Children's rights: a european perspective

• Author: Ursula Kilkelly
• Position: B.A., M.A., LL.B., Ph.D., B.L., College Lecturer, University College Cork
• Pages: 68-95

CHILDREN’S RIGHTS: A EUROPEAN PERSPECTIVE

URSULA KILKELLY*

I. INTRODUCTION

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

identity.

II. FAMILY LAW

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

area.3

Article 8 ECHR provides:

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

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

others.

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

occurred.

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.