Latest case law in relation to children’s human rights

The last word on tug-of-love rows and Roma-only classes

Ed Mitchell looks at the latest case law concerning human rights and children, following recent judgements from Europe’s highest court

Since the enactment of the Human Rights Act 1998, the European Court of Human Rights (ECHR) has become one of our most influential courts, regularly giving decisions with implications for UK social care practice involving children. Recent significant decisions include:

Maslov v Austria: deportation for juvenile offending

M was a Bulgarian national who had lived with his family in Austria since he was six. When 15, he committed offences of burglary, extortion and assault. An Austrian court imposed a 10-year exclusion order to become effective once M turned 18. It was duly implemented and he was deported to Bulgaria.

The ECHR held that M’s deportation violated Article 8 of the European Convention on Human Rights – right to respect for private and family life – because it was disproportionate to the Austrian authorities’ legitimate aim, prevention of crime. The ECHR noted that M’s offences were, in fact, largely non-violent and a form of “juvenile delinquency”. Judges saw little to justify the expulsion of a settled migrant on account of mostly non-violent offences committed as a minor. M was awarded €3,000 damages.

Orsus v Croatia: Roma-only education

This case was brought by children who had been educated in Roma-only classes at Croatian primary schools. Croatia said this was necessary because they required special tuition in Croatian. The ECHR accepted this and held that the children’s rights to receive an education had not been breached. Judges noted that the curriculum was the same for Roma classes as for mixed classes and that the children’s parents had not requested their transfer to mixed classes.

The ECHR also held that the children had not been discriminated against. This was because any difference of treatment was based upon language and not race. This finding can be contrasted with another recent Roma-only education case, Sampanis v Greece, where a violation was found because separate education in a Greek primary school could not be justified by reference to educational criteria. It appeared merely to pander to the prejudices of non-Roma parents.

Leschiutta v Belgium – cross-border child abduction

L was the Italian father of a nine-year-old child whose mother abducted him to Belgium. The father had an Italian custody order which a Belgian court held was enforceable in Belgium. Despite this, only one abortive attempt was made by a Belgian court bailiff to enforce it. Subsequently, the mother was awarded custody by the Belgian courts on the basis that the child said he wanted to live with her. In 2000, however, the child was taken into care and returned to Italy.

The ECHR held that Belgium had violated the father’s rights under Article 8 by failing to take all reasonable steps to return the child to him. The authorities’ passivity could have led to a total breakdown in the relationship between father and child. The father was awarded €20,000 compensation.

X v Croatia: adoption and mental capacity

This case concerned a mother with paranoid schizophrenia who had been divested of legal capacity to act under Croatian law. As a result, her four-year-old daughter was given up for adoption without her knowledge or consent. This was despite the daughter having lived with her mother until age two and their having maintained contact thereafter.

The ECHR found a violation of Article 8. Croatian law was defective for failing to allow for the mother’s involvement in the adoption decision-making process. €8,000 damages were awarded.

Ed Mitchell is a solicitor, editor of Social Care Law Today, and Community Care’s legal expert

Published in the 7 August edition under the heading ‘The last word on tug-of-love rows and Roma-only classes’