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The Child’s Right to Family Life: Shift ing Sands and Social Science

Published online by Cambridge University Press:  11 February 2021

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ABSTRACT

The right to family life has long been viewed as an important right in European human rights law. However, since children were traditionally not seen as independent rights-holders, the right to family life across Europe tended to be asserted by parents in relation to their children and was therefore predominantly seen as a right of parents. In the three decades since the adoption of the Convention on the Rights of the Child (CRC), the increasing emphasis on children's rights has seen the right to family life being viewed as having independent implications for children, bringing a child-centred emphasis to debates concerning issues such as formal recognition of family ties and contact with parents and siblings. However, the danger of a paternalistic approach remains. When combined with the best interests principle, the right to family life has the potential to be deployed as a smokescreen to advance the interests or preferences of adults. In such circumstances, social science scholarship on family life can enrich our understanding of the interplay between the right to family life and the best interests principle, but there are also dangers that it can be misused or even weaponised in legal processes. This contribution explores the evolution of the child's right to family life and the role that social science research can play in delineating the parameters of the right. It examines the benefits and risks associated with relying on social science research for that purpose, focusing particularly on the challenges faced by ‘new’ families who do not have the benefit of large-scale, longitudinal research concerning their family functioning.

INTRODUCTION

The right to family life has long been viewed as an important right in European human rights law scholarship. Article 8 of the European Convention on Human Rights (ECHR) recognises a right to respect for family life, and a large body of case law has expanded on both positive and negative obligations flowing from this right. The right to family life also appears in various guises in many national constitutions (to account for the various formulations, the umbrella term ‘right to family life’ is used here). However, since children were traditionally not seen as independent rights-holders, the right to family life across Europe tended to be asserted by parents in relation to their children and was therefore predominantly seen by courts as a right of parents rather than an independently held right of children.

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Publisher: Intersentia
Print publication year: 2020

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