Children – Our Primary Consideration

Children are the future of Europe.  We must cherish them and we also owe them binding obligations, whether or not they are European citizens.  All countries of the world, except the USA, are parties to the UN Convention on the Rights of the Child (UNCRC). The UNCRC obliges states to protect all children and secure their rights without discrimination. Fifteen of the twenty-eight MS of the EU have ratified Protocol 3 UNCRC, which permits complaints to be brought against them to the UNCRC Committee if they are alleged to have failed to honour those obligations. In addition the UNCRC is a part of EU law under Art 24 of the EU Charter of Fundamental Rights (CFR).

Children who have the Citizenship of an EU MS are Citizens of the Union with all the benefits that brings. Any child, of whatever nationality, who is affected by EU law, benefits from Art 24 CFR. All children, who are within the jurisdiction of all Council of Europe Member States, also enjoy the protection of the European Convention on Human Rights and in many cases of the European Charter of Social Rights.

At the heart of the protection guaranteed by the UNCRC and Art 24 of the EU Charter is the principle that in all decisions concerning children their best interests are to be a primary consideration- not just one of many other considerations but a primary consideration. No matter what their situation, children must be treated first and foremost as children and recognised as such. Sadly, many children in Europe are deprived of the full enjoyment of childhood. They may be unaccompanied or accompanied asylum seekers stuck in transit zones or inhospitable camps on the South East fringes of Europe. In too many cases they drown before they reach safety.  The EU’s Common European Asylum System has egregiously failed to meet their needs and rights, largely because of the intransigence of many MS.

Too many cases still come to the European Court of Human Rights, in which parents have neglected or abused children and the State has failed to step in as needed or has inappropriately stepped in when not needed. It has compounded its failure by denying them a remedy for its errors. Children, including orphans or those abandoned, who can no longer rely on their birth parents, for whatever reason, need to be found alternative care in either foster or adoptive homes. But in some European countries recourse to forced adoptions too frequently occurs. The Grand Chamber of the ECtHR is currently examining this phenomenon in the case of Strand Lobben v Norway.  Islam provides for a kafala system, a legal process similar to the adoption simple in many European countries, whereby the child acquires a new permanent family without the severance of the birth filiation links. The CJEU is currently considering whether such relationships are to be considered as akin to adoption for the purposes of the EU Citizens Directive.

Children are often relocated or excluded or deported as mere appendages of their parents, although the EU Citizens Directive gives them more protection. They can be separated from their parents by imprisonment. The necessary assessment of their best interests is too often absent, particularly in the indifferent management of adult prison sentences or of cross border prison transfers. EU Framework decision 2008/909 on the transfer of sentenced persons makes no mention of the best interests of the convicted person’s children, although art 24 CFR clearly applies. 

International parental child abduction is on the increase. Despite the clear requirements of the EU Regulation and the Hague Conventions, inordinate and damaging delays still occur in putting this right.  Art 12 UNCRC requires the child’s voice, and therefore interests, to be heard directly or through a representative in all such decision making, an obligation honoured more often in the breach than the observance. The absence of legal aid to facilitate hearing the child is a crucial factor. The success of the EU’s free movement system, along with the decline of the durability of marriages, has increased the number of cross border abductions (wrongful removals or wrongful retention) when the parental relationship breaks down.

Even more complex problems arise as a consequence of changing social attitudes and scientific advances. It is only a matter of time before the CJEU has to deal with the delicate question of the recognition in one MS of the parents on the birth register in another MS, as it recently did in relation to same sex marriages in the Coman case. The French Cour de Cassation has recently asked the ECtHR Grand Chamber for an Advisory Opinion concerning the birth registration of non-conventional parents. This is the first Advisory Opinion to be sought under Protocol 16 to the ECHR.

And all this is before we have even glimpsed the multifaceted and complex implications of Brexit for children.

Let us ensure that Europe looks after all its children better in 2019.

Nuala Mole, International Human Rights Lawyer, is the founder of The AIRE Centre, a London based charity providing free legal advice on European human rights law and European Union law.