Children’s best interests and the right to family life under Article 10 ICESCR
A partnership between ATD Fourth World and the Human Rights Local project of the Human Rights Centre of the University of Essex is studying the right to family life protection under Article 10 of the International Covenant on Economic, Social and Cultural Rights. This study will include study groups and interviews with families in poverty and social workers in the UK. The findings will be submitted to the UN Committee on Economic, Social and Cultural Rights for their forthcoming review of the UK, which will take place between 2022 and 2024. In the blog post below, Lyle Barker and Dr Koldo Casla (both of the University of Essex, School of Law and Human Rights Centre) explain the human rights tools behind this study.
The UK is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR),1 meaning it has made a legally binding commitment to respect, protect and fulfil the rights contained within this convention.2
Article 10(1) ICESCR states that:
“[t]he widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children…”
Article 10(3) ICESCR also goes on to state that:
“[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions…”
The UK also has a legally binding commitment to realise the protection of children under the rights of the child (Convention on the Rights of the Child, CRC) and under Article 24 of the International Covenant on Civil and Political Rights (ICCPR).3 Interpreting ICCPR, the UN Human Rights Committee, stated that “in cases where the parents and the family seriously fail in their duties, ill-treat or neglect the child, the State should intervene to restrict parental authority and the child may be separated from his family when circumstances so require.”4
However, children are also entitled to the right to family life, according to Article 16 CRC. The Convention on the Rights of the Child adds that
“a child shall not be separated from his or her parents against their will, except when… such separation is necessary for the best interests of the child”
– (Article 9(1) CRC).
The child who is separated from one or both parents is entitled “to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests” (Article 9(3) CRC).
The UN Committee on the Rights of the Child established that:
“Given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a last resort measure, as when the child is in danger of experiencing imminent harm or when otherwise necessary; separation should not take place if less intrusive measures could protect the child.
“Before resorting to separation, the State should provide support to the parents in assuming their parental responsibilities, and restore or enhance the family’s capacity to take care of the child, unless separation is necessary to protect the child. Economic reasons cannot be a justification for separating a child from his or her parents.”5
Article 10(3) ICESCR makes clear that any intervention and assessment of risk made by child protection services must be proportionate and free from discrimination.6
However, there is very little guidance from the UN Committee on Economic, Social and Cultural Rights in the way of general comments, state observations and individual cases concerning Article 10 ICESCR.
Having said that, the European Court of Human Rights and the European Committee of Social Rights have made pertinent observations on the relationship between child protection and the right to family life. Both are legally relevant for the UK, which is a signatory to both the European Convention on Human Rights (ECHR) and the European Social Charter (ESCR).
For example, in the case of Soares de Melo v. Portugal, the European Court of Human Rights condemned child protection services for punishing a mother by removing her children simply because she lived in poverty.
In light of the right to private and family life (Article 8 ECHR), the Court held that poverty must not be conflated with neglect, and it can never be the sole ground for separating children from their families.7
The goal of reintegration with the family
Likewise, Article 16 ESC also protects the right of the family to social, legal and economic protection. So far, the European Committee of Social Rights has provided more guidance in relation to this right than the UN Committee on Economic, Social and Cultural Rights in relation to Article 10 ICESCR.8 The European Committee has established that financial conditions or material circumstances are not by themselves sufficient reasons to interfere with the right to family life.
Placement of children outside of the home should be an exceptional and temporary measure, and in all circumstances appropriate alternatives to placement should first be explored, considering the views and wishes expressed by the child, their parents and other members of the family.
Reintegration with the family should always be a goal, ensuring contact with the family during the placement outside the home, unless contrary to the best interests of the child.9 Article 16 ESC also covers the right to adequate housing, including the prohibition of forced evictions.10
The UN Committee on Economic, Social and Cultural Rights would do well to build on the most protective reading of Article 8 ECHR and Article 16 ESC, and provide an authentic interpretation of Article 10 ICESCR, so families and child protection services may have further guidance on children’s best interests and the right to family life.
2 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 art 26; UNGA, ‘Report of the United Nations High Commissioner for Human Rights’ (2016) UN Doc E/2015/59 para 16 – 30.
5 Committee on the Rights of the Child, ‘General Comment No. 14: Right of the child to have his or her best interests taken as a primary consideration (Article 3.1)’ (2013) UN Doc CRC/C/GC/14 para 61.
10 COHRE v Italy, Complaint No. 58/2009 (ECSR, Decision on the Merits 25 June 2010) para 115.