1. International Legal Instruments Concerning Family Law and Child Protection. The Role of the Council of Europe.
During the last twenty years international organisms have been playing an increasingly relevant role in the field of family law. Among these bodies, the Council of Europe has paid special attention to the need for reformation of legal remedies aiming to assure a better protection of children, drawing up a great number of international instruments-conventions as well as recommendations-on this subject. The main result of the large work which has been done in Strasbourg is represented by four conventions specifically devoted to children, as well as several recommendations of the Committee of Ministers of the Council of Europe concerning the fields of family law and children's rights.
Other international bodies, such as the United Nations, the European Union, or the Hague Conference on Private International Law, have largely contributed to the drawing up of international rules and standards, which have been accepted by many states of the world (1).
As far as Council of Europe is concerned, I will now only mention the titles of the four Conventions, which will be explained later on in my report. They are:
The European Convention on Human Rights (Rome, 4 November 1951), together with 10 additional protocols, protects fundamental rights and freedoms and sets up a mechanism capable of guaranteeing their respect. Only Article 5, paragraph 2, letter d (detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority) and Article 6 (exception to publicity of trial in the interest of juveniles) make an explicit reference to minors, but undoubtedly the whole convention protects children as well as adults. Article 1 provides that the rights and freedom set forth in the Convention are guaranteed to 'everyone.' The main rights set forth in the Convention are:
As what concerns Council of Europe's recommendations (4), they are quite numerous and important and concern different fields.
Two of them are specifically devoted to nationality of children and of spouses in order to ensure equality between husband and wife in acquiring the nationality of the other spouse and in transmitting their nationality to the children (5). Other two recommendations deal with the protection of children against ill-treatment and violence, the first having specific reference to the social environment of the child and the second to the familiar one (6). Some recommendations have a procedural content (7), while another group of recommendations concerning civil law deserves more attention as they lay down substantive principles applying both to children and spouses. They are:
(1) Of course, it will not be possible to give a complete information about all this material; actually it is contained in the document "Council of Europe achievements in the field of family law" published by the Council of Europe in March 1995. The conventions that will be mentioned are also published in the Internet. Their respective URLs will be mentioned later on, under each of the commentaries of the relevant instruments. For a general overview on the activities of the Council of Europe in this field see Killerby, Activities of the Council of Europe Relating to Efficiency and Fairness of Civil Justice and Family Law, in La cooperazione giudiziaria nell'Europa dei cittadini: situazione esistente - prospettive di sviluppo, in Speciale Documenti Giustizia, Roma, 1996, c. 60-67.
(2) The European Convention on Human Rights is particularly important, as it sets up a mechanism capable of guaranteeing its respect. Art. 25 provides for the so-called "individual petition," that is the right of any person, claiming to be the victim of a violation of the rights set forth in the Convention, to address a petition to the Commission. The petition is made against the State, as-according to the mechanism of the Convention-States are responsible for guaranteeing the rights provided for in the Convention. The Commission (and the Court, when the case is deferred to it) shall decide if there has been a violation of the convention and, if the internal law of the Contracting Party involved does not provide for reparation for the consequences of the violation, it shall afford the right compensation to the injured party. It is important to stress that children can lodge complaints with the Commission without the assistance of their legal representative, even if , under their national law, they may not have legal capacity and need the assistance of their parents or other legal representatives (see the decision of the Court of Human Rights 4 October 1962, req.n. 2527/62).
The European Commission and the Court of Human Rights have examined numerous cases concerning the rights of the members of the family. The Articles of the conventions which were taken into consideration more often are Article 8 (the respect of family life), Article 14 (freedom from discrimination), Article 2 of the 1st Protocol (right to education). Article 5 of Protocol 7 provides equality between spouses and in their relation with their children as to marriage and its dissolution, but up to now it has not been examined by the organs of the convention. This right however is of great importance because it is liable to be applied to many different situation and may constitute the real channel for giving to family life the effective protection provided for in the European Convention on Human Rights (see Bianchi Bonomo, General Trends in the International Legal Instruments of the Council of Europe Concerning Children, Report for the Seminar On The Protection Of Children's Rights, organised by the Council of Europe and held in Kiev, 29 - 30 August 1996).
(3) See Bianchi Bonomo, General Trends in the International Legal Instruments of the Council of Europe Concerning Children, cit.
(4) Resolutions are called Recommendations since 1979.
(5) See the Resolutions on the Nationality of Children [(77) 13] and on the Nationality of Spouses of Different Nationalities [(77) 12].
(6) See the two Recommendations on the Protection of Children against Ill-Treatment or Violence [(79) 17 and (85) 41].
(7) This is the case of the Recommendation on Emergency Measures which invites States to provide courts and authorities dealing with family matters with sufficient powers to protect children and to introduce simple and expeditious procedures and effective and rapid enforcement of the decisions taken. According to Recommendation (87) 20 on the Protection of Children in the Case of Juvenile Delinquency Proceedings, governments are recommended, inter alia:
(9) The Resolution on this subject seeks to encourage each State to choose the non-discriminatory solutions that are best suited to national traditions. In 1984 the same principle was incorporated in the 7th Protocol of the European Convention (art.5) and given the relevant protection. The recommendation includes quite a number of precise indications. In particular, steps should be taken:
(10) This Recommendation defines such responsibilities "as a collection of duties and powers which aim at ensuring the moral and material welfare of the child, in particular by taking care of the person of the child, by maintaining personal relationships with him and by providing for his education, his maintenance, his legal representation and the administration of his property." The second principle of the Recommendation provides that "any decision of the competent authority concerning the attribution of parental responsibilities or the way in which these responsibilities are exercised should be based primarily on the interest of the child." It is also important to underline that the Council of Europe has considered that the notion of parental authority should be replaced by the notion of "parental responsibilities," as these words better describe "the modern concept according to which parents are, on a basis of equality between the parents and in consultation with their children, given the task to educate, legally represent, maintain etc., their children. In order to do so they exercise powers to carry out duties in the interests of the child and not because of an authority which is conferred on them in their own interests."
The Recommendation does not stipulate a maximum age of the child until which parental responsibilities may be exercised as situations provided for in the national legislation vary greatly from one member State to the other. Parental responsibilities normally cease when the child reaches full age, but some responsibilities may continue to exist in specified cases (for example the duty to maintain a child of full age may last until completion of the child's education, or until the child is not able to maintain himself autonomously or when he is responsible for not having reached such financial independence). Conversely, account must be taken of cases in which children, who have not yet come of age, may validly perform certain legal acts without their parents' authorisation. This Recommendation takes account of the views of children and provides that, when the competent authority is required to take a decision relating to the attribution or exercise of parental responsibilities and affecting the essential interests of the children, the children "should be consulted if their degree of maturity with regard to the decision so permits." It's the first formal recognition of the right to be heard, which is now embodied in Article 12 of the UN Convention on Children's Rights and which is further developed in the Convention on the exercise of children's rights (see Bianchi Bonomo, General Trends in the International Legal Instruments of the Council of Europe Concerning Children, cit.).
(11) In order to improve the legal system relating to contributions following divorce, the Council of Europe has recommended States: