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Council of Europe
Conventions in the field of family law |
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European Convention for the
Protection of Human Rights and Fundamental Freedoms
[ETS
5, Rome, 04.11.1950] (in particular articles 8 and 12)
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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. |
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European Convention on the adoption of children
[ETS 58, Strasbourg, 24.04.1967] |
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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. |
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European Convention on the legal status of children born out of wedlock
[ETS 85, Strasbourg, 15.10.1975] |
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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. |
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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] |
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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. |
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European Convention on the exercise of children's rights
[ETS 160, Strasbourg, 25.01.1996] |
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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. |
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The
Convention on contact concerning children
[ETS 192, Strasbourg, 14.10.2002] |
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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. |
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Convention on the Protection of Children against Sexual Exploitation and
Sexual Abuse
[CETS 201 - Lanzarote, 25.10.2007] |
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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. |
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European Convention on the Adoption of Children (Revised)
[CETS 202 - Strasbourg, 27.11.2008] |
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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. |
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