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Child in the Middle: Best Interests of the Child in the European Court of Human Rights in Cases Concerning Public Care and Contact Rights

30.4.2020, Maisteritutkielma

Article 3(1) of the 1989 United Nations Convention on the Rights of the Child requires that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Every Member State of the Council of Europe has ratified the Convention.

The European Court of Human Rights has increasingly begun to refer to the Convention on the Rights of the Child and its Articles in cases concerning children and acknowledged that the best interests of the child are of particular importance. Especially Article 8 of the European Convention on Human Rights, which protects every individual’s right to respect for private and family life, home and correspondence without unjustified state interference, has been envisaged as having great potential in effectively promoting and protecting the rights of the child under the European Convention on Human Rights, which does not contain rights designed specifically for children on its own. However, the European Court of Human Rights has been criticised for failing to provide clear and coherent general principles in situations where the traditional obligations and principles under Article 8 owed to adult members of the family are to be balanced against the best interests of the child.

The thesis addresses questions relating to how the national authorities succeed in striking a fair balance in specific circumstances between different interests at stake within the meaning of Article 8 of the European Convention on Human Rights and makes an assessment of these findings in relation to the requirements set out in Article 3(1) of the Convention on the Rights of the Child.

The concept of the best interests of the child as stipulated in Article 3(1) of the CRC obliges national authorities to transparently explain how the best interests of the child have been identified, what they are considered to be and how they have been balanced against other interests. The best interests of the child also require that the child is involved in the proceedings affecting the child either by him or herself personally or through an independent representative.

The European Court of Human Rights has acknowledged that the interests of the child and those of his or her parents might not always coincide and assessed whether national authorities have struck a fair balance between these interests by considering whether the authorities could have attempted to assist the family in some other way before taking the child into care or restricting contact with the child and adult. In assessing the adequacy of the national authorities’ balancing process, the Court also takes into account whether the authorities have obtained relevant opinions by professionals and experts, whether the procedural requirements inherent in Article 8 are met and whether the child is involved in the proceedings.

Asiasanat
• Euroopan ihmisoikeussopimus - Euroopan ihmisoikeustuomioistuin - Ihmisoikeudet - Lapsen etu - Lapsen oikeudet