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The Best Interests Principle and The Evolution of International Human Rights Law
- Edited by Jens Scherpe, Aalborg University, Denmark, Stephen Gilmore, King's College London
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- Book:
- Family Matters
- Published by:
- Intersentia
- Published online:
- 20 April 2023
- Print publication:
- 22 September 2022, pp 801-816
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Summary
1. INTRODUCTION
Eekelaar’s work on children’s rights has, among other things, provided one of the keystone analyses of how the best interests principle and the right of children to be heard should interact. Much of this work was written when the UN Convention on the Rights of the Child (CRC) was in its infancy. His influential 1994 article ‘The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self-Determination’ considered how making decisions that accorded with children’s best interests might be reconciled with treating children as rights-holders. He proposed a ‘dynamic self-determinism’ model that envisaged scope for the child him/herself to determine those interests.
Since that work was written, the CRC has become an important international human rights treaty, influencing policy, practice and legal systems around the world. The monitoring body for the Convention – the Committee on the Rights of the Child – has developed a vast body of work elaborating on CRC principles, most notably its General Comments. In this chapter, we revisit Eekelaar’s model in light of modern developments in international human rights law, particularly concerning Articles 3 (best interests), 12 (the right to be heard and to have due weight accorded to views) and 5 (the principle of the evolving capacities of the child) of the UN Convention on the Rights of the Child. We draw, in particular, on developments in three areas – court decisions, child protection and the digital environment and youth justice – to illustrate contemporary issues in light of Eekelaar’s approach.
2. EEKELAAR’S THEORY OF ‘DYNAMIC SELF-DETERMINISM’
The CRC entered into force in 1991; it is the most ratified international human rights law treaty, pointing to the impressive levels of consensus about its core principles. The CRC enshrines an impressive breadth of rights, and four provisions have been identified by the Committee on the Rights of the Child as ‘general principles’ of the Convention, to guide its implementation in all areas.
The Child’s Right to Family Life: Shift ing Sands and Social Science
- Edited by Philip Czech, Lisa Heschl, Karin Lukas, Manfred Nowak, Gerd Oberleitner
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- Book:
- European Yearbook on Human Rights 2020
- Published by:
- Intersentia
- Published online:
- 11 February 2021
- Print publication:
- 01 December 2020, pp 79-96
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Summary
ABSTRACT
The right to family life has long been viewed as an important right in European human rights law. However, since children were traditionally not seen as independent rights-holders, the right to family life across Europe tended to be asserted by parents in relation to their children and was therefore predominantly seen as a right of parents. In the three decades since the adoption of the Convention on the Rights of the Child (CRC), the increasing emphasis on children's rights has seen the right to family life being viewed as having independent implications for children, bringing a child-centred emphasis to debates concerning issues such as formal recognition of family ties and contact with parents and siblings. However, the danger of a paternalistic approach remains. When combined with the best interests principle, the right to family life has the potential to be deployed as a smokescreen to advance the interests or preferences of adults. In such circumstances, social science scholarship on family life can enrich our understanding of the interplay between the right to family life and the best interests principle, but there are also dangers that it can be misused or even weaponised in legal processes. This contribution explores the evolution of the child's right to family life and the role that social science research can play in delineating the parameters of the right. It examines the benefits and risks associated with relying on social science research for that purpose, focusing particularly on the challenges faced by ‘new’ families who do not have the benefit of large-scale, longitudinal research concerning their family functioning.
INTRODUCTION
The right to family life has long been viewed as an important right in European human rights law scholarship. Article 8 of the European Convention on Human Rights (ECHR) recognises a right to respect for family life, and a large body of case law has expanded on both positive and negative obligations flowing from this right. The right to family life also appears in various guises in many national constitutions (to account for the various formulations, the umbrella term ‘right to family life’ is used here). However, since children were traditionally not seen as independent rights-holders, the right to family life across Europe tended to be asserted by parents in relation to their children and was therefore predominantly seen by courts as a right of parents rather than an independently held right of children.
one - Public rights and private schools: state accountability for violations of rights in education
- Edited by Sandra Fredman, University of Oxford Faculty of Law, Meghan Campbell, New College, University of Oxford, Helen Taylor, Balliol College, University of Oxford
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- Book:
- Human Rights and Equality in Education
- Published by:
- Bristol University Press
- Published online:
- 19 April 2022
- Print publication:
- 20 June 2018, pp 11-24
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Summary
Introduction
When we think of education and the human rights obligations of the state, we most often think of children having a right to education. This right is widely recognised in international law, as is the corresponding obligation on the state to vindicate it. Moreover, the right to education is the most commonly recognised right of children in national constitutions. Less attention tends to be paid to children's rights in education, such as the right to participate in decisions affecting them, the right to protection from harm, the right to dignified punishment and the right to religious freedom. While these rights are well recognised in international human rights law (most particularly the UN Convention on the Rights of the Child 1989 [CRC] and the European Convention on Human Rights 1950 [ECHR]), they are often not the subject of specific domestic law provisions setting out clear state responsibility for vindicating these rights in an educational setting.
Securing state accountability for vindicating the rights of children in education becomes particularly challenging in the context of private schools (whether fully private or some form of public–private partnership). In these schools, a private organisation is interposed between the rights-holder (the child) and the duty-bearer (the state). This poses the question of where responsibility lies if a child's rights are not vindicated. Can the state avoid being held accountable for a rights violation on the basis that a private actor is responsible for the act or omission involved – or does the state bear residual responsibility for ensuring that the rights of children in education are vindicated, regardless of the status of the school that they attend?
In essence, this was the question that confronted the European Court of Human Rights (ECtHR) in O’Keeffe v Ireland. While that case was focused on a violation of one specific right – namely, the right to freedom from inhuman and degrading treatment – its significance is much broader, and its central finding could, in principle, apply to any right held by children within the education system. The Grand Chamber's framing of the issue in terms of positive obligations and the taking of reasonable measures to prevent, detect and investigate rights violations provides a compelling framework for ensuring state accountability for rights violations in private schools.