After paragraph 8.6, add the following paragraph:
“sign and/or ratify, if they have not yet done so, the relevant conventions of the Council of Europe relating to the rights of children, most notably 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), and implement all pertinent recommendations emanating from the Committee of Ministers;”
At the beginning of paragraph 8.1, replace the words “put into place” with the words “review existing (or, where necessary, put in place new)”.
After paragraph 8.1, insert the following paragraph:
“continue and strengthen their efforts to ensure that all relevant procedures are conducted in a child-sensitive manner, and that the children concerned have their views taken into account according to their age and level of maturity;”
At the end of paragraph 8.3, add the following words:
“, in line with their obligations stemming from the European Convention on Human Rights (ETS No. 5, “the Convention”), as interpreted by the European Court of Human Rights, as well as the United Nations Convention on the Rights of the Child, as interpreted by the United Nations Committee on the Rights of the Child;”
After paragraph 8.3, insert the following paragraph:
“ensure that any (temporary) placement of a child in alternative care, where it has become necessary as a measure of last resort, be accompanied by measures aimed at the child’s subsequent reintegration into the family, including the facilitation of appropriate contact between the child and his or her family, and be subject to periodic review;”
In paragraph 8.4, after the words “except in exceptional circumstances”, insert the words “provided for in law, and subject to effective (timely and comprehensive) judicial review”.
At the end of paragraph 8.6., add the following words:
“, while ensuring the effective protection of personal data;”
Proposed amendment A is arguably self-explanatory. The instruments referred to therein set binding minimum standards for the respect and protection of the rights of children, and the Assembly should urge those member States which have not yet done so to affirm their commitment to the rights of all children under their jurisdiction, by signing and/or ratifying the relevant conventions developed under the auspices of the Council of Europe and by taking all necessary steps to ensure their effective implementation.
This proposed amendment merely aims to make the draft resolution more precise, by clarifying that member States should both review their existing laws, regulations and procedures, revise them in case they are found to be incompatible with international standards and, if necessary, adopt new ones, in order to ensure that the best interests of the child are the decisive consideration in all child removal, placement and family reunification procedures.
By means of this proposed amendment, express mention of children's right to participation in decisions affecting them would be inserted into the draft resolution. Given the far-reaching impact on their lives, children should be heard in all stages of separation, placement and reunification processes (namely before an initial decision is taken, while it is being implemented and after it has been lifted), according to their age and level of maturity.
Children’s right to participate in proceedings concerning them is reflected in the Committee of Ministers’ Guidelines on child-friendly justice of November 2010. The United Nations Convention on the Rights of the Child stipulates, in Article 12, that a child capable of forming his or her own views shall be able to express those views freely in all matters affecting him or her. As has been highlighted by the United Nations Committee on the Rights of the Child, “the fact that the child is very young or in a vulnerable situation … does not deprive him or her of the right to express his or her views, nor reduces the weight given to the child’s views in determining his or her best interests”.Note This requires that proceedings be both accessible and appropriate for children, and that relevant information be provided in a child-friendly manner.
I believe that in order to guarantee the effective implementation of these generally recognised principles, we need to promote a change in attitudes. We must no longer regard children as mere objects of decisions taken by the competent authorities. They are bearers of rights, not only to protection, but also participatory rights. I wish to add that, by avoiding unduly inflexible and legalistic procedures and instead facilitating children's participation in these processes, member States create an important safeguard for giving real effect to the somewhat vague and flexible notion of the “best interests of the child”, the particular content of which needs to be determined on a case-by-case basis, by evaluating and balancing all the elements necessary for taking into account the specific circumstances of each child.
In my view, the issue of assistance to be provided to families with the aim of supporting them in providing adequate care for their children is of crucial importance and therefore deserves to be reinforced in the draft resolution, by adding a reference to the international instruments setting out States' duties in this respect. The Committee on the Rights of the Child has recommended
“that States parties develop, adopt and implement … a comprehensive national policy on families and children which supports and strengthens families. The national policy should not only focus on the State subsidies and material assistance to families in need but to provide families with support in the form of so-called service plans, including access to social and health services, child-sensitive family counselling services, education and adequate housing”.Note
Similarly, the Assembly has stated, in its Resolution 1908 (2012) on human rights and family courts (which was based on a report prepared by my colleague Mr Christopher Chope (United Kingdom, EC)Note), that “[b]efore 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”.Note In the same vein, the European Court of Human Rights has underlined that States Parties to the Convention have a positive obligation to support parents in fulfilling their responsibilities and, where temporary separation has become necessary, to facilitate reunification.Note It also considers that before deciding to remove a child from his or her parents, the authorities have to examine whether the parents are permanently incapable of providing appropriate care for their children, or whether any inadequacies could be eliminated by financial and social assistance and effective counselling.Note
While I have already expressed my conviction that preventing family separation and preserving family unity are important components of the child protection system, I find it important to stress that maintaining the family unit should not be an aim in itself. Social services ought to strike a fair balance between the need to secure the holistic physical, psychological, moral and spiritual integrity of the child and its interest in being cared for by his or her natural family.
Proposed amendment E acknowledges that the overriding requirement of acting in the child’s best interest sometimes means that social services will be obliged to place a child into care in order to ensure his or her protection. This does not, however, put an end to the family relationship. Where such measure is implemented, “the placement should not be longer than necessary and should be subject to periodic review with regard to the child's best interests that should be the primary consideration during his or her placement; the parents should be supported as much as possible with a view to harmoniously reintegrating the child in the family and society”, as stressed by the Committee of Ministers.Note The European Court of Human Rights shares the view that taking a child into care should normally be a temporary measure, to be discontinued as soon as circumstances permit reuniting the child and his or her natural parents,Note and that, to this end, the social services should take appropriate measures to enable the child to benefit from regular contacts with his or her parents.Note
A direct correlate of States Parties’ positive obligations under Article 8 of the Convention to facilitate the reunification with their families of children temporarily placed in care – as outlined in the explanatory note accompanying proposed amendment E – is the rapporteur’s call, in paragraph 8.4 of the draft resolution, to avoid severing family ties completely. Resorting to such drastic measures will indeed only be justified in the very exceptional cases.
I am of the view that the draft resolution would benefit from making express mention of the need to guarantee that any decision which would result in the permanent severing of a child’s family ties with his or her parents (including, in particular, a child’s placement for adoption against the will of his or her parents) must be based on law and be subject to strict legal safeguards and effective (timely and comprehensive) judicial review. Given the profound and potentially irreversible consequences of any such decision both for the child concerned and his or her parents, such review should be undertaken with the strictest scrutiny so as to avoid irreparable adverse consequences for the parties’ family life.
As I have stated in my general remarks above, I share the rapporteur’s view that the collection of disaggregated data is of critical importance. Yet, I consider that the draft resolution could be strengthened by amending paragraph 8.6 in the proposed manner, thus emphasising that member States ought to guarantee that the privacy and personal data of the child concerned, as protected by Article 8 of the Convention (which guarantees the right to respect for private life and correspondence), be protected in all stages of proceedings affecting them. The technical and legal protection of the collected personal data is indispensable to prevent the abusive use of such information, which could result in re-victimisation of the child.