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International Children’s Rights Law: Child and the Family

  • Olga A. Khazova
Reference work entry
Part of the International Human Rights book series (IHR)

Abstract

The main focus of the chapter is the children’s rights in a family context. It begins with an attempt to explain why it is difficult to give a definition to the words ‘family’ and ‘parent’. It further provides an analysis of the status of a child in the family, where the author, amongst other issues, discusses the correlation between the child’s rights and parental rights, the concept of child's evolving capacities, and tries to answer a question whether children have any obligations towads their parents at all. The chapter also deals with the issues related to parental responsibilities, parental custody and parental equality. The final part of the chapter concerns different aspects of the best interests of the child in a family context and, in particular, the child’s right to maintain family relations, including when a child is separated with the State borders from his or her parent, as well as some aspects of child removal from the family. As a conclusion, it is stated that family is where the idea of a child as the rights-holder is the most difficult to be settled and realized. It requires change in mindset, and it is still a challenge in many respects.

References

  1. A v B and C (2012) EWCA Civ 285Google Scholar
  2. African Charter on the Rights and Welfare of the Child (1990) O.A.U. Doc. CAB/LEG/24.9/49Google Scholar
  3. Annual Report 2012 – Office of the Head of International Family Justice: Annual Report 2012. (Judiciary of England and Wales). Accessible at: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/international_family_justice_2013.pdf
  4. Bainham A (1999) Parentage, parenthood and parental responsibility: subtle, elusive yet important distinctions. In: Bainham A, Sclater SD, Richards M (eds) What is a parent? A socio-legal analysis. Hart Publishing, Oxford, pp 25–46Google Scholar
  5. Baker H, Groff M (2016) The impact of the Hague Conventions on European Family Law. In: Scherpe J (ed) European family law, vol I. Edward Elgar, Cheltenham, pp 143–208Google Scholar
  6. Baloutaki HA (2016) A study on the rights of the child in Iranian legal system. In: Jančić OC (ed) The rights of the child in a changing world: 25 years after the UN Convention on the Rights of the Child. Springer, Cham, pp 183–189Google Scholar
  7. Berrehab v Netherlands, No 10730/84, 21 June 1988Google Scholar
  8. Boyle v The United Kingdom, No 15/1993/410/489, 24 Feb 1994Google Scholar
  9. Büchler A (2016) The right to respect for private and family life. The case law of the European Court of human rights on parenthood and family forms. In: Büchler A, Keller H (eds) Family forms and parenthood: theory and practice of article 8 ECHR in Europe. Intersentia, Cambridge, pp 29–60Google Scholar
  10. Buck T (2014) International child law. Routledge, LondonCrossRefGoogle Scholar
  11. Cardona JL (2016) Presentation of general comment no. 14: strengths and limitations, points of consensus and dissent emerging in its drafting. In: The best interests of the child – a dialogue between theory and practice. Council of Europe Publishing, Strasbourg, pp 11–17Google Scholar
  12. Cashmore J, Parkinson P (2012) Parenting arrangements for young children: messages from research. Accessible at https://europeanfathers.wordpress.com/2016/04/27/55-2/
  13. Children Act 1989, England and WalesGoogle Scholar
  14. Coester-Waltjen D (2016) The impact of the European Convention on Human Rghts and the European Court of human rights on European family law. In: Scherpe J (ed) European family law, vol I. Edward Elgar, Cheltenham, pp 49–94Google Scholar
  15. Committee on the Rights of the Child (1994) Report on the seventh session, CRC/C/34Google Scholar
  16. Committee on the Rights of the Child (2003) General comment No. 5 on general measures of implementation of the Convention on the Rights of the Child, CRC/GC/2003/5Google Scholar
  17. Committee on the Rights of the Child (2005) General comment No. 7 on implementing child rights in early childhood, CRC/C/GC/7/Rev.1Google Scholar
  18. Committee on the Rights of the Child (2009) General comment No. 12 on the right of the child to be heard, CRC/C/GC/12Google Scholar
  19. Committee on the Rights of the Child (2010) Concluding observations: Japan (CRC/C/JPN/CO/3)Google Scholar
  20. Committee on the Rights of the Child (2012a) Concluding observations: Albania (CRC/C/ALB/CO/2–4)Google Scholar
  21. Committee on the Rights of the Child (2012b) Concluding observations: Bosnia and Herzegovina (CRC/C/BIH/CO/2–4)Google Scholar
  22. Committee on the Rights of the Child (2013a) Concluding observations: Guinea (CRC/C/GIN/CO/2)Google Scholar
  23. Committee on the Rights of the Child (2013b) Concluding observations: Kuwait (CRC/C/KWT/CO/2)Google Scholar
  24. Committee on the Rights of the Child (2013c) General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration, CRC/C/GC/14Google Scholar
  25. Committee on the Rights of the Child (2014a) Concluding observations: Hungary (CRC/C/HUN/CO/3–5)Google Scholar
  26. Committee on the Rights of the Child (2014b) Concluding observations: Jordan (CRC/C/JOR/CO/4–5)Google Scholar
  27. Committee on the Rights of the Child (2014c) Concluding observations: Portugal (CRC/C/PRT/CO/3–4)Google Scholar
  28. Committee on the Rights of the Child (2015a) Concluding observations: Iraq (CRC/C/IRQ/CO/2–4)Google Scholar
  29. Committee on the Rights of the Child (2015b) Concluding observations: Sweden (CRC/C/SWE/CO/5)Google Scholar
  30. Committee on the Rights of the Child (2015c) Concluding observations: Switzerland (CRC/C/CHE/CO/2–4)Google Scholar
  31. Committee on the Rights of the Child (2015d) Concluding observations: United Arab Emirates (CRC/C/ARE/CO/2)Google Scholar
  32. Committee on the Rights of the Child (2016a) Concluding observations: France (CRC/C/FRA/CO/5)Google Scholar
  33. Committee on the Rights of the Child (2016b) Concluding observations: Haiti (CRC/C/HTI/CO/2–3)Google Scholar
  34. Committee on the Rights of the Child (2016c) Concluding observations: Iran (CRC/C/IRN/CO/3–4)Google Scholar
  35. Committee on the Rights of the Child (2016d) Concluding observations: Kenya (CRC/C/KEN/CO/3–5)Google Scholar
  36. Committee on the Rights of the Child (2016e) Concluding observations: Maldives (CRC/C/MDV/CO/4–5)Google Scholar
  37. Committee on the Rights of the Child (2016f) Concluding observations: Oman (CRC/C/OMN/CO/3–4)Google Scholar
  38. Committee on the Rights of the Child (2016g) Concluding observations: Senegal (CRC/C/SEN/CO/3–5)Google Scholar
  39. Committee on the Rights of the Child (2016h) Concluding observations: Slovakia (CRC/C/SVK/CO/3–5)Google Scholar
  40. Committee on the Rights of the Child (2017a) Concluding observations: Central African Republic (CRC/C/CAF/CO/2)Google Scholar
  41. Committee on the Rights of the Child (2017b) Concluding observations: Georgia (CRC/C/GEO/CO/4)Google Scholar
  42. Committee on the Rights of the Child (2017c) Concluding observations: Qatar (CRC/C/QAT/CO/4)Google Scholar
  43. Committee on the Rights of the Child (2017d) Concluding observations: Serbia (CRC/C/SRB/CO/2–3)Google Scholar
  44. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (Hague Convention), 1996Google Scholar
  45. Convention on the Civil Aspects of International Child Abduction (Hague Convention), 1980Google Scholar
  46. Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Convention), 2007Google Scholar
  47. Crowley L (2015) Defining the family and the scope of protection available – tensions between National Governance and international expectations – the International Survey of Family Law, 2015 edn. Jordan Publishing Ltd, Bristol, pp 55–74Google Scholar
  48. Dergunova VA (2016) Peculiarities of application by courts of the declaration on the rights of the child when considering parental disputes on a place of residence of the child (Osobennosti primeneniya sudami Deklaratsii prav rebenka pri razreshenii sporov roditelei o meste zhitelstva detei). Advokat 11:50–54. (in Russian)Google Scholar
  49. Eubusiness.com (2016) Cross-border family disputes: new proposals to protect children. Accessible at http://www.eubusiness.com/news-eu/family-disputes.30jl/
  50. Ferrer-Riba J (2016) Parental responsibility in a European perspective. In: Scherpe J (ed) European family law, vol III. Edward Elgar, Cheltenham, pp 284–310Google Scholar
  51. Fortin J (2011) Children’s rights and developing law, 3rd edn. Cambridge University Press, CambridgeGoogle Scholar
  52. Freeman M (2007) A commentary on the United Nations Convention on the Rights of the Child. Article 3. The best interests of the child. Martinus Nijhoff Publishers, Leiden/BostonGoogle Scholar
  53. George R (2016) The child’s welfare in a European perspective. In: Scherpe J (ed) European family law, vol III. Edward Elgar, Cheltenham, pp 209–231Google Scholar
  54. Handbook on European Law relating to the rights of the child (2015). Publications Office of the European Union, LuxemburgGoogle Scholar
  55. Hodgkin R, Newell P (2007) Implementation handbook for the Convention on the Rights of the Child, 3rd edn. UNICEF, GenevaGoogle Scholar
  56. International Covenant on Civil and Political Rights (ICCPR), 1966Google Scholar
  57. International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966Google Scholar
  58. Italian Supreme Court, Judgment No 12962 of May 26, 2016. Accessible at http://www.articolo29.it/2016/la-vittoria-dei-bambini-arcobaleno/
  59. Jančić OC (2016) Rights of the child in the changing world. In: Jančić OC (ed) The rights of the child in a changing world: 25 years after the UN Convention on the Rights of the Child. Springer, Cham, pp 1–36Google Scholar
  60. K. and T. v Finland, No 25702/94, 2001Google Scholar
  61. Keller H (2016) Article 8 in the system of the convention. In: Büchler A, Keller H (eds) Family forms and parenthood: theory and practice of article 8 ECHR in Europe. Intersentia, Cambridge, pp 3–28Google Scholar
  62. Khazova O (1998) The new codification of Russian family law. In: Eekelaar J, Nlapio T (eds) The changing family: international perspectives on the family and family law. Hart Publishing, Oxford, pp 73–83Google Scholar
  63. Kilkelly U (2003) The right to respect for private and family life. A guide to implementation of article 8 of the European convention on human rights. Human rights handbooks, no 1. Council of Europe, StrasbourgGoogle Scholar
  64. Kroon and Others v the Netherlands, No 18535/91, 1994Google Scholar
  65. Kruk E (2013) Co-parenting infants and very young children & the importance of preserving early primary attachments. Accessible at https://www.psychologytoday.com/blog/co-parenting-after-divorce/201303/co-parenting-infants-and-very-young-children
  66. Kutzner v Germany, No 46544/99, 2002Google Scholar
  67. Labassée v France, No 65941/11, 2014Google Scholar
  68. Lagarde P (1998) Explanatory report on the 1996 Hague Child Protection Convention. HCCH Publications. Accessible at: https://assets.hcch.net/upload/expl34.pdf
  69. Lamb ME, Kelly JB (2009) Improving the quality of parent-child contact in separating families with infants and young children: empirical research foundations Michael E. Lamb and Joan B. Kelly. In: Galazter-Levy RM, Kraus J, Galatzer-Levy J (eds) The scientific basis of child custody decisions, 2nd edn. Wiley, Hoboken, pp 187–214Google Scholar
  70. Lansdown G (2005) The evolving capacities of the child. UNICEF, GiuntinaGoogle Scholar
  71. Liefaard T, Sloth-Nielsen J (2017) 25 years CRC: reflecting on successes, failures and the future. In: Liefaard T, Sloth-Nielsen J (eds) The United Nation Convention on the Rights of the Child: taking stock after 25 years and looking ahead. Brill, Nijhoff, pp 1–13Google Scholar
  72. Marckx v Belgium, No 6833/74, 1979Google Scholar
  73. McEleavy P (2015) The European Court of human rights and the Hague Child Abduction Convention: prioritizing return or reflection? Neth Int Law Rev 62:365–405CrossRefGoogle Scholar
  74. Mennesson v France, No 65192/11, 2014Google Scholar
  75. ML and AR v RWB and SWB (2011) EWHC 3431 (Fam) (sub nom PL (Minors)Google Scholar
  76. Mustafa and Armağan Akin v. Turkey, No 4694/03, 2010Google Scholar
  77. Nazarenko v Russia, NO. 39438/13, 2015Google Scholar
  78. Neulinger and Shuruk v. Switzerland, No 41615/07, 2010Google Scholar
  79. Pérez-Vera E (1982) Explanatory report on the 1980 Hague Child Abduction Convention. HCCH Publications. Accessible at http://www.hcch.net/upload/expl28.pdf
  80. Rainey B, Wicks E, Ovey C (2014) Jacobs, white and Ovey: the European Convention on Human Rights, 6th edn. Oxford University Press, OxfordCrossRefGoogle Scholar
  81. Re A (Children: 1959 UN Declaration) (1998) 1 F.L.R. 354Google Scholar
  82. RF Supreme Court Ruling No. 45-KГ 15-3 / Bulletin of the Supreme Court of the Russian federation. 2016, No 8, pp 23–25Google Scholar
  83. Russian Family Code 1918 – the Code of Laws on Acts of Civil Status, Marriage, Family and Guardianship Law of 22.10.1918Google Scholar
  84. Sahovic NV, Doek JE, Zermatten J (2012) The right of the child in international law. Stämpfli Publishers, BerneGoogle Scholar
  85. Sample I (2016) First UK baby with DNA from three people could be born next year. The Guardian. Accessible at https://www.theguardian.com/science/2016/dec/15/three-parent-embryos-regulator-gives-green-light-to-uk-clinics?CMP=Share_iOSApp_Other
  86. Saviny v Ukraine, No 29948/06, 2008Google Scholar
  87. Schäfer L (2011) Child law in South Africa. Domestic and international perspectives. LexisNexis, DurbanGoogle Scholar
  88. Scherpe J (2016) The present and future of European family law, European family law, vol IV. Edward Elgar, CheltenhamCrossRefGoogle Scholar
  89. Schutz R (2013) The Hague Child Abduction Convention. A critical analysis. Hart Publishing, OxfordGoogle Scholar
  90. Siebel CC (2006) Fathers and their children: legal and psychological Issus of joint custody. Fam Law Q 40(2):213–236Google Scholar
  91. Soares de Melo v Portugal, No 72850/14, 2016Google Scholar
  92. Sutherland EE, Barnes Macfarlane L-A (2016) Introduction. In: Sutherland EE, Barnes Macfarlane L-A (eds) Implementing article 3 of the United Nations Convention on the Rights of the Child. Cambridge University Press, Cambridge, pp 11–18CrossRefGoogle Scholar
  93. Teitz LE (2016) Malta process and cross-cultural aspects in family disputes. In: Jänterä-Jareborg M (ed) The Child's interests in conflict. Intersentia, Cambridge, pp 163–183CrossRefGoogle Scholar
  94. Travaux preparatoires – Legislative History of the Convention on the Rights of the Child, vols I and II. (2007) Office of the High Commissioner for Human Rights, UN, New York/GenevaGoogle Scholar
  95. Trimmings K, Beaumont P (eds) (2013) International surrogacy arrangements. Legal regulation at the international level. Hart Publishing, OxfordGoogle Scholar
  96. United Nations Convention on the Rights of the Child (UNCRC), 1989Google Scholar
  97. United Nations Declaration on the Rights of the Child (Declaration), 1959Google Scholar
  98. United Nations Division for Social Policy and Development: Family. Accessible at https://www.un.org/development/desa/family/international-year-of-the-family.html
  99. United Nations General Assembly (UNGA) (2009) Guidelines for the alternative care of children (A/RES/64/142)Google Scholar
  100. Universal Declaration of Human Rights (UDHR), 1948Google Scholar
  101. Van Bueren G (1998) The international law on the rights of the child. Brill, Nijhoff, LeidenGoogle Scholar
  102. Van Bueren G (2007) Child rights in Europe. Council of Europe Publishing, StrasbourgGoogle Scholar
  103. Van Loon H (2017) Protecting children across borders: the interaction between the CRC and the Hague Children’s Conventions. In: Liefaard T, Sloth-Nielsen J (eds) The United Nation Convention on the Rights of the Child: taking stock after 25 years and looking ahead. Brill, Nijhoff, Leiden, pp 31–46Google Scholar
  104. Wallová and Walla v Czech Republic, No 23848/04, 2006Google Scholar
  105. Welstead M, Edwards S (2008) Family law, 2nd edn. Oxford University Press, OxfordGoogle Scholar
  106. West’s Ann.Cal.Fam.Code § 7612Google Scholar
  107. X v Latvia, No 27853/09, 2013Google Scholar

Copyright information

© Springer Nature Singapore Pte Ltd. 2019

Authors and Affiliations

  1. 1.The Moscow School of Social and Economic Sciences, Law FacultyMoscowRussia
  2. 2.National Research University “Higher School of Economics”, Faculty of LawMoscowRussia

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