Understanding the Best Interests of the Child as a Procedural Obligation: The Example of the European Court of Human Rights

2020 ◽  
Vol 20 (4) ◽  
pp. 745-768
Author(s):  
Milka Sormunen
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Case Law ◽  
Best Interests ◽  
Procedural Approach ◽  
Rights Of The Child ◽  
European Court ◽  
Significant Strength ◽  
United Nations Convention ◽  
The United Nations

Abstract According to Article 3(1) of the United Nations Convention on the Rights of the Child, the best interests of the child have to be a primary consideration in all cases concerning children. The Committee on the Rights of the Child understands Article 3(1) as a ‘threefold concept’: a substantive right, an interpretive principle and a rule of procedure. This article argues that the provision is best understood as a procedural obligation. Understanding Article 3(1) as a procedural obligation remedies key problems that originate from interpreting the provision as a substantive right. A significant strength of the procedural approach is that it can be consistently applied in different case groups. This article illustrates the argument with the case law of the European Court of Human Rights related to children, in which the article detects three layers of a procedural approach to the best interests of the child.

Towards a Uniform and Informed Interpretation of the Best Interests of the Child by the Judiciary: Inter-American and European Jurisprudence

2021 ◽  
pp. 1-24
Author(s):  
Susana Sanz-Caballero
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Case Law ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Critical Form ◽  
The United Nations ◽  
The Right ◽  
Judicial Remedies

This article analyses the interpretations made by two regional human rights courts regarding the best interests of the child. In cases of controversy, it is for the judges to decide how, or whether, the best interests of the child should be applied. Due to the dependence and vulnerability of children, judicial remedies are a critical form of redress when children’s rights are violated. This article analyses case law from two regional courts (the Inter-American Court of Human Rights (ICtHR) and the European Court of Human Rights (ECtHR)). The purpose of this analysis is twofold: first of all to see how the two courts interpret and apply the concept; and secondly, to ascertain whether there are similarities of interpretation or common grounds of understanding between the two courts, with particular regard to General Comment No. 14 (GC 14) of the United Nations Committee on the Rights of the Child on the right of the child to have their best interests taken as a primary consideration.

The child’s voice in adoption proceedings: A European perspective

2013 ◽  
Vol 21 (4) ◽  
pp. 590-615
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
United Nations ◽  
European Perspective ◽  
Rights Of The Child ◽  
European Court ◽  
The World ◽  
United Nations Convention ◽  
The United Nations ◽  
The Right

The right of the child to be heard in adoption proceedings flows directly from the provisions of the United Nations Convention on the Rights of the Child, ratified by almost every country in the world. In this paper, the interpretation of this principle across European jurisdictions will be analysed, both in terms of children who are old enough to make a determinative decision concerning their future, and those who are younger yet still possess the right to be heard. The wide variety of practices in Europe highlight the lack of progress in this field of law, which is not assisted by the conservative jurisprudence of the European Court of Human Rights.

The Child’s Voice in Adoption Proceedings

2014 ◽  
Vol 22 (1) ◽  
pp. 135-163 ◽  
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Rights Of The Child ◽  
European Court ◽  
The World ◽  
United Nations Convention ◽  
The United Nations ◽  
The Right

The right of the child to be heard in adoption proceedings flows directly from the provisions of the United Nations Convention on the Rights of the Child, ratified by almost every country in the world. In this paper, the interpretation of this principle across European jurisdictions will be analysed, both in terms of children who are old enough to make a determinative decision concerning their future, and those who are younger yet still possess the right to be heard. The wide variety of practices in Europe highlight the lack of progress in this field of law, which is not assisted by the conservative jurisprudence of the European Court of Human Rights.

The Best Interests of the Child

2020 ◽  
pp. 203-221
Author(s):  
Wouter Vandenhole ◽  
Gamze Erdem Türkelli
Keyword(s):  
Human Rights ◽  
Family Law ◽  
Children's Rights ◽  
Case Law ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
European Court ◽  
Elusive Concept

The best interests of the child principle is considered a pillar of children’s rights law and, according to the UN Convention on the Rights of the Child (CRC), is to be a primary consideration in all actions concerning children. Yet best interests is an elusive concept and principle that has no single authoritative definition or description. Internationally and domestically relevant in such diverse areas as family law, adoption, migration, and socioeconomic policymaking, the best interests principle requires flexibility and is best served by a case-by-case approach, as has been recognized by the UN Committee on the Rights of the Child and the European Court of Human Rights. This chapter analyzes relevant international case law and suggests the use of a number of safeguards to prevent such requisite flexibility from presenting a danger of paternalism, bias, or misuse.

Art.20 Personal Mobility

2018 ◽  
Author(s):  
Kovudhikulrungsri Lalin ◽  
Hendriks Aart
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Human Beings ◽  
Persons With Disabilities ◽  
Personal Mobility ◽  
Cultural Activities ◽  
European Court ◽  
United Nations Convention ◽  
The United Nations ◽  
The Right

This chapter examines Article 20 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Personal mobility is a prerequisite for inclusion in a society. According to the European Court of Human Rights, to be mobile and to have access to transport, housing, cultural activities, and leisure is a precondition for the ‘right to establish and develop relations with other human beings’, ‘in professional or business contexts as in others’. The CRPD does not establish new rights for persons with disabilities. It is merely thought to identify specific actions that states and others must take to ensure the effectiveness and inclusiveness of all human rights and to protect against discrimination on the basis of disability. However, the fact that there is no equivalent of the right to personal mobility in any other human rights treaty makes it particularly interesting to examine the genesis and meaning of this provision.

scholarly journals THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD AND PROTECTION OF CHILDREN’S RIGHTS AT CONSTITUTIONAL LEVEL

2016 ◽  
pp. 0-0
Author(s):  
Марина Шелютто ◽  
Marina SHyelyutto
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Children's Rights ◽  
International Standards ◽  
Children’S Rights ◽  
Cultural Rights ◽  
Rights Of The Child ◽  
United Nations Convention ◽  
The United Nations ◽  
Venice Commission

The adoption of the United Nations Convention on the Rights of the Child in 1989 meant the international recognition of children as autonomous right-holders. The Convention includes practically all traditional human rights: civil, political, economic, social and cultural rights, to which every child is entitled. The Report on the Protection of Children’s Rights: International Standards and Domestic Constitutions adopted by the Venice Commission in 2014 shows that national constitutions of some Council of Europe Member States have implemented the provisions of the Convention in different manner after its adoption. Some constitutions (the Russian Constitution is among them, too) reflect the traditional paternalistic approach (according to which children need protection) but not the rights-based approach. The inclusion in the Constitution of guarantees of rights for everyone may be insufficient to ensure respect for these rights for every child. The recommendations of the UN Committee on the Rights of the Child and the Venice Commission to include in national constitutions the key message that children are holders of human rights and the general principals of the Convention are topical for the Russian Federation.

scholarly journals THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD – HAS THE BRIDGE BEEN CROSSED BETWEEN THEORY AND PRACTICE: MAURITIUS AND SOUTH AFRICA?

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
Glynis van der Walt
Keyword(s):  
South Africa ◽  
United Nations ◽  
International Law ◽  
Theory And Practice ◽  
Best Interests ◽  
Vulnerable Group ◽  
Rights Of The Child ◽  
United Nations Convention ◽  
The United Nations ◽  
The Republic

On 20 November 1989 the United Nations adopted a treaty, the Convention on the Rights of the Child (hereinafter “the Convention”), which specifically focuses on a particularly vulnerable group in society at large – children (1577 UNTS 3 (1989) 28 ILM 1456). That the international community ratified this treaty so soon after its proposal is indicative of the fact that it considered this treaty as one of major importance. In accordance with Article 49 the Convention took effect and became international law on 2 September 1990. The Republic of Mauritius was quick to respond to the appeal and became a signatory in 1990. South Africa followed suit and became asignatory on 16 June 1995. The response from both these Republics is admirable, but one has to investigate how these two nations have succeeded in giving effect to their obligations as signatories. The actual provisions in the respective countries’ national law will indicate the measure of true compliance with the Convention. In this note I shall confine my discussion to article 3 and article 4 of theConvention and more specifically to the consideration of the best interests of a child where his or her parents are divorcing or separating.

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