Journal Article

Enforcing the Child's Right to Know Her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights

Samantha Besson

in International Journal of Law, Policy and the Family

Volume 21, issue 2, pages 137-159
Published in print August 2007 | ISSN: 1360-9939
Published online April 2007 | e-ISSN: 1464-3707 | DOI: http://dx.doi.org/10.1093/lawfam/ebm003
Enforcing the Child's Right to Know Her Origins: Contrasting Approaches Under the Convention on the Rights of the Child and the European Convention on Human Rights

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The justification of the child's right to know her origins and the fundamental interests underlying it have attracted a lot of attention in recent years. This article goes one step further and assesses that right's enforcement in practice together with its guiding principles. It starts by restating what the right consists in and what interests it protects according to different international human rights instruments. It then reveals the conflicts of rights that lie at the heart of the implementation of the right to know and explain its complexity. After considering the competing interests present, the article argues that none of these interests and rights should be regarded as absolute and suggests ways in which they can be balanced against each other. The recent evolution in the European Court of Human Rights (ECtHR) case law with its more nuanced balancing of the competing rights is contrasted with the Convention on the Rights of the Child (CRC)'s focus on the child's paramount interest. The article argues that these different approaches are reflected in national legal orders in Europe. By tracing the origins of this divergence back to those conflicting international legal paradigms and by proposing abstract adjudication principles to guide the concrete balancing of competing rights, the article hopes to contribute to a better understanding and ultimate reconciliation of the child's multiple identities – social and biological.

Journal Article.  9975 words. 

Subjects: Family Law ; Marriage and the Family

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