Upholding the child’s right to a family after parents’ separation
Newsroom – Council of Europe – Strasbourg – 22 November 2018
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Shared parenting after separation/divorce, children’s rights and the role of the states in safeguarding best interests of the child is the key theme of the 4th International Conference for Shared Parenting held under the auspices of the Secretary General of the Council of Europe on 22-23 November 2018.
The debate about shared parenting is particularly relevant today, given historically low marriage rates, relatively high levels of marital and relationship breakdown and the changing nature and definition of the family.
According to International Council on Shared Parenting (ICSP), the key organizer of the conference, in France alone, nearly 200,000 children per year are affected by the divorce of their parents, and 73% of children after the divorce live with their mother and visit their father on alternate weekends. At the same time, recent studies have shown that children who live alternatively and about equally with both parents after a parental separation report better well-being and mental health than parents who live mostly or only with one parent.
Gabriella Battani-Dragoni, Deputy Secretary General of the Council of Europe, in her opening remarks said: “There is an apparent, growing consensus that, when possible, shared parenting should be supported as part of separation and divorce arrangements.”
Shared parenting aims to maintain positive relationships between children and their parents in high-conflict separations and empower parents to meet their parental responsibilities in an equal way, she stressed.
The concept extends the principle of gender equality and challenges the stereotype of the father as breadwinner and the mother as nurturing carer and homemaker, still deeply entrenched in many cultures and still playing a role in many custody agreements.
However, shared parenting should not become a goal in itself or a systematic resumption: there are cases when shared custody does not correspondent to the child’s best interests. The decision on whether shared parenting is the best solution must take into account the individual circumstances, such as situations of intra-family violence, as well as the child’s views and expressed position.
The conference is supported by the City of Strasbourg, the University of Strasbourg and the Jardin des Sciences.
Opening Remarks by Gabriella Battaini-Dragoni, Deputy Secretary General of the Council of Europe at the 4th International Conference on Shared Parenting 2018 – Speeches
Speech at the 4th International Conference on Shared Parenting 2018
Strasbourg, 22 November 2018
It is a pleasure to welcome you to this Conference on an area of law that is fast-evolving within nation states and international organisations, in Europe and around the world.
The debate about the desirability, practicality and extent of shared parenting is brought into sharp relief by the high rates of marital and relationship breakdown – and the changing nature and definition of the family – in many countries today.
If this makes our topic something of a moving target, it also underlines the necessity of pursuing it.
The European Court of Human Rights cites frequently the “best interest of the child” when reaching judgments concerning children.
This principle also underpins Article 17 of the European Social Charter – the right of children to social, legal and economic protection – and, of course, many other international organisations and domestic courts adhere to it too.
I hope then that the best interests of the child is a lens through which we all see this debate – even if our interpretation of what those best interests are may sometimes result in a spectrum of colours.
There is however an apparent, growing consensus that, when possible, shared parenting should be supported as part of separation and divorce arrangements.
This does, after all, aim to:
- maintain positive relationships between children and their parents in high conflict separations
- empower parents to take on and meet their parental responsibilities in an equal way
- And do so in a manner that extends, not hinders, gender equality
This is about aiming for an equal balance as far as possible.
From a Council of Europe point of view, the rationale for generalising shared parenting lies in Article 8 of the European Convention on Human Rights: respect for private and family life.
That right is universal – it applies to every parent, and every child – and it states that there should be:
“no interference by a public authority with the exercise of this right except such as is in accordance with the law”, meaning where a family law decision or child protection order is involved.
And under Article 16 of the Revised European Social Charter, spouses must be equal in respect of rights and duties, particularly with regard to children.
Articles 7 and 8 of the UN Convention on the Rights of the Child also highlight the right to have contact with, and be raised by, both parents.
And the Hague Convention on the Civil Aspects of International Child Abduction contains specific provisions for cross-border cases.
These last two treaties have informed the Council of Europe’s work in this area, including decisions by the Strasbourg Court and the provision of our Convention on Contact Concerning Children.
But from our point of view the decision on whether shared parenting is the best solution in any given case must take into account the individual circumstances – to really ascertain what is in the best interests of the child.
This requires due regard to Article 8 of the European Convention, of course.
But it also means taking into account the child’s views and expressed position according to conditions defined by, among others, articles 9 and 12 of the UNCRC.
For example, the case of Hokkannen versus Finland, heard in the European Court of Human Rights, found that the access and visitation rights of a parent should not be imposed if the child is sufficiently mature and expresses a clear refusal.
Quite clearly, the child’s best interest principle must also take into account situations of intra-family and intimate-partner violence.
Our Istanbul Convention on preventing and combating violence against women and domestic violence is clear on this point:
That for a child to be exposed to such violence – either as a direct victim or as a witness – is itself a form of abuse that requires intervention and that this must be taken into account in custody and visitation arrangements.
The impact on the child should not be minimised.
Nor of course the effect on the parent in question – predominantly the mother – whose last ties to the perpetrator are often the child-sharing arrangements.
Article 31 of the Convention therefore lays out the obligation to ensure that victims and their children remain safe from further harm – and Article 45(2) includes the possibility of withdrawal of parental rights in specific circumstances where the best interest of the child cannot be guaranteed any other way.
This is a last – but necessary – resort.
So this is where we stand today at the Council of Europe level.
I hope that this Conference will provide an opportunity to learn more from one another about where the debate – and law on shared parenting – stand in our respective countries and organisations:
To discuss how modern families, public opinion and the evolution of the law can ensure that parents make the best possible contribution to the lives of their children.
And how we can ensure the best interests of the child so that he or she can go on to achieve their own, individual potential.
I wish you all a very successful Conference.