Chapter 4 - Introduction to the ECHR, the ECtHR and the Case Law Analysis

Summary

‘… the Court finds it important to reiterate that while its case-law requires children’s views to be taken into account, those views are not necessarily immutable and their objections, which must be given due weight, are not necessarily sufficient to override the parents’ interests …’

– ECtHR, K.B. v. Croatia (2017)

Introduction

At the epicentre of human rights in Europe is the European Convention on Human Rights (ECHR). The Convention is unique, in part due to its binding and expansive nature, but even more so because of the existence of the European Court of Human Rights (ECtHR). The Court provides an international forum where individuals may demand the protection of their rights. The judgments resulting from these applications subsequently set out the status quo of the rights relied upon. The unique nature of the Convention, the Court and its judgments requires further examination. This is even more the case as the ECtHR has introduced standards on child participation in family law proceedings. The quote above is just one example, taken from the comprehensive and innovative case law analysis which will be presented in the following chapters.

The existing literature on child participation in the case law of the ECtHR has left many questions unanswered, prompting the in-depth research in this volume. The aim of this case law analysis is to further clarify whether and how the ECtHR has interpreted the child’s right to participate in family law disputes in light of Articles 8 and 6 ECHR. In doing so, the standards imposed by the ECtHR regarding child participation are sought. These standards add to the European human rights framework and prescribe the manner in which European states should provide for child participation in their domestic family law proceedings. In order to evaluate how the international and European human rights framework of the child’s right to participate in family law proceedings can be aligned and strengthened, the ECtHR’s standards must be considered in addition to those set by the international and European instruments that were studied in Part I.