THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The European Convention on Human Rights

The European Convention on Human Rights

Introduction

The European Convention on Human Rights Bill, 2001 is intended to give the force of domestic law to the rights set out in the European Convention on Human Rights (ECHR) and to make Convention rights enforceable in Irish courts. The impact which this is likely to have on the Irish legal system will vary depending on the area of Convention rights under scrutiny and in this regard, it is relevant that Ireland's record before the European Court of Human Rights in family law cases is poor. (Airey v. Ireland, Series A) At the same time, a large degree of uncertainty surrounds the impact on child and family law of incorporation of Convention rights into Irish law. (Liddy, 1998, 80) Evidence from the UK, where the Human Rights Act 1998 has been in force for over a year, suggests that its effect may not be dramatic - particularly when it is taking place at sub-Constitutional level - but that reference to the jurisprudence of the European Court of Human Rights may nonetheless make a positive contribution to the process of decision making in this area.( Kilkelly, 2001, 168-70) As the Bill passes through the Dáil, it is timely, therefore, to consider what the Convention and the case law of the European Commission and Court of Human Rights says about children. That is the aim of this article, which will address, in particular, the case law relevant to family law, the protection of children from abuse and issues of youth justice, detention and identity.

European Courts interpretation of the ECHR's ability to promote children's rights

The wide scope of Article 8 has mea Court touches on a great variety of family and child law areas. While the vast majority of this case law has concerned children in state care, the Court has also considered the obligations of the State in private law cases, particularly with regard to access and custody disputes between parents and the enforcement of court orders in this area. Article 8 ECHR provides:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection for the rights and freedoms of others.

The first part of this provision guarantees the right to be protected - and in this regard the existence of private or family life determines the applicability of Article 8 - while the second part sets out the limits of permissible interference with that right by the State, thereby governing whether or not a violation of the right has occurred. (Kilkelly, 2001, 190)

Obligations on Member States

The definition of ...