Whether children should have rights and what these rights should be are questions that continue to interest scholars, legislators and social-policy makers. Onora O’Neill and Martin Guggenheim argue that independent legal rights for children can be used as a screen for the interests of adults. Parental rights are not absolute, nevertheless, they form a bedrock for determining custody, parentage, and child removal. Parental decision-making can also harm children—both in the short-term and in the child’s long-term (p. 113 of the article).
Children Protection and the European Court of Human Rights (the ECtHR) Lessons from Norway in the development and contestation of Children’s Rights addresses the complexity of these issues. This edited volume, which explores a range of fundamental concepts, stems from an international and interdisciplinary research project focusing on the legitimacy challenges facing welfare states in general-and child protection systems and children’s rights in particular.
Originating from an international and interdisciplinary research project addressing the legitimacy challenges faced by welfare states in general—and child protection systems and children’s rights in particular—this edited volume explores a range of crucial concepts. A few books focus on the analysis of the extensive case law on jurisdictions and others focus on child abuse and neglect or child protection systems specific to a particular country.
Other works deal with child abuse and neglect or child protection systems specific to a particular jurisdiction. However, books that delved into the myriad of key concepts revolving around child protection and its approach by a supranational jurisdiction are rare.
The first part of Children Protection and the ECtHR: Lessons from Norway in the development and contestation of Children’s Rights examines the ECtHR from a national perspective, focusing on the complex body of child protection cases brought before the ECtHR. It examines various aspects of Norwegian cases, analysing their unique nature, how they are assessed by the ECtHR, and their impact on Norwegian policy, law, and practice. Part II, focusing on the transnational level, seeks to understand the international drivers and influences shaping the ECHR’s emphasis on child protection and the evolution of its case law regarding children’s rights, in order to analyse children’s rights and the ECHR within the broader context of international human rights standards and the transnational challenges surrounding them. The final part focuses on the ECtHR’s current case law regarding children’s rights and child protection, as well as its potential future evolution.
I – The ECtHR and the perception of child protection by states : an endless battle?
In chapter two, through a discussion around child welfare cases in Norway, Marius Emberland demonstrates that there is a proven lack of understanding at the national level of the decision-making process of the ECtHR, as well as its role and functioning in the area of child protection and children’s rights. In fact, he takes the case of Strand Lobben and Others v. Norway as a pivotal case study (p. 26). This case concerns the withdrawal of a mother’s parental authority and the adoption of her three-year-old son by the foster family that had taken him in shortly after his birth. The mother, her children, and the mother’s parents challenged the domestic authorities’ decision authorizing the foster parents to adopt the child. Emberland argues, in particular, that the severance of family ties should be ordered only in exceptional circumstances—for instance, when a family is completely unfit.
It is not clearly established whether the Norwegian cases actually differ in terms of substantive law (p. 35); that is, whether national decisions regarding child protection measures deviate more significantly from the ECHR’s requirements than those of other states, or whether the ECtHR exercises stricter scrutiny over Norway than over other States. Since Norway stands out solely in terms of the figures (p. 27), it is impossible to determine whether there are genuine signs of bias on the part of the ECtHR, given that cases are still pending (p. 35). If the Strand Lobben case can be described as unique, it is solely because States perceived an “urgency” in the matter that they typically associate with inter-State cases.
Although not all Nordic countries are mentioned in the book, in chapter three, Raija Huhtanen and Tarja Pösö (p. 50), focusing on the consensus against any revision of Finnish legislation and policy regarding permanent placement, examine the Finnish child protection system, to illustrate how the role and decisions of the ECtHR can exert a multifaceted, and even controversial, influence on national legislation, policy, and practices. In examining the impact of the Strand Lobben judgment on Norwegian courts in chapter four, Kirsten Sandberg notes that, while the Norwegian decisions had drawn criticism for focusing too exclusively on the best interests of the child—contrary to the ECHR’s tendency to prioritize parental interests—subsequent cases brought before the European Court resulted in decisions of inadmissibility.
Then, in chapter five, while noting that frontline child protection services in Norway—relying on agencies with the capacity and resources typical of large organizations—have altered their practices to comply with ECHR judgments, Hege Stein Helland emphasizes the difficulty of establishing a direct causal link to ECHR case law, just as it is challenging to pinpoint the specific factors influencing frontline staff (p. 77).Whereas prior studies focused on the subtle issue of the representation of children before the ECtHR without delving into children’s textual representations in judgments about international law, Katrin Križ and Daniela Reimer, in chapter six, demonstrate that the legal recognition of children as subjects with wishes, ideas, and a voice—a central aspect of their recognition as human beings—has not yet been achieved in the court’s decision-making process (p. 105).
Addressing the delicate issue of “ethnic constructs” within the framework of the ECtHR in chapter seven, Reimer and her co-authors demonstrate in Chapter seven how a professed universalism is undermined by terms that devalue individuals from ethnic minorities—characterizing or classifying them as less human or inferior to others based on stereotypical or essentialist categorizations of the minority group. They precisely highlight that the ECtHR avoids using labels or attributions that might marginalize minority groups or reduce individuals to their ethnic or religious identities, thereby adhering to the principle of universalism (p. 127).
II – The ECtHR: between international law and amicus curiae?
Prioritising the child’s best interests is a daunting task in a context where every state is already grappling with its own national politics and practices, international human rights rules add to the complexity of the existing imbroglio, Elaine Sutherland highlights, in chapter eight, the fact that while there are many commonalities between the ECtHR and the Committee on the Rights of the Child (CRC), this does not prevent conflicting messages regarding the priority to be given to the child’s best interests when they conflict with the rights and interests of the parents (p. 142).
As Asgeir-Falch Eriksen states in chapter 10: “Our problem with bad amicus, then, becomes exacerbated by special interests utilising a benevolent design trait of the ECtHR to influence judgments by their special interests” (p. 181). Insofar, as the margin of appreciation leads to distinct judicial outcomes, particularly in the context of interventions by third parties acting as amici in bad faith, he asserts that: “the legal framework a judge follows – whether rooted in positivism’s rigid structure or discourse theory’s emphasis on rational consensus – plays a crucial role in determining the success or failure of such amici” (p. 189). Yet, scholars such G. Cliquennois reveal that the influence of conservative groups appears to be limited to dissenting opinions voiced by a few judges.
III – The ECtHR: a jurisprudence of skepticism?
David Archard and Marit Skiveness examine in chapter 13 core principles within child protection as laid out by the majority judges and minority judges in the ECtHR GC Strand Lobben and reveals that, for the minority, parenthood appears to be far more closely linked to attachment and the best interests of the child, thereby advocating for a broader conception of family in the context of custody. Furthermore, the two authors directly incorporate specific child protection scenarios into their analysis of custody; the minority’s arguments clearly highlight the need to place greater weight on the balancing of interests, while also underscoring the negative consequences of failing to clarify the role and substance of the principles and interests at stake in child protection cases (p. 236).
In assessing the relationship between the ECHR and the CRC in chapter fourteen, Claire Fenton-Glynn observes that the ECtHR’s interaction with the UN Convention remains superficial, often limited to mere mention rather than substantive analysis (p. 246). Indeed, the ECtHR appears distinctly more at ease with concepts such as the principle of the best interests of the child, while there is a lack of deeper reflection on how the specialized UN framework regarding children’s rights could enrich the ECtHR’s case law.
Conclusions and the future of the field
The book as a whole has an undeniable impact and holds particular resonance, given the critical gaps in knowledge regarding the interplay between international human rights law, child protection systems and child rights advocacy across the member states of the Council of Europe. The prose is elegant and clear, delicately teasing apart complex ideas. The contributors add a noteworthy contribution to the debate on the child protection system.
However, the volume leaves several questions and uncertainties regarding its concrete implications for legal practice unresolved such as the balance States must strike between the rights of the child and those of the parents, as well as how this issue is addressed under international human rights law.
Certain phenomena still need to be addressed by scholars, notably the need to record the child’s voice during proceedings and to ensure that their wishes, needs, and concerns are documented and taken seriously. It is also worth noting that the involvement of “anti-gender” actors in the field of child protection has gone entirely unnoticed (p. 168), as has the issue of the right to personal identity and the tensions it creates in the ECtHR’s case law—where children’s rights are interpreted based on general provisions not specific to children.
None of the chapters fail to capture the liveliness and urgency of the debates surrounding child protection and they collectively highlight the obstacles currently thwarting child protection. This book is an original and stimulating collaborative work addressing a complex issue—one that influences how the interpretation of child protection is understood and, ultimately, put into practice.
Samira Allioui (OrcID, samallioui@gmail.com) is a legal researcher who completed her pupillage within the French section of an international court, as well as in the fields of democracy, the rule of law, and fundamental rights, after having been a doctoral fellow in the field of international adjudication.