Family Law









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Council of Europe Conventions in the field of family law
European Convention for the Protection of Human Rights and Fundamental Freedoms
[ETS 5, Rome, 04.11.1950] (in particular articles 8 and 12)

This Convention protects fundamental rights and freedoms and sets up a mechanism, the European Court of Human Rights, capable of guaranteeing their respect.
A number of provisions are of particular relevance to the family and children, such as the right to respect for private and family life (Article 8 of the Convention), the right to marry and to found a family (Article 12 of the Convention), the right of access to the courts (Article 6, paragraph 1), the right of parents to ensure the education and teaching of their children in conformity with their own convictions (Article 2 of Protocol N°1). A large number of the cases dealt with under the European Convention on Human Rights concern family matters (e.g. children born out wedlock, parentage, adoption, custody and access, children in institutions, legal aid in family matters, etc.), and as States are bound to give effect to the decisions of the Court of Human Rights, this has resulted in the improvement of the legal protection of the family, especially children, in member States of the Council of Europe. On the other hand, not only do the relevant provisions of this Convention cover children but also they may even bring proceedings themselves under the Convention.

European Convention on the adoption of children
[ETS 58, Strasbourg, 24.04.1967]

The aim of this Convention is to harmonise the laws of member States and to avoid conflict of laws where the adoption involves a transfer of the child from one State to another.
Under this Convention only a judicial or administrative authority can grant an adoption. The Convention deals with the conditions for adoption and the type of adoption. It contains provisions concerning the child's family name and nationality and deals with questions relating to succession and the disclosure of the identity of the child to other persons. After adoption children are considered to be the legitimate children of their adopters and their ties with their natural parents are in principle broken.

European Convention on the legal status of children born out of wedlock
[ETS 85, Strasbourg, 15.10.1975]

This Convention seeks to assimilate the status of children born out of wedlock with that of children born in wedlock and also seeks to contribute to the harmonisation of the laws of States in this field. Under this Convention both parents have the same obligation to maintain their children as if these children were born in wedlock. Children have the same right of succession in the estate of their parents and a member of their parent's family as if they had been born in wedlock.

European Convention on recognition and enforcement of decisions concerning custody of children and on restoration of custody of children (the "Custody Convention")
[ETS 105, Luxembourg, 20.05.1980]

As child custody disputes between parents living in different European States have given rise to an increasing number of difficulties the Council of Europe has sought to provide a remedy by preparing a Convention dealing with the custody of children. The Convention recognises in its Preamble that the welfare of the child is of overriding importance in reaching decisions concerning custody.
According to the provisions of the Convention, each contracting State must appoint a central authority which will have, inter alia, the task: to receive applications and assist the applicant; to discover the whereabouts of the child; to transmit requests for information and to co-operate with other authorities. These duties are carried out free of charge (including the legal representation of the applicant). An application may be made either directly to the Court or to the central authority of any contracting State.

European Convention on the exercise of children's rights
[ETS 160, Strasbourg, 25.01.1996]

The Convention aims at the protection of the best interests of children. It contains a number of procedural measures designed to ensure that children's rights are respected and sets up a Standing Committee to deal with matters arising from the Convention.
The text lists measures to promote children's rights in family proceedings before a court. The court or any person appointed to act on their behalf is given a number of duties to facilitate the exercise of children's rights. Children may exercise their rights - for example to be informed and to express their views - either themselves or through other persons or bodies.
This European legal instrument will furthermore help States to implement the United Nations Convention on the rights of the child: Article 4 of the United Nations Convention on the rights of the child requires States Parties to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the said Convention.

The Convention on contact concerning children
[ETS 192, Strasbourg, 14.10.2002]

The aim of the Convention is to improve certain aspects of the right of national and transfrontier contact and, in particular, to specify and reinforce the basic right of children and their parents to maintain contact on a regular basis. This right may be extended, if necessary, to include contact between a child and other persons than his or her parents, in particular when the child has family ties with such a person.
In this respect, the object of the Convention is to determine the general principles to be applied to contact orders, as well as to fix appropriate safeguards and guarantees to ensure the proper exercise of such contact and the immediate return of children at the end of the period of contact. It establishes co-operation between all the bodies and authorities concerned with contact orders and reinforces the implementation of relevant existing international legal instruments in this field.

Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse
[CETS 201 - Lanzarote, 25.10.2007]

The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse represents a major advance in the field of child protection.
This new Convention is the first instrument to establish the various forms of sexual abuse of children as criminal offences, including such abuse committed in the home or family, with the use of force, coercion or threats. In addition to the offences traditionally committed in this field – sexual abuse, child prostitution, child pornography, children’s forced participation in pornographic performances - the text also addresses the issue of “grooming” of children for sexual purposes and “sex tourism”.
The Convention was opened for signature at the Conference of European Ministers of Justice in Lanzarote on 25 and 26 October 2007.

European Convention on the Adoption of Children (Revised)
[CETS 202 - Strasbourg, 27.11.2008]

The aim of this revised convention is to take account of social and legal developments while keeping to the European Convention on Human Rights and bearing in mind that the child’s best interests must always take precedence over any other considerations.
New provisions introduced by the convention include:
– The father’s consent is required in all cases, even when the child was born out of wedlock.
– The child’s consent is necessary if the child has sufficient understanding to give it.
– The revised convention extends to heterosexual unmarried couples who have entered into a registered partnership in States which recognise that institution, and to single. It also leaves States free to extend adoptions to homosexual couples and same sex-couples living together in a stable relationship.
– A better balance is struck between adopted children’s right to know their identity and the right of the biological parents to remain anonymous.
– The minimum age of the adopter must now be between 18 and 30, and the age difference between adopter and child should preferably be at least 16 years.