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
► Court of Justice judgement of 8 June 2017 Case C-111/17 PPU
► Decision of the Lisbon Court of Appeal, 7 August 2017
► Decision of the Lisbon Court of Appeal, 13 July 2017
► 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: https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal.html
► Reform of privacy regulation for children and young adults
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  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.
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
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
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: http://www.scj.ro/1093/Detalii-jurisprudenta?customQuery%5B0%5D.Key=id&customQuery%5B0%5D.Value=135232
► 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 https://tale.savethechildren.it/
► 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: http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=128349&lang=en
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