Children's rights: a european perspective

AuthorUrsula Kilkelly
PositionB.A., M.A., LL.B., Ph.D., B.L., College Lecturer, University College Cork
The European Convention on Human Rights Bill, 2001 is
intended to give the force of domestic law to the rights set out in the
European Convention on Human Rights (ECHR) and to make
Convention rights enforceable in Irish courts. The impact which this
is likely to have on the Irish legal system will vary depending on the
area of Convention rights under scrutiny and in this regard, it is
relevant that Ireland’s record before the European Court of Human
Rights in family law cases is poor.1At the same time, a large degree
of uncertainty surrounds the impact on child and family law of
incorporation of Convention rights into Irish law. Evidence from the
UK, wherethe Human Rights Act 1998 has been in force for over a
year, suggests that its effect may not be dramatic – particularly when
it is taking place at sub-Constitutional level - but that reference to
the jurisprudence of the European Courtof Human Rights may
nonetheless make a positive contribution to the process of decision
making in this area.2As the Bill passes through the Dáil, it is timely,
therefore, to consider what the Convention and the case law of the
European Commission and Court of Human Rights says about
children. That is the aim of this article, which will address, in
particular, the case law relevant to family law, the protection of
children from abuse and issues of youth justice, detention and
The wide scope of Article 8 has meant that the case law of the
Court touches on a great variety of family and child law areas. While
the vast majority of this case law has concerned children in state
care, the Courthas also considered the obligations of the State in
private law cases, particularly with regard to access and custody
68 [4:2Judicial Studies Institute Journal
*B.A., M.A., LL.B., Ph.D., B.L., College Lecturer, University College Cork.
1The State has lost all the family law cases it has defended before the court. See Airey v. Ireland,
Series A, No. 32, 2 E.H.R.R. 305; Johnston v. Ireland,Series A, No. 112, (1987) 9 E.H.R.R.
203 and Keegan v. Ireland,Series A, No. 290, (1994) 18 E.H.R.R. 342.
2See Kilkelly, U., “The Impact of the Human Rights Act 1998 on Children During its First
Year of Application” (2001) 182 ChildRight 9.
disputes between parents and the enforcement of court orders in this
Article 8 ECHR provides:
1. Everyone has the right to respect for his
private and family life, his home and his
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
interest of national security, public safety, or
the economic well-being of the country, for
the prevention of disorder or crime, for the
protection of health or morals, or for the
protection for the rights and freedoms of
The first part of this provision guarantees the right to be
protected – and in this regard the existence of private or family life
determines the applicability of Article 8 - while the second part sets
out the limits of permissible interference with that right by the State,
thereby governing whether or not a violation of the right has
A. Definition of Family Life
The definition of family life under Article 8 ECHR has evolved
considerably due to the flexible approach which the European Court
of Human Rights has taken to its interpretation. In theory, the
existence of family life depends on the existence of close personal ties
between the parties, which is determined on a case by case basis. In
practice, however, an increasing number of family relationships
enjoy automatic protection under paragraph. 1 meaning that this
part of the test has become largely academic.4Significantly, the Court
2004] 69Children’s Rights: A European Perspective
4Liddy,J., “The Concept of Family Life under the ECHR” (1998) 1 European Human Rights
Law Review,15.

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