46th Annual Study Session of the IIDH "Children and International Human Rights Law"
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The shift to child rights
The Council of Europe has been fighting for children’s rights since the UN Convention on the Rights of the Child came into force 25 years ago–and even before.
In that time there have been huge strides forward, not only in terms of the many special protections now in place for children, taking into account their unique vulnerability.
But also – and perhaps even more importantly–the growing recognition that children are legal subjects and holders of rights, in their own right.
This is a huge change: it moves children from being purely passive, with their rights defined by others, to individuals who must have certain freedoms and opportunities no matter what the adults around them think.
When I began my career in politics, this was a world away from how people thought. And yet now the so-called child rights approach is respected and well understood.
It is at the core of the Council of Europe’s work, including our programme “Building a Europe for and with children.”
A great deal of credit for that must go to Maud de Boer-Buquicchio, our former Deputy Secretary General and now UN Special Rapporteur on the sale of children, child prostitution and child pornography.
I also want to pay tribute to the many members of staff and activists whose tireless efforts have helped drive this shift.
And I want you to know that children’s rights remain high on the Council of Europe’s agenda. We still cannot say that children are treated as full-fledged holders of rights–meaning all their rights, by all governments, by all adults, at all times, and in all settings. But that is what we must continue to work towards.
It’s true, the European Convention on Human Rights doesn’t specifically mention children. But neither does it say “for adults only.” Nor does it require parental consent. And there is no provision restricting children’s access to the Court, although the procedure is not exactly very child-friendly, not yet anyway. Something to consider during your deliberations, perhaps…
The role of the Court and the Social Rights Committee
Clearly our Court is at the heart of the evolution of child rights.
The right to life, the prohibition of inhuman or degrading punishment, the right to a fair trial, the right to respect for private and family life, the freedom of conscience and religion, the freedom of expression and the prohibition of discrimination–all of these have come up in cases specifically relating to children.
And just as changes in our societies have influenced the case law of the Court, the case law of the Court has in turn shaped what happens in our homes.
One of the very first judgments on a complaint filed by a child was in 1998, and concerned the issue of corporal punishment in the United Kingdom.
“Corporal punishment” is a euphemism that refers to situations where adults hit children. Whether the “hit” is mild or strong is beside the point. The fact of the matter is, that if an adult hits another adult, we are very likely to end up in a courtroom for a civil or criminal case.
In its judgment against the UK, the Court found that the beating of a young English boy by his stepfather constituted "inhuman or degrading punishment," and that the United Kingdom’s domestic law failed to provide adequate protection as required by the European Convention on Human Rights.
The issue of corporal punishment of children has been taken up very recently by another important Council of Europe body: The European Committee on Social Rights, which monitors the implementation of the European Social Charter.
As you know, the European Social Charter is the counterpart to the European Convention on Human Rights in the field of social and economic rights. Its Article 17 grants the right of children and young persons to social, legal and economic protection. In a number of decisions published this year, the European Committee of Social Rights has found that the corporal punishment of children is not prohibited in a sufficiently clear, binding and precise manner in Belgium, the Czech Republic, France, Ireland and Slovenia, thus being in breach of the Charter.
Another important development has been with regard to Article 8: the right to family and private life. The Court has frequently stated that the expression “everyone” in Article 8 applies to both children and their parents. This is particularly important when the relationship between the parents has broken down. Where there is a conflict between the interests of the child and of one of the parents, as there can be in custody cases, the Court attaches particular importance to the best interests of the child, which depending on their nature and seriousness, may override those of the parents. This is a big shift.
Developments in technology have also created major new challenges for the law. Exactly one year ago, for example, the Court published its judgment on a controversial case regarding surrogacy. The case concerned two French couples who had recourse to surrogate pregnancy in the United States, which is prohibited under French law. The applicants, relying on Article 8, complained about the fact that the French authorities had refused to legally recognise the parent-child relationship under French law. While the Court recognised France’s right to declare surrogacy illegal, it ruled that the French decision to refuse child-recognition was an infringement of their right to respect for private life. I was pleased to learn that, last Friday, the French Court of Cassation ruled, in light of the Court judgment, that while surrogacy remains banned in France, children born abroad would now be granted birth certificates and immediate means to prove their French citizenship.
As medical science continues to develop, we can expect more of these kinds of questions, which are a challenge for any legal mind.
Children’s rights under threat
And, of course we know that right now across Europe, there are many places in which children’s rights are under serious threat.
In their last annual report, GRETA–our anti-trafficking monitoring mechanism–singled out child trafficking as one of the biggest problems we face in the fight against human trafficking.
The committee which monitors state compliance with our Convention for the protection of children against sexual exploitation and sexual abuse–the Lanzarote Convention–shows that governments are finding it extremely difficult to criminalise new forms of exploitation and abuse, for example “grooming,” online.
And ongoing economic hardship continues to bring many challenges, too. Those of you who have seen the very powerful exhibition being shown in the Palais–“Austerity Bites”–will have heard the testimonies from boys and girls whose lives are being blighted by poverty and inequality. If you haven’t, I encourage you to take the time to do so. And I’m sure these themes will come up in your discussions today.
With all this in mind, I am extremely pleased that you are here today to discuss “what next?” for child rights and the law.
The development of human rights standards by the European Court of Human Rights and the European Committee on Social Rights have been impressive over recent decades. But their impact depends on how they are applied.
I want you to know that I am personally committed to helping us move forward on this front. This agenda remains extremely important to me, as it does you.
22 December 2017
Letter to the President of Romania, Klaus Iohannis
18 July 2017
Letter to the Speaker of the Sejm, Marek Kuchciński