Alternative Care; The Mutual Enjoyment of The Parent and The Child

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How does the ECHR balance the right of parents for non-interference with their private and family life with the best interests of the child, where children are taken into alternative care?

The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family

      life and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8[1]

1.     Introduction

The family is the most essential element of a child’s life. It shapes the development of values, the personal and cultural identity of the child, and future interpersonal relationships, whilst assuring the best possible care regarding health, education and general well-being.  However, if parents exercise their responsibilities to the detriment of the child, this can lead the state authorities to a decision to take the child to alternative care.[2] According to the Council of Europe, alternative care is defined as a situation in which a child is placed with relatives, in foster care or in residential care, because they are not receiving adequate care with the parents[3]. By 2017, 664 000 children in Central and Eastern Europe were placed into residential care and 788,000 children were placed into foster families[4]. The reasons why the authorities might choose to relocate a child from their family into alternative care varies from case to case; however, the most common grounds are poor housing situations[5], lack of financial means[6], a parent’s illness and inability to care for the child[7] or ill-treatment[8]. In such cases, the state authorities usually aim at the securing the best interest of the child[9], as states have a positive obligation to protect the child[10]. However, taking a child into alternative care constitutes an interference with the right of private and family life under the Article 8 ECHR. [11] It has been stated in the Court’s case law that ‘restrictions placed by the domestic authorities on parental rights of access … entail a danger that the family relations between a young child and a parent will be effectively curtailed’[12]. In such situation the Court has to balance the rights of the parent and the best interests of the child to assess the presence or absence of the violation of the Article 8. [13]

Therefore, the main question to be answered in this paper is ‘How does the ECHR balance the right of parents for non-interference with their private and family life with the best interests of the child, where children are taken into alternative care?’. Being a complex and sensitive issue, the means by which the ECHR chooses to do so are detailed and acute. However, as the law of the ECtHR is dynamic and ever-evolving, the approach to this issue is also done in a case by case manner. Each case reviewed will not only depend on the specifics of that situation, but also on the changing political environment, new emerging trends, and undoubtedly, the cultural background of the national jurisdiction.[14]

In order to answer the stated question, this paper has to analyse the ingredients of the balance between the rights. For the full understanding of the matter, it will begin from the explanation of the notion of ‘the best interests of the child’. The explanation has to be provided because the ECHR itself does not explicitly refer to this principle, but yet applies this notion in the most cases concerning the interests of children. Further, the scope of the margin of the appreciation should be examined in order to analyse how much discretion States actually have in the given matter. The way in which the Court will resolves the cases brought before it will mainly depend on the margin of appreciation. Positive and negative obligations of the States will then be discussed. These obligations are crucial in the analysis of the balance between the corresponding rights as the State authorities will only be able to strike a fair and reasonable balance of the rights if they fulfil their obligations and duties. In the final section, the application of the principles established by the court to the case law will be illustrated.  In order for this analysis to be made the case law will be examined, as well as the impact of legal academics on the Court’s decisions.

2.     The Best Interests of the Child

The principle of the best interests of the child is not explicitly expressed in the Convention, however it has been given a considerable weight in the Court’s jurisprudence due to the fact that it is clearly defined in the in the Convention of the Rights of the Child (herein “CRC”), which is one of the official legal sources of the court.[15] It has been stated in the CRC 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.”.[16] This doctrine has been followed by the Court in numerous instances , concerning not only child care cases, but every aspect involving the interests of a child under Article 8.

3.     Margin of appreciation

The doctrine of ‘margin of appreciation’ generally allows the States to act to such a degree that the Court will not interfere with.[17]  It determines the level of the discretion in legislative, administrative or judicial acts given to the state by the Convention and the Court.[18] As Ursula Kilkely, international children’s rights scholar , said : ‘the scope of the margin will vary depending on the circumstances, subject matter, background to the issue as well as presence or absence of common ground among convention states’[19]. Specifically, in assessing the scope of the margin of appreciation given to the state in childcare cases, the Court will normally differentiate between violations which resulted due to the state’s acts and those arising from the acts of individuals.[20] Case law illustrates that a wide margin of appreciation is usually allowed in proceedings related to the childcare.

Case of Olsson v Sweden laid foundation for the wide scope of margin of appreciation in the given matter. In this case the parents were prohibited to remove their children from the foster home, what allegedly violated Article 8 of the Convention. The Court held that there was no violation as the Government did not exceed its wide margin of appreciation.  It was established that by virtue of the sensitivity of the issue, national authorities have a closer and more direct contact with the parents and a child, and they are in a better position than an international judge to assess all the circumstances of the case and make a decision on such matters.[21] Due to the wide margin of appreciation, the Court can only review the decision of the authorities to see whether the provisions of the Convention were complied with or not.[22] In resolving the issue, the Court will examine if the reasons adduced to justify whether an interference was ‘relevant and sufficient’[23]. In order to assess this the Court has to ensure that the national authorities applied the legal instrument which was in accordance with the convention and that they based their decision on a sufficient examination of the relevant facts.[24]

Despite the given scope of margin of appreciation, “restrictions placed by the domestic authorities on parental rights of access call for strict scrutiny as they entail the danger that the family relations between a young child and a parent will be effectively curtailed”[25]. Therefore, it should be noted that even though Strasbourg allows a wide margin of appreciation in childcare cases, in order to safeguard a proper balance between the rights, the review of the acts taken by the national authorities will be very strict and rigorous. The Court will assess whether the State authorities based their decision of taking child into alternative care on the properly balanced interests.  

4.     Positive and Negative obligations of the state

The essential element of Article 8 is to protect the individuals from arbitrarily interference with their private and family life.[26] This negative obligation prohibits any interference of state into the private lives.  However, the case law expanded state’s obligations beyond purely negative ones.[27] In the Court’s decision on X and Y v Netherlands it was stated that the positive obligations of the State ‘may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves’[28].  Thus, the state is obliged to interfere into the private rights of some individuals to secure the enjoyment of Convention rights by the other individuals. [29] 

Child care cases give a rise to a number of complex issues in relation to the positive and negative obligations of the state. In such cases ‘opposing positive obligations can give a rise to corresponding negative obligations’[30]. Hence, the obligation of the state to ‘protect children and other vulnerable individuals’[31] will necessarily contradict the parents’ right to private and family life. In such cases a fair balance should be struck between these rights.[32] The Court repeatedly stated in its case law, and notably in case of Elsholz v.Germany that ‘particular importance must be attached to the best interests of the child, which depending on their nature and seriousness, may override those of the parent’[33].

Due to the state’s wide margin of appreciation, the Court’s case law does not particularly specify the positive and negative obligations of the State in cases of child care proceedings. However, by analysing the judgements, it can be seen that positive obligations arise in a number of occasions. First of all, the state will have a positive obligation to assure the reunification of the family. The most important and fundamental principle established by the Court, is that the measure of taking a child into alternative care should be temporary and terminated as soon as circumstances permit doing so.[34] The Court stated in Olsson v. Sweden that ‘any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child’[35]. The development of the Court’s case law eventually added another positive obligation to this principle. With the aim of reuniting families as central, the state is obligated to provide a minimum standard of care by periodically examining if the family’s situation has improved and to assess whether the reunification can become possible in due time. [36] If the national authorities fail to fulfil this obligation, ‘the possibilities of reunification will be progressively diminished and eventually destroyed’, especially if the parent/s and the children are not able to preserve the natural bond between them.[37] This positive obligation imposed by the Court is one of the tools to balance the rights of the parents for non-interference with their private and family life with the best interests of the child. As it can be seen the result of weighing of these interests should be the best outcome for both, child and parents and the family should be reunited.

Second, the Court’s case law shows that the other very important positive obligation of the State is to take into account the possibility of imposing less radical alternatives. [38] In most cases, if this principle is not respected, the court will find a violation of Article 8. In the K & T case the mother had a history of severe psychotic mental illness and as a result, one of her children was taken into the father’s care. The mother voluntarily placed the younger child into residential care while she was pregnant with a third child. However, due to her mental illness, within the hours of birth, the new-born was also placed into residential care. The Court stated that emergency care orders are not prohibited but ‘the state authorities had to show that a careful assessment of the impact of the proposed care measure on the parents and the children’ as well as to illustrate their attempts at less radical alternatives. In this particular case, the Court deemed that there was no legitimate evidence that the viable alternatives to the transfer of the child were considered. Thus, the national authorities failed to strike a fair balance between the interests of the mother and the child and Article 8 was violated.[39]

Third, the convention imposes the positive obligation on the State to involve parents into any decision concerning their children. The Court does not specify the degree of the involvement required, due to the state’s wide margin of appreciation on the matter.[40] However, the Court asserted that parents should be involved to a ‘sufficient degree’ allowing them to protect their rights and interests as far as possible.[41] Sufficient involvement of the parents into any type of care proceedings is not only implicit in the Convention case law, but also is supported by the Convention on the Rights of Child[42], which was given a considerable weight in the Court’s case law .[43]The CRC states that participation of the parents is indispensable for the protection of the respect for family life. [44] Further, it is implied into the CRC that both parents should be given a chance to participate, notwithstanding the fact that one of the parents is not a resident of the same country as child or if the parent was not a primary carer. [45]This approach to the positive obligations was taken in the case of Elsholz v. Germany. The facts of the cases stated that the child expressed unwillingness to see his father. However, the Court established that the state authorities owe a duty to the parents make a psychological examination of the child and to involve the father to a sufficient degree allowing him to protect his interests. In this case, the state did not fulfil its obligation and instead, the state authorities decided that the interests of the child outweighed those of the parent. As such, they did not balance the opposing interests, which inevitably led to the violation of the Article 8.[46]

The Convention had first established only negative obligations which mainly aimed at the protection of parental interests in childcare cases. However, with the development of the case law and emergence of new principles and trends, the Court found this to be insufficient in keeping in line with the current social climate. As such, there was a need to balance corresponding interests, and this was achieved by enshrining positive obligations. Hence, the main aim of the balancing is not to protect individual parental interests or individual interests of the child, but to preserve and maintain the family as a whole. Instead of protecting the right to a private and family life of the parents under Article 8 ECHR and the best interests of the child separately, the court focuses on the right to a ‘family life’ of the both parties involved.

5.     The Application of the Principles in the Court’s Jurisprudence  

In the last part of this paper the circumstances in which the Court finds a violation of Article 8 and those in which situation the violation was not established will be analysed. The crucial step in balancing the rights of the parent and the best interests of the child under Article 8 of the Convention, is establishing if the interference had a legitimate aim and whether the action was proportionate to this legitimate aim; in other words, whether it was necessary in the democratic society[47]. Due to the wide margin of appreciation, the court will usually examine only the procedural aspects, for example whether the authorities examined less intrusive means.

For example, in the case of B. v Romania, the applicant, a mother of two minor children, had been diagnosed with schizophrenia. She was taken to a psychiatric institution on several occasions. Due to the mother’s illness, the children were taken into the alternative care. The Court found a violation of Article 8 of the Convention as the mother was not sufficiently involved into the decision-making process. In particular, the applicant was not assigned to a lawyer or guardian in order to represent her during the proceedings. In addition, there was no regular contact between the mother and social workers to examine whether the family situation had changed. The court ruled that the mother’s interests were not adequately protected and the proportionality of the measure to the legitimate aim pursued could not be established. [48]  On the contrary, in the case of T. v the Czech Republic the court did not find a violation in respect to the decision of the authorities to take a child into alternative care. The psychological report of the child recommended to keep the daughter of the applicant in the alternative care unless she wished otherwise. It was established that the personality of the applicant ‘represented a serious and insurmountable obstacle to his being granted residence rights in respect of his daughter.’[49]. Hence, the interference with the rights was proportionate to the legitimate aim pursued. Thus it can be seen that due to the wide margin of appreciation the way in which the ECHR will strike a balance between the rights will highly depend on the actions of the authorities. In these two similar cases discussed above, the Court found a violation in the case where the State authorities did not sufficiently involve the parent into the decision-making. On the other hand, in the latter case, the Court established that as long as the State authorities complied with all obligations, there was no violation.

6.     Conclusion

 In conclusion, this paper aimed at assessing the way the ECHR balances the rights afforded by Article 8 to the parents, with the best interests of child in the cases where the child is taken into the alternative care. It was established that the due to the sensitivity of the issue, the Court allows a wide margin of appreciation to the State. Thus, the national authorities have a discretion over the acts and the Court will only assess if they complied with the positive obligations imposed on them. These positive obligations, demonstrated in the case law include numerous principles which were established in order to strike a fair balance between these rights. The most important one is that the best interests of the child should always be of a paramount importance under any circumstance. Furthermore, one of the fundamental obligations of the State is promoting and assuring the unification of the family; this has to be done by regular examinations of whether the situation has changed and the reunification can be possible. In addition, the radical decision of the state authorities should be an ultima ratio, and all the less intrusive means should be examined as well. The last positive obligation examined in this paper is a duty to sufficiently involve the parents into the decision making. The final part analyzed the application of these principles in practice. It was established that in two cases with similar facts, the Court found a violation in the case where the authorities did not manage to strike a fair balance between the rights as they did not involve the parent in the decision making. While in the other case Article 8 of the Convention was not violated due to the fact that the national authorities followed the rules established in the case law of the Court.

Thus, to answer the question, it should be concluded that the way in which the ECHR will balance the rights of the parents and the child will highly depend on the state authorities’ compliance with the principles established by the court. The Court is of an opinion, that as a wide margin of appreciation is allowed, the state authorities are capable of striking a fair balance, as long as the fundamental principles are complied with. Thus, analyzing these principles it can be seen that the court does not consider it appropriate to prioritize one right over the other, but the rights of the family as a whole are of primary importance. 


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