Table of Contents
I. International and European framework on children’s rights and family life
Article 9 of the UN Convention on the Rights of the Child enshrines two essential principles of the rights of the child:
1) children should not be separated from their parents unless this is in their best interests;
2) all procedures for separating children from their parents for the aforementioned reason must be correct.
The Convention also affirms the rights of children to maintain relations and contact with both parents, but also places the obligation on the state to inform both parents and children of their whereabouts, in case the state is responsible for causing the separation. example by deporting or imprisoning one of the parents).
At Council of Europe level, cases of parental dispute over their children fall largely within the scope of Article 8 of the European Convention on Human Rights. With regard to the scope of Article 8: together with the relations within the natural family, the relationship between a child and his adoptive parents, between the child’s ex-spouse or a person to whom the child has developed a strong mutual attachment, they shall also be included. within the meaning of Article 8 of the Convention.
It is important to note that family life between parents and children does not cease to exist:
a) if the parents separate or divorce, and the child lives with only one of them (Ciliz v. the Netherlands, para. 59)
b) if the child is taken into the care of the state authorities (Johansen v. Norway, para. 52 and Olsson v. Sweden, para. 59).
Interference by the authorities in a person’s private and family life could be justified under Article 8, where appropriate, by fulfilling the following cumulative conditions:
1. the interference is in accordance with the law;
2. pursues a legitimate aim;
3. is proportionate to the objective pursued.
The fragile and fair balance to be struck between the competing interests of the individual and the community as a whole must be taken into account. Although in both contexts the state enjoys a margin of appreciation, in carrying out this balancing exercise special importance must be given to the best interests of the child.
The main obligations of the state with regard to custody issues:
1. The state has the obligation not to arbitrarily interfere with the custody rights of the parents (negative obligation).
2. The state should adopt and effectively implement measures to ensure respect for family life in cases involving custody / custody of children. These may include the establishment of a regulatory framework as well as appropriate judicial and enforcement mechanisms (positive obligation), applying in particular to situations:
a) compulsory placement of children in state care by national authorities;
b) in which there are conflicts regarding the right to have personal relations with the child and conflicts regarding the residence between the parents and / or other members of the children’s families;
c) regarding the right of a parent to take measures in order to reunite with the child;
With regard to Article 14 in conjunction with Article 8 of the European Convention on Human Rights, it is important to note that disputes / disputes between parents over custody / custody of the child or the exercise of parental authority over their children may also involve Article 14 (prohibition of discrimination) of the Convention. . E.g:
– Parental religion: in Hoffman v. Austria, a difference in parental treatment was essentially based on a difference in religion which was not acceptable;
– The father’s sexual orientation: in Salgueiro da Silva Mouta v. Portugal, the applicant’s homosexuality was decisive in the final decision on parental responsibility, which was discriminatory;
– Sex of the parent and his marital status (unmarried): in Zaunegger v. Germany, the father of a child born out of wedlock could not obtain joint custody without the mother’s consent. This was discriminatory because the father was treated differently from married mothers and fathers without an objective and reasonable justification.
Article 14 of the European Convention on Human Rights does not exist independently and has effect only in relation to the right to enjoy the rights and freedoms guaranteed by the Convention and its protocols. As such, a difference in treatment is discriminatory when it has no ‘objective and reasonable justification’: that is, it is justified by a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the objective pursued.