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Human rights and family courts

Doc. 13060: collection of written amendments | Doc. 13060 | Final version

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ADraft Resolution

1The Parliamentary Assembly is concerned about the functioning of family courts in some member States of the Council of Europe, and especially about cases where children are taken away against the will of their natural parents and in violation of the right to respect for family life and the principle of a fair trial.

In the draft resolution, paragraph 1, delete the word "natural".

Explanatory note

The protection which the draft resolution wishes to be afforded to children and their parents must not be limited to biological families alone but must be extended to adoptive families, within which real family ties are established and recognized.

Replace the present title with the following title: “Family courts and the child’s best interests”.

Explanatory note

The text of the draft resolution is not directly associated with the original title, but rather makes reference to children’s best interests and to the protection of those interests by family courts.

2Recalling its previous work on this subject, and in particular Recommendation 874 (1979) on a European Charter on the Rights of the Child and Recommendation 1121 (1990) on the rights of children, the Assembly reaffirms its commitment to defend and promote the rights and welfare of children.
3The Assembly recalls that a family environment offers the best conditions for the proper development of children. Before children are placed in the care of outsiders or in institutional care, their own families should be granted any assistance needed in order to cope with their problems.

In the draft resolution, replace paragraph 3 with the following paragraph:

“The Assembly recalls that in normal circumstances, it is the biological family that affords the conditions most conducive to the child’s development. Before a child is entrusted to a foster family or an institution, its family should be given the support needed to cope with any difficulties that may pose a threat to the child’s bodily or emotional integrity and well-being.”

Explanatory note

It is suggested to bring the language up to date with the current expertise on child welfare, as put forward by UNICEF (for example).

In the draft resolution, after paragraph 3, insert the following paragraph:

“This support should come under a comprehensive policy on child protection and prevention of violence against children, be based on high-quality services provided by institutions that co-operate closely in order to guarantee at all times that the child’s best interests are the paramount consideration, and involve the consultation and participation of children in any decision affecting them.”

Explanatory note

In dealing with a difficult family situation, whatever its cause, numerous measures can and must be taken to support families and protect children before a case comes before the family court. To reflect the complexity of family situations and of the decisions involved when the well-being of each child is to be secured, it should be illustrated that the Assembly supports this overall frame of action.

4Consequently, children ought to be separated from their natural parents only in very exceptional circumstances, subject to judicial review and in line with the requirements stemming from the European Convention on Human Rights (ETS No. 5) and the United Nations Convention on the Rights of the Child of 1989.

In the draft resolution, paragraph 4, delete the word "natural".

Explanatory note

Amendment logically following on from the similar amendment to paragraph 1 of the draft resolution.

In the draft resolution, paragraph 2, replace the words “Recommendation 874 (1979) on a European Charter on the Rights of the Child and Recommendation 1121 (1990) on the rights of children” with the following words: “Recommendation 1864 (2009) on Promoting the participation by children in decisions affecting them, Resolution 1714 (2010) and Recommendation 1905 (2010) on Children who witness domestic violence, Resolution 1762 (2010) and Recommendation 1939 (2010) on Children without parental care: urgent need for action”.

Explanatory note

The texts to which the draft resolution makes reference are very old and less relevant than other more recent Assembly texts.

In the draft resolution, paragraph 4, replace the word “Consequently” with the following words: “Following the intervention of the responsible social services”.

Explanatory note

Particularly after the insertion of a new paragraph, but also before, this opening to the paragraph has no direct and logical link with the foregoing text.

5The Assembly therefore calls on member States to:
5.1fully implement the United Nations Convention on the Rights of the Child;
5.2if they have not yet done so, sign and/or ratify the relevant Council of Europe conventions on the rights of children, in particular the European Convention on the Adoption of Children (revised) (CETS No. 202) and the European Convention on the Exercise of Children’s Rights (ETS No. 160);
5.3promote, disseminate and monitor the implementation of the 2010 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice;
5.4ensure that the domestic procedures concerning the adoption and placing into care of children are established in line with the principles stemming from the European Convention on Human Rights;
5.5ensure that the competent domestic authorities, when deciding on the adoption and/or placing into care of children:
5.5.1take into account the requirements stemming from the European Convention on Human Rights and the United Nations Convention on the Rights of the Child;
5.5.2give priority to the best interests of the child;
5.5.3provide practical assistance to families in trouble so as to minimise the number of cases in which a child must be separated from his or her parents;
5.5.4act speedily so as to avoid irreversible damage to the parties’ family life;
5.6continue to support the relevant activities of the Council of Europe bodies in the field of child protection and welfare.

In the draft resolution, at the end of paragraph 5.6, add the following words: “, including the Assembly’s activities aimed at preventing domestic violence and sexual violence against children”.

Explanatory note

The latter paragraph remains very general and contains no reference to the Parliamentary Assembly’s substantial work still in progress.