The Child's Right to Participate in Family Law Proceedings according to International and European Human Rights Law: Represented, Heard or Silenced?

Abstract

Many children in Europe are confronted with family law disputes in which their future is at stake, such as divorce or contact proceedings. In these proceedings children are afforded the right to participate. This means that they should have the opportunity to express their views and that these views must be considered seriously by the judge taking the decision. This research answers the question to what extent the right is provided in the international and European human rights framework and what this means for courts, legislators, and other institutions. This research determines the international and European framework for child participation and answers the question how this framework can be further aligned and strengthened. In-depth legal analysis of the UN Convention on the Rights of the Child and three Council of Europe and European Union sources forms the first part of the research. The second part of this thesis includes the results of the first comprehensive analysis of the European Court of Human Rights’ (ECtHR) case law on child participation. Unique is the innovative use of qualitative content analysis as a method for this analysis. In the final part of the thesis, the international and European standards on child participation are compared and recommendations are made to align and strengthen the international and European framework. Five key themes are addressed in the framework: participation, the weight to be granted to a child’s views, the relevance of the child’s maturity, the issue of undue influence of the child, and the relevance of information and practical affairs. The conclusions provide new insights and recommendations for the strengthening of child participation at the national and international level. New standards and factors have emerged from the research, especially in relation to the child’s right to participate under Article 8 of the European Convention on Human Rights.