CYIL 2012

THE RIGHT OF THE CHILD TO LIBERTY AND THE ADMINISTRATIVE DETENTION … against the will of the minor. The necessity of exercising parental responsibility and authority applies in the Nielsen case to the age of the child. The mother did not decide as Jon would have decided if he had been able to exercise choice. If the plaintiff could have exercised choice he would not have had himself hospitalized. The mother decided on the plaintiff’s hospitalization on the advice of the doctors and against Jon’s opinion and wish. The criterion for decision making is not how the plaintiff would definitively decide if he had the choice, but it is his interests which form this criterion. 81 The best interests of a child or a group of children are the decisive factor both in the procedural 82 and the substantive sense. 83 The Court used the criterion of the minor’s interests. 84 The Court found that placing a child in a psychiatric ward was in its interests. The pressing question remains open whether or not this was really the case. The Court adds the bona fide argument that the mother decided on the basis of professional medical advice, 85 thus ruling out arbitrariness and the possible abuse of parental authority. 86 The Court judged the case without there being any unilateral or partial conflict in the international legal norms governing the rights and responsibilities of parents on the one hand and the rights of children on the other. 87 The Convention on the Rights of the Child, which was not yet in effect, takes into account the parental responsibility of the adults. 88 However, the opinions of the child must also be taken into account and have some bearing on the decision-making involved. 89 In the matter of Nielsen , the opinion of the child was subject to the responsibility and authority of the parent, while the Court found that Jon’s interests had been 81 Ibid., p. 12. 82 ZERMATTEN, J., The Best Interests of the Child Principles: Literal Analysis and Function. T he International Journal of Children’s Rights , Vol. 18, No. 4, p. 498. 83 Neulinger and Shuruk v. Switzerland , judgment of 6 July 2010, paragraph 136: “The child interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit… On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment…” 84 See CAMFIELD, L., STREULI, N., WOODHEAD, M., What’s the Use of ’Well-Being’ in Contexts of Child Poverty? Approaches to Research, Monitoring and Children’s Participation. T he International Journal of Children’s Rights , 2009, Vol. 17, No. 1, p. 89. 85 Nielsen v. Denmark , judgment of 28 November 1988, paragraph 72. 86 Committee on the Rights of the Child, General Comment No. 5 (2003), General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), CRC/ GC/2003/5, 27 November 2003, p. 4. 87 VRANES, E., The Definition of ’Norm Conflict’ in International Law and Legal Theory. The European Journal of International Law , 2006, Vol. 17, No. 2, p. 414. 88 KRAPPMANN, L., The Weight of the Child’s View (Article 12 of the Convention on the Rights of the Child). The International Journal of Children’s Rights , 2010, Vol. 18, No. 4, pp. 507-508; Committee on the Rights of the Child, General Comment No. 12 (2009), The right of the child to be heard, CRC/C/ GC/12, 20 July 2009, p. 20. 89 SMITH, A. B., Interpreting and Supporting Participation Rights: Contributions from Sociocultural T heory. The International Journal of Children’s Rights , Vol. 10, No. 1, p. 76; GALLAGHER, M., Foucault, Power and Participation. The International Journal of Children’s Rights , Vol. 16, No. 3, p. 402.

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