Paramountcy of children

Palau-Martinez v France ECtHR (64927/01) 16 December 2003

In the New Law Journal of 6 February, Rupert Butler considered this decision of the European Court of Human Rights holding that the French court had unlawfully interfered with a mother’s right to respect for her family life by removing her children from her and placing them with their father because they were being educated in accordance with the rules imposed by Jehovah’s Witnesses. The Court rejected the argument that the ‘intervention’ of a judge was necessary and did not constitute ‘interference with family life’ and that even if it were an interference it served the legitimate goal of promoting the interests of the children and was proportionate, since the children’s interests could, and sometimes must, take precedence over those of the parents. Mr Butler commented that this decision, based on the principle that in residence hearings the parents have rights under article 8 which ought to be respected and taken into account, is significantly different from the approach of the English courts following s1(1) of the Children Act 1989, where the child’s welfare must be the court’s paramount consideration. He concluded a two-page article: ‘It remains to be seen how the bombshell dropped by the Palau-Martinez decision will be treated in the English courts. Dame Elizabeth Butler-Sloss, in Payne v Payne [2001] 2 WLR 1826, was keen to pass off the differences between the ECtHR jurisprudence on the “welfare principle” and our own statute law as mere matters of linguistics. However, it is now clear that the need to respect the religious, racial and sexual sensitivities or all European citizens, even in matters concerning their children’s upbringing, is beyond the elasticity of linguistic interpretation, and has created an irreconcilable conflict in the past approach of English courts and the ECtHR.’