 74, 78, 80, 85, 94, 110–​111 religious education 104–​107, 109, 112 sexual education 107–​108 “special school” 95–​96, 99–​101, 112 teaching (study) material 89, 92, 96, 110 right to health  access to health care 29–​30, 32, 39–​40, 42, 65–​66 core obligations 31, 34 education (on the) 29, 32, 58–​59 detention 35, 61–​63 health care facilities 39, 42, 48–​50 inhuman/​degrading treatment 35, 37, 42, 52–​53, 55, 60, 62 institutional care 60, 63–​64, 66 mental health 56, 61, 64, 108, 172 migrant children 40, 44–​47, 50, 59, 66, 68 minimum standards/​services 34, 44, 46 neonatal care 41 (non-​)discrimination 31, 45, 50, 59 prevention 29, 31, 33, 45–​48, 50–​51, 59–​64

249 procedural obligations 41, 48, 51, 56–​57, 62, 66 standards of health care 40–​41 See also corporal punishment; domestic violence; disabilities; Roma origin; sexual abuse rights-​holders 1–​2, 118, 147, 196 Optional Protocol to the crc on the sale of children, child prostitution and child pornography (OP-​CRC-​SC) 203–​204 origins (knowing one’s) 155, 158, 160–​161, 163–​165, 195, 197, 223 see also paternity; anonymous birth paternity (establishment of) 161–​163 see also origins (knowing one’s) progressive realisation 6–​7, 73, 96, 122 Roma (children of Roma origin) 50, 59, 86, 97–​102, 112–​113, 124–​125, 133–​139, 142, 149, 221, 224 sexual abuse 38–​39, 56–​57, 179, 184–​185, 187, 191, 203, 205, 213 see also Lanzarote Convention sexual exploitation 23, 56–​57, 129, 203, 205, 211–​217 see also trafficking; Lanzarote Convention social rights  definition 4 in the cfr 20–​21 in the echr 11–​12 see also economic, social and cultural rights social security 66, 76, 117, 119, 121, 139–​140, 143, 145–​147, 149 surrogate mother(s) 165–​166, 223 see also donor-​assisted conception; medically assisted procreation trafficking (in children) 129, 188, 203–​205, 207–​208, 211–​217 see also labour exploitation; sexual exploitation truancy 141 unaccompanied minor(s) 45, 128, 131, 157, 188, 193–​194, 198, 212, 216