The Rights of Children in EU Law - A case law study regarding children's rights within the paradigms of instrumentalism, individualism and protectionism

Abstract: Within the legal field free movement of workers the child has been given a right under Article 12 in Regulation 1612/68 to education in the host Member State. For the right to apply the child has to move and reside with the worker. The principle of equal treatment applies to the provision, which requires that, the Member State does not discriminate against children to workers. To give the right full effect the CJEU stipulated in Baumbast that the child has a right to be accompanied by a primary carer in order to be able to pursue the education successfully. The limits to the right has further been tried and tested in other cases, such as Texiera and Ibrahim. When the EU-citizenship became part of EU law, also the child became encompassed by this status. CJEU interpreted in Zhu and Chen that anyone who is a national of a Member State is an EU-citizen and has then a right to move and reside within the European Union as long as the EU-citizen has sufficient resources and a comprehensive sickness insurance. To give full effect to the Article, if a child exercising the right to free movement then the child has received a right to be accompanied by a primary carer. That concept has also been tried and test within the field of EU-citizenship inter alia in O and S, and in Iida. Furthermore, the EU-citizenship was held to be a status which at a minimum prevents Member States that a child loses the status as an EU citizen. That was held in Ruiz Zambrano and later confirmed in Alopka. In Brussel II-Regulation children shall be returned quickly if a child has been wrongfully abducted. Therefore, has a rather rigid system been created to facilitate the cooperation between national courts in issues concerning parental responsibility and claimed rights to custody of children in cross-border situations. The court where the child is considered to be habitual resident is considered to be the best suited court to try these disputes. This raises problems in regard to what is the best interest of the child, if one thinks outside CJEU strict interpretation of the objective of the Brussels II-Regulation. The Charter of Fundamental rights also contains Article 24 ‘the rights of the child’ which addresses children and their rights, the child have the right to be heard, the best interest shall be considered and also to remain in contact with both parents on a regular basis. The Charter of Fundamental Rights does effect the application of EU law and in particular when the application of law concerns a child then Article 24 shall come into play.