1. Introduction
1. The motion for a resolution entitled “Human rights
and family courts” (
Doc.
11742) was referred for report to the Committee on Legal Affairs
and Human Rights on 28 September 2009. On 16 November 2009, the committee
appointed Mr Paul Rowen (United Kingdom, ALDE) rapporteur. Following
Mr Rowen’s departure from the Parliamentary Assembly, the committee
appointed me as rapporteur at its meeting on 8 March 2011 and decided
to request the Bureau for an extension of the reference until 30
June 2012, which the Bureau agreed to on 15 April 2011.
2. On 21 May 2012, the committee held an exchange of views with
the participation of:
- Professor
Judith Masson, Professor of Socio-legal Studies, University of Bristol
Law School (United Kingdom);
- Judge Daniel Pical, Chairperson of the European Section
of the International Association of Youth and Family Judges and
Magistrates, Honorary Chamber President at the Versailles Appeal
Court (France).
3. The above-mentioned motion for a resolution focuses on the
protection of children as an integral part of the protection of
human rights. Children are especially vulnerable and those who are
tasked with protecting them need to be accountable for their actions
and need to operate in a way which protects the human rights of all
the people they are dealing with, including the parents’ rights.
Proceedings before family courts may give rise to issues not only
under Article 8 of the European Convention on Human Rights (ETS
No. 5, “the Convention”) guaranteeing the right to respect for private
and family life, but also under Article 6 (right to a fair trial)
and Article 13 (right to an effective remedy).
4. The motion for a resolution points out some worrying recent
examples concerning the operation of family courts in Croatia, Portugal
and the United Kingdom and calls for a thorough inquiry into the
situation in these member States of the Council of Europe. It recalls
the 2008 judgment of the European Court of Human Rights (“the Court”)
in the case of
X. v. Croatia,
finding a violation
of Article 8 of the Convention on account of the applicant’s exclusion
from the proceedings, which resulted in her daughter being adopted.
Moreover, the motion for a resolution expresses concerns about possible
violations of Articles 6, 8 and 13 of the Convention by the United
Kingdom in cases relating to proceedings before family courts and
about the Portuguese system of “forcible” adoption, under which
children may be placed for adoption against the will of their parents. Moreover,
as some recent studies show, too many children are separated from
their natural families and placed in care. For instance, according
to UNICEF, the number of children in residential care in central
and eastern Europe and the Commonwealth of Independent States is
the highest in the world, with more than 626 000 children placed
in care in the 22 countries from this region,
and the rate for children in formal
care is increasing.
But the situation in Western Europe is
not perfect, either; for instance, in France, out of 15 million children,
almost 148 000 do not live with their natural parents. Amongst the
latter, 48 600 are in residential care.
In England, the number of children
referred into care has recently increased.
5. This report will therefore examine the functioning of family
justice systems from a human rights perspective in these countries.
A reminder of the existing international legal standards concerning
children’s rights and a closer look at the case law of the European
Court of Human Rights over the last two decades concerning the adoption
and placing into care of children is helpful in identifying any
shortcomings in this area. Examples from other member States are
also taken into consideration. As regards concerns about the operation
of family courts in my home country, which were at the origin of
the above-mentioned motion for a resolution, I will base my work
on the valuable contribution made by Professor Masson at the hearing
which the committee organised in May 2012.
2. Children’s
rights in international legal documents
2.1. The Convention
on the Rights of the Child
6. Like all human beings, children enjoy
human rights as guaranteed in
international treaties. However, as children are particularly vulnerable,
a number of rights have been added or reinforced in their respect
in the United Nations Convention on the Rights of the Child, adopted
in New York on 20 November 1989 (“the CRC”).
The CRC has been ratified by almost
all States (except Somalia and the United States).
7. The obligations under the CRC are of a rather general nature
and require implementation measures (legislative, administrative
and other) at the national level. Whilst the CRC imposes on the
States parties the obligation to recognise various rights of the
child, it also obliges them to respect the rights and duties of
parents (Article 5). Separation of children from their natural parents
should be an exceptional measure. According to Article 20, a child
temporarily or permanently deprived of his of her family environment,
or who in his or her own best interest cannot be allowed to remain
in that environment, shall be entitled to special protection and assistance
provided by the State (paragraph 1) and ensured alternative care
(paragraph 2). Adoption shall be carried out only if it is in the
best interest of the child, with the authorisation of the competent
authorities and with the relevant safeguards for the child and the
parents (Articles 9 and 21). The CRC reaffirms that parents have
joint primary responsibility for raising the child and that the
State shall support them in this by providing appropriate assistance
(Article 18). In particular, the States parties, in accordance with
national conditions and within their means, shall assist parents
in providing an adequate standard of living for their child and
– in case of need – even material assistance and support programmes
with regard to nutrition, clothing and housing (Article 27, paragraphs
1 and 3).
8. The CRC, and its Optional Protocol on the sale of children,
child prostitution and child pornography of 2000
contain several provisions related
to the move towards so-called “child-friendly justice”. This notion embraces
the idea that courts can be a powerful tool to positively shape
children’s lives and at the same time recognises the reality that
contact with the legal system is all too often a source of additional
trauma rather than a remedy for children.
Consequently, decision-makers should
develop policies that address the precarious situation of children
in the justice system. Some major principles concerning child-friendly
justice are included in the provisions of the CRC, in particular:
a. the best interest of the child
shall be a primary consideration (Article 3);
b. a child can be separated from his or her parents against
their will only if competent authorities subject to judicial review
determine that it is necessary for the best interests of the child
(Article 9);
c. a child capable of forming his or her own views shall
be able to express those views freely in all matters affecting him
or her, in particular in judicial and administrative proceedings
(Article 12);
d. States should take all appropriate measures to protect
the child from violence, injury or abuse, neglect or negligent treatment,
etc. (Article 19).
9. The provisions of Article 12 of the CRC on the right of the
child to be heard have been developed in the Committee on the Rights
of the Child’s General Comment No. 12 on the right of the child
to be heard, dated 1 July 2009.
The Committee stressed that: “A child
cannot be heard effectively where the environment is intimidating,
hostile, insensitive or inappropriate for her or his age. Proceedings
must be both accessible and child-appropriate. Particular attention
needs to be paid to the provision and delivery of child-friendly information,
adequate support for self-advocacy, appropriately trained staff,
design of court rooms, clothing of judges and lawyers, sight screens,
and separate waiting rooms.”
2.2. Council of Europe
activities in the area of child protection
10. Several initiatives aimed at promoting children’s
rights and child protection have been taken under the auspices of
the Council of Europe.
In particular,
the Council of Europe prompted the adoption of a number of conventions
in this field;
unfortunately, some of them have
been ratified by only a few member States (in particular the European
Convention on the Adoption of Children (revised) (CETS No. 202)
and
the European Convention on the Exercise of Children’s Rights (ETS
No. 160)).
The Committee of Ministers has adopted
a number of recommendations and resolutions on various aspects of
child welfare and protection,
including such issues as placement
and
parental responsibilities.
11. Several reports, resolutions and recommendations have been
adopted by the Assembly in the last few years on the rights of children,
and in particular regarding children witnessing domestic violence,
children in care, and guaranteeing the right to education for children
with illnesses or disabilities.
But it is not the purpose of this
report to describe all the Council of Europe’s activities relating
to child welfare.
12. The Council of Europe has also drawn up a number of rules
on child-friendly justice. On 17 November 2010, the Committee of
Ministers adopted its Guidelines on child-friendly justice,
referring to the Council of Europe
Programme “Building a Europe for and with children”. The Guidelines
are the first regional standards of their kind. They should apply
in any sphere – civil, administrative or criminal – and “are not
only a declaration of principles, but aspire to be a practical guide
for the implementation of internationally agreed and binding standards”
in proceedings both in and out of court.
They aim to ensure that in any proceedings
in which children are involved, all their rights (such as the right
to information, to representation, to participation and to protection)
are fully respected with due consideration for the child’s level
of maturity and understanding and for the circumstances of the case.
However, respecting children’s rights should not jeopardise the
rights of other parties involved (Part I. Scope and purpose). The
existence of the Guidelines should not prevent member States from
introducing or applying higher standards or more favourable measures.
13. From the perspective of family court proceedings, it is important
that the Guidelines underline that children’s best interests should
be a primary consideration in all matters involving or affecting
them (Part III.B.1. Best interests of the child, paragraph 1). They
also focus on the protection of children’s personal data (Part IV.A.2.
Protection of private life and family life, paragraphs 6-10); they
favour proceedings in camera: according to Section 9, “[w]henever
children are being heard or giving evidence in judicial or non-judicial
proceedings or other interventions, where appropriate, this should
preferably take place in camera”; and they promote a multidisciplinary
approach in dealing with children: co-operation between different
professionals, such as lawyers, psychologists, physicians, police,
immigration officials, social workers and mediators. The Guidelines also
stress the need for speediness and exceptional diligence in family
law cases, in order to avoid adverse and often irreparable consequences
on family relations (Part IV.D.4. Avoiding undue delay, paragraphs
50-53).
3. The right to respect
for family life (Article 8 of the Convention) in the case law of
the European Court of Human Rights
3.1. Issues related
to adoption and taking the child into care
14. Under Article 8 of the Convention, States have positive
obligations to reunite parents with their children. It results from
the case law of the Court that measures such as those aimed at permanently
depriving a parent of contact or custody should only be applied
in exceptional circumstances and could be justified only where they
are motivated by an overriding requirement pertaining to the child’s
best interests, as stated in the
Johansen
v. Norway judgment.
The
best interest of the child remains the main criterion for the Court, although
it is not mentioned in the European Convention on Human Rights.
The rights of children encompass two distinct elements: the right
to care within the family and the right to an adequate standard
of care.
15. Considering the potentially irreversible nature of decisions
taken by courts and other authorities in family matters, the Court
has also established that certain procedural rights are implicit
in the right to respect for family life under Article 8 of the Convention.
Parents and, where relevant, other family members must be involved
in any decision-making process concerning children to a degree sufficient
to provide them with a requisite protection of their interests.
Therefore,
the relevant authorities have to exercise exceptional diligence
where there is a danger that a procedural delay may cause irreversible
damage to the parties’ family life.
Since the obligations
stemming from Article 8 of the Convention include procedural obligations,
when examining procedural deficiencies in family law cases, the
Court refers to this provision rather than to that of Article 6
of the Convention, which provides for the right to a fair trial.
Article
8 is broader than Article 6 in family matters, because it includes
not only the judicial proceedings, but also decisions made before
a case is brought to a court and afterwards, when court orders are
implemented. In some cases, the Court has also found a violation of
Article 13 (right to an effective remedy) when the applicants could
not effectively appeal at the national level in cases concerning
their right to respect for family life.
16. Article 8 of the Convention covers substantive and procedural
issues relating to freeing for adoption and/or deprivation of parental
rights. On several occasions, the Court has dealt with deficiencies
in such proceedings: when the child was removed too quickly from
its natural parents,
when
adoption was decided too quickly or the child was placed too quickly
in a foster family,
when
the natural parents were not sufficiently involved in such proceedings
or adoption was decided without their consent,
when
the natural father lacked
locus standi in
the adoption proceedings,
or
when the proceedings concerning the natural parents’ access to a
child or its placement into public care were too lengthy.
However, the Court does not confer
any right to adoption,
although it
has found violations of Article 8 because of national courts’ shortcomings
in the course of adoption proceedings.
In
adoption cases, the Court must always strike a balance between the
rights of the natural and of the adoptive parents; the child’s ties
with his or her natural family can only be broken in exceptional
circumstances.
17. The Court has also examined numerous cases concerning children
taken into care,
assessing
the proportionality of measures taken by local authorities; when
the parents had not been sufficiently involved in the decision-making
process, the Court found violations of Article 8.
According to the Court, a decision
on taking the child into care does not put an end to natural family
relationships. The natural parents may retain a right of access
which forms part of family life and the State must take the necessary
measures to reunite the family by creating opportunities for parents
and children to meet and maintain or re-establish close relationships.
The Court clearly attaches a lot of importance
to the maintenance of contact between parents and children during
a child’s placement in care; restrictions imposed on such contacts
have to be proportionate to the need they serve.
3.2. Recent case law
of the Court concerning selected States parties to the Convention
3.2.1. Croatia
18. In the judgment
X. v.
Croatia, the Court criticised the use by the Croatian
authorities of mental incapacity to exclude a person from involvement
in her children’s future. In this case, the applicant's daughter
was given up for adoption without the applicant’s knowledge, consent
or participation in the adoption proceedings, despite the fact that
she had never been formally divested of her parental rights. The
applicant was denied the capacity to act on account of her mental
health difficulties and addiction problems. The Court took issue
with the government’s stance that all those divested of capacity
to act should automatically be denied the opportunity to take part
in adoption proceedings concerning their child and accordingly found
a violation of Article 8 of the Convention. It considered that the
applicant should have had the opportunity to be heard in those proceedings and
thus the possibility of expressing her views about the potential
adoption of her daughter.
This case is still pending
before the Committee of Ministers, which is supervising the implementation
of the judgment by Croatia.
19. The Court is currently examining a similar problem in the
case of
A.K. and L.K. v. Croatia,
in which the applicants
– a mother suffering from a mild mental disability and her son –
complain that their right to respect for their family life was violated
by divesting the first applicant of her parental rights in respect
of the second applicant and by putting the second applicant up for
adoption without the consent or even the knowledge of the first
applicant.
3.2.2. Portugal
20. In Portugal, there has been some evidence of arbitrariness
and even discrimination in the adoption process. In the case of
Salgueiero da Silva Mouta v. Portugal, it was held that
the Court of Appeal had based its decision to award parental responsibility
for the applicant’s daughter to his ex-wife exclusively on the basis of
the applicant’s sexual orientation as a homosexual. The Court found
a violation of Article 8 in conjunction with Article 14 of the Convention.
Following a wide dissemination of this judgment to the relevant
authorities and the re-examination of the question of the applicant’s
parental authority, the Committee of Ministers closed the supervision
of the execution of this judgment.
In two recent cases,
Santos Nunes v. Portugal and
Pontes v. Portugal,
the Court found violations
of Article 8. In the first case, the violation was due to a lack
of diligence on the part of the authorities, in particular the police,
responsible for enforcing the decision awarding the applicant custody
of his child, who had been placed in the care of another couple.
In the second case, one of the applicants’ children had been removed
from them and ultimately adopted and their parental authority withdrawn.
The Court found that the authorities had not taken measures enabling
the applicants to have regular contact with their son and that the
decision to place him for adoption was not based on relevant and
sufficient reasons (two violations of Article 8). On the other hand,
in the case of
Assunção Chaves v. Portugal, in which the applicant, a
Brazilian national, complained about the placement of his daughter
in an institution after her birth in a hospital and the forfeiture
of his parental rights, the Court did not find a violation of Article
8,
but only of his right of access to
a court (Article 6, paragraph 1), as the applicant had not been
duly informed about his procedural rights.
21. Considering the timing and the type of cases, it would be
premature to draw any far-reaching conclusions on the operation
of family courts in this country. Many other judgments delivered
by the Court against Portugal show some deficiencies and delays
in the functioning of the general justice system (violations of
Article 6); their implementation is closely monitored by the Committee
of Ministers.
The 2011 report by the French Ombudsman
mentions Portugal as an example of good practices, following the
publication of guidelines for persons working with children in residential
care.
Therefore, the problem of the
functioning of family courts would need to be assessed in this larger
context.
3.2.3. The United Kingdom
22. In a number of cases against the United Kingdom,
the Court found that State action lacked proportionality and was
therefore contrary to the provisions of the Convention. For instance,
problems caused by the irreversibility of adoption orders and the
failure of the authorities to adequately investigate alternatives to
removing a child from its parents at birth were highlighted for
particular criticism in the case of
P.,
C. and S. v. the United Kingdom. These
two issues led to a finding of a violation of Article 8 of the Convention.
Indeed a similar set of facts had resulted in the same outcome in
the case of
McMichael v. the United Kingdom seven years earlier.
23. Similarly, in the case of
A.D.
and O.D. v. the United Kingdom, the
Court found a violation of the right of the applicants (a mother
and son) to respect for their private and family life due to the
errors of local authority care services. The violation resulted
from the following facts: as the applicant’s new-born son suffered
from unexplained injuries, the applicant and her partner were relocated
to a family assessment centre for almost three months. Their child
had been placed in foster care for four months due to the lack of
a correct assessment by the local authorities and there had been
an unreasonable delay in returning him to his natural family once the
doctors established that he suffered from a rare bone disease. The
Court found that “while there were relevant and sufficient reasons
for the authorities to take protective measures, the subsequent
failings both extended and exacerbated the interference with the
applicants’ right to respect for their family life and were not proportionate
to the legitimate aim of protecting the applicants from harm”.
24. In the case of
R.K. and A.K. v.
the United Kingdom,
the
Court found a violation of Article 13 of the Convention because
the applicants did not have an effective remedy to establish the
local authority’s responsibility for the damage they suffered following
the placing of their daughter in short-term State care. Similarly,
in the case of the
T.P. and K.M. v. the
United Kingdom, the
Court found a violation of Article 13 because a mother, T.P., who
was not sufficiently involved in the decision-making process, was
left without adequate redress to challenge a decision concerning
the care of her daughter to the extent that she was considered to
have been denied access to an effective remedy. However, according
to the Committee of Ministers, which supervises the implementation
of Court judgments, this is no longer a problem following the entry
into force, on 2 February 2000, of the Human Rights Act.
25. The Court is currently examining another application from
a British national who has a significant learning disability and
who is complaining, under Article 8 of the Convention, about the
decision to take her daughter into local authority care and to place
her for adoption (
R.P. and Others v.
the United Kingdom).
The applicant also
complains under Article 6 of the Convention that, as a result of
the appointment of the Official Solicitor, she was prevented from
presenting her case before a court and challenging the facts submitted
by the local authority. In particular, she had no opportunity to
challenge the psychologist’s report.
3.2.4. Other States parties
to the Convention
26. Following a scrutiny of cases against other States
parties, it could be argued that the system of adoption/placement
in care might be deficient in terms of its compliance with the Convention
also in other member States, in particular in Germany and the Czech
Republic, concerning which some particularly shocking cases have
been reported.
27. In the case of
Görgülü v. Germany,
in which the mother
of the son of the applicant (the natural father) gave the latter
up for adoption without the applicant’s consent, the authorities
prevented the applicant from having access to and caring for his
son although his ability and willingness to do so were not in dispute.
The Court considered that the foster parents' rights were unjustifiably
given preference over those of the applicant. Consequently, the
Court found a violation of Article 8 of the Convention.
In the case of
Kutzner v. Germany,
the child was placed
in foster care because of the perceived intellectual shortcomings
of the parents, in breach of Article 8 of the Convention.
Both
cases were closed by the Committee of Ministers following the adoption of
individual and general measures. The case of
Haase
v. Germany concerned
the removal from the applicants of their children, including a new-born
daughter, in a decision-making process which did not meet the procedural
requirements of Article 8 of the Convention. The Committee of Ministers
closed the examination of this case following the re-establishment
of contacts between the applicants and their children.
Recently, the Court
also found violations of this article in two cases concerning the
refusal to grant the applicants (the fathers) access to their natural
children (
Anayo v. Germany and
Schneider v. Germany ).
28. In the Czech Republic, the case of
Wallowa
and Walla v. the Czech Republic reiterated the duty incumbent upon
local authorities to respect the right to family life. The applicants’
children were taken from them because of the poor living conditions
in the family home. There was no permanent living arrangement available
and the parents could not improve the situation because of their
financial situation (the father had no stable employment, the mother
was unemployed and they had not complied with the formalities which
would have entitled them to social benefits). The children were
separated from their parents for five years, and the two youngest
children were relocated in another family. The Court held that the
children were taken from their family because of material reasons,
and that the shortcomings of their accommodation should have been redressed
in a way other than by relocating the children. The couple should
have been informed in a timely manner about social security, the
availability of communal housing and other ways to improve the living conditions
of their family. The Court held that even though the social services’
concerns were relevant, the circumstances did not justify the interference
with Article 8. A similar set of circumstances led to the finding
of a violation of Article 8 in the case of
Havelka
and Others v. the Czech Republic.
Both cases are pending execution
before the Committee of Ministers.
4. Family courts in
Europe
4.1. The example of
the United Kingdom
29. Since the motion for a resolution focuses on the
functioning of the family courts in the United Kingdom, it is necessary
to have a closer look at this matter. Child protection issues in
this country are governed mainly by the 1989 Children Act.
30. As stated in the above-mentioned motion for a resolution,
some facts concerning the functioning of family courts in England
and Wales are worrying. It has been alleged that in numerous cases
in England and Wales the Official Solicitor, an organ of the State,
displaced a parent in proceedings which have led to the adoption of
their child or children. Mothers had their children taken away from
them because they were victims of domestic violence or on the basis
of medical evidence for which there had been no second opinion.
Some complaints referred also to the fact that England habitually
gave judgment in family proceedings without the judgment being made
public (which might be in conflict with Article 6 – there can be
an argument for keeping the identity of the persons secret, but
this does not apply to the reasoning of the court which it must
remain accountable for). Moreover, the motion for a resolution is
critical about the operating of Cafcass – the Children and Family
Court Advisory and Support Service –, which provides guardians
ad litem for cases of children in care
in England and Wales (Cafcass Cymru operates in Wales).
In 2008, Ofsted (Office
for Standards in Education) became the regulator for Cafcass and
since then it has issued reports on Cafcass.
31. As stressed by Professor Masson at the hearing in May 2012,
annual rates for child protection proceedings in England are approximately
3 per 1 000 children under the age of 16 and cases that reach courts are
by their nature exceptional. Of the children subject to court proceedings
for their protection, just under half become the subject of orders
through which parents share care with the State (“care orders”).
The others move to live with other family members or, more rarely,
remain with the parent who cared for them when the proceedings began.
Care
orders for placement with non-related carers and/or adoption plans
are only made where no such persons are available to care for the
child. The courts routinely consider contact arrangements for children
subject to care proceedings, not only during the course of those
proceedings but also when final orders are made; the requirement
to do so is set out in legislation.
Adoption plans are made for approximately a
quarter of children subject to care orders.
32. Concerning the Official Solicitor, which operates in England
and Wales, she or he is a public official and qualified lawyer who
only acts in cases where she or he is satisfied that the parent
lacks capacity, and routinely requires evidence from a consultant
psychiatrist to establish this. In any event, any compulsory child
protection intervention necessitates obtaining an order from the
family court.
33. According to Professor Masson, although domestic violence
remains a problem
which may lead
to compulsory child protection intervention,
contesting medical evidence
in such cases does not imply a “right to a second opinion” under
Article 8 of the Convention. Although decisions about the expert
evidence necessary to decide a case are formally a matter for the
judge, the parties have considerable influence on this through their
legal representatives. Such decisions can also be appealed. Over
90% of child protection cases in the courts in England involve evidence
from independent experts. The cost of expert witnesses for parents or
children is paid by the legal aid fund.
34. Between 2006 and 2010, the issue of
“court
transparency”, specifically media access to the courts and the publication
of judgments, was subject to government review and public debate
in England and Wales.
Although
some restrictions on press access to courts were removed, strict
reporting restrictions remain. Consequently, press attendance at
family courts is extremely rare and is generally limited to “celebrity”
cases. Press reporting does not provide an effective means of securing
transparency; uncontested evidence in family proceedings is not
given orally, only in writing, and cases are not heard continuously
but over a series of short hearings. The fact that there is no public
judgment does not mean that the reasons for the decision are not given
to the parties. All courts dealing with family cases give reasons
for their decisions. In the case of
B
and P v. the United Kingdom, the
Court held that the practice of holding some family proceedings
in chambers (thereby excluding the public and press) did not contravene
Article 6 of the Convention and that the nature of family proceedings
and particularly the privacy of children justified private hearings
in family cases.
35. As regards Cafcass officers in England and Wales,
they are accountable to the court
for their professional judgment in their cases, not to their employer.
They also provide welfare reports in disputes between parents in
the family courts. According to Professor Masson, given that Cafcass
provides welfare reports in only the more contentious cases, that
is in about 10% of cases, it should not be a surprise that it rarely
recommends that no order is necessary. In July 2011, the House of
Commons Justice Committee
strongly criticised Cafcass for
not focusing enough on the best interests of the children. It called
in particular for a change in its management, in order to allow
staff to spend more time with children.
36. The family courts and child protection practice in England
and Wales have been subject to a series of reviews over the last
few years.
Most recently, the Family Justice
Review panel produced a report in November 2011
and the ideas from the Professor
Eileen Munro Review into child protection
on strengthening social work skills
and practice are currently being implemented. The Family Justice
Review criticised in particular delays in proceedings before family
courts (in particular, cases concerning removal of children from
their families take over a year). Moreover, the government has announced
new legislation which will create a single family court in England
and Wales
and speed up the time
taken to process care cases in the courts.
4.2. General overview
37. As stressed by Professor Masson at the hearing, there
is no single model for delivering family justice in Europe; each
State makes its own arrangements for deciding cases relating to
family matters. A single family court may have jurisdiction over
all matters as will be the case in England and Wales when the Crime
and Courts Bill 2012 is enacted. But elsewhere in Europe it is common
for matters relating to children to be dealt with separately from
matters relating to family property, and for cases of child care
and child protection (which involve State agencies) to be dealt
with in administrative courts rather than civil or family courts.
Practices differ as to, for example, the representation of children,
providing specialist courts, allowing mothers to withhold their identity
and give children up for adoption anonymously, accountability of
those working with families (like State agencies), etc. As stressed
by Judge Pical at the hearing, the institution of
accouchement sous X, which allows a
mother to give birth anonymously, is an example of conflicting interests
between the natural mother, who would like to maintain her anonymity,
and the child, who would like to know his or her origins.
As it exists
only in a small number of member States of the Council of Europe,
it
is a clear example of a lack of common European denominator on this
issue.
The realities of adoption across
member States might be another example of the wide variety of systems.
As noted in the April 2011 issue paper by the Council of Europe Commissioner
for Human Rights, while in some countries adoption is a well-established
practice, in others it is still relatively unfamiliar. Some States
allow their children to be adopted abroad, while others do not.
38. Professor Masson also stressed that resort to compulsory measures
is the exception, used only in cases of child abuse and neglect.
Although policies and practices in Europe differ, the primary approach
in all States is, wherever possible, to seek parental co-operation
to secure the best possible care for children. As a consequence,
courts are only seized where voluntary measures have been, or are
considered to be, ineffective.
5. Conclusions
39. It is an unfortunate fact that there are parents
whose mental health or incapacity or other circumstances makes them
unable to provide adequate care for their children. In such cases,
child protection authorities have a duty under international and
domestic law to ensure adequate care for those children, bearing
in mind that they are most vulnerable at birth and in early infancy.
Adoption and placement in care are drastic measures in that they
lead to the separation of children from their parents; therefore,
these measures must be applied with due diligence, only as a last
resort, in conformity with Article 8 of the European Convention
on Human Rights as interpreted by the Court and the United Nations
Convention on the Rights of the Child. Institutional care should
be avoided as far as possible, as a family environment offers the
best conditions for the proper development and well-being of a child.
As stressed by the Commissioner for Human Rights, the current economic
crisis should not undermine the process of supporting children at
risk.
Given
the exorbitant cost of decent institutional care, practical help
for families in need, enabling them to care for their own children,
may well be not only more respectful of our families’ fundamental
role, but also cheaper than placing children in institutions.
40. Although the motion for a resolution stressed some problems
relating to the functioning of the family justice systems in Croatia,
Portugal and the United Kingdom, it would be too early to make general
critical conclusions on the operation of family courts in these
countries on the basis of examples from the case law of the Court,
which can provide only a fragmentary picture of the situation. The
case of the United Kingdom shows that it is very difficult to have
a clear picture of the overall functioning of family courts in a
country and that an objective assessment can only be made on the
basis of in-depth studies. Moreover, the overview of the Court’s case
law has shown that certain deficiencies may indeed exist not only
in the three above-mentioned member States, but also elsewhere.
In particular, some judgments delivered by the Court against Germany
and the Czech Republic illustrate alarming problems relating to
procedures concerning the placing of children in care or foster
families, against the will of one of or both of the natural parents.
41. The wide range of different approaches to family matters within
member States reflects the different histories, cultures and religious
traditions and that is why the Convention and the Court effectively
set only minimum standards for the protection of human rights in
this field. Whatever arrangements are made, decision-making processes
relating to “family life” must be compliant with Convention standards.
42. Taking into account the substantial work of Council of Europe
bodies in the field of child protection and child welfare, there
is no need to duplicate initiatives and activities. It is nevertheless
important to encourage member States to sign and/or ratify, if they
have not yet done so, the relevant conventions adopted under the Council
of Europe auspices in this field, and to promote and implement the
Committee of Ministers’ Guidelines on child-friendly justice.