1. Aims and scope
The duty to protect children and promote their welfare is a fundamental principle of social policy enjoying widespread international consensus. Providing this protection and care is a public duty, which international instruments and European law place on the states (Art 3(2) UNCRC; Art 17 ESC rev). Within the field of EU law, children are granted the right to such protection and care by Art 24(1) EU-Charter (child law (international)). Naturally, the duty to protect children does not fall upon states in the first instance but upon parents, as part of their primary responsibility for the upbringing and education of children (Art 18(1) UNCRC). In the exercise of this responsibility, parents have the right to appropriate assistance, but they may also be subject to interferences by public authorities and restrictions on their autonomy in the event that they fail to fulfil their duties and the child’s best interests make public intervention necessary. In a strict legal sense, child protection embraces the whole set of measures which public authorities can adopt to guarantee children’s full protection. Although these measures are usually associated with a loss of parental autonomy, and may indeed bring about the total or partial suspension or removal of parental responsibilities, child protection also includes and prioritizes support measures which involve cooperation with families. From an institutional point of view, it has to be highlighted that instruments of international and European law place child protection rules and measures within the scope of the law of parental responsibility. The attribution and exercise of rights and duties in relation to a child’s person or property is integrated within the framework of such responsibility, even though the person to whom responsibility is awarded may be a third party outside the family circle or even a legal person. See in this context Art 1(2) Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 1996 and Arts 1(2) and 2(7) of Reg 2201/2203 (Brussels IIbis).
2. Legal developments
Child protection principles and practices have undergone radical changes in Europe in recent decades. Until the second half of the 20th century, social welfare institutions acted for charitable reasons and cared for orphaned children or those who had been abandoned for reasons of illegitimacy. In present-day societies, public authorities have a legal duty to protect children: the negligent omission to take protection measures in cases of serious and persistent neglect may generate responsibility for infringement of the right not to suffer inhuman or degrading treatment (ECtHR No 29392/95 – Z and others). Moreover, the main focus of attention in child protection is currently on children at risk of suffering neglect, ill-treatment, sexual abuse, exploitation or other situations of abandonment. The frequent need to interfere coercively in these children’s family sphere has led to defining frameworks for intervention of considerable legal complexity.
Laws have to establish the threshold which justifies public intervention. Although the factual conditions which contribute to define this threshold requirement vary from one country to another, they are usually based on similar criteria. Legal systems tend to objectivize the circumstances which enable the intervention of public authorities and avoid the need of proving that these circumstances are attributable to blameworthy conduct on the part of parents (as in the reform of § 1666 s 1 Bürgerliches Gesetzbuch (BGB) in 2008). The definition of the factual basis for intervention is normally accompanied by the additional safeguard that interference is only warranted if it is necessary and in the child’s best interests. The ‘necessity test’ (carried out in implementation of Art 8(2) ECHR, and also found in Art 9(1) UNCRC and Art 24(1) EU-Charter) is not only used to justify intervention but also to determine the type of measures that have to be adopted.
With regard to the attribution of powers for taking and enforcing child protection decisions, most European systems are dual: powers are entrusted to administrative and judicial authorities. The distribution of functions between administrative bodies and courts is based on criteria specific to each legal system. Judicial bodies—in most countries, belonging to a specialized jurisdiction—always have the function of reviewing administrative acts and adopting the most intrusive measures into family autonomy, such as the removal of parental responsibility. Administrative bodies, sometimes in cooperation with social partners, collect information, identify children in need, provide advice and assistance to families, implement judicial care orders and exert supervisory functions. In many cases, the implementation of measures is entrusted to foster families or to other private agents. The case of Denmark should be mentioned as an exception to the dual system; measures are taken by mixed local commissions at which representatives of local government and the judiciary are present, and they are also reviewed, where appropriate, by independent commissions; all that falls to the courts, in the exercise of jurisdiction, is the discharge of parental responsibility.
To determine the protection measures and orders which can be adopted, uniform general principles apply in Europe, due to a great extent to the harmonizing function fulfilled by the case law of the European Court of Human Rights (ECtHR) (see 3. below). Protection measures have to satisfy the principle of proportionality and necessity (or lesser restriction). Therefore, social and financial assistance, counselling and working in partnership with the family have to be preferred to coercive intervention. In the event that compulsory measures need to be adopted, preference has to be given to those that can be implemented in the child’s own home. If it is necessary to remove a child from his or her family, the possibility of reversing the separation must be carefully assessed. In this case, the measures must not run counter to the aim of a future family reunification. Placements in a family environment are given priority over institutional placements. When adopting coercive measures, the fair trial guarantees—and especially the parents’ right to a fair hearing—must be respected. Similarly, the child must be heard in accordance with his or her age and degree of maturity. Most of these principles have been reflected in the UN Guidelines for the Alternative Care of Children (2009). However, despite all these common substantive and procedural standards, European child protection systems are highly heterogeneous with regard to the nature of measures which can be adopted and their legal shape: the nature of measure depends heavily on each state’s social policy priorities and financial means; their legal shaping is linked to the national legal cultures.
The attribution of protective functions to persons other than parents (whether they are members of the extended family, foster parents or public or private entities) is instrumented by law in highly varied ways. There are legal systems (as in Germany, Spain or Italy) which have recourse to the same institutions which are normally used to replace or complement the parental authority assigned to parents in those cases where such authority becomes wholly or partially ineffective, ie guardianship, curatorship or analogous institutions (guardianship of minors). In these cases, if the guardianship or the curatorship is assumed by a public institution, its establishment and exercise are usually subject to specific rules because of the guardian or curator’s public authority status. Other legal systems use the technique of delegating parental authority to third parties, with or without the parents’ consent, although they also permit its compulsory removal and the appointment of a guardian if the seriousness of the circumstances so requires (France). Protective functions can also be vested in public bodies through the attribution of parental responsibility by court order (England). According to English law the judge’s issuing of a care order in favour of the local authority confers parental responsibility on it but neither suspends nor extinguishes the responsibility of parents; the latter, however, may not exercise their responsibility in a way which is incompatible with the decisions which the public authority is entitled to take. In view of the variety of legal techniques used in Europe, subsuming the exercise of child protection and care functions under the category of parental responsibility in EU law seems to be a good approach, although it does not sort out all the difficulties posed by the need to coordinate the (shared or residual) responsibilities of parents and those of caregivers.
3. Cross-border child protection
The need to ensure maximum effectiveness in cross-border situations has led to the enactment of various instruments of international private and procedural law (child law (international)). The Hague Convention of 1996 (Hague Conference on PIL) and the Brussels IIbis Regulation (Reg 2201/2003) stand out among them. Both aim at the determination of jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility, this term being understood in a broad sense. The notion of judgment includes all judicial and administrative decrees, orders or decisions dealing with measures of child protection, except measures preparatory to adoption (Art 4(b) Hague Convention of 1996; Art 1(3)(b) Brussels IIbis Reg). The Convention of 1996 revises the Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of infants of 1961, which had limited success. As well as the above-mentioned matters, the Convention of 1996 also regulates the applicable law and does this on the basis of the principle that the authorities competent to adopt protection measures apply their own law (Art 15(1)). The Brussels IIbis Regulation, for its part, replaces the Brussels II Regulation (Reg 1347/2000), which had the same aim but a narrower scope of application, because it only covered issues of parental responsibility within the framework of marriage proceedings. The broadening of the Brussels IIbis Regulation is especially relevant in relation to child protection, an area which was left out of the preceding Regulation. Many of the rules of the Brussels IIbis Regulation draw inspiration from those of the Hague Convention of 1996 since the latter was drafted at the same time as the Convention of 1998, which later became the Brussels II Regulation. Both instruments contain rules which facilitate their reciprocal coordination (Art 52 Hague Convention of 1996 and Art 61 Brussels II Reg). As a general rule, jurisdiction to adopt protection measures is assigned to courts of the state in which the child is habitually resident (Art 8(1) Brussels IIbis Reg). The Brussels IIbis Regulation then applies if the country of the child’s habitual residence is an EU country whereas the Hague Convention of 1996 applies in the case that the habitual residence lies in a third state which is a contracting party to that Convention.
4. Convergence trends in European law
In substantive law no steps have yet been taken for the drawing up of uniform texts or principles specifically dealing with child protection. The Commission on European Family Law (CEFL) has given fresh impetus to comparative law research, within the framework of the preliminary work for the drafting of the Principles of European Family Law Regarding Parental Responsibilities (PEFLPR) published in 2007. Given that child protection responsibilities are included within the concept of parental responsibility, the Principles may be relevant as regards: (i) the exercise of child protection responsibilities vested in the child’s relatives, foster parents or public or private institutions; (ii) the content of the powers and duties allocated to these persons; (iii) the discharge and restoration of parental responsibilities held by parents or other persons; (iv) some basic procedural rules for the adoption of protection measures.
The most relevant factor accounting for harmonization and the setting out of common standards in European systems of child protection has been the case law of the European Court of Human Rights (ECtHR). Acknowledging that child protection is a very sensitive matter and one in which there are great evidentiary difficulties, the court accepts, in general, that internal authorities are better placed to assess the circumstances of the particular cases and establish the most adequate course of action. Likewise, it acknowledges that the definition of the threshold justifying the intervention of public authorities may contain elements of indeterminacy, because it is not possible to formulate a law to cover every eventuality (ECtHR No 10465/83 – Olsson (Nr 1)). The court has also highlighted the exceptional nature of measures separating children from their families, which have to be justified by the child’s best interests. If exceptional reasons are not present, measures of child placement in public care must be temporary and have to be implemented in such a way as to be consistent with the ultimate aim of reuniting the family (ECtHR No 10465/83 – Olsson (Nr 1)). This requires the measures to be proportionate to the specific necessity which has led to the intervention. The proportionality requirement is particularly evident in cases where children are not the victims of abuse or ill-treatment, but suffer the consequences of deficiencies in their parents’ intellectual capacities (ECtHR No 46544/99 – Kutzner; No 39948/06 – Saviny), or are materially deprived, such as lacking adequate housing (ECtHR No 23848/04 – Wallová and Walla; No 23499/06 – Havelka and others). Restrictions to access rights are scrutinized more rigorously than restrictions to custody because they may bring about the child’s definitive alienation from its family if they are lasting and the child becomes successfully integrated in a foster family (ECtHR No 61/1990/252/323 – Andersson; No 31127/96 – E.P.; No 74969/01 – Görgülü). In the same way, before taking a measure involving family separation, social welfare agencies have to show that its impact has been carefully assessed and that possible alternatives have been evaluated (ECtHR No 25702/94 – K. and T.; No 11057/02 – Haase). Strasbourg case law has also placed great emphasis on the recognition of procedural safeguards. Thus, it has stated that parents affected by protective measures have to be involved in the decision-making process to a degree sufficient to allow them to defend their interests (ECtHR No 9749/82 – W.). This includes having access to the relevant documentation (social reports, medical or psychiatric examinations, witness statements) (ECtHR No 16424/90 – McMichael) and the right to have legal assistance during proceedings (ECtHR No 56547/00 – P.C. and S.). In child protection proceedings, the child has the right to receive all relevant information and to be consulted and express his or her views whenever he or she is considered by domestic law as having sufficient understanding (European Convention on the Exercise of Children’s Rights of 1996). The opinion of an 11-year-old child in the care of an adoptive family may be relevant in frustrating the implementation of measures to return him or her to his or her original home if the adoption is set aside (ECtHR No 22430/93 – Bronda).
Paul Lagarde, ‘Explanatory Report on the 1996 Hague Child Protection Convention’ in Hague Conference on Private International Law (ed), Proceedings of the Eighteenth Session, vol II, Protection of Children (1996) 534; Jacqueline Pousson-Petit, L'enfant et les familles nourricières en droit comparé (1997); Ursula Kilkelly, The Child and the European Convention on Human Rights (1999); Katja Schweppe, ‘Child Protection in Europe: Different Systems – Common Challenges’ (2002) 3(10) German Law Journal; Katharina Boele-Woelki, Bente Braat and Ian Curry-Sumner (eds), European Family Law in Action, vol III, Parental Responsibilities (2005); Nancy Freymond and Gary Cameron (eds), Towards Positive Systems of Child and Family Welfare: International Comparisons of Child Protection, Family Service, and Community Caring Systems (2006); Service des études juridiques France (ed), Les structures de protection de l’enfance, Les documents de travail du Sénat, Études de législation comparée, No LC 170 (2007); Géraldine van Bueren, Child Rights in Europe (2007); Josep Ferrer i Riba, ‘Principles and Prospects for a European System of Child Protection’ (2010) 2 InDret.