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 In Mandet v. France, the paternity of a legal father was withdrawn in favour of the biological father, despite the eleven-years-old child’s opposition to having his paternity changed which became evident from the letters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

Mohamed Hasan v. Norway: Solomon’s judgment gone wrong?

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

King Solomon has proven to be a widely-used character in titles of papers regarding the placement of foster children and adoption. With the risk of becoming repetitive, the following analysis reveals why this case so strikingly reminds the reader of the biblical narrative. Though the facts are very similar, the ultimate plot varies greatly as the judgment of the European Court of Human Rights does not favour the “real” or even the “fake” mother, but the domestic authorities. Continue reading

Inadmissibility decision in Bonnaud and Lecoq v. France – should the Court have recognized the specificity of a same-sex relationship?

By Pieter Cannoot, PhD researcher at the Human Rights Centre of Ghent University

On 6 February 2018, the European Court of Human Rights declared the application of Francine Bonnaud and Patricia Lecoq, two French women who were in a relationship at the time of the relevant facts, manifestly ill-founded. The application concerned the refusal by the domestic courts to grant the request by both women to delegate parental authority over their respective biological child to their partner. Although the Court prima facie seems to have come to a logical decision, the question arises whether the application was accurately framed to deal with the substantive issue at stake, i.e. the discrimination of same-sex couples regarding parental rights. Continue reading

The best interests of the child in deportation cases: An analysis of Ejimson v. Germany

By Dr. Mark Klaassen, Assistant professor at the Institute of Immigration Law (Leiden University)

Introduction

On 1 March 2018, the Fifth Section of the Court unanimously held in Ejimson v. Germany that the revocation of the right of residence in Germany of a Nigerian national after being criminally convicted for a drugs related offence did not breach Germany’s obligation to respect the private and family life of the applicant. Considering the character of the offence committed by the applicant the ruling may not come as a surprise as the Court is generally very strict in public order immigration cases in which the applicant has committed a drugs related offence. However, the reasoning of the Court is interesting for a number of reasons. After discussing the facts of the case and the judgment of the Court, I will analyse the ruling on three different aspects. Firstly, the role of the best interests of the child concept in the balancing of interests will be discussed. Secondly, the relationship between the right to respect for family life under Article 8 ECHR and the protection against expulsion under EU law will be assessed. Thirdly, I will shortly reflect on the manner in which the Court seems to redirect the case back to national decision makers. Continue reading

M.K. v. Greece – Implementing children’s rights in legal proceedings following an international parental abduction.

By Sara Lembrechts – Researcher at University of Antwerp & Policy Advisor at Children’s Rights Knowledge Centre (KeKi), Belgium

Summary

In the Chamber judgment M.K. v Greece of 1 February 2018 (application no. 51312/16), the European Court of Human Rights decided by a majority of five votes to two that the applicant’s right to family life under Article 8 ECHR had not been violated. The case concerns the inability of M.K., mother of two children, to exercise custody over her son A., despite various court decisions granting her this right. The Court, faced with the difficult task of balancing different rights and interests in this very sensitive area of family law, could not establish a violation of the Convention. Whereas the applicant was prevented from exercising her right to family life, returning A. to his mother in accordance with the 1980 Hague Convention and the Brussels IIbis Regulation would be against the child’s wishes and best interests. This conclusion challenges the boundaries of national authorities’ positive and negative obligations to protect the applicant’s rights under Art. 8 ECHR.   Continue reading

Oliari, Orlandi and Homophobic Dissenting Opinions: The Strasbourg Approach to the recognition of same-sex marriages

By Claire Poppelwell-Scevak, PhD FWO Fellow, Gent University

From first glance, the decision of Orlandi and Others v Italy on 14 December 2017, may appear as a step in the direction of same-sex couples being afforded the protection of Article 12 ECHR – the right to marry. However, when one digs a little deeper into this case, there is only dismay that the Strasbourg Court has continued to reinforce its ‘same same but different’ interpretation of the Convention instead of being at the forefront of this struggle for equality. Continue reading

A Child-Centred Court of Human Rights? Strand Lobben v. Norway (30. Nov. 2017)

By Amy McEwan-Strand and Prof. Marit Skivenes, Centre for Research on Discretion and Paternalism (University of Bergen)

In a case of adoption without parental consent – Strand and Lobben v. Norway – the Fifth Section of the European Court of Human Rights (the Court) did not find a violation of Article 8 of either the mother or the child. The outcome of this case may well be surprising to many, since the last few years have seen a massive uproar and negative media attention on child protection interventions internationally, with Norway having a prominent place in this spotlight. In 2015, the Norwegian child protection system received harsh criticism from the Czech president, and the Norwegian embassy in Lithuania even felt it necessary to engage public relation consultants to handle the pressure. The Norwegian word for child protection, “barnevern” is now a term associated with draconian interventions into the family sphere in certain European circuits. Continue reading