Week 1: Kinderrechten
● Freedom from Violence and Exploitation (chapter 2), p. 11-35 (25 pp), in: Claire
Fenton-Glynn, Children and the European Court of Human Rights, Oxford: Oxford
University Press 2021.
● Jaap. E. Doek, ‘The Human Rights of Children: An Introduction’. In: International
Human Rights of Children, Singapore, Springer 2018, p. 3-29.
,Freedom from Violence and Exploitation
In: Claire Fenton-Glynn, Children and the European Court of Human Rights, 2021
2.1 Introduction
The right of the child to physical integrity is a right that is slowly but surely gaining
recognition. Until recently, violence against children was permitted not only by parents, but
by teachers and the state for the purpose of discipline, and it still remains socially acceptable
in many jurisdictions. Moreover, it is only in recent decades that child abuse and
mistreatment has been recognised as a legal, rather than purely social problem.
The jurisprudence of the European Court of Human Rights is also undergoing a gradual, yet
encouraging evolution in its approach to the protection of children’s physical integrity.
Moreover, the Court has started to take a child-centred approach to sexual violence,
recognising children’s vulnerability and he need for enhanced protection. Nevertheless, there
is still some way to go before the Convention can be said to truly provide adequate
protection for children against all forms of violence, and in all settings.
2.2 Corporal punishment
Corporal punishment - which includes any punishment in which physical force is used and
intended to cause pain or discomfort to a child - has been recognised by the UN Committee
on the Rights of the Child als a violation of human dignity, physical integrity, and children’s
equal protection before the law. From the early 1990s, the UN Committee has taken a strong
stance against this practice, reading into the United Nations Convention on the Rights of the
Child an obligation on all states to implement an immediate and complete prohibition, with no
exceptions.
At the time the Convention was drafted, corporal punishment was legal in all states of the
Council of Europe; however, in 1966 Sweden became the first country in the world to prohibit
it in all settings, which has since been followed by 33 other European states.
2.3 Protection of children from parental abuse
As minors, children fall within the group of ‘vulnerable individuals’ entitled to especial state
protection. This protection extends beyond the physical to sexual and psychological abuse
also, and like corporal punishment, may fall within the scope of Article 8 (right to respect for
private life) or Article 3 (freedom from inhuman or degrading treatment), depending on its
severity.
The threshold to trigger Article 8 is quite low - all that is required is interference with physical
or psychological integrity, which is clearly the case in situations of child abuse. Article 3,
however, requires a higher degree of severity. In relation to physical abuse, the applicant will
have to show that the treatment is inhuman or degrading either because of its severity or the
circumstances in which it was inflicted. Sexual abuse, on the other hand, is more firmly
entrenched as a violation of Article 3, and the Court has rightly accepted, without further
examination, that this falls within the protection against inhuman or degrading treatment. The
most difficult of all are allegations of psychological abuse, where the question asked by the
Court is whether the treatment causes its victims feelings of fear, anguish, or inferiority, or if
it humiliates or debases them.
A procedural right for children who have suffered parental abuse is the right to an effective
remedy. Article 13 of the Convention requires the availability of a domestic mechanism for
establishing the liability of state authorities for acts or omissions involving a breach of
Convention rights. This obligation applies whether or not it is eventually determined that
,there has been a violation of the Convention: if there is an arguable claim, there must be the
prospect of a procedure that can establish the facts and determine the conduct that could be
reasonably expected of the authorities.
The recognition of a positive obligation on states to protect children from parental abuse has
been one of the most progressive, and important, contributions of the European Court of
Human Rights. It is a significant obligation to impose on states: on the one hand, they cannot
remove children from their family precipitously, as this would breach their rights under Article
8, but nor can they leave children in a home where they are at risk of suffering harm without
careful consideration and close monitoring of the situation. Nevertheless, this strict duty is to
be applauded: children are in an incredibly vulnerable position vis-à-vis their parents, subject
to their power behind closed doors. If child rights are to mean anything, the state must be
willing and able to breach this private sphere in order to ensure adequate protection of their
physical and emotional integrity.
2.4 Protection from sexual violence
As with parental child abuse, the state has a positive obligation to protect children against
sexual violence perpetrated by private individuals. Cases concerning sexual violence are
generally brought under Articles 3 and 8 jointly, and the Court often does not draw a clear
distinction between the two.
Although much of the jurisprudence in this area has built on principles already derived from
adult cases, the contribution of cases concerning minors has nevertheless been significant.
Importantly, the Court has taken a child-sensitive approach in this area, recognising the
particular vulnerability of certain classes of victims - including children, and those with a
disability - as a source of additional accountability, and requiring special measures by the
authorities.
The first, and foremost, obligation on states is to have in place an adequate legal framework
for the protection of individuals from third-party violence. The Court has made clear that in
cases of rape and sexual violence, this protection must involve the criminal law - civil
penalties will not be sufficient.
Of course, a law is only as good as its implementation: the relevant offences must be
effectively investigated and appropriately prosecuted. In order for the state to fulfil its positive
obligations in this respect, authorities must take reasonable steps to secure the evidence
concerning the incident, including interviewing witnesses and examining the physical
evidence in an independent and impartial manner.
In relation to sexual violence against children, three particular procedural obligations have
been raised: the necessity of a child-sensitive process; the need for speed and efficiency;
and the impact of statutory time limits. In particular, the Court has emphasised that when
considering allegations made by a child, the authorities must take into account the
vulnerable position of minors who have been victims of sexual violence. The ability and
willingness of a child victim to make a complaint is often compromised, and therefore they
must be provided with increased protection.
Where sexual violence against children has led to domestic prosecution, the Court has
considered the involvement of children in proceedings. On the one hand, the defendant has
the right to a fair and public hearing, and to examine witnesses against him. On the other
hand, the Court must take into account the rights of the child and the need to protect them
from further victimisation.
, 2.5 Child marriage
Although the UN Convention on the Rights of the child does not explicitly discuss child
marriage, the Committee has made clear that the marriage of a child under 18 should be
prohibited as a form of forced marriage, as a child cannot give full, free, and informed
consent. Nevertheless, an exception is permitted for a mature and capable child above the
age of 16, where there is judicial authorisation.
2.6 Forced or compulsory labour, servitude, and slavery
The jurisprudence of the Court concerning forced labour is still in its infancy - to this date
there have only been a handful of cases where the Court has found a violation of the
prohibition of slavery, forced or compulsory labour, and servitude found in Article 4 of the
Convention. There are two strands of jurisprudence concerning children in this area: the first
concerning military service and civic duties performed for the state; the second concerning
labour extracted by private individuals, from which the state has failed to protect.
2.7 Conclusion
The Court’s approach to the child’s right to physical integrity and protection from exploitation
has come a long way from the early decisions on corporal punishment. There has been a
clear development in the way it has addressed issues of violence against children driven by
increasing recognition of international and regional instruments in this area.
The positive and procedural obligations that the Court has placed on states across the last
30 years of jurisprudence have created a strong foundation for the protection of children.
This is not to say that no difficulties exist within these lines of jurisprudence. The failure to
conclusively declare corporal punishment to be a violation of children’s rights is particularly
problematic, representing as it does a continuing deference to parental authority and the
family unit. Moreover, while important steps have been taken in the area of children exposed
to exploitative practices, there is considerable scope for expansion in this area.
In addition, while the Court has focused on direct violence against children, it is only just
starting to come to terms with the impact of indirect violence: for example, where children
are witnesses to violence perpetrated against other individuals. There is a rich vein of
jurisprudence concerning the protection of women from domestic violence, which has been
the subject of considerable academic discourse, but the impact of this on children must also
be acknowledged.
