European Court of Human Rights
18 December 2008
Article 9 (separation from parents)
Other international provisions:
European Convention on Human Rights, Articles 6(1), 8 and 14
Constitution of Ukraine, Articles 32 and 51
Family Code of Ukraine, Article 170
Law of Ukraine “on the Protection of Childhood”, Sections 11 and 12
The parents of seven children were both blind and neither was in work. The family lived in two two-bedroomed flats with no drains or hot water. Four of the children were initially removed from the home and placed in a boarding school on the grounds that the parents were unable to provide adequate care. Care orders were later made for the remaining four children. The parents challenged the removal of the children from their care through the Ukrainian courts before bringing their complaint to the European Court of Human Rights (ECHR).
Issue and resolution:
Removal of children from parental care. The removal of the children from their parents care violated the parents’ right to respect for private and family life.
The Court held that the precarious situation of the parents alone could not justify the removal of the children, nor did the fact that the children could be placed in a more beneficial environment. The Court questioned the lack of evidence for the national courts’ findings that the children had experienced harm and was critical of the failure of national courts to corroborate the submissions of local authorities. The Court also found that there was no evidence that the judicial authorities analysed the extent to which the alleged failure of the parents to provide the care needed for their children was a result of their inability to do so and what could be overcome with financial and social assistance. The Court also noted that at no stage of the national proceedings were the children heard by a judge.
The Court found the parents’ complaint that they had faced discrimination on the basis of their disability inadmissible, as they had not submitted any evidence that their treatment was different to any other parents without a disability in a similar situation.
The Court did not address the alleged violation of their right to a fair hearing under Article 6, as the relevant concerns were dealt with under the right to private and family life.
Excerpt citing the CRC
“33. In the Preamble to the Convention it is mentioned that a child, for the full and harmonious development of his or her personality, should grow up in a family environment. According to Article 9 of the Convention, States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such a separation is necessary in the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents. In such a case all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”
“34. In its Concluding Observations, adopted on 9 October 2002 upon consideration of the second periodic report of Ukraine, the Committee mentioned as follows:
“(…) the Committee remains concerned about the low level of resources in general for social services, health and education having a negative impact on the quality and accessibility of services, especially affecting families with children living in poverty;
(…) The Committee is concerned that the principles of … the right to have his/ her best interest as a primary consideration … (is) not fully reflected in the State party’s legislation, policies and programmes at national and local levels.
(…) The Committee expresses its serious concern at the high increase in number of children left without parental care and regrets that its previous recommendations, to the State party, to develop a comprehensive strategy to assist vulnerable families, has not been followed”.”
CRIN believes this decision is partially compatible with the Convention on the Rights of the Child (CRC). While the Court recognised the right of children to remain in the care of their parents unless removed by competent authorities in accordance with the law and as necessary in a democratic society, it did not consider the requirement under Article 9(1) of the CRC that the separation of children from their parents must only be carried out when necessary in the best interests of the child.
Application No. 39948/06
Link to Full Judgment:
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