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Determining an exhaustive or guiding list of the grounds for restricting parental rights endangers protection of children’s rights: opinion

September 3, 2021

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Opinion on the Draft Law “On making amendments and addenda to the RA Family Code”

 

The Draft Law (hereinafter referred to as “the Draft”) “On making amendments and addenda to the RA Family Code” envisages to “restrict parental rights in cases when a parent is unable to implement his/her parental obligations or endangers the child’s physical or mental health and intellectual development 1) due to constant addiction to alcohol or drugs, 2) due to having mental, intellectual or nervous system health problems.

 

The Article also allows for restriction of parental rights in cases where though it is dangerous for the child to be left with his/her parents or one of the parents, there are still no sufficient grounds to deprive the parents or one of the parents of parental rights.

 

Determining an exhaustive or guiding list of the grounds for restricting parental rights endangers protection of children’s rights and artificially disguises the real reasons that can be  against the best interests of the child and/or affect implementation of parental rights.

 

In the proposed regulations, the Draft authors singled out a parent’s constant addiction to alcohol or drugs and mental, intellectual or nervous system health problems as grounds endangering the child’s physical or mental health and intellectual development. Such evaluations and definitions are in contrast with universal, regional and domestic regulations of the protection of human rights and fundamental freedoms, which, inter alia, guarantee the right to respect for private and family life and the right to be free from discrimination.

 

The UN Convention on the Rights of Persons with Disabilities – the Republic of Armenia is also a party to it – recognizes persons with disabilities as full-fledged subjects of rights and right holders. This also applies to anyone with mental health problems.  

 

Article 8 of the Covention for the Protection of Human Rights and Fundamental Freedoms sets that public authorities must strike a fair balance between the interests of the child and those of the parents, and in the process of striking the balance, a special attention should be paid to the child’s best interest, which, by its nature and importance, can outweigh the parent’s interest. In particular, in accordance with Article 8, a parent cannot have the right to take such measures that can harm the child’s health and development.

 

In the case of Cînța v. Romania, the European Court of Human Rights recognized that the applicant’s rights to respect for private and family life and be free from discrimination were violated, since the decisions on limiting the applicant’s contact with his daughter were partly based on his mental health problems. The Court found that the fact that he has a mental health problem cannot itself justify a difference in treatment from other parents seeking contact with their children. The Court concluded that in restricting the applicant’s contact with his child, the courts made a distinction based on his mental health for which they did not provide relevant and sufficient reasons. [1]

 

Based on the aforementioned, we recommend removing subclauses 1 and 2 of Article 4 of the Draft.

 

[1]  Cînța v. Romania, no  3891/19, §§47, 70, 78, 81, 18 February 2020․

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