Children and the European Court of Human Rights

Citation

Fenton-Glynn, C. (2021). Children and the European Court of Human Rights. Oxford University Press.

Chapter Summary

A monograph of about 430 pages in twelve chapters, followed by a bibliography, tables of cases and international instruments, and an index. The publisher describes it as a comprehensive and detailed overview of the Court's case law on children, tracing how the Court has moved from "inauspicious and paternalistic beginnings" to an emerging recognition of children's individual agency. The chapters are organised by subject area rather than by Convention article.

Chapter 1: Introduction

Sets out the starting point: the Convention was not drafted with children in mind, yet the Court has produced a substantial body of case law about them. Chapter 1 is short (ten pages) and frames the chapters that follow.

Chapter 2: Freedom from Violence and Exploitation

The first substantive chapter, on protection of children's physical integrity. The publisher's description mentions the protection of physical integrity among the book's subjects.

Chapter 3: The Right to Respect for Private Life

A chapter on children's claims under the right to private life.

Chapter 4: Juvenile Justice

The case law on children in the criminal process. At about forty pages it is one of the longer treatments of a single topic.

Chapter 5: Children and the Immigration System

Children in immigration contexts. The publisher lists immigration among the areas where the Court has developed case law about children.

Chapter 6: The Right to Education

The Court's case law on education, which the publisher names alongside religion as one of the areas covered.

Chapter 7: Social and Economic Rights

How a Convention centred on civil and political rights deals with children's social and economic interests.

Chapters 8–9: Family Formation and Parenthood; Private Law Child Disputes

The two chapters closest to family law. Chapter 8 covers the attribution of parenthood and the formation of families; the publisher singles out parenthood as an area of profound influence. Chapter 9 covers private law disputes concerning children; the publisher names child abduction among the areas of family law where the Court's influence has been profound.

Chapters 10–11: Child Protection; Adoption

The public-law side of family life: state intervention to protect children, and adoption. The publisher lists child protection and adoption among the areas in which the Court's influence has been greatest.

Chapter 12: Conclusions

The assessment of the Court's achievements and continuing weaknesses that the publisher's description promises, drawing the chapters together.

Key Concepts

Chapters 1–7: Rights of the child across Convention themes

• Children's rights under a general Convention: the book's starting question of how a treaty not written for children has been applied to them.
• Physical integrity: freedom from violence and exploitation, including the topics addressed in Chapter 2.
• Juvenile justice and immigration: two areas of case law dealt with in separate chapters.
• Education and social and economic rights: areas the Convention does not obviously cover, yet which the Court has addressed.

Chapters 8–11: Family law themes

• Attribution of parenthood: who counts as a child's legal parent, a topic of Chapter 8.
• Private law child disputes: disputes between private parties over children, the subject of Chapter 9; child abduction is among the areas the publisher names.
• Child protection and adoption: intervention in family life by the state.
• Children's agency: the publisher's account of the Court's development from a paternalistic to a more rights-based approach.

Critical Analysis

Strengths

• A subject-based structure. Each chapter takes a single area of children's law, such as juvenile justice, immigration or adoption. A reader can go straight to the relevant chapter and find the Court's case law gathered in one place.
• Wide range. The book runs from criminal justice, education and immigration to parenthood and adoption, which allows the reader to compare how the Court treats children across different contexts.
• A developmental argument. According to the publisher, the book follows the Court's treatment of children over time, from a paternalistic starting point to growing recognition of individual agency, and critiques its continuing weaknesses. A reader gets a thesis to test, not only a catalogue of cases.
• Reference apparatus. The book has a bibliography, a table of cases of about twenty pages and a table of international instruments.

Limitations

• A monograph, not a textbook. It assumes familiarity with the Convention and with the Court's procedure; it is not an introduction to either.
• Case law as the frame. The book is built on the Court's decisions, so it will be most useful for readers who already know the family-law or human rights context. Case law after the publication date will need other sources.
• Scope. The subject is the Strasbourg Court's case law. Domestic family law in England and Wales is not the book's subject, and readers need a general family law text for it.

Where It Fits in the Course

Among the family law books on the list, this is a specialist monograph on one theme, not a general text. Cretney and Probert's Family Law, Herring's Family Law and Bromley's Family Law cover the law of England and Wales across adult relationships and children, while Herring's Family Law: A Very Short Introduction and Eekelaar's Family Law and Personal Life are shorter and more reflective. Fenton-Glynn's book is read after one of these, when a student wants to see how European human rights law shapes the topics those books treat.

It is also a natural companion to the standard account of the Convention in the human rights law course, Harris, O'Boyle and Warbrick, which treats rights article by article; this book instead follows children through the Court's case law by subject.

How to Use This Book

It suits postgraduate students, researchers and advanced undergraduates writing on children's rights, family law or the European Convention. A completed family law course and some knowledge of the Convention, especially Article 8, are assumed.

A practical plan:

• Start with Chapter 1 and the Conclusions in Chapter 12 to see the argument.
• Core chapters for a family law course: Chapters 8–11 on parenthood, private-law disputes, child protection and adoption.
• Other chapters as the topic requires: Chapter 4 for juvenile justice, Chapter 5 for immigration, Chapter 6 for education.
• Use the table of cases to trace a particular judgment back to the chapter that discusses it.