Лектори докладно проаналізували разом з учасниками захист дітей: баланс між найкращими інтересами, захистом від депортації та соціальною інтеграцією, а саме:
1. Protecting the interests of ukrainian children abroad, how to prevent the removal of children from ukrainian families. Захист інтересів українських дітей за кордоном, як запобігти вилученню дітей з українських родин
1.1. Voluntary and forced out-of-home placement. Добровільне та примусове розміщення поза домом.
1.2. Other child protection measures through the courts. Інші заходи захисту дітей через суд.
1.3. A type of temporary placement for the child. Вид тимчасового влаштування дитини.
1.4. What if parents or guardians refuse to cooperate with the mandatory out-of-home placement. Що робити, якщо батьки або опікуни відмовляються співпрацювати з обов'язковим розміщенням поза домом.
1.5. What are the rights and obligations of parents or guardians in the event of out-of-home placement. Які права та обов'язки батьків або опікунів у разі влаштування поза домом.
1.6. How long does an out-of-home placement take. Скільки часу займає розміщення поза домом
1.7. Extension. Розширення.
1.8. References. Посилання.
2. The Best Interests of the Child in Family Law: From Theory to Practice.
2.1. Вступ.
2.2. Важливість принципу найкращих інтересів дитини.
2.3. Судова практика Європейського суду з прав людини. Як суд визначає «найкращі інтереси дитини».
2.4. Вилучення дитини з родини. Юридичні та етичні аспекти.
2.5. Право дитини знати своє походження. Приклади та виклики.
2.6. Висновки і ключові рекомендації.
3. International Child Abduction: Legal Framework and Key Concepts (Міжнародне незаконне переміщення дітей: правова база та ключові концепції).
3.1. The Hague Convention in Practice (Гаазька Конвенція на практиці).
3.2. Case Law in Focus. Recent Judicial Approaches (Судова практика в фокусі уваги. Актуальні судові підходи).
4. Best Interests of the Child as a Dynamic Legal Standard.
4.1. Вступ. Обговорення ключових понять та джерел.
4.2. Участь дітей у судових та адміністративних провадженнях.
4.3. Проблеми правового статусу: безгромадянство та документація.
4.4. Опіка та правове представництво: порівняльні моделі.
4.5. Висновки.
У рамках характеристики захисту дітей акцентовано на наступному:
1. Protecting the interests of Ukrainian children abroad, how to prevent the removal of children from Ukrainian families
Out-of-home placement is a child protection measure. If the Child Protection Council has requested a placement order and a court hearing is scheduled, parents will receive notification by mail, email, or through their lawyer.
A placement outside the home through the juvenile court is not a voluntary placement, but a forced placement. If the juvenile court judge authorizes an out-of-home placement, it is because of concerns about whether the child can develop safely in the home environment or because observation and assessment of the child’s mental or physical health is necessary. Only the juvenile court judge can give permission for an out-of-home placement; a youth protection organization cannot do so.
The juvenile court judge weighs many factors, including the law, the facts, and the circumstances, and can only order an out-of-home placement if there is sufficient reason and it is in the child’s best interests. The judge can also speak with children aged 8 and older if they wish. This is called a child interview. Parents are not present. Children may also send a letter to the judge.
1.1. Voluntary and forced out-of-home placement
Voluntary out-of-home placement:
In a voluntary out-of-home placement, parents or guardians agree to someone else temporarily raising their minor child. A care provider arranges this for parents or caregivers and requests a grant decision from the municipality.
Forced out-of-home placement:
A placement ordered by a juvenile court judge is also called a forced placement.
In urgent cases, a juvenile court judge can authorize immediate out-of-home placement. A hearing will then be held within two weeks, where parents or guardians can express their views on the placement.
In the case of out-of-home placement in a secure youth care facility, where the procedure is handled by the municipality and the parents consent, a child does not need to be under supervision (OTS). The Child Protection Council or a youth protection organization are not involved in such a case. Only youth care provided by the municipality on a voluntary basis is involved.
1.2. Other child protection measures through the courts
There are additional child protection measures that only the juvenile court judge can decide on and in which parents or guardians must cooperate.
Supervision order (OTS):
A child is usually already under supervision when an out-of-home placement is requested.
Temporary supervision order (VOTS):
A temporary supervision order can be requested at the same time as an emergency out-of-home placement.
Termination of parental authority:
If a parent is unable to properly care for and raise their child for an extended period of time, parental authority can be terminated at the request of the Child Protection Council. Another person, a guardian, will then be given parental authority over the child.
Only the Child Protection Council, youth protection organizations, and in some cases the Public Prosecution Service may request these child protection measures.
1.3. A type of temporary placement for the child
Possibilities of open youth care
A child may be placed with:
● the other parent (with or without parental authority);
● another family member or acquaintance (network foster family);
● foster parents;
● a family home;
● a room training center where young people learn to live independently;
● an open institution of a healthcare provider.
Open institutions are not a form of deprivation of liberty. The door is not locked, and children have more freedom there.
Closed youth care
Closed youth care is possible for children up to 18 years of age if:
● there are serious parenting problems or a serious behavioral disorder;
● there is a risk that the child will disappear from youth care and therefore not receive necessary care;
● there is a declaration of consent from a behavioural scientist.
In closed youth care, the door is locked. The child is not allowed to go out alone, and no one else is allowed to enter.
1.4. What if parents or guardians refuse to cooperate with the mandatory out-of-home placement
After the juvenile court judge has given the youth protection organization permission to remove a child from home, parents or guardians are obliged to cooperate.
If a parent opposes the placement, the child protection organization may request police support.
If parents continue to oppose the out-of-home placement and do not comply with written instructions under a supervision order, the child protection organization can request the Child Protection Council to investigate whether parental authority should be terminated.
1.5. What are the rights and obligations of parents or guardians in the event of out-of-home placement
Parents or guardians:
● retain custody of the children, but temporarily do not feed or care for them;
● arrange with the child protection organization when they can see their child;
● continue following an existing court-approved contact arrangement unless modified by the juvenile court judge;
● can report objections to the juvenile court;
● can request the juvenile court judge to end the out-of-home placement earlier if the youth protection officer does not request this themselves.
Children aged 12 and over may also:
● report objections to the juvenile court;
● request termination of the out-of-home placement.
1.6. How long does an out-of-home placement take
The juvenile court judge can grant permission for an out-of-home placement for up to 12 months.
If the designated period expires while there is still a supervision order, the child returns to live with the parents.
Children who have reached adulthood can continue to use youth care services voluntarily through the municipality until they turn 21, provided the young person agrees.
For example, a young person may voluntarily remain with a foster family or family home until age 21, and after that may request an extension from the municipality until age 23.
The forced out-of-home placement automatically ends when the child turns 18. If a young person admitted to a closed youth care facility turns 18, the juvenile court judge may, under strict conditions and upon request, allow the young person to remain there for a maximum of six months.
1.7. Extension
If a child is already placed out of home, only the child protection organization can request an extension from the juvenile court for a maximum of 12 months. The Child Protection Council or the Public Prosecution Service cannot request this extension.
The youth protection organization must clearly explain why it believes the out-of-home placement is still necessary.
The organization may also request permission for a young person over 18 who is in a closed youth care facility to remain there for up to six months. The juvenile court judge grants this only if strict conditions are met.
If parents or guardians disagree with the extension, they may file an appeal with the juvenile court judge.
It is also possible to request an earlier termination of the placement if parents or the child over 12 believe it is no longer necessary and the child protection organization does not request termination itself.
1.8. References
● Judicial proceedings: https://www.rechtspraak.nl/
● Regelhulp: https://www.regelhulp.nl/
● Convention on the Rights of the Child: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en
● Child Protection Council: https://www.kinderbescherming.nl/
● Quality Mark Institute: keurmerk.nl
2. The Best Interests of the Child in Family Law: From Theory to Practice
● the concept of the best interests of the child in family law;
● the right of the child to know his or her origins;
● the best interests of the child in removal decisions.
2.1. Introduction
The Best Interests of the Child is a fundamental principle in family law. It means that in all decisions affecting a child, the child’s welfare and well-being must be the primary consideration.
Courts apply this principle in cases involving:
● child custody;
● contact with parents;
● relocation;
● adoption;
● child protection.
When determining what is in the child’s best interests, courts consider:
● the child’s physical and emotional needs;
● the child’s wishes and feelings;
● the child’s safety;
● the ability of each parent to care for the child;
● the importance of maintaining stable relationships.
The principle is internationally recognised in Article 3 of the United Nations Convention on the Rights of the Child (1989), which states that the best interests of the child shall be a primary consideration in all actions concerning children.
The term “best interests of the child” is also used in:
● the HCCH 1980 Child Abduction Convention;
● the HCCH 1996 Child Protection Convention.
2.2. The Importance of the Principle of the Best Interests of the Child
The best interests principle serves as the determining criterion in decision-making concerning children.
The House of Lords case J v C [1970] AC 668 became one of the most influential cases in English family law.
Facts of the case:
A young boy born to Spanish parents was placed with English foster parents at an early age. He lived with them for approximately ten years and developed strong emotional and psychological bonds with the foster family. Later, the biological parents sought to have the child returned to Spain.
Issue:
Whether the child should return to his biological parents or remain with the foster parents, and whether parental rights should prevail over the child’s established welfare and stability.
Decision:
The House of Lords held that the child should remain with the foster parents because removing him from the only stable and familiar environment he had known would seriously harm his welfare.
Key Principle:
Lord MacDermott stated: “The welfare of the child must be treated as the first and paramount consideration.”
The final decision must always be the one that best serves the child’s welfare in the broadest sense, including:
● physical well-being;
● emotional well-being;
● moral welfare;
● long-term development.
The case directly influenced Section 1 of the Children Act 1989, which codifies the welfare principle as the guiding standard in child-related decisions.
2.3. Case Law of the European Court of Human Rights. How the Court Determines the “Best Interests of the Child”
The European Court of Human Rights has developed extensive case law concerning children’s rights and the concept of the best interests of the child in contexts such as juvenile justice and migrant children.
The ECtHR analyses factors such as:
● emotional stability;
● biological truth;
● existing family relationships;
● willingness of adults to assume parental responsibilities;
● the child’s overall best interests.
A.M.M. v Romania (2012)
Facts:
The applicant was a child with disabilities whose mother also had disabilities. They had no effective legal representation or guardian. The alleged father refused to participate in the proceedings and refused to undergo a DNA test.
Judgment:
The ECtHR found a violation of Article 8 ECHR.
Key reasoning:
The domestic courts failed to strike a fair balance between:
● the child’s right to establish paternity;
● the alleged father’s right to refuse participation.
Key principle:
Particularly vulnerable children must have effective procedural safeguards enabling them to discover their parentage.
The case confirms that:
● the right to know one’s origins includes the right to establish paternity;
● vulnerable children require additional legal protection;
● procedural obstacles must not prevent access to identity-related information.
Mandet v France (2016):
The Court held that the child’s interest in knowing the truth about his origins may justify changing legal paternity.
R.L. and Others v Denmark (2017):
The Court found no violation of Article 8 where domestic courts refused to recognise biological paternity because preserving the existing family unit was considered to be in the child’s best interests.
The domestic courts:
● considered the competing interests;
● prioritised maintaining the family unit;
● focused on what they believed to be the children’s best interests.
A and B v France (2023):
The Court found no breach of Article 8 where domestic authorities annulled the recognised paternity of an intended father in a surrogacy case because maintaining the legal relationship was not in the child’s best interests.
The decisive question identified by the Court was: “What is best for the child?”
2.4. Removal of a Child from the Family. Legal and Ethical Aspects
Under Article 9 of the United Nations Convention on the Rights of the Child:
● a child must not be separated from his or her parents unless separation is necessary in the child’s best interests.
The best interests of the child must be put first when removal decisions are made by social services or other authorities.
Two Types of Serious Mistakes:
Failure to Intervene:
● children remain in abusive or neglectful families;
● authorities act too late or not at all.
Unnecessary Removal:
● children are taken into care without sufficient justification;
● family ties are disrupted unnecessarily.
Both situations may constitute serious violations of children’s rights.
The ECtHR emphasised:
● family ties should be maintained unless the family is particularly unfit;
● it is not enough to show that a child could be raised in a better environment.
Removal as a Measure of Last Resort:
According to General Comment No. 14 of the UN Committee on the Rights of the Child:
● removal should occur only when strictly necessary;
● less intrusive measures must be considered first;
● the child’s best interests must be individually assessed;
● reunification with the family should remain an important goal.
Council of Europe Recommendations (Resolution 2049 (2015)):
States should:
● eliminate prejudice and discrimination in removal decisions;
● provide financial and social support to families;
● avoid irreversible measures, especially adoption without parental consent;
● ensure social workers are properly trained and adequately resourced;
● improve data collection and monitoring.
“The best interests of the child do not mean giving children a ‘better’ home. They mean protecting children from serious harm while preserving family relationships whenever possible.”
Poverty Is Not a Valid Reason to Remove a Child:
R.M.S. v Spain (2013):
The ECtHR held that a mother’s financial difficulties alone cannot justify removing her child.
The Court stressed that Spanish authorities should have considered less drastic measures than taking the child into care.
The Court also stated that social welfare authorities should:
● help persons in difficulty;
● provide guidance;
● advise on benefits, social housing, and other means of overcoming difficulties.
The ECtHR held that the Spanish authorities failed to undertake sufficient efforts to secure the applicant’s right to live with her child and found a violation of Article 8 ECHR.
Akinnibosun v Italy (2015):
Authorities must provide social support rather than separate the family.
Soares De Melo v Portugal (2016):
Poverty and precarious living conditions are not sufficient grounds for adoption and permanent separation.
2.5. The Child’s Right to Know His or Her Origins. Examples and Challenges
“Can a child truly develop identity without knowing where they come from?”
Children may grow up without knowing their biological origins because of:
● adoption;
● anonymous birth;
● assisted reproduction.
The lack of information about origins can deeply affect psychological well-being.
Examples:
● an adopted child wishing to consult adoption records and find biological relatives;
● a child born through surrogacy wishing to know and thank the surrogate mother.
The UN Convention on the Rights of the Child:
● secures the child’s right to know his or her parents as far as possible (Article 7);
● requires states to safeguard the child’s identity (Article 8).
The UN Committee on the Rights of the Child stated that states cannot deliberately deny a child the right to know his or her origins.
The Committee recommended that France fully enforce Article 7 and that Luxembourg prevent anonymous childbirth or at least preserve information enabling the child to know parental identity later in life.
Article 8 ECHR
Under Article 8 ECHR, the right to private life includes:
● personal identity;
● psychological integrity;
● self-fulfilment.
The ECtHR described the interest in knowing one’s origins as a “vital interest.”
However, the right is not absolute. Courts must balance the child’s interests against the interests of:
● biological parents;
● adoptive parents;
● surrogate mothers;
● gamete donors;
● siblings;
● other family members.
2.6. Conclusions and Key Recommendations
● the best interests of the child must always be the primary consideration in family law cases;
● courts must assess each child’s situation individually;
● family ties should be preserved whenever possible;
● removal from the family should be a measure of last resort;
● poverty alone cannot justify removal;
● the child’s identity and right to know his or her origins are important aspects of human dignity and private life.
Also stresses that:
● authorities must balance competing interests carefully;
● vulnerable children require additional procedural safeguards;
● social support should be prioritised over family separation;
● reunification with the family should remain an important goal whenever possible.
Final statement: “The best interests of the child are not about choosing what is the easiest for adults, but what is truly right for the child.”