Separation of the Child from Parents and Alternative Care in the Jurisprudence of the European Court of Human Rights
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Abstract
The legal relation between the individual, state and family has always reflected ideological, social and cultural tendencies of society. The limits of State intervention into the family had been for a long time undefined, and their scope in each case was exceptionally determined by the demand and will of the State. Not so long ago the necessity to protect the unity of the family, as the identity basis of the comprising individuals, was embodied in the universally recognized standards of human rights.
It is obvious enough, that children suffer most from the consequences of the State intervention in to the family life. In the years of early childhood, the family relations are especially important, as they determine not only the physical development of the child, but also assure the realization of his rights. The article analyses a “classical” case of the State intervention into the family life: the separation of the child from parents and the alternative care measures that follow afterwards. The author admits that the search for the allied criteria of such an intervention is unpromising and focuses on the most effective international mechanism of the protection of human rights, i.e. the case - law developed by the European Court of Human Rights and the Commission of Human Rights in hearing the cases, where the human rights, established in the European Convention on Human Rights and Fundamental Freedoms, are violated. The analysis attempts at clarifying the human rights standards that are implied in the Convention principle of proportionality or the principle of balance between society’s interests and those of the individual. These standarts hang on the rule, that family life between parents and children, protected in the article 8 of the Convention, does not cease in the event of removal of children from the family home and their replacement with alternative carers. They concern the basis for the child's removal from the home, the implementation of the care order, the importance of the continuing contact with the child's family while in care as well as facilitating the child's return once a care order is no longer necessary. In addition, cociderable procedural safeguards have been found to be implicit in article 8 in this area, which have become an important part of the right to respect for family life under the Convention. The aviability of remedies for injuries and harm, suffered as a result of care authoritie's action or inaction was discussed in the light of the recent Court decision in the case of Z and Others v. the United Kingdom.
The author believes that the conclusions drawn may contribute to the improvement of the national legislation, its interpretation and application.
It is obvious enough, that children suffer most from the consequences of the State intervention in to the family life. In the years of early childhood, the family relations are especially important, as they determine not only the physical development of the child, but also assure the realization of his rights. The article analyses a “classical” case of the State intervention into the family life: the separation of the child from parents and the alternative care measures that follow afterwards. The author admits that the search for the allied criteria of such an intervention is unpromising and focuses on the most effective international mechanism of the protection of human rights, i.e. the case - law developed by the European Court of Human Rights and the Commission of Human Rights in hearing the cases, where the human rights, established in the European Convention on Human Rights and Fundamental Freedoms, are violated. The analysis attempts at clarifying the human rights standards that are implied in the Convention principle of proportionality or the principle of balance between society’s interests and those of the individual. These standarts hang on the rule, that family life between parents and children, protected in the article 8 of the Convention, does not cease in the event of removal of children from the family home and their replacement with alternative carers. They concern the basis for the child's removal from the home, the implementation of the care order, the importance of the continuing contact with the child's family while in care as well as facilitating the child's return once a care order is no longer necessary. In addition, cociderable procedural safeguards have been found to be implicit in article 8 in this area, which have become an important part of the right to respect for family life under the Convention. The aviability of remedies for injuries and harm, suffered as a result of care authoritie's action or inaction was discussed in the light of the recent Court decision in the case of Z and Others v. the United Kingdom.
The author believes that the conclusions drawn may contribute to the improvement of the national legislation, its interpretation and application.
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Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
