The Child in European Human Rights Law
| Published date | 01 May 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12341 |
| Author | Sarah Trotter |
| Date | 01 May 2018 |
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The Child in European Human Rights Law
Sarah Trotter∗
This article examines the category of ‘the child’ in European human rights law, based on an
analysis of the child-related jurisprudence of the European Court of Human Rights. It argues
that a full account of legal selfhood is constructed through the notion of ‘the child’ in this
jurisprudence. The two notions – of ‘the child’ and ‘the self’ – are, from the outset, mutually
dependent. The conceptualisation of ‘the child’ in human rights law is underpinned by an
account of the self as originating in another and childhood is cast as enabling self-understanding
by making possible the formation of a narrative about the self. The vision of ‘the self’ that
emerges is one of ‘the narrative self’, and I assess the implications of this both for the idea of
childhood in which this narrative originates and for the vision of the human condition that is
expressed in European human rights law more broadly.
INTRODUCTION
In European human rights law, the category of ‘the child’ is put to consid-
erable work. ‘The child’ is at once constructed as an object of desire (the
expected or hoped-for child),1as a symbol of commitment and constancy in a
relationship between two individuals,2and as a distinct individual whose ‘best
interests’ often reign as paramount.3‘Childhood’ itself, as a space and time
occupied by ‘the child’, emerges as a structure through which vital knowledge
is transmitted from ‘adults’ to ‘the young’4and as a time for ‘the fundamental
programming of personality’.5It is in the category of ‘the child’ that we see,
in this way, the articulation and delineation of a vision of the development of
‘the individual’ more generally – ‘the individual’ who is then posited as the
basic foundational principle of European human rights law, and the protection
of whose freedom and dignity forms the central task of human rights law’s
mission.6
Thus within the structure of European human rights law, the category of ‘the
child’ is of fundamental significance; and the complexity of the condition and
meaning of being a child within the vision of human rights law accordingly calls
for further analysis. That is the contribution of this article; and in the pages
∗Law Department, London School of Economics and Political Science. I am very grateful to Damian
Chalmers, Kai M¨
oller, and the anonymous reviewers for their valuable comments and suggestions.
1 For example, Paradiso and Campanelli vItaly ECtHR 24 January 2017 at [215].
2 For example, Kroon and Others vThe Netherlands (1995) 19 EHRR 263 at [30]; Al-Nashif v
Bulgaria (2003) EHRR 37 at [112]; Joseph Grant vUK ECtHR 8 January 2009 at [30].
3 For example, Neulinger and Shuruk vSwitzerland (2012) 54 EHRR 31 at [135].
4Campbell and Cosans vUK (1982) 4 EHRR 293 at [33].
5Maumousseau and Washington vFrance (2010) 51 EHRR 35, Dissenting Opinion of Judge
Zupanˇ
ciˇ
c, joined by Judge Gyulumyan at [O-I4].
6 See, for example,Goodwin vUK (2002) 35 EHRR 18 at [90]: ‘the very essence of the Convention
is respect for human dignity and human freedom’.
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(3) MLR 452–479
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Sarah Trotter
that follow, I set out an account of the category of ‘the child’ in European
human rights law, based on an analysis of all the child-related jurisprudence of
the European Court of Human Rights (ECtHR) to date.7The main argument
that I put forward here is that a full account of legal selfhood is constructed
and set out through the notion of ‘the child’ in European human rights law.
Within the conceptualisation of ‘the child’, there is not only an account crafted
out of ‘the child’ as firmly situated in the context of its parents, and of the role
of the ‘other’ in constructing ‘the child’, but there is also an account of the
self as originating in another (the first section below). Childhood is deemed
vital in this context, insofar as two processes which are considered fundamental
to the formation of the self – individuation and habituation – originate in
childhood (the second section). Individuation is about the delineation of the
specific child, and the articulation of her interests (as distinct from those of her
parents), and habituation is about the engraining of actions and elements of
being as habits, such that they become unconscious features of an individual’s
character. Childhood, in this way, is accorded such an integral role in human
rights law’s account of the formation of the self that it is cast as supplying the
framework through which life is subsequently structured and interpreted (the
third section). The idea underlying the case law here is that an account of
childhood enables self-understanding, because it makes possible the formation
of a narrative about the self. The vision of ‘the self’ that emerges from the depths
of the category of ‘the child’ in European human rights law is, accordingly, a
vision of ‘the narrative self’.
‘THE CHILD’
That ‘the child’ is constructed as a category in European human rights law
comes to the fore most clearly in cases in which no specific child is identified
and rather a very general idea of ‘the child’ is imagined. Such is the case, for
example, in instances concerning application procedures for authorisation to
adopt a child, in which the lack of identification of a ‘specific child’ does not
rule out the fact of the centrality to be accorded in such cases to the ‘best
interests’ of ‘children’ in general.8The generality and indeterminacy of this
notion leaves a lot of scope for imagining what these ‘best interests’ are; and
that imagination, in turn, presupposes some conception of ‘children’ as a class
and the category of ‘the child’ in the first place. This category then comes to
carry a nor mative and normalising force; and it is in this context that notions
such as of the ‘normal development’ of the family life of the child9and of what
a ‘normal childhood’ consists in10 make their way into the jurisprudence of
the ECtHR.
7 The paper is based on an examination of all the ECtHR cases up to 1 June 2017 which feature
the word ‘child’ (or any other associated words, such as ‘childhood’, ‘juvenile’, ‘minor’, ‘baby’,
‘parent’, or ‘pupil’).
8Frett´
evFrance (2004) 38 EHRR 21 at [42]; EB vFrance (2008) 47 EHRR 21 at [76].
9 For example, Marckx vBelgium (1979-80) 2 EHRR 330 at [36]; Johnston and Others vIreland
(1987) 9 EHRR 203 at [74]; MP and Others vBulgaria ECtHR 15 November 2011 at [132].
10 For example, Orzeł vPoland ECtHR 25 March 2003 at [54].
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(3) MLR 452–479 453
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