CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ upheld. In the 1985 Gillick case in England, a completely different court case with a quite different factual and legal context, the opposite applies. 90 Lord Scarman wrote inter alia that the capacity of a minor to make his own decisions depends on his sufficient understanding and intelligence to make such decisions and is not determined by reference to an age limit set out by the court. 91 The child need not have an exhaustive or fully coherent knowledge of all aspects of the matter involved. 92 In its decisions the Court defends and promotes the principle of a fair balance between the interests of the child and the interests of the parents. 93 The Court refers to the inevitability of applying the principle of the best interests of the child in the balancing procedure. Depending on the nature of the circumstances and importance of the case the interests of the child may override those of the parents. 94 In the Broda case the Court ascribed special weight to the predominant interests of the fourteen year-old girl, who did not wish to leave her foster parents’ home. Her interests and opinion outweighed the interests of her natural parents and grandparents. 95 4. Universal norm expressing the right of the child to liberty The Convention on the Rights of the Child is a consensual source of international law that has been in effect for more than two decades. 96 In comparison with the European Convention on Human Rights it naturally has different formal and content related attributes, as well as institutional control. The Convention on the Rights of the Child is lex universalis ( generalis ). 97 The Convention is binding on 193 states and is in effect almost all over the world. However, in view of its personal applicability ( ratione personae ) it is lex specialis . The Convention continues in the universal direction of the horizontal diversification of human rights as it exclusively protects children. It extends the circles of rights holders to include women, the disabled, immigrant workers, members of national minorities and the native population. 90 FREEMAN. M., Rethinking Gillick. The International Journal of Children’s Rights , 2005, Vol. 13, No. 1-2, p. 201. 91 Gillick v. West Norfolk and Wisbech Area Health Authority and another , 17 October 1985, House of Lords: “In the light of the foregoing I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances.” 92 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, s. 9. 93 Sahin v. Germany , judgment of 8 July 2003, paragraph 66. 94 Ibid. 95 Broda v. Italy , judgment of 9 June 1998, paragraph 62. 96 United Nations Treaty Series (UNTS), Vol. 1577, 20 November 1989, p. 3. 97 ZERMATTEN, J., Předmluva. In.: JÍLEK, D., ZEZULOVÁ, J., VĚTROVSKÝ, J., OBROVSKÁ, L., KAPITÁN, Z., HOŘÍNOVÁ, A., Studie o právech dítěte. Implementace zkušeností dobré praxe ve vzdělávání v oblasti práv dětí ve Švýcarsku do podmínek ochrany práv dětí v České republice . Brno - Boskovice: Česko britská o.p.s., p. 10.

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