Keeping Family together when everything falls apart
There is no denying the fact that children, particularly at a young age, require care, assistance and protection preferably by their entrusted carers, be they their parents or legal guardians. However it is also true to say that at times this guidance is not forthcoming or cannot be exercised. Such circumstances may necessitate the timely intervention of competent authorities to ensure that the interests of young children are protected at all times.
The idea that society should respect the best interests of the child is considered fundamental in practically all cultures. Recourse to the Courts in matters concerning children is at times inevitable and indeed necessary by law. Cases of adoption, abduction, paternity suits and others relating to provisions for care, custody and access following a separation, divorce or the breakdown of a cohabitant relationship, to mention but a few, all generally require a ruling by the competent courts. In taking such decisions courts must primarily focus on the best interests of the particular child concerned.
The 'United Nations Convention on the Rights of the Child' affirms the principle that: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
Furthermore, as the wording of the Article implies the obligation to protect a child's best interest is imposed to all actions taken by state authorities and private institutions alike. Although there is no set definition of what constitutes the 'best interests of the child' this term generally refers to the assessment carried out by the courts in determining what kind of services, actions, and orders will best serve a child in addition to who is best suited to take care of them. In order to establish what constitutes 'best interests' a number of factors are generally considered related to the circumstances of the minor and the conditions and abilities of their potential carers. Indeed this doctrine of best interests of the child is used by most courts to determine a wide range of matters related to the well-being of a child.
Whilst there is no simple solution that can be deduced to tackle all child-welfare issues, from a legal perspective within Scotland it is certainly worth examining the approach taken by the European Court of Human Rights in balancing out the interests of parents and children.
While in the above-cited article the United Nations Convention on the Rights of the Child speaks of 'primary' consideration, in particular cases such as in certain family matters a child's best interests may indeed have to be the ' paramount' consideration. In fact although child laws differ from one country to another, the 'Child Paramountcy Principle' also known as the 'Welfare Principle' is embedded in most legal systems on an international scale. In terms of this rule, in matters concerning children, the best interests of the child must be regarded as the paramount consideration. According to this principle, while it is important to strike a balance between the interests of children and their parents, should there be a conflict between the two, the interests of children should prevail.
The European Court of Human Rights has reiterated this doctrine on a number of occasions stating that: "in judicial decisions where the rights under Article 8 of parents and those of a child are at stake, the child's rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must prevail" Article 8 of 'The European Convention on Human Rights' protects, inter alia, the right to respect for family and private life. Nevertheless, this right is not absolute. In fact although Article (2) states that there shall be no interference by a public authority with the exercise of this right, it further provides that such interference would be justified if certain conditions are fulfilled. Consequently in terms of this provision interference would be warranted if it is in accordance with the law, in pursuit of a legitimate aim, and necessary in a democratic society.
The notion of family life, for the purpose of the above-mentioned Article, is not restricted to marital relationships but may incorporate other de facto family relations such as parents living together out of wedlock. As a result, a child born out of such relationships becomes part of that family unit from the moment they are born. Undoubtedly the reciprocal enjoyment by parent and child of each other's company constitutes a fundamental element of family life, even if the relationship between the parents breaks down.
It thus follows that in certain scenarios the separation of family members may be tantamount to an interference with the right to respect for family life. However, this will not be the case where interference is justified in order to protect the interests of a child.
"Undoubtedly the enjoyment parent and child of each other's company constitutes a fundamental element of family life, even if the relationship between the parent breaks down"
In this regard the European Court of Human Rights has clearly stated that: 'a fair balance must be struck between the interests of the child and those of the parent and that in doing so particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development"
The wording of the above-cited judgment, which is also reaffirmed in other cases, is of particular importance since it refers both to a 'fair balance' and to 'the nature and seriousness' of the best interests of the child. This leads us to another important principle
- The principle of proportionality – which requires that any actions taken be propionate to the objectives they seek to achieve.
By applying this principle in the context of the right to respect for family life, any intervention by the competent authorities in the exercise of such right must be both proportionate and appropriate. What needs to be assessed is whether the measure which interferes with family life is proportionate to the aim of protecting the best interests of the child involved. Naturally the more extensive and severe the interference the stronger the reasons required to justify it.
Stronger reasons are needed to justify a prohibition on contact between a parent and a child than a restriction on such contact. In fact in the "Haase v Germany" case decided by the European Court of Human Rights in 2004, the court came to the conclusion that "taking suddenly six children from their respective schools, kindergarten and from home and placing them in unidentified foster homes, and forbidding all contact with the applicants, went beyond the exigencies of the situation and cannot be accepted as proportionate". Consequently the Court concluded that there had been a violation of Article 8 of the Convention. On the other hand, in another case which this time regarded the limitation of the right of access the court, in its assessment, held that: "In the light of the foregoing, and having regard to the assessment of the child's best interests made by the domestic courts, the Court is satisfied that the contested decisions were based on reasons which were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8. It considers that, when reducing the applicant's rights of access and awarding the parental authority to the child's mother, the national authorities acted within the margin of appreciation afforded to them in such matters"
Children have basic human rights just like adults. In family matters it is clear that, in protecting these rights, courts are faced with an incessant struggle to balance the interests of children and those of their parents. Evidently no two cases are the same and an individual examination of the merits of each case is essential in order to come to a decision which achieves the correct and proportionate balance between protecting a child's best interests and respecting the right to family life.