Dr. Charlotte Mol*
Strengthening Child Participation rights in the Case Law of the ECtHR: A Plea to Consider Child participation systematically from a Children’s rights perspective
In recent decades, the child’s right to participate has developed by leaps and bounds. Since the conception of Article 12 of the UN Convention on the Rights of the Child 1989 (UNCRC), children have been afforded the right to express their views and to have these views be given due weight in all matters affecting them. This includes family law proceedings, such as those following parental separation or divorce, which directly impact children’s lives. Article 12 UNCRC has acted as a catalyst for the (further) development of the child’s right to participate domestically and internationally. It has formed the inspiration for new human rights instruments, such as the European Convention on the Exercise of Children’s Rights 1996 or the 2010 Guidelines on Child-Friendly Justice. Notably, the European Convention on Human Rights (ECHR) does not include an article on the rights of children or specifically children’s right to participate. However, in the case law of the European Court of Human Rights (ECtHR) child participation in family law proceedings has increasingly been addressed and considered. The child’s right to participate in family law proceedings in these various international and European human rights instruments was the subject of my recently concluded doctoral research. Various aspects of the right to participate were studied and compared between sources, including, how, when and which children should be able to participate, how due weight should be given to children’s views, and what the relevance or impact should be of children’s maturity and potential undue influence exerted upon them.
A central and innovative part of the research was the broad and systematic study of all the ECtHR’s case law on child participation in family law proceedings (88 judgments and decisions) using the method of qualitative content analysis. The analysis of the ECtHR’s case law provided many new and important insights regarding the child’s right to participate. It also provided a more overarching view of how the ECtHR addresses children’s rights within the context of parental disputes. In this blog, I will reflect on the position of the right to participate in the case law of the ECtHR on the basis of the doctoral research and will plead for a more structural consideration of children’s participation rights by the Court in future case law.
Child participation: A fragmented topic
To fully grasp the development of the child’s right to participate in family law proceedings within the case law of the ECtHR it is necessary to understand the fragmentary nature of the topic. Child participation is a topic often discussed in a piecemeal manner within the context of larger themes. In the majority of cases studied, issues of child participation were not the core complaint nor did they play a key role in the reasoning of the EctHR. Instead, child participation is often just one piece of the puzzle. For example, in Z.J. v. Lithuania the central complaint concerned the refusal of domestic courts to grant the father custody of his children. Among the various arguments brought forward in the applicant’s submission, was the complaint that the views of his children were insufficiently taken into account by the domestic courts (§84).
The reason why child participation is often part of a larger package of complaints can in part be traced back to the applicants in these cases. As shown in Figure 1, the overwhelming majority of applicants in the cases studied were parents, either individually or also on behalf of their children. Not a single case concerning child participation was brought by a child on their own behalf without the involvement of their parents.
The large amount of complaints by parents is by itself not directly problematic, nor is it unexpected. Although children have the unequivocal right to lodge a complaint to the ECtHR themselves, in practice it is not so simple to apply to the Court as a child alone. Children face many hurdles to access the ECtHR, both financial and otherwise, especially in family law proceedings where children at the domestic level already generally face a lack of legal capacity and remedies. In that regard, having parents increasingly raise child participation issues in their complaints to the ECtHR has ensured the consideration of the issue in family law proceedings by the ECtHR. If we had to wait for children to bring their own complaints, then there would certainly not have been as much reasoning on child participation as visible throughout my research. The incremental inclusion of child participation in complaints has therefore assisted in the development of the Court’s reasoning on child participation.
Problematic with regard to the overwhelming majority of complaints by parents is the fact that their complaints generally focus on the violations of their own rights, with the inclusion of participation complaints as a means to plump up their core complaint. In doing so children’s rights are to a certain extent instrumentalized by parents to achieve their own goals. This is most visible in the complaints brought by parents with regard to due weight and influence. For example, in ten cases, parents complained that that the domestic courts had given too much weight to the child’s views. Consider G.B. v. Lithuania where a mother complained that the child’s wishes were important, but should not function as a determining factor, also alleging that the children had developed parental alienation syndrome (§74).
From the point of view of a parent as applicant and their lawyer, this is a logical move. In addition to a central complaint on the lack of access rights, complaining about undue influence on their child’s views can help achieve a judgment in their favour. Viewed from the perspective of children’s rights however, it is not directly desirable as it carries the risk of the ECtHR judging children’s rights without a child-centered approach. The child’s right to participate can in that way become muddled with parents’ rights and interests, something which we will also see below.
When child participation is not considered from the perspective of children and their rights and interests, but instead with regard to their parents’ complaints, then there is a risk that the ECtHR’s reasoning is tainted.
This is even more so when the complaint is part of a large alleged substantive violation, for example regarding high conflict divorces or international child abduction proceedings where parents are at very opposing ends. In these proceedings parents cannot be regarded able to objectively represent their children.
The risk of taking a parent-centered approach exists not only when a parent has lodged an application in their own name, but also when a parent has also complained on behalf of their children. The current debate regarding the representation of children at the ECtHR by parents with whom they may have a conflict of interests is relevant in that regard (see e.g. the Concurring Opinion of Judge Koskelo in C v. Croatia). It is striking that children are not required to confirm their intention to be represented by a parent, or may not even be aware of the application on their behalf, especially where it concerns their rights to participation (see e.g. the Joint Partly Dissenting Opinion of Judges Keller and Villanova and Partly Concurring Opinion of Judge Schukking in Khustnutdinov and X v. Russia). When the ECtHR departs in its examination of whether there is a violation with regard to child participation from a parent’s complaint in these matters, then the child’s perspective on the matter may be lost. It is essential in these situations that the Court takes a child-centered approach or a ‘substantive rights approach’ (Tobin 2009) to the complaints and issues regarding the child’s right to participate. A positive trend in that regard is the discovery that in an increasing amount of cases, the ECtHR discusses themes of child participation without a direct complaint by an applicant.
The child’s right to participate in the ECtHR’s case law
Notwithstanding the fragmented nature of child participation, there has been a significant development in the case law of the ECtHR whereby the child’s right to participate has been recognized and given form. With regard to the right of children to express their views, in earlier case law the question of (in)sufficient participation was addressed within the scope of the applicants’, i.e., parents’, right to family life. Take for example Sahin v. Germany, in which the Court finds a violation of Article 8 ECHR because the failure to hear the child revealed an ‘insufficient involvement’ of the father in the domestic access proceedings (§§ 46-47). In these older cases the violation of Article 8 ECHR is based upon the parents’ insufficient involvement in the decision-making process. This is the parental precursor to the right of children to participate recognized in the 2015 judgment of M. and M. v. Croatia. In M. and M. the ECtHR recognized the child’s right to participate under Article 8 ECHR as both the right to sufficient involvement under the scope of the right to respect for family life and the right to personal autonomy under the child’s right to respect for private life (§§171 and 181).
The general principle that the child’s right to participate is protected by the right to respect for family life and private life has been reaffirmed in N.Ts. and others v. Georgia (§78), E.S. v. Romania and Bulgaria (§59), and M.K. v. Greece (§74). Since the M. and M. judgment in 2015, the ECtHR’s reasoning on child participation has shifted towards children’s rights, although it continues to be addressed in a number of cases under the rights of parents (e.g. Iglesias Casarrubios and Cantalapiedra Iglesias v. Spain, §§42-43). The ambiguity presented by those cases in which the ECtHR discusses the topic of (in)sufficient participation within the scope of parents’ rights, thereby seemingly accepting child participation as a right of the parent, is troubling. Does the ECtHR really mean to say that it is a parent’s right to have their child heard? If so, then children may become a pawn in the game, unwillingly drawn into the conflict between parents. This is problematic, as the child should voluntarily be able to choose whether or not to express views in family law proceedings. One would hope that the ECtHR actually means to say that a child’s right to be heard can be protected within a parent’s right to family life as an ancillary means of protection. Even when discussing child participation within the scope of a parent’s application, the ECtHR should ensure that the child’s right to express views is protected as a child’s right.
Turning from the right to express views to the weight to be accorded to these views, it is unclear whether the obligation placed upon domestic courts to give due weight falls under the child’s Article 8 rights or that of the parents, or both. However, my case law analysis does show that the obligation placed upon courts to give due weight unmistakably falls under the right to respect for family life. The ECtHR considers due weight within the scope of parents’ right to family life and has, to date, only once explicitly recognized the obligation as pertaining to children’s rights (G.H.B. v. the United Kingdom (dec.)). In future case law, the ECtHR should more consistently tie the obligation to give due weight to a child’s views to children’s rights. Even more so, as the general principle in Płaza v. Poland – that domestic courts should give due weight to a child’s views and feelings (§71) – stems from Article 12 UNCRC. In fact, the ECtHR could or – one could even argue – should recognize that giving due weight to a child’s views falls under its right to respect for private life as it concerns children’s autonomy in decision-making.
A related conclusion from my doctoral research is that a children’s right to participate in family law proceedings is incorporated almost exclusively under the scope of Article 8 ECHR. It is noteworthy that Article 6 ECHR plays a very limited role. One would have expected that Article 6 ECHR would have played a larger role, as child participation is a procedural right at the core and Article 6 ECHR provides the right to a fair trial and associated procedural rights. However, the ECtHR consistently discusses the topic of participation – from the general principles on participation and due weight to the reasoning on the facts – under Article 8 ECHR. There are only three cases out of the 70 in which the ECtHR’s discussion on participation takes place under the scope of Article 6 ECHR. The role of Article 6 is therefore extremely limited and addressing child participation in family law proceedings under Article 6 ECHR is an exception. There are two explanations as to why Article 8 ECHR is of greater importance than Article 6 ECHR. The first explanation is the so-called ‘procedural turn’ of the ECtHR, which includes the general trend by which the Court increasingly reads procedural obligations into substantive Convention rights. The scope of Article 8 ECHR has in that way been stretched to include procedural obligations, including child participation. The second explanation ties into what has been explained previously, the highly fragmented nature of the topic of child participation within the case law of the ECtHR. With child participation discussed in a great number of cases as one puzzle piece within a broader complaint on violations of the applicant’s right to family life, the topic has become highly intertwined with substantive family law topics. Complaints as to child participation are rarely brought forward as an independent violation, but instead as one component of a violation, even more so because most applicants are parents. If complaints were brought by children individually and addressing their right to participate explicitly, then it may have been more logical to address the child’s procedural rights under Article 6 ECHR.
The ECtHR faced with parents – and not children – as applicants has recognized the child’s right to participate under the scope of Article 8 ECHR through the interpretation and expansion of rights. The development since 2015, whereby the ECtHR increasingly takes a child-centered approach and addresses child participation through children’s rights will hopefully and should persist. In the ECtHR’s case law the standards for the child’s right to participate in family law proceedings have developed by leaps and bounds. This development can be ascribed to the reliance on other international and European instruments, but more importantly the ECtHR has developed its own standards and has in many cases included child participation in its reasoning ex officio. These developments are promising for the future. To further strengthen the child’s right to participate, the ECtHR should build on the standards of child participation it has already set and continue to develop the child’s right to participate in a coherent manner. The ECtHR should (continue to) explicitly address the topic of child participation from the perspective of children’s rights – even where children are not the applicants. Finally, possibilities for the independent representation of children at the ECtHR should be considered, especially in complaints regarding family law proceedings where conflicts of interests lurk.
* Dr. Charlotte Mol is Assistant Professor at the Utrecht Centre for European Research into Family Law (UCERF) and the Molengraaff Institute for Private Law. She defended her PhD thesis cum laude on the child’s right to participate in family law proceedings on the 28 January 2022. Her thesis will be published as a monograph later this year with Intersentia in the European Family Law series.
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