The ECtHR on Parental Authority and Contact aft er Separation: Towards a More Child-Centred Perspective?

Summary

ABSTRACT

Even though the European Convention on Human Rights (ECHR) does not specifically mention children's rights, children benefit from the rights it provides based on Article 1 ECHR and are able to lodge an application with the European Court of Human Rights (ECtHR). Throughout the years, the ECtHR has increasingly promoted children’'s rights in its case law. Even when complaints reach the Court that are situated in the sphere of parental separation, in which the child was not a direct party to the dispute at the domestic level, the Court refers to the child's best interests concept, the child's right to maintain contact with both parents and the child's right to be heard in its case law under Article 8 ECHR. This contribution will comprehensively examine the Court's interpretation of the relevant children's rights that arise during legal discussions regarding parental authority and contact when parents separate. As will be shown below, the Court evidently offers some clear and definite guidelines to the interpretation of children's rights in cases of parental authority and contact. The overview given is useful for practitioners when they are confronted with complex and sensitive situations which might lead to a neglect of the rights of the children involved. It could also guide policymakers and legal researchers in their normative quest to enhance children's rights.

However, despite the efforts the Court has made to acknowledge children's rights in these disputes, several barriers exist that hinder a meaningful inclusion of the child's perspective in the cases that reach the Court. Children's autonomous access to the Court is limited, and this lack of access is worsened as in most countries this is also the case on the domestic level. Secondly, the Court's subsidiary role and the resulting doctrine of the margin of appreciation has contributed to the award of significant discretion to the state in deciding on these issues, while interpreting and implementing the children's rights relevant to the case. The lack of child applicants and the subsidiarity principle reveal the limits of the competence of the Court to safeguard children's rights, as the case law of the Court remains thoroughly parent-applicant-centred. Nevertheless, in 2019 judges of the Court increasingly acknowledged these problems and have tentatively started the debate to seek the most appropriate solution to adopt a more child-centred perspective.