Abstract
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Societies have long accepted, morally, legally and politically, that parents can give up their children to be raised by others, and even adopted by others, i.e. de jure and de facto responsibility for a child is transferred from birth parent(s) to another adult(s). Reasons for this have often been poverty, health issues, moral shame (e.g. for children born out of wedlock), work obligations (such as parents leaving their children with others to work in other countries for years). Family members would care for the children, and without the State or anyone else being involved in transferring formal authority. Children were rarely heard in these situations.
The parent’s freedom and authority to give up their child for adoption is in most countries a simple procedure demanding consent from parent(s) with parental rights and, beyond a certain age, from the child. The cultural acceptance of voluntary adoptions probably varies, indicated by the fact that this only happens rarely in some countries and more often in others, and some countries even have adoptions as a topic for their TV shows, for instance “16 and pregnant” (US) and “Find me a family” (UK).
When the State interferes with parents’ freedom and authority in child protection situations, as the State does when parental rights are limited or terminated due to the interests of the child, the situation and the discussion revolves around the moral, political and legal justification of the intervention. The State has an obligation to protect children’s rights, and must intervene if there is evidence of child abuse or neglect. The UN Convention of the Rights of the Child (CRC), ratified by all States in the world except the USA and Somalia, prohibits the involuntary separation of children from their parents, unless it is determined to be necessary for the best interests of the child (CRC Art. 9(1)). In Europe, many million children have been removed from their parents due to abuse and neglect, and many of them will live most of their childhood in public care. Although the CRC does not contain a specific right to respect for family life, it is strongly premised on the view that child’s rights are best secured in the context of family life. In this presentation, we examine the understanding of “family life” for children that have been removed from their birth parents in Europe.
The empirical material is all cases concerning children that have been adopted from care that have been decided by the European Court of Human Rights’ (the Court). Parents whose Human Rights may have been violated by the State can bring their case before the Court. We analyse how the Court approaches and understands the child’s right to family life.
Does the Court acknowledge children’s right to family life, and if so, how? Is the right to family life as prescribed in Art. 8 in the European Convention of Human Rights (ECHR) including children? We examine how the Court reasons when the family unit is dissolved by the state, what is meant by family life, and if children have an independent right to family life when the family unit the child is born into cannot provide for and raise the child.
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