Child protection and the ECHR: Making sense of positive and procedural obligations
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Date
2019-11-21
Authors
O'Mahony, Conor
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Publisher
Brill Academic Publishers
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Abstract
The European Court of Human Rights has generated a significant volume of case law that imposes demanding standards on States Parties to prevent, investigate and remedy ill-treatment of children at the hands of private actors. However, confusion and inconsistency is evident on a number of key points. Similar cases are decided on different grounds; and the approach to whether the right to an effective remedy under Article 13 has been violated is erratic. This creates uncertainty as to what is required of States to implement judgments, and makes it more difficult for similarly situated victims to vindicate their rights without bringing repetitive applications to Strasbourg. This article provides the first comprehensive treatment of Convention obligations to protect children from ill-treatment. It identifies problematic aspects of the case law, and proffers a more coherent body of principles that would provide greater clarity regarding what the ECHR requires of States Parties in the sphere of child protection, and regarding the measures of implementation required of States in cases where violations are found.
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Keywords
ECHR , Child protection , Child abuse , Child neglect , Domestic violence , Positive obligations , Procedural obligations , Investigations , Effective remedies , Children's rights
Citation
O'Mahony, C. (2019) 'Child protection and the ECHR: Making sense of positive and procedural obligations', International Journal of Children's Rights, 27(4), pp. 660-693. doi: 10.1163/15718182-02704003
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© 2019, Brill Academic Publishers. All rights reserved.