Tcholatch v. Canada
Human Rights Committee
Communication No. 1052/2002
20 March 2007
International Covenant on Civil and Political Rights, article 14 (right to fair trial), article 17 (protection from interference with privacy, family, home or correspondence), article 23 (protection of the family) and article 24 (protection of minor children)
Ms Nataliya Tcholatch complained on her own behalf and on behalf of her daughter, Julia Tcholatch, that Canada had violated their rights under a number of articles of the Covenant on Civil and Political Rights, of which the Committee deemed admissible the complaints under articles 14, 17, 23 and 24.
Julia was removed from the care of her mother by the authorities at 4 years of age on suspicion of physical abuse. Julia Tcholatch was subsequently placed in a foster family and her mother was prohibited from having contact with her. By the time the case reached the Committee, the girl had already been adopted by the foster parents.
The state argued that Ms Tcholatch had no standing to represent her daughter, who was then 14 years old and adopted by another family, but the Committee noted that a non-custodial parent can represent their child in proceedings and such representation was justified by the bond between a mother and her child.
The Human Rights Committee found a violation of the right to respect for private life and family under article 17 in that the social services unilaterally decided to terminate access of Ms Tcholatch to her daughter, without having this decision reviewed by a court.
In relation to the right to enjoy protection for family life under article 23, the Committee noted that at the basis of that right is the maintenance of personal relationships and direct and regular contact between a parent and a child, and only in exceptional circumstances should this be contact be obstructed. In the absence of such exceptional circumstances, it cannot be deemed in the best interests of the child to prevent all access for the parent. In the Committee’s opinion, the level of abuse alleged and Ms Tcholatch’s lack fo cooperation with the authorities did not amount to exceptional circumstances that warrant the severance of ties between the parent and the child and, therefore, there had been a violation of article 23.
The Committee also held that the way in which the State’s legal system reached that decision did not afford sufficient protection to the family unit and the concluded that the right to special protection for minor children under article 24 was breached for the same reasons. In addition, Ms Tcholatch also suffered a violation of the right to fair trial under article 14 by reason of undue delays.
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.