H.A. and others v. Greece – restrictive acknowledgement of irregular migrant vulnerability

By Elina Todorov, PhD Candidate, Tampere University (Finland)

On 28. February 2019 the European Court of Human Rights (ECtHR) delivered a judgement concerning unaccompanied minors in an irregular situation, namely H.A. and others v. Greece.  In H.A. the Court found several violations of the Convention, in particular a partial violation of Article 3 regarding the living conditions of the applicants (prohibition of inhuman or degrading treatment), a violation of Article 13 (right to an effective remedy, taken together with Article 3) and also violations of Article 5 § 1 and 5 § 4 (right to liberty and security, right to a speedy decision on the lawfulness of a detention measure). The case stands well in line with the Court’s previous case law concerning irregular migration. In H.A., the Court regarded that the authorities’ conduct caused a situation in which the national authorities had not succeeded in protecting the applicants who were unaccompanied foreign minors in an irregular situation. In line with its established case law, the Court recognized that minors – or in other words children – in an irregular situation are to be regarded as a vulnerable group mainly due to the fact that they are children (rather than because they are irregular migrants). However, as will be argued in this blog post, the Court thereby failed to adequately recognize the vulnerability resulting from the applicants’ irregular residence status. Continue reading

FRÖHLICH V. GERMANY: (AB)USING THE CHILD’S BEST INTERESTS TO SAFEGUARD THOSE OF OTHERS

By Evelyn Merckx, teaching assistant and PhD-researcher at Ghent University

To many, the simultaneous reading of Mandet v. France and Fröhlich v. Germany proves to be a crucial inconsistency in the case-law of the ECtHR. In Mandet v. France, the paternity of a legal father was withdrawn in favour of the biological father, despite the eleven-years-old child’s opposition to having his paternity changed which became evident from the letters addressed to the domestic judge. Subsequently, the domestic judge remarked that the child’s best interests “ne se trouvait pas tant là où le troisième requérant le voyait” (“did not lie where the child saw them himself”). The judge figured that the child should know the truth about his origins (for more information: see here). In Fröhlich v. Germany, a similar factual context existed, but in this case, the child was informed about the fact that a man started proceedings for contact and information rights, but not that this claim originated in his belief that he was her biological father. In the end, the domestic judge dismissed the request of the father on the grounds that the child’s best interests were endangered because the marriage between her legal parents could fall apart if the biological paternity of Fröhlich were to be established. Both domestic judgments were condoned by the ECtHR. Continue reading

Justice from the Perspective of an Applicant: meeting Ms Neulinger

Simona Florescu, PhD fellow, Leiden Law School, the Child Law Department

In September I had the opportunity to meet the applicant in the Grand Chamber case Neulinger and Shuruk v Switzerland.[1] We had a lengthy 4 hours conversation about the ins and outs of her personal situation, the circumstances that led her to taking her son away from Israel to Switzerland and her experience with the European Court of Human Rights. Hence, in this contribution, I would like to share that experience and highlight some aspects which may be potentially interesting for the readership of this blog.

But first a brief reminder of the circumstances of the case. Continue reading

Zherdev v. Ukraine: Article 3 of the ECHR and Children’s Rights at the Stage of Police Interrogation

By Prof. Dr. Ton Liefaard, Professor of Children’s Rights / UNICEF Chair in Children’s Rights, Leiden Law School, Leiden University, The Netherlands[1]

The Zherdev v. Ukraine judgement of 27 April 2017 by the European Court of Human Rights (hereinafter: the Court) further augments the Court’s line of recognising the vulnerable position of children in police interrogation and custody. What is the impact of this recognition on the threshold to find a violation under Article 3 ECHR, and to what extent does the judgement reflect international legal standards relating to children in conflict with the law, and global concerns regarding police violence towards children?

This commentary begins with a brief overview of the relevant facts of the case. It then addresses the Court’s judgement, focusing on the allegations in relation to Article 3 and to a certain extent Article 6 ECHR. It explores the Court’s threshold to assess ill-treatment in the context of children in police custody, and highlights relevant international standards in that regard. This commentary concludes with a final note on the important role of lawyers in preventing and addressing ill-treatment, and the complex issue of children’s waiver of legal counsel. Continue reading

A, B and C v. Latvia: gender-blindness and trivialisation of indecent acts against adolescent girls

By Yaiza Janssens

Not many ECtHR cases that focus on a possible obligation under Article 8 of the Convention to conduct a criminal investigation and even fewer cases where the facts fall exclusively concern minors. In A, B and C v. Latvia, a Chamber judgment issued on 31 March 2016, the applicants complained that the authorities had failed to investigate their complaints of sexual abuse by their sports coach. The Court found no violation of Article 8. In this post, I will argue that the Court should have concluded that the criminal investigation of the Latvian authorities was not effective.

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Mandet v. France: Child’s “duty” to know its origins prevails over its wish to remain in the dark

By Evelyn Merckx, academic assistant and doctoral researcher at the Human Rights Centre (Ghent University)

The European Court of Human Rights has delivered many judgments about a child’s right to know its origins and whether this right can prevail over the refusal of the anonymous biological parent. In Mandet v. France, the opposite scenario took place. A presumed biological father wanted to have his paternity recognised vis-à-vis a child who already had a legal and social father and asked the judges not to change his established family ties. However, the domestic courts decided that it was in the son’s best interests that he knew the truth about his origins.

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Adžić v. Croatia: The difficult task that child abduction brings

This guest post was written by Thalia Kruger, Senior Lecturer, Research Group Personal Rights and Real Rights, University of Antwerp and Honorary Research Associate, University of Cape Town.

Adžić v. Croatia is yet another case in the long row of cases about international parental child abduction that hit the role of the European Court of Human Rights. These cases pose a particular challenge to the Court in a very difficult and sensitive domain of family law. Jurists and lawyers in various fora have attempted to find workable solutions by instruments such as the Hague Child Abduction Convention of 1980, the Council of Europe Custody Convention (Luxembourg, 1980), the Brussels II bis Regulation (2201/2003) in the EU, and national legislation. Mediators try to find appropriate ways in which to resolve child abduction issues.

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