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T.A.L.E. Newsletter - nr. 6, October 2017

T.A.L.E. Newsletter - nr. 6,  October 2017

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


► European Court of Human Rights, Judgement of 3 October 2017 in the case  D.M.D. v. Romania

In case no. 23022/13, the Court held that there had been a violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights because the investigation into the allegations of abuse had lasted too long and had been marred by other serious shortcomings. 

Moreover, there had been a violation of Article 6 § 1 (right to a fair trial) because the domestic courts had not examined the merits of the applicant’s complaint about the failure to award him compensation, despite it being clearly worded in domestic law that they were under an obligation to rule on the matter of compensation in a case concerning a minor, even without a formal request from the victim. 

► European Court of Human Rights, Judgement of 27 June 2017 in the case Charles GARD and Others v. U.K. 

This case concerned an appeal against a decision of the UK courts to permit artificial ventilation to be withdrawn from a critically ill baby (no. 39793/17). The parents argued – on their own behalf and that of their son – under Article 2 (right to life) of the European Convention on Human Rights that the hospital had blocked access to life sustaining treatment (in the US) for Charlie and under Article 5 (right to liberty and security) that, as a result, he was unlawfully deprived of his liberty. They further alleged under Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) that the domestic court decisions amounted to an unfair and disproportionate interference in their parental rights.

The child suffered from a very rare and severe mitochondrial disease. His treating clinicians concluded that there was no prospect of recovery, and the hospital where he was being treated applied to the High Court for a declaration that it would be lawful and in his best interests for artificial ventilation to be withdrawn and palliative care provided. The application was opposed by the second and third applicants, who wanted the child to undergo experimental treatment. However, the consensus of all the doctors who had examined the child was that such treatment would be futile. 

The court granted the declaration sought, holding that it would not be in the child’s best interests to undergo the experimental treatment. The High Court's decision was upheld on appeal by the Court of Appeal and permission to appeal to the UK Supreme Court was refused. 

The ECtHR declared the complaints inadmissible as manifestly ill-founded such that the decision of the UK courts was upheld, specifically that it would be lawful for the hospital to withdraw life sustaining treatment because it was likely that Charlie would suffer significant harm if his present suffering was prolonged without any realistic prospect of improvement, and the experimental therapy would be of no effective benefit. The appeal was pursued in the full glare of media coverage and polarised views but the decision was ultimately based on what would be in the paramount interests of the child. 


► Court of Justice judgement of 8 June 2017 Case C-111/17 PPU

The Court examined the question whether physical presence is a necessary and self-evident prerequisite for establishing the habitual residence of a person, and in particular a newborn child, with reference to the appropriate interpretation of the concept of “habitual residence”, within the meaning of Article 11(1) of Regulation No. 2201/2003. The case concerned an infant who fortuitously was born in a place other than that which her parents with joint parental responsibility intended to be the place of her habitual residence. The child was retained by one parent for several months in the Member State of birth. The Court held that the initial intention of the parents with respect to the return of the parent, together with the child, to the Member State of previous residence cannot allow the conclusion that the child is ‘habitually resident’ there, within the meaning of regulation No. 2201/2003. In accordance with the Court’s case-law, the meaning of the concept of ‘habitual residence’ corresponds to the place which reflects some degree of integration by the child in a social and family environment. Consequently, in such a situation, the refusal of the mother to return to the previous Member State together with the child cannot be considered to be a ‘wrongful removal or retention’ of the child, within the meaning of Article 11(1).

Link to the text of the decision on the ECJ website


► Decision of the Lisbon Court of Appeal, 7 August 2017

In the joint exercise of parental responsibilities for matters of particular importance to the child’s life, the parents would disagree on the child’s place of residence. The court decided that it is in the interest of the child that the residence may be alternate with each parent for a certain period of time, in which case the parental responsibilities for matters relating to the child’s everyday acts will be exercised by whichever parent is residing with the child in that period.


► Decision of the Lisbon Court of Appeal, 13 July 2017

A counsel must be appointed for the minor where there is conflict regarding the child’s interest and those of its parents, legal representative, or of its legal guardian, and also when the child with adequate maturity requests it to the court. 
­It is for the legislator, based on several regulations, to consider that a child over the age of 12 is able to understand the matters under discussion, considering its age and maturity. In principle, the judge should not deny the request for counsel appointment assuming that the reasons given by the minor for such request are not sufficiently relevant. In addition, it is the counsel’s duty to act in such a way as to defend the legitimate interests of the child, without prejudice to compliance with legal and professional norms, while always exercising his or her profession, under any circumstances, in an independent manner, making use of all the technical know-how, knowledge and procedures of the rules of the profession, which the counsel is supposed to know; ultimately, it is for the appointed counsel to determine the most appropriate way of defending ­ in the proceedings ­ the minor’s legitimate interests.


BREXIT legislation

The UK Government European Union (Withdrawal) Bill represents the UK’s first major piece of Brexit legislation and is currently under consideration in the House of Commons. It has been the subject of much criticism, including from children’s rights campaigners in the UK, who argue that the Bill makes no provision to safeguard the interests of children in the Brexit process. Responding to these concerns, Labour MP Kate Green, has tabled a series of proposed amendments aimed at maintaining the UK’s co-operation with the EU’s child protection mechanisms such as EUROPOL and ECRIS, at ensuring that child impact assessments are carried out in advance of repealing any EU laws that affect children; and at protecting children from any cuts in public spending that are anticipated as a result of anticipated financial costs of Brexit. Link:

Read here the proposedamendments

► Reform of privacy regulation for children and young adults

Children and Young People (Information Sharing) (Scotland) Bill [as introduced] (SP Bill 17) 2017 (Scottish Bill)

This Bill seeks to amend the information sharing provisions in the Children and Young People (Scotland) Act 2014. It follows the Supreme Court decision in Christian Institute v. Lord Advocate [2016] UKSC 51 which found the 2014 provisions to be outside the competence of the Scottish Parliament.

The requirement that certain organisations must provide a named person for every child remains the same. The functions of the named person also remain unchanged. That is: to advise, support and inform the child, young person or their parents; to help them access services and to discuss matters concerning the child's or young person's wellbeing with other organisations.

In order to fulfil these functions the 2014 Act provided for information sharing between the named person and other organisations. It was these provisions (principally sections 23, 26 and 27 of the 2014 Act) which the Supreme Court found lacked essential clarity and safeguards and therefore breached the child’s human rights.

The Bill changes the requirement to share information to a requirement to consider whether to share the information, and a power to share information in certain circumstances.

The bill retains a duty to co-operate (which can extend to information sharing) in relation to the child's plan in certain circumstances, but information may only be shared in compliance with an information sharing code of practice which Ministers must publish.

HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426, 13 October 2017

This case was an appeal to the English Court of Appeal concerning a voluntary aided faith school for girls and boys aged between 4 and 16. The School has an Islamic ethos and for religious reasons believes that separation of the sexes from Year 5 (age 9) onwards is obligatory for all lessons, breaks, school clubs and trips. A formal (Ofsted) inspection concluded that this practice constituted unlawful discrimination contrary to s.85 of the Equality Act 2010. The School issued proceedings for judicial review of the Inspection Report, seeking an order that it be quashed. The High Court rejected Ofsted’s submissions that the segregation was discriminatory (against female pupils in particular). As the treatment of both groups was of equivalent nature with equivalent consequences, it could not be said that one group was being treated less favourably than the other, and there was therefore no discrimination. The Court of Appeal unanimously allowed the appeal. It held that the School’s policy of strict segregation caused detriment and less favourable treatment for both male and female pupils respectively by reason of their sex and was therefore contrary to the Equality Act 2010. The School’s policy prevents an individual girl pupil from interacting with a boy pupil only because of her sex; if she were a boy she would be permitted to interact with a boy pupil, and vice versa. That the School had a religious motivation for the segregation was deemed irrelevant. In the leading opinion, Lady Justice Gloster asserted: “School, segregation on grounds of sex necessarily endorses gender stereotypes about the inferiority of women or their perceived place in a society where predominantly men exercise power” (para 165).


► Citizenship regulation

On 21 September 2017 the Romanian Government adopted the Emergency Ordinance No. 65 and changed the Law on Romanian Citizenship.

The amendments aim at regulating in detail the conditions for the acquirement of the Romanian citizenship by children whose parents are foreign citizens or state-less. The clarifications were much needed since the previous legal provisions left room for interpretation, disharmonic judicial practice and even situations when the identity documents of children born of foreign or stateless parents had been annulled on procedural grounds.


 Child Protection Commissions

The Government Decision of 13 July 2017 No. 502 on the organization and functioning of Child Protection Commissions improved the legal framework regulating the activity of these bodies whose mandate in protecting and promoting the rights of the child is essential in the Romanian context. The decision follows the recent improvement of the legislation regulating the rights of the children with disabilities and represents a necessary harmonization of the institutional framework.


► Court of Cassation, judgement of 5 April 2017 no. 663

The High Court of Cassation and Justice of Romania  decided that the notion of “child’s domicile” referred to under article 133 of the Law on the protection and promotion of the rights of the child refers to the place where the child constantly lives rather than to the official domicile of the parent. This clarification is highly important for cases with children since the article 133 of the Law no 272/2004 establishes that “The cases stipulated by the present law concerning the establishment of the special protection measures, are decided by the second level court of law (tribunal) in whose territorial range the child’s domicile is located”. Thus, the High Court considered that the best interest of the child is better served if the court has easy access to important proof (such as social enquiry on the child’s living conditions).

Source and text:

Targu Mures Court of Appeal, judgement of 15 June, 2017 no 246

The Court upheld the decision of Targu Mures Tribunal and confirmed the placement measure taken by the child protection authorities in the case of a 13 years old girl. The child had been removed from the care of her mother because the latter had been hindering the girl’s access to education, by retaining her at home under different pretexts. After being informed by the school, the child protection authorities placed the child into the care of a family. When confirming the placement, the Court of Appeal “took into consideration the child’s opinion as expressed in front of the court according to which, in the previous school year, she failed the grade because her mother and grandmother didn’t allow her to go to school alone and kept her locked inside, but now she goes to school and has good results”. 


► Legal guardians for unaccompanied migrant children

Following the recent enactment of the Protection Act for Unaccompanied Migrant Children (no. 47/2017, see T.A.L.E. Newsletter no. 5), the Italian government and each Region approved extensive implementing provisions to recruit and educate volunteer guardians for unaccompanied migrant children with specific duties of legal representation in administrative and judicial procedures. The Italian national omburdsperson for children and adolescents opened a public call for citizens to engage in guardianship for unaccompanied migrant children in every Region.


 ►  Supreme Court, Civil Section VI, judgement of 27 september 2017, no. 22744

In the joint exercise of parental responsibilities for matters of particular importance to the child’s life, the Court held that a parent cannot obtain exclusive custody based on alleged difficulties in the management of the child's alternate residence with each parent. The Court deems the ability of each parent to overcome such difficulties as essential in the exercise of their responsibilities. The general principle of joint parental custody applies in the interest of the child to have alternate residence with each parent. The parental responsibilities for matters relating to the child’s everyday acts will be exercised by whichever parent is residing with the child in that period.

Constitutional Court judgement of 28 April 2017, no. 90

The court held that the provision forbidding to stay a sentence to imprisonment for underage convicted persons clashes with the Italian Constitutional principles of child protection and recovery of convicted prisoners. As a consequence, the said provision of the Code of Criminal Procedure becomes ineffective (Article 656, Section 9, a). This decision represents a landmark in Italian criminal procedure law.



T.A.L.E. Summer School, 22-23 September 2017

Fifty legal experts participated from the United Kingdom, Portugal, Spain, Romania and Italy to the highlight of the T.A.L.E. Project with presentations of the project findings, three workshops on the implementations of the Council of Europe Child Friendly Justice Guidelines and fruitful discussions with prominent international experts on the use of international instruments for the protection of child rights in legal proceedings.

The videos are published on the TALE Project website at

11th European Forum on the rights of the child: Children deprived of their liberty and alternatives to detention

The annual conference organised by the European Commissio will take place in Brussels on 7-8 Novembre 2017. It gathers key actors from EU Member States (as well as Iceland, Liechtenstein, Norway, Switzerland and the Western Balkans), international organisations, NGOs, Ombudspersons for children, practitioners, academics and EU institutions to promote good practice on the rights of the child.

More information:


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

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