The 24th of all EU-r rights: the rights of children and how the Charter contributes

Article 24 has been used by the EU Court so far in around 100 decisions and is therefore amongst the more often used Charter provisions. The most prominent areas of application before the EU Court are immigration and asylum cases –especially decisions on return, family reunification and such as well as cases of child abduction and the recognition and enforcement of judgments in matters of parental responsibility and finally cases concerning free movement law. Next to free movement constellations such as the recogition of the parent-child relationship across two different States, other internal market aspects may arise. For example, the Court held that protecting children was a legitimate justification for restricting the free movement of goods in a case involving national rules that required imported videos to be reviewed for their suitability for children.⁵

The provision is also referred to before national Courts. For instance, in Malta – an EU Member State whose courts aren’t often associated with EU Charter references – the Court examined a case involving grandparents living in Italy who had maintained a good relationship with their grandchild while the family still lived there. After the child’s parents moved to Malta, however, the grandparents were no longer allowed to visit their grandchild. The Court stressed that while authority remains vested within the parents of the minor, ultimately, it is always the best interests of the child that are to prevail.⁶ Very different was the context of a decision by the Czech Constititional Court: the case in question referred to Article 24 when assessing, whether it was legal for the authorites to prohibit an anti-abortion demonstration near an elementary school where photos of aborted human embryos were shown. The Constitutional Court found that it was legitimate to interfere in the freedom of assembly by considering the interest of the child.⁷ And in Bulgaria, the administrative court of Sofia established the obligation to issue birth certificates that contain reference to two fathers despite that fact that Bulgarian legislation does not provide for such option. This decision was made to enable the children adopted by two men married in New Zealand to obtain Bulgarian identity documents for their children and ensured freedom for the children ro exercise their rights according to EU secondary law.⁸

human rights catalogues. The constitutional catalogues of Denmark, France, Luxembourg, the Netherlands, Malta or Cyprus are silent on children and their rights. In fact, with the exception of a few countries such as Ireland and Portugal, the constitutional fundamental rights catalogues of the EU Member State do not dedicate comparable space and detailled rules to child rights.⁹ Very few constitutions use the concept of the "best interest of the child".¹⁰

In fact, the second and third paragraph of Article 24 is barely reflected in any national constitution. Rather national constititions contain elements which emphasize that family is the cornerstone for the preservation of the nation¹¹ or add a positive obligation to support families and others responsible for providing for children¹². Some constitutions explicitly stress the rights of parents¹³ while others also point to the fact that the parents rights to educate and raise their children may be revoked or restricted by the State as is provided for in the constititions of Bulgaria, Czechia, Ireland, Portugal, Slovakia or Slovenia.¹⁴

Interestingly, the constitutional catalogues of Croatia, Hungary and Lithuania establish obligations for the children to take care of their elderly parents.¹⁵ Many constitutions stress that children born out of wedlock should not be discriminated against¹⁶ while other important elements remain unnamed: only the constitutions of Croatia, Latvia and Romania refer in their provisions on children’s rights to the necessity of special support for disabled children.¹⁷ This confirms that constitutional texts sometimes appear out of synch with the challenges of modern times and highlights the added value of the modern language employed within the Charter.

While family law as such is not a competence area of the EU, it is a key objective of the EU to promote social justice and protect the rights of the child (Article 3 of the EU Treaty). In the same article the treaty also states that in its relations with the wider world, the Union shall protect "in particular the rights of the child". Moreover, in its immigration policy, the agency is explicitly mandated to combat human trafficking, "in particular women and children".¹⁸ Finally, sexual exploitation of women and children is one of the areas for which the EU legislator may establish minimum rules concerning the definition of criminal offences and sanctions.¹⁹

Important EU legislation includes Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography, Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings or Council Regulation (EU) 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction. Various important legislative proposals are pending such as the proposal for a European Certificate of Parenthood²⁰ as well as the hotly debated proposal for a regulation which lays down rules to prevent and combat child sexual abuse²¹. Next to such hard legal measures, the EU is engaged in a large variety of soft law initiatives.²² The European Commission established the European Forum on the rights of the child which is an annual conference²³ that provides a platform for dialogue between EU institutions and other stakeholders on the rights of the child. Child rights coordinators in the European Parliament and the European Commission were established. And a EU Children’s Participation Platform boosts children’s voices and helps them contribute to decision-making at EU level.

Most importantly, in its 2021 EU strategy on the rights of the child the European Commission committed itself to 40 measures and recommended another 25 measures to EU Member States.²⁴ Based on the strategy, the Commission adopted recommendation (EU) 2024/1238 on developing and strengthening integrated child protection systems in the best interests of the child. However, as a recent report by the European Union Fundamental Rights Agency shows, the picture across the EU diverges and much remains to be done at national level to establish a robust and unified approach to addressing the complex challenges faced by children.²⁵

Article 24 is a detailled, strong and well recognized Charter provision going beyond most of the national constitutions. One of its interesting aspects is that it explicitly addresses private actors, namely the "private institutions" taking actions relating to children. Just as state authorities they have to consider "the child’s best interests" as a "primary consideration".²⁶

The European Commission’s strategy on child rights, the variety of soft policy measures taken at EU level and the fact that the Commission is tracking the EU’s children’s rights aquis’²⁷ and setting it in relation with international human rights law²⁸ show potential for throwing light at EU Charter rights.

Building on such commitment, all actors can contribute to a rights-based culture where all EU policies, legislation and funding programmes are solidly entrenched and informed by rights enshrined in the EU Charter. This goes both for the genesis of EU law and policies as well as their implementation at national level. The upcoming mid-term review of the Strategy to strengthen the application of the Charter of Fundamental Rights in the EU beginning of December 2025 might bring new momentum in that regard.

Interested in knowing more? Well, here you are: ‘All EU-r rights‘. Stay tuned!