Introduction

In the landmark judgment of M. and M. v. Croatia (2015) quoted above, the European Court of Human Rights (ECtHR) strongly condoned the complete lack of participation by the child in prolonged proceedings on custody. Unsurprisingly, whether the child can (or could) participate in proceedings is a primary question regarding child participation. However, the distinction between sufficient and insufficient participation is not always so clear-cut; it concerns not only whether participation occurred or not, but also the manner in which participation occurred. For example, should a child be able to speak to the judge directly or is a report by an expert sufficient? What about representation – does it matter who the representative is and how they represent the child? In essence, it examines how, when and which children should be able to participate in family law proceedings. This chapter addresses all the complaints, remarks and reasoning on (in)sufficient participation as the first theme in the case law analysis.

The complaints of applicants, arguments of governments and reasoning of the ECtHR on whether the child’s participation in the domestic family law proceedings was sufficient or insufficient will be discussed. As was discussed in Chapter 4, this structure allows for a complete understanding of the ECtHR’s reasoning on child participation in family law proceedings. Out of the 88 cases analysed in this research, a total of 46 addressed the (in)sufficient participation of the child. These 46 cases are discussed in this chapter. Following the separate analysis of the applicants’ complaints (see section 2), governments’ arguments (see section 3) and the ECtHR’s remarks and reasoning (see section 4), a concluding analysis is presented (see section 5). This chapter closes with a number of standards derived from the case law analysis for states (see section 6).

Introduction

In Part II of this book, the breadth of the European Court of Human Rights (ECtHR) case law analysis on child participation has been presented. At the start, the aim of the analysis was disclosed: to see which standards on child participation can be distilled from the ECtHR’s case law within the scope of Articles 8 and 6 of the European Convention on Human Rights (ECHR). This aim has undeniably been achieved as each of the four chapters concluded with a set of standards. These standards strengthen the European human rights framework concerning child participation in family law proceedings. In addition to the standards set, the case law analysis has shown the development of child participation as a topic within the Court’s case law. The comprehensive and systematic analysis, also considering how applicants and governments raise the topic, has provided further substance to these standards. The developments and standards have been explained and the internal alignment between case law has been sought. In this conclusion, the key findings from the chapters included in Part II will be brought together.

The conclusions are based on those drawn in each of the four chapters: (in) sufficient participation ( Chapter 5 ), the weight accorded to the child’s views ( Chapter 6 ), the maturity of the child ( Chapter 7 ) and ‘influence’ on the views of the child ( Chapter 8 ). These four chapters have addressed four key themes with regard to child participation. The first two – (in)sufficient participation and weight accorded to the child’s views – concern the two steps of child participation: the question of whether and how a child can participate, and subsequently how the views expressed are given weight. The latter two themes concern factors which could impact child participation – either in the question of participation itself or in the granting of weight.

Introduction

As the fountain of youth remains a myth, every person on the planet grows older with the passage of time. Someone’s age cannot be halted; the passing days add up to months and years. Adults grow old and children grow up. Growing up is the process through which children gradually achieve physical and mental maturity. As the European Court of Human Rights (ECtHR) eloquently phrased it in the quote above, as children mature, they become able to formulate their own opinions and, in family law proceedings, the courts should give due weight to their views and opinions. In the previous two chapters on (in)sufficient participation and the weight granted to children’s views, the child’s maturity has surfaced as a relevant factor. The importance of the child’s maturity also stems from the fact that it is the most common condition applied in international law and domestic law for child participation. It was therefore included in the coding framework for this analysis and rightfully so, as it is a common point of discussion in the case law studied.

In this chapter, the maturity of the child will be discussed both in relation to participation as well as for the weight to be attached to the child’s views. As shown in Figure 4.1 in Chapter 4, the theme of maturity overlaps with these two central themes. Whereas in Chapters 5 and 6 the focus was on the (in) sufficient participation and the weight accorded to a child’s views respectively, in this chapter the focus is on how the child’s maturity is considered as such, and how it functions as a factor in participation and due weight. In that sense, while some of the case law discussed has been included in the preceding chapters, this chapter also includes other case law and draws new conclusions and inferences.

Introduction

The child’s right to participate in family law proceedings is provided by multiple international and European human rights sources, as also recognized by the European Court of Human Rights (ECtHR) in the quote above. The cradle of the right to participate was the UN Convention on the Rights of the Child (UNCRC); subsequently in the European legal realm, the child’s right was mirrored in new binding instruments (the European Convention on the Exercise of Children’s Rights (ECECR) and the Charter of Fundamental Rights of the European Union (CFREU)) and soft law instruments (the Guidelines on Child-Friendly Justice (GCFJ) and the Recommendation on the participation of children). More interestingly, as Part II of this volume has shown, the child’s right to participation has also ‘come of age’ as a right under Article 8 of the European Convention of Human Rights (ECHR) through the case law of the ECtHR. These developments regarding the child’s right to participation over the past 30 years are an example of the ‘widening’ and ‘thickening’ of human rights. The adoption of new instruments, such as the ECECR and the CFREU, and the recognition of the right to participation in the case law of the ECtHR led to the ‘widening’ of the right at the international and regional levels. Through the widening, the right also thickens, as European states are now bound to provide for the child’s right to participation under multiple instruments. In other words, the accumulation of international and European human rights instruments addressing the child’s right to participate in family law proceedings has strengthened the right, but has also led to diverging interpretations of the right. The latter makes the comparison of these instruments an exciting endeavour.

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.

In this volume, eight types of proceedings have been defined: (1) custody proceedings; (2) access proceedings; (3) custody and access proceedings; (4) international child abduction proceedings; (5) care proceedings; (6) care and access proceedings; (7) parentage proceedings and (8) adoption proceedings. Each of the cases has been categorized into one of these types of proceedings, as shown below.

Introduction

Once a child has been given the opportunity to express his or her views in a family law proceeding, a court is tasked with deciding on the matter and, in doing so, must take into account the views of the children. In the process of child participation, giving due weight to the views of the child is the second step following the child’s participation or, more precisely, expression of views. The topic of according weight to the child’s views is equally important as the topic of (in)sufficient participation addressed in the previous chapter, even though it is a subsequent step. Without participation, according weight is not possible, but without according weight to the views of the child, participation is simply the expression of views, not being ‘heard’. As stipulated by Article 12 of the United Nations Convention on the Rights of the Child (UNCRC), due weight has to be given to the child’s views.

What is meant by ‘due weight’ and how should weight be accorded to a child’s views in family law proceedings? This chapter examines these questions within the European Court of Human Rights (ECtHR) case law. Various perspectives are addressed: the complaints applicants raise with regard to the weight granted to the child’s views; the manner in which governments stand by the decisions taken domestically; and the reasoning of the ECtHR regarding the weight accorded to children’s views. The latter is especially important in answering the question of whether and how due weight should be accorded to a child’s views in family law proceedings. Bundling together the ECtHR’s consideration of various cases, each with differing circumstances, provides the necessary information to determine the standards set by the Court. These standards will add to the international and European framework, and a clear and comprehensive understanding of them will assist in aligning and strengthening this framework.

Introduction

While the United Nations Convention on the Rights of the Child (UNCRC) is the beacon of children’s rights, in the past few decades the Council of Europe (CoE) and the European Union (EU) have also increasingly committed themselves to the topic. Within Europe, both have worked towards ‘building a pan-European space fit for children’ by further strengthening children’s rights. In doing so, children’s rights have seeped into the European human rights framework. Nowadays, a myriad of European human rights instruments address children’s participation. Most of these are new instruments, either drafted specifically to address children’s rights (for example, the European Convention on the Exercise of Children’s Rights, as the quote above shows) or more general human rights instruments which include children’s rights (for example, the Charter of Fundamental Rights of the European Union (CFREU)). Many of the 47 Council of Europe Member States are bound to one or more of these new instruments in addition to the UNCRC, as we have seen in Chapter 1, Figure 1.1.

In this chapter, four of the five European human rights instruments which address child participation in family law proceedings are studied: the European Convention on the Exercise of Children’s Rights (ECECR), the Guidelines on Child-Friendly Justice (GCFJ), the Recommendation on the participation of children and the CFREU. The aim is to determine the standards set by these instruments regarding children’s right to participation in family law proceedings in Europe. These four instruments add to the core instruments: the UNCRC, as discussed in the previous chapter, and the ECHR with the case law of the ECtHR, as will be discussed in depth in Part II.

Introduction

The United Nations Convention on the Rights of the Child (UNCRC) is for most children an invisible presence – a piece of paper with text that will likely not be understood. In fact, for many adults, the Convention will also be a blur of legalese. However, unbeknownst to most, the UNCRC has been the catalyst for the expansion and implementation of children’s rights. More specifically, it has set in motion the existence and acceptance of the child as a legal subject, and Article 12 UNCRC is the cornerstone for the child’s right to participate. As a children’s rights instrument, the UNCRC is unparalleled, because of its international reach, being almost universally binding, and the broad scope of children’s rights it provides.

In the quest to determine, align and strengthen the international and European human rights framework for the child’s right to participate in family law proceedings, Article 12 and the UNCRC as a whole form the starting point. It is not possible to fully grasp the framework without first conducting a deep dive into the UNCRC. And this chapter will provide an in-depth study of this because, as the UN Committee on the Rights of the Child (CRC Committee) rightfully expressed in the quote above, there is much to be said about Article 12 and how to implement it.

In this chapter, the first step is to set out the international and European human rights framework for the child’s right to participate and to determine how this framework can be aligned and strengthened: the UNCRC and Article 12 in particular are put through the x-ray machine. In doing so, the different aspects making up the right to participation will be lit up, as bones in the body. In addition, other UNCRC rights of relevance to the understanding and implementation of Article 12 will also be discussed, as the joints which allow our bones to connect and move.

Introduction

In the past few decades, child participation has developed at a significant rate. Children’s right to step out of the silence and use their voice to express their views has, since the introduction of the United Nations Convention on the Rights of the Child (UNCRC), found its way into multiple European human rights instruments and the case law of the European Court of Human Rights (ECtHR). Increasingly society has accepted the Dr Seuss saying ‘a person’s a person, no matter how small!’ Children’s rights have made their way to the centre stage and European states have actively pursued the ratification of children’s rights instruments concerning child participation. The increased attention for the child’s right to participate in family law proceedings has led to the proliferation of instruments addressing this right.

In this volume, the widening and thickening of the child’s right to participate has been addressed. The aim has been to study the standards of child participation in family law proceedings applicable to European states and to determine how the framework can be aligned and strengthened. Through legal doctrinal work in Part I, the UNCRC, the European Convention on the Exercise of Children’s Rights (ECECR), the Guidelines on Child-Friendly Justice (GCFJ), the 2012 Recommendation on the participation of children (Recommendation) and the Charter of Fundamental Rights of the European Union (CFREU) were analysed and in Part II, by means of the innovative method of qualitative content analysis (QCA), the case law of the ECtHR has been meticulously studied.

Introduction

A common concern with regard to child participation in family law proceedings is that children may be unduly influenced. In disputes following the separation or divorce of parents the worry exists that children, when asked to express their views, may get caught in the middle and be pressured by their parents to pick a side. In that regard, reference is made to a conflict of loyalties or even parental alienation syndrome. The existence of parental alienation syndrome is a contested topic in the field, but ‘parental alienation’ is a term used to refer broadly to ‘a child who has been influenced to reject one parent’. More nuanced, in the literature parental alienation is mentioned as a phenomenon by which ‘the child becomes hostile to one parent while strongly allying with the other parent, with alienation implying that the aligned parent intentionally created a wedge between the child and her or his other parent’. Parental alienation, in that sense, may be seen as an extreme form of influence.

The question of ‘influenced’ views is one that appears in the case law. The quote above shows one example in which a parent who did not benefit from the child’s participation in the proceedings claimed that the child’s views were influenced or ‘manipulated’ by the other parent. This applicant does not stand alone, as we will see in this chapter, and governments and the European Court of Human Rights (ECtHR) also discuss influence. In that regard, the topics of loyalty conflicts and parental alienation are also raised – by parents, governments and the ECtHR. It is important to note the relationship between the topic of influence and the topics that were at the centre of the previous chapters.