Keep abreast with the most relevant developments in the law and case law on children’s rights and access to justice in Europe!
This is the Newsletter of T.A.L.E. project, Training Activities for Legal Experts on children's rights. We train lawyers representing children in judicial proceedings on the international instruments to promote and protect children’s rights and the correct implementation of the CoE CFJ Guidelines principles at national level. The project is financed by the EU Commission, Rights, Equality and Citizenship (REC) Programme. Our activities started on November 2015 and will end on October 2017. Read more about the T.A.L.E. project here
► Guidelines on Children in Contact with the Justice System (IAYFJM), 22 May 2017
The International Association of Youth and Family Judges and Magistrates lauched guidelines regarding matters involving children's rights in judicial proceedings on criminal, child protection, family, administrative and other issues. The text is structured in 6 parts: definitions, fundamental principles, general elements of a child focussed justice, Child focussed justice in judicial proceedings, the rights of children in in the course of the implementation of decisions and issues about Implementation, monitoring, assessment and amendment of the Guidelines.
► European Court of Human Rights, judgement of 2 March 2017 in Talpis v. Italy
This case concerned the conjugal violence suffered by the applicant, which resulted inthe murder of her son and her own attempted murder.
The Court held that there had been a violation of Article 2 (right to life) of the
Convention on account of the murder of the applicant’s son and her own attempted
murder. It found, in particular, that by failing to take prompt action on the complaint
lodged by the applicant, the Italian authorities had deprived that complaint of any effect, creating a situation of impunity conducive to the recurrence of the acts of violence, which had then led to the attempted murder of the applicant and the death of her son. The authorities had therefore failed in their obligation to protect the lives of the persons concerned.
The Court also held that there had been a violation of Article 3 (prohibition
of inhuman or degrading treatment) of the Convention on account of the failure of the authorities in their obligation to protect the applicant against acts of domestic violence. The applicant had lived with her children in a climate of violence serious enough to qualify as ill-treatment, and that the manner in which the authorities had conducted the criminal proceedings pointed to judicial passivity, which was incompatible with Article 3. Lastly, the Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Articles 2 and 3, finding that the applicant had been the victim of discrimination as a woman on account of the inaction of the authorities, which had underestimated the violence in question and thus essentially endorsed it.
► EU to join international convention combating violence against wome, 11 May 2017
The Council of the European Union adopted two decisions on the signing of the Council of Europe Convention (Istanbul Convention) on preventing and combating violence against women and domestic violence. The Convention recognises violence against women as a human rights violation. It addresses violence against women through measures aimed at preventing violence, protecting victims, and prosecuting the perpetrators. Following the official signing, accession requires the adoption of the decisions on the conclusion of the Convention. These decisions will need the consent of the Parliament.
All EU member states have already signed the Convention. Having the EU join the Convention as well will ensure complementarity between the national and EU level and will consolidate the capacity for the EU to play a more effective role in international fora such as the Council of Europe Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO).
► 2017 EU Justice Work Programme, 6 March 2017
The European Commission launched several funding initiatives for the further development of a European area of justice, for the total budget of EUR 52.6 million. It includes supporting activities and actions developed by public authorities, universities, NGOs, and other organisations in the field of Judicial cooperation in civil and criminal matters, Judicial training, Access to justice, including rights of victims of crime, and rights of the defence, Drugs initiatives.
► Court of Justice of the European Union, judgement of 10 May, 2017 in Case C-133/15
A third-country national may, as the parent of a minor child who is an EU citizen, rely on a derived right of residence in the EU. Article 20 of the Treaty on the Functioning on the European Union “precludes national measures, including decisions refusing a right of residence to the family members of an EU citizen, which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status." The removal of the non-EU mothers of Dutch children at the origin of the present judgement could deprive their children of the genuine enjoyment of the substance of those rights by compelling those children to leave the territory of the EU. The Court held that states must consider in their assessment a number of factors relating to the best interest of the child, “including the age of the child, the child’s physical and emotional development, the extent of his or her emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium.”
► Act of Law of 23rd May 2017, no. 23
This news act of law extends the effects of protection measures for young people period up to 25 years of age, whenever educational or vocational training processes exist (amendment of the Portuguese statute on the Protection of Children and Youth at Risk of 1st September 1999 no. 147).
Download the text at this link: http://www.cnpcjr.pt/preview_documentos.asp?r=6463&m=PDF
► Act of Law of 2nd March, 2017 no. 5
As a result of this recent act of law, the regulations of parental responsibilities by mutual agreement to unmarried partnerships shall be registered in Civil Registries, a system which only applied to marital relationships until now.
► Amendment to the Civil Code promoting the urgent regulation of parental responsibilities in domestic violence-related cases.
of Law of 24 May 2017 no. 24 amends the Portuguese Civil Code, the
Criminal Code and the regulation in matter of parental
responsibilities in domestic violence-related cases. These
include the introduction of restrictive measures prohibiting contact
between the child and the parents, stronger protection for victims of
domestic violence and abuse.
Lisbon Court of Appeal, judgeent of 14 March 2017
The Court granted the appeal of a father against the order to pay for the studies of his adult child after 20 years of estrangement. The decision is mainly based on the reason that the child remained in the sole custody of his mother who had sufficient means of support. There is no proof that such situation changed in a way to justify the order to the father to cover for the child's expenses.
► Act of Law of 14th April, 2017 no. 72
The law raised the 6-years age limit for children from vulnerable families to benefit from kindergarten vouchers. The age requirement was declared unlawful because of violation of anti-discrimination regulation. It is especially the case of children with disabilities and/ or learning disorders for whom the school enrollment is postponed upon the advice of the relevant specialists.
► Minister of Education’s Order of 3rd March, 2017 No. 3393
The Minister of Educationapproved a new curriculum for lower secondary school after a long public debate and extensive advocacy efforts by organizations protecting children's rights in Romania. The new mandatory study curriculum for Romanian children includes learning activities aimed atadvancing the children’s direct involvement in promoting and defending their rights, such as education on children's rights and critical thinking, intercultural education, democratic participation and financial education.
► Constitutional Court of Romania, judgement of 28th of April, 2017
The Court declared that the definition of “family member” in the national regulation on protection from domestic abuse clash with the Constitution because its limited scope to protect the victims who cohabit with their abusive partners violates an international convention. In fact, the definition of “family member” includes: (…) c) persons who have established similar relations to those between spouses or between parents and children, if they are living together ” (article 5.c of Romanian Law No. 217/2013). The Constitutional Court held that the cohabitation requirement is contrary to the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (12 April, 2011; ratified by Romania in 2016). The Court based its decision on article 20 of the Constitution of Romania which recognizes the prevalence of the international human rights instruments over the domestic regulations. As a consequence, the Court declared that the requirement for a victim of violence to cohabit with the abuser is unconstitutional.
► Superior Council of Magistracy, judgement of 28th March, 2017
The Romanian national disciplinary court for judge declared that the hearing of children as witnesses was led in violation of their fundamental rights by the concerned judge (Court of the Constanta discrict). The decision of the Superior Council of Magistracy comes after almost a year of media investigation and public controversies raised by the trial of the so-called “Horror Kindergarten” case – a case of physical abuse against children enrolled in a private kindergarten by the educational staff. During the trial, the judge had insisted on hearing the children as witnesses in a standard procedure (in the court room, in the presence of the perpetrators), despite their young age and the psychological reports indicating that hearing the children in the presence of the abusers would traumatize the young victims.
► Public Prosecutor national office, order of 18-05-2017
The order clarifies how the principles of the law and case law apply in the process of assessing the age of unaccompanied and separated children, accordinng to the 2014 National Protocol in point (Protocolo sobre determinadas actuaciones en relación con los menores extranjeros no acompañados, BOE de 16 de octubre de 2014). The directions include strategies on crucial topics, such as:
how to retain or rule out the concerned person's documents for identification purposes;
how to evaluate the results of osteometric tests for the purpose of establishing the age of majority;
how to apply the principle of assuming the age of minority.
► Tribunal Supremo, judgement of 7 March 2017 n. 157
By building up on its previous decision of 20 October 2014, the Spanish Supreme Court declared that children's right to be heard in judicial proceedings cannot be prevented by their parents. Moreover, the Court stated that a judge should seek alternatives to psyco-social experts' examinations each time it proves in the best interest of the child to avoid them.
► Children and Social Work Act, April 2017
THis new act of law introduces a number of important changes to the way in which children’s social care and child protection proceedings are managed. It also makes provision for compulsory relationships education for primary school pupils in in England, as well as sex and relationships education for secondary school children. It also introduces clearer protective measures for refugee children who are under the care of Local Authorities The Act applies mainly to England and includes a wide range of measures including: Providing extra support in schools for children in care; Requiring councils to provide personal advisers to all care leavers up to age 25; Ensuring children’s long-term needs are prioritised by courts considering adoption or other placement options; Strengthening local multi-agency coordination in safeguarding cases.
► UK withdrawal from the European Union
Article 50 of the Lisbon Treaty was triggered on the 29th March 2017, starting the process of UK withdrawal from the EU. None of the public debates surrounding Brexit so far have explicitly discussed the impact that the UK's withdrawal might have on children’s rights. Children were precluded from voting in the referendum and their perspectives were not brought to bear in any meaningful way on the Brexit deliberations. This is in spite of the fact that children make up nearly one quarter (approximately 15 million) of the UK population. As current and future citizens, consumers, movers, workers, parents, and carers, children will bear the full brunt of the consequences of Brexit, for better or worse. It is hard to conceive of a single area of EU law and policy that does not affect children's lives in at least an indirect way.
An abundance of EU legal provisions (enshrined in over 80 legal instruments) confer direct, legally-enforceable entitlements on children, particularly in relation to internal market or cross-border activities such as free movement, immigration and asylum, and cross-border family law. A range of legal obligations have been enacted in the field of consumer protection such as toy and road safety, harmful media, food labelling and paediatric drug development. More piecemeal EU legal rights in the field of education have been available to children since the 1970s, and in relation to employment health and safety since the early 1990s.
In more recent years, the reach of EU activity has progressed much further, extending to issues that would have previously been closely guarded by domestic competence, including criminal justice, support for victims, protection against sexual exploitation and de-institutionalisation (see eg Arts 79(2)(d)); Article 83(1) TFEU). Children benefit indirectly from adult-focused EU provision too, in the field of employment equality, including parental leave, working time, maternity provision, and health and safety provision for pregnant and breastfeeding women. Equally, children are the focus of myriad non-legal EU initiatives such as research, data collection, capacity building, exchange of good practice, standard-setting, monitoring, evaluation and policy guidance on perennial issues such as child poverty, obesity, online safety, anti-discrimination, and access to justice (TEU Art 3(3)). Collaborations have been forged between academics and civil society organisations to try to ensure that children’s rights receive more serious and focused attention as the Brexit negotiations unfold, and to ensure that the specific impact of EU withdrawal in the devolved jurisdictions of Scotland, Wales and NI receive approach exposure.
CASE LAW (UK)
► Family Court of Manchester, judgement of 30 January 2017 EWFC 4
This case concerns the application of a transgender person to have contact with her five children: a boy aged 12, a twin boy and girl, aged 8, a boy aged 5, and E a girl aged 2. The parents’ marriage had ended in June 2015, when their father left home to live as a transgender person. She now lives as a woman and has had no contact with the children since she left. The judge concluded ‘with real regret’ that contact with the children should be limited to letters since to order otherwise would likely result in “the children and their mother being marginalised or excluded by the ultra-Orthodox community”. Evidence was presented on behalf of the children by their guardian, and the judge met separately with the eldest child. The decision to limit contact between the father and children in this way does not sit easily with children’s rights advocates. That said, the judgment is a model of a forensic analysis of the welfare checklist (the series of factors under s.1(3) The Children Act 1989 that should be taken into account in determining what is in the children’s paramount interests).
Case: J -v- B and The Children (Ultra-Orthodox Judaism: Transgender)  EWFC 4
► Royal Court of Justice, judgement of 9 march 2017, EWCA Civ 138
This case concerned a Home Office appeal against a High Court ruling that an unaccompanied asylum seeker was entitled to damages after his claim to be “a child” under 18 was not believed by an immigration officer. The teenager from Sudan, who arrived in the UK in the back of a lorry, was detained because the immigration officer said he “reasonably believed” he was over 18 and therefore not exempt from detention. The Court of Appeal upheld the High Court’s ruling that the policy of relying on the “reasonable belief” of immigration officers was legally flawed and declared that age assessments in unaccompanied minor cases must be determined as “an issue of objective fact”. The case has been welcomed by NGOs supporting unaccompanied children insofar as it prohibits government officials from detaining or deporting children following age assessments that are based on random guesses and a ‘cursory glance’ with no evidence of objective evidence.
Case: The Queen on the application of Abdul-Muttelab Awed Ali and The Secretary of State for the Home Department and Another  EWCA Civ 138.
► UK Supreme Court judgement of 22 February 2017, UKSC 10
In this case the UK Supreme Court upheld the Minimum Income Requirement imposed by the UK Immigration Rules which states that British citizens who wish to sponsor a foreign spouse to enter and reside in the UK must have an income of at least £18,600. The minimum income requirement was challenged as incompatible with the rights of the claimants and their foreign partners (and the child of one couple) under the ECHR (principally Article 8).
It is important to note that while the Supreme Court held that the existence of the minimum income requirement was reasonable in the light of public policy concerns to control migration and protect public resources, it also found that these rules fail to take proper account of the Home Secretary’s duties to safeguard the welfare of any children involved, as required under s.55 of the Borders, Citizenship and Immigration Act 2009 and Art 3 of the UN Convention on the Rights of the Child. The Court also held that the approach taken by the Home Office to assess such cases would need to be amended to take proper account of alternative sources of income and support for such couples with children. This decision will greatly facilitate the family reunification of the estimated 15,000 children, mostly British citizens, currently separated from one parent as a result of the minimum income requirement.
Reference: MM and others v Secretary of State for the Home Department  UKSC 10
► New regulation against cyberbullying, Act of Law of 29 May, 2017 no. 71
The new criminal provisions to tackle cyberbullying entered into force on 18 June 2017. Cyberbullying is defined as a crime against minor age persons and their family members. The crime encompasses "any form of pressure, aggression, harassment, blackmail, insult, denigration, defamation, identity theft, alteration, unlawful taking, manipulation, illegal processing of personal data to the detriment of minors, made electronically, as well as disseminating online content concerning even one or more members of the family of the child, whever the intentional and predominant purpose is to isolate a minor or group of minors by committing a serious abuse, a malicious attack, or their mockery"
► Protection for unaccompanied and separated migrant children, Act of Law of 7 April 2017, no. 47
The new provisions encompass safeguards at every stage of children's entry and stay in Italy. These expressly recognised the "right to be heard" in administrative and judicial proceedings, even in the absence of the guardian. The law sets a specific provision for children to access legal aid. Child rights organizations shall also have the right to challenge and obtain the cancellation of decisions which impair the rights of unaccompanied minors, as well as and to intervene in judicial decisions concerning them.
► Guidelines for recruiting and educating guardians for unaccompanied migrant children, 25 May 2017
The national Authority for protection of children and adolescents issued recommendations to ensure a uniform implementation of the law concerning migrant children's guardianship in Italy. The Guidelines are the result of a common effort of experts, NGOs and stakeholders and each Italian region is required to implement them by entering into an agreement with the national authority. The Guidelines include directions to each Juvenile court to establish a list of volunteer guardians in each precinct and include measures to ensure children's participation in the selection and education of guardians.
For more information on the Project TALE please contact:
Luca Bicocchi for T.A.L.E. Project
Newsletter edited by Lara Olivetti, Save the Children Italy