Removing a child from their parents to prevent harmful indoctrination was at the heart of a recent European human rights case. Ed Mitchell reports
What was the key point in the case of Schmidt v France?
Children need protection from many different forms of harm. This case illustrates that, under the European Convention on Human Rights (“the Convention”), forcible separation of parent and child can be justified for reasons other than direct physical or sexual abuse. Here, the European Court of Human Rights (“the Court”) held that the French authorities had acted properly in removing a child from parents who wished to raise her in an ultra-strict religious environment.
How did the case arise?
Mr Schmidt is a French national. He and his wife were members of “The Citadel”, an evangelical church. In 1993, their daughter, aged three, was placed in care in France. This was authorised by a French children’s judge who found that Citadel children were cut off from the “Satanic” outside world, obliged to observe frequent fasts, had limits placed on their sleep and, as punishment, were slapped and hit with belts. The judge concluded that, if the child remained with her parents, her “psychological balance and development was likely to be seriously compromised”. For this reason, the judge authorised the child’s removal.
In 2007, the parents argued before the Court that their rights under Article 8 of the Convention had been violated.
What does the Convention have to say about care proceedings?
Article 8(1) provides that everyone has the right to respect for their family life. Inevitably, to forcibly separate parent from child interferes with this right. That, however, does not mean that separation is impermissible. In certain circumstances, the Convention permits interference with Article 8(1) rights if three conditions were met: first, the interference must be provided for in law (which it was in France); second, the interference must be in pursuit of a legitimate aim (in this case, the protection of the child’s rights and freedoms); and third, the interference must be “necessary in a democratic society”.
Was separation of parent from child “necessary in a democratic society”?
In analysing whether the child’s removal from her parents was necessary in a democratic society, the Court focused on whether there were “sufficient grounds” for it. It noted the French judge’s finding that the child’s psychological development was likely to be severely compromised by a Citadel upbringing. It went on to conclude that, having regard to the child’s best interests – which the Court said “in cases of this sort, had to take priority over any other consideration” – there were sufficient grounds for removal.
Did the French authorities do enough to try and re-unite parents and child?
Following the child’s removal, the French authorities did make genuine attempts to rehabilitate the child, and maintain links with her parents. Those attempts failed as a result of parental opposition. Accordingly, in the period following removal, the French authorities had demonstrated respect for the family’s Article 8(1) rights.
Is this case relevant for the UK?
This case does not alter the threshold for child protection interventions in the UK. In England and Wales, for example, a full care order may only be made if the Children Act’s “significant harm” threshold is met. What the decision does show, however, is that where a court decides that this threshold is met by reason of likely psychological damage, such a finding is capable of justification under the Convention.
Ed Mitchell is a solicitor, editor of Social Care Law Today, and Community Care’s legal expert