Marginalisation by the Court: The Case of Roma Children and the European Court of Human Rights

Marginalisation by the Court: The Case of Roma Children and the European Court of Human Rights ABSTRACT This article analyses the European Court of Human Rights’ conceptualisation of children as human rights-holders, using Roma children’s access to education as a case study. It argues that the Court consistently fails to treat children as agents in their own right in cases where their rights are being compromised. Roma children, as members of an ethnic or racial minority group, suffer discrimination through their segregation from other children within the education systems across Europe. They are further discriminated against by the Court because of the overriding focus on their parents’ rights, while ignoring their independent status as rights-holders. Thus, the article argues that Roma children are marginalised on account of their status as children and as members of a subordinated social group. The article then proposes an alternative, child-centred, judicial narrative which has the potential to remedy this situation. This approach repositions children and brings them to the centre of the Court’s analysis, essentially asking the Court to directly engage with children as rights-holders, and potentially to strike a different balance between children’s rights, parental interests and the state. 1. INTRODUCTION This article asks how the European Court of Human Rights (‘the Court’ or ECtHR) addresses children’s agency and rights using adjudication concerning Roma children’s right to education as a case study. The cases discussed illuminate the Court’s treatment of minority children’s rights in the context of what might be the most important social site for children—education. Despite the expectation that a human rights court will enhance the protection provided for the rights of those who are at the margin of society and are subject to systematic discriminatory policies, the article argues that the Court fails to recognise Roma children’s status as human rights-holders and thus perpetuates their double marginality—as children and as Roma. The article applies a child’s rights-centred approach to the analysis of the judgments. This conceptual and methodological approach focuses on children and analyses the cases from their point of view. My approach builds upon what John Tobin called the substantive child’s rights-centred approach,1 and it is based on three pillars: a conceptual principle, a procedural principle and an empowerment principle. The conceptual principle requires, and asks, whether the judge positions the child and her rights at the centre of analysis, and examines the dispute from the child’s point of view. The judge should ask whether any rights of the child (or children) were violated in the case. The procedural principle requires the judge to respect the child as a party to the dispute, and to ensure that all the procedural rights that any party is entitled to, as part of the rights to a fair trial and due process, are respected. This principle should be followed even when the child herself, or a group of children, is not listed as a formal party to the case, a not uncommon situation in cases concerning children. It inherently provides the child with the opportunity to participate in a process that relates to her rights.2 The empowerment principle requires the judge to substantiate her reasoning on a child’s rights analysis, and to provide a child-friendly version of the judgment. This approach should remedy an adult-centric approach that ignores children, and perpetuates their social marginality. This form of a child’s rights-centred approach also identifies cases in which courts might be paying lip service to child’s rights discourse, but does not use it in any substantive way. In any given national legal system in Council of Europe states, three human rights regimes can be applied, often simultaneously, in order to enhance the protection of rights for Roma children. The first regime includes ‘general’ human rights law, across domestic, regional and international human rights law, including, for example, the domestic human rights framework, the European Convention on Human Rights 1950 (ECHR),3 the International Covenant on Civil and Political Rights 1966 (ICCPR)4 and the International Covenant on Economic, Social and Cultural Rights 1996 (ICESCR).5 A second regime is the children’s rights framework, at both the local and international levels, at the latter of which the UN Convention on the Rights of the Child 1989 (UNCRC or ‘the Convention’) applies.6 The regional mechanism provides a somewhat slim protection, given that the ECHR lacks an explicit child’s rights provision, and there is no other binding child’s rights instrument.7 However, the European Social Charter8 and the Framework Convention for the Protection of National Minorities9 should be mentioned. It has been suggested that the ECtHR is increasingly using children’s rights discourse, and refers to the UNCRC regularly.10 This article argues that such a development is not demonstrated in cases concerning Roma children, but rather the opposite is the case. A third regime is the minority rights framework, including, for example, Article 27 of the ICCPR, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.11 Despite their somewhat differing approaches to the relationship between the individual and the community, children’s rights frameworks and minority rights frameworks share a similar objective, which is to protect the rights of those who are at the margin of society, first and foremost by recognising their vulnerability. But, for children who belong to a minority group, the causes of their marginality are often cumulative and intersectional. The article has three parts. The first part outlines the relevant provisions in the ECHR that relate to children’s rights, that is, the right to education and minority rights. A short comparison between provisions in international human rights law, primarily the UNCRC, will be drawn, as a demonstration of a different way to conceptualise children’s rights and given the increasing usage of it by the ECtHR. The second part identifies and analyses key ECtHR cases concerning the segregation of Roma pupils, focusing on the Court’s treatment of children’s agency and rights. The third and last part criticises the current treatment of minority children’s rights in the context of education. It argues that while the ECtHR is increasingly using a children’s rights framework and discourse, it does not utilize this framework in cases concerning Roma children. This part concludes with a suggestion for the Court to adopt an alternative judicial narrative, which can remedy the current shortcoming in its jurisprudence. A. The Realities of Roma Children Before moving to the first part of the article, there is a need to say a few words of introduction about the Roma and Roma children. The Roma are the largest and most marginalised ethnic minority group in Central and Eastern Europe.12 Their total population is unclear, primarily because hundreds of thousands of people do not identify themselves as Roma as they fear stigmatisation and discrimination. Another reason is that the term ‘Roma’ does not represent a homogenous group of people. Rather, it is used as a category that brings together people with diverse ethnic, religious and linguistic backgrounds.13 Furthermore, while official censuses tend to lower the numbers of Roma for political reasons,14 current estimates indicate that between 10 to 12 million Roma live in Europe,15 with Bulgaria, Romania and Hungary being the three countries with the highest percentages (9.94 per cent, 8.63 per cent and 7.49 per cent of the total population, respectively).16 When it comes to children, it is estimated that 309,000 Roma children live in Bulgaria, 926,000 Roma children live in Romania and 246,000 Roma children live in Hungary.17 The human rights of Roma are violated on a daily basis.18 By and large, Roma live in poor and disadvantaged communities with unemployment rates that are usually five times higher than the average in their country.19 They live in urban conditions that are much poorer than the general population. For example, in Serbia, 35 per cent of Roma settlements have no running water, and in Montenegro the proportion of settlements without running water is even higher at 75 per cent.20 The figures on education are alarming too. For example, only 0.2 per cent of Roma children in Kosovo attend pre-school. According to the World Bank, the average gap in primary school enrolment for Roma children is a quarter of the corresponding rate for non-Roma children, and only 64 per cent of Roma girls attend school, in comparison with 96 per cent of girls who come from similar socio-economic backgrounds elsewhere in Central and Eastern Europe. Roma children also have low levels of educational achievement, which UNICEF attributes to segregation policies.21 Roma children are racially discriminated against in school systems all across Eastern Europe, mainly by one of three means: being placed in ‘special needs’ schools; classroom segregation in the same school; or residential school segregation, where non-Roma parents do not send their children to school within Roma populated areas.22 The separation of Roma children in ‘special needs’ schools, which follow simplified curricula and are generally run by low quality and unqualified teachers, leads to long term disadvantage ‘because of the difficulties to progressing into secondary or tertiary education’.23 The cases that came before the Court and analysed in the article refer to the first practice of discrimination. 2. CHILDREN’S RIGHTS AND MINORITY RIGHTS PROTECTION MECHANISMS This part analyses the ECHR protection of children’s rights, minority rights and the right to education, and compares it to the framework offered by the UNCRC and other human rights treaties. This comparison is a useful exercise for three reasons: first, the UNCRC is the most comprehensive and most widely ratified treaty concerning children’s rights, and as such it provides the best comparison to other child’s rights mechanisms. Because of this, as noted above, the ECtHR often refers to the UNCRC in its children related judgments.24 Second, given that all states parties to the ECHR are also parties to the UNCRC, the UNCRC is a positive source of law in those states. Third, investigating how international human rights law constructs children’s rights and agency in the context of the right to education can illuminate some of the difficulties with the ECtHR’s treatment of similar situations. The ECHR lacks a comprehensive or a concrete children’s rights provision, referring to children in the context of juvenile justice only (Articles 5 and 6). Children are also not mentioned as rights-holders in contexts that clearly relate to them, such as the right to education (Article 1 Protocol 2). This omission is problematic, but not uncommon, for at least three reasons. First, it ignores children unique positionality in society and the need—both socially and legally—to explicitly recognise children as rights-holders. Second, it leads the Court to consider children’s rights as synonymous with other groups’ or individuals’ rights, typically the rights of the family or of the parents.25 Third, this perception might undermine the feasibility of the ECHR being used as a vehicle to promote children’s rights.26 Nonetheless, as Helen Stalford notes, over the years the Court has shown increasing willingness to ‘ensure adequate protection for children in a range of contexts’,27 primarily in the contexts of child protection and juvenile justice, reading into the European Convention the status of children as individual rights-holders. Thus, the Court has managed to overcome the shortcomings of the ECHR’s text, including in the context of the right to education, where the Court explicitly recognised that children’s right to education is distinct from any right that their parents might have in the context of their education.28 Most recently in the context of the rights of migrant children,29 the Court has also developed a rather substantial jurisprudence about the principle of the best interests of the child—another term that the ECHR does not mentioned explicitly. Yet another testament to the ability of the Court, when it chooses to do so, to expand the protection provided for rights not enumerated.30 When the ECHR is compared with contemporary international human rights law standards, especially those in the UNCRC, its failure to refer to children is clearer. The UNCRC is solely dedicated to the human rights of children, and its main innovation is its recognition of children as rights-holders. For Roma children and questions surrounding their access to education, the UNCRC is a useful tool as it safeguards the right to education (Articles 28–29), including access to education on a non-discriminatory basis (Article 2). Article 30 of the UNCRC adds a unique right to identity preservation of minority children and indigenous children, which, inter alia, explicitly recognition of the agency of minority children in the context of education. At the European level, the right to protection against discrimination is not as straightforward. Article 14 of the ECHR prohibits discrimination on potentially unlimited grounds,31 including those that the provision specifically mentions: ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property or birth’. However, discrimination is prohibited only in conjunction with other rights under the Convention.32 In the context of education, discrimination can be based on the child’s language, religion, national or social origin, or for the child’s association with a national minority. Protocol 12 of the ECHR extends the prohibition on discrimination to the context of any legal right, even when this right is not explicitly protected by the ECHR, as long as national law protects this right. This extension is meaningful to Roma children against claims denying their affiliation to a minority, either racial, ethnic or religion, groups. The right to education is protected in a number of international human rights treaties, most notably by Article 13 of the ICESCR. Article 13 protects the ‘right of everyone to education’, and ‘everyone’ in principle includes children.33 As noted earlier, Article 28 of the UNCRC recognises the right of every child to education. Reading this provision together with Article 2 of the UNCRC means that every child has the right to education without discrimination on any ground. Therefore, the right to access to equal education is a right of the child under the UNCRC. On the European level, Article 2 of Protocol 1 uses similar language to Article 13 of the ICESCR, which means that Roma children should also enjoy the right to equal access to education under the ECHR. Roma children also enjoy a unique set of rights that minority people enjoy under international human rights law. One approach views minority rights as individual rights that any member holds on account of their membership in a minority group. A different, more communal approach, conceptualises minority rights as collective rights that ‘belong’ to the group, which the individual members can enjoy.34 When it comes to Roma children, this communal approach applies to their social affiliation and not to their age-related group, that is, their identity as Roma rather than as children. In other words, the minority rights framework applies to Roma children’s rights as Roma, rather than as children. This dimension will be further explored below. The ECHR lacks a specific minority rights framework. The Framework Convention for the Protection of National Minorities provides only partial protection and, therefore, the main avenue for protecting minority rights is using Article 14 ECHR and the right to non-discrimination, usually in the context of Article 8 of the ECHR.35 Unlike the ECHR, international human rights law has a better developed and more nuanced minority rights regime that can be divided into two regimes. The first regime comes under the general right to non-discrimination (Article 7 of the Universal Declaration of Human Rights, Article 2 of the ICESCR and Article 2 of the ICCPR). The second regime is an explicit minority rights regime, which can be found in Article 27 of the ICCPR. It reads: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Article 27 names three minority groups (ethnic, religious and linguistic minorities), and acknowledges the right to identity preservation for members of these groups. This is a closed list,36 composed of individuals ‘who belong to a group and who share in common a culture, a religion and/or a language’.37 Will Kymlicka argues that ‘culture’ should be read in the broadest sense of the word, to enable the interpretation of Article 27 as an Article that protects a universal identity right.38 Reading in religion and language as well can better accommodate and correspond to children’s complex identity structures. Article 27 is relevant to the context of education, as it relates to questions of integration and segregation, school curricula, religion in schools, language and school uniform. With respect to parents’ interests in their children’s education, Article 27 of the ICCPR should be read together with Article 18(4): The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.39 This is a key provision in articulating the relationship between minority children, their parents and the nation state. It positions parents and the nation state as active actors, while children are positioned as passive subjects. It strikes a balance in favour of cultural and religious preservation, as determined by adults, over respecting children’s agency. Another implication of this approach is the discretion (and one can argue the right) given to parents to shape the curricula of religious and ‘moral’ education of their children. Similar language can be found in Article 29(2) of the UNCRC.40 In that sense, realising children’s rights in the context of education not only requires overcoming some deeply rooted conceptions about parental autonomy, but also a power shift that respects children’s rights in this context. It has been argued that the minority rights framework is particularly relevant to Roma, as it addresses the multifaceted structures of discrimination that Roma are subject to.41 International minority rights law, according to Galina Kostadinova, captures ‘the need for structural reform … it can contribute towards changing the societal structures that generate socio-economic exclusion and racial intolerance and discrimination’42 of Roma. But before we speak about social transformation, we need to examine whether ‘the law’ can protect basic rights of Roma children, namely the right to education without discrimination. In other words, while using the law as a vehicle of redistribution is a novel goal, we should ask if human rights law fulfils some of its more traditional goals, namely fighting racism and its consequences.43 3. ROMA CHILDREN AND THE EUROPEAN COURT OF HUMAN RIGHTS: A CHRONOLOGY OF INVISIBILITY This section begins with analysing two early cases that address the rights of children who belong to other minority groups. These cases introduce the Court’s jurisprudence concerning minority rights and education, and contextualise the discussion about Roma children that follows. The ECtHR case law concerning education and discrimination dates back to the 1960s. Since then, and albeit the total volume of cases discussing these issues is not big, the Court has had the opportunity to rule on issues surrounding the right to education, including access to education,44 religion in school,45 sex education,46 school dress,47 etc. One of the communalities of these cases is that although it is children who were attending school and who were subject to the policies and laws, the Court rarely addressed any child, or a group of children, as rights-holders, let alone employed a child’s rights discourse when analysing the law applicable in those cases. Instead, the Court tended to examine these situations from a parental rights perspective. The 1968 Belgian Linguistics Case48 set the tone for the Court’s treatment of issues relating to education, non-discrimination and minority groups, and it is still an important precedent. The case involved a group of parents who challenged the legality of a law, which provided that the language of education should be Dutch in the Dutch-speaking regions of Belgium, French in the French-speaking regions and German in the German-speaking regions of the country. The parents claimed that in their Dutch-speaking region, there were no adequate schools that offered teaching in the French language, which was the language that they used at home and wanted their children to be educated in. The parents also claimed that the authorities prevented them from sending their children to French-speaking schools outside their local area, thus forcing them to either enrol their children into local schools where they would not be taught in their language of choice. Subsequently, the parents argued that the law violated their right to family life (Article 8) and the right to education in conjunction with the right to non-discrimination (Article 2 Protocol 1 and Article 14). In their submissions, the parents referred to the rights of their children, arguing that one of the aims of education is to develop children’s intellect and culture, which includes linguistic skills. In its reply, the Belgium Government argued that the right to education in one’s own language is not protected by the ECHR or its Protocols. Further, the parents did not belong to a national minority within the meaning of Article 14, and therefore they could not argue that they were subject to a discriminatory policy. The Court decided that although Article 2 Protocol 1 is formulated in negative terms, it nevertheless enshrines a positive right. The Court rightly noted that, without establishing positive obligations, including the duty to ensure access to education, the right to education would essentially be meaningless. Ensuring pupils’ access to education creates, according to the Court, a corresponding duty for the state to respect parents’ linguistic preferences. The Court added that it would be absurd not to recognise this obligation and to prevent certain students from being educated in their language of choice based on their place of residence.49 Although it was children whose education was at stake and although the applicants’ submission described children as rights-holders—an unusual advancement for 1960—we heard nothing about the children’s views on the matter, or about the influence that this law has on their rights. While it can be argued that children’s rights can be realised within the context of the family, or via parental support,50 such an argument carries less weight in this context. This is not least because it is not the family that can be a site for rights realisation in the realm of education, but rather the state and the national spheres. The Court’s framing of the case left children at the margin, and ignored them as rights-holders. Children were not entirely absent from its judgment, as the Court did mention that the case involved ‘the rights or freedoms of a child’.51 Unfortunately, this statement was not followed by any meaningful discussion about their rights. Between 1968 and the mid-1990s, there were a limited number of cases that referred to questions of discrimination and children’s education. However, from the mid-1990s there is a rise in the number of these cases, and a slight change in the Court’s treatment of children and their rights, coinciding with the adoption of the UN Convention on the Rights of the Child by the UN General Assembly in 1989 and its rapid ratification across Europe. This change corresponds with the rise of a ‘European movement’ to fight discrimination, discussion surrounding multiculturalism and secularism,52 greater awareness of the marginalisation of Roma,53 and the joining of Eastern European countries to the Council of Europe, which brought more Roma under the jurisdiction of the Court. The case of Valsamis v Greece54 represents the beginning of these changes. Although this case did not involve Roma or claims about discrimination in the context of education, it is nonetheless important in the context of this article because it showcases the early advancement of a new child’s rights rhetoric. In this case, the applicants were Victoria, a 12 year-old girl at the time of the incident (and 16 years-old when the case was finally decided in Strasbourg), as well as her two parents. Victoria and her parents, Jehovah’s Witnesses who lived in Athens, approached the Court after Victoria was suspended from school for one day due to her refusal to attend a parade commemorating the war between Greece and Italy. They claimed that a parade associated with ‘war and violence’ conflicted with their religious beliefs and therefore Victoria decided not to attend it. Thus, it was claimed, the school’s reaction in the form of suspension constituted a violation of her right to freedom of conscience and religion (Article 9), and her right to education under the ECHR. The Court rejected these claims, stating that participating in the parade, which took place during the weekend, did not violated Victoria’s or her parents’ pacifistic convictions to the extent they were protected by the ECHR. However, the Court found that the right to an effective remedy (Article 13) in conjunction with the right to education was breached. While the Court accepted Greece’s claim that the state has the prerogative to decide the curriculum, it held that this power could not be used to pursue an aim of indoctrination, which disregards the parents’ religion or philosophical conviction. The judgment does not separate between the parents’ rights to freedom of religion, and Victoria’s independent rights, referring mainly to the former. The reason for this might be, as Jane Fortin notes, because the Court was not very ‘enthusiastic about the notion of children being rights-holders themselves, particularly in situations where the rights of parent and child are both at stake’.55 Ignoring Victoria’s position as a rights-holder led the Court to conclude that it was the parents’ decision not to allow Victoria to attend the parade, which did not constitute a violation of her right to education. This is a strange description of the events because it is clear from the judgment itself that it was Victoria who chose not to attend the parade. According to the Court: ‘Victoria informed the headmaster that her religious beliefs forbade her from joining the parade’.56 Further, it was the legality of the school’s decision to suspend Victoria that was challenged, and not any actions that her parents might have taken. Ignoring children while focusing on parents’ rights and scrutinising states’ actions in isolation from their impact on the alleged victims is the Court’s, as will be discussed below, general approach to cases concerning children and education. There are a number of other cases where the ECtHR dealt with claims where pupils, mostly Muslims, had been expelled from school and subsequently claimed that the decision violated their right to freedom of religion and conscience.57 In cases such as Dogru v France,58 for example, it was argued that their expulsion was justified according to the principle of Laïcitě, which applied to adults and children alike. Laïcitě means that no one, neither members of the majority group nor members of the minority group (for example, Christians, Muslims or Jews), can attend school wearing religion dress.59 Therefore, and in contrast with Valsamis, arguing that the school’s decision is discriminatory in its nature carries less weight. A case that marks a radical shift in the Court’s treatment of minority children’s right is the 2007 case of DH v Czech Republic.60 This case involved eighteen Roma pupils, Czech nationals, who argued that they were subject to a segregation policy where Roma children were being sent to schools for children with special needs. With some local variation, children were first being sent to ‘regular’ primary state schools, but after a year or two they were asked to take some diagnostic tests (which the Court later deemed to be unsuitable for Roma pupils on linguistic and cultural grounds), and subsequently were sent to special schools. In some instances, this segregation policy was executed without even trying to portray it as a pedagogical policy, and Roma children were placed in schools for children with special needs without any prior diagnosis. In this case, the pupils were the applicants, and it was explicitly argued that the policy in question violated their individual right to education. In its response, the Czech Republic denied the existence of any segregation policy, and claimed that all decisions were made for pedagogical reasons. The Chamber, in a majority of 6:1, found that there was no violation of the children’s rights.61 But on appeal, the Grand Chamber found, in a majority decision of 13:4, that the pupils’ rights had been violated, and that they were subject to a discriminatory policy that had the sole objective of separating children based on their ethnicity and race. Grounding the decision in statistical data, the Grand Chamber ruled that there was a policy that disproportionally placed Roma children in special needs schools. The Grand Chamber stated that because these children belong to a minority group, the state was under ‘an obligation to protect their identity and lifestyle’, and that ‘their right to education was of paramount importance’.62 The Grand Chamber rejected the claim that sending Roma pupils to special needs schools was the proper response to their poor education outcomes, stating that, as members of a minority group that suffered from continuing institutional neglect and discrimination, it was inevitable that these children would have poor results in school. But their low marks were not an indication of any special learning needs, the Grand Chamber concluded, but rather relevant to the State’s duty to adequately protect their right to education without discrimination.63 This case marks a departure from previous precedents where the Court conceptualised these types of cases in terms of parental rights. Instead, for the first time the Court directly addressed racial discrimination in schools from a children’s rights perspective. The case demonstrates that when children are visible as applicants and the arguments are framed in relation to their own rights, the Court is likely to address children as rights-holders. It is therefore not surprising that the Court referred to Articles 28 and 30 of the UNCRC to support to its conclusion that children’s rights were violated.64 An interesting comment about children’s rights and children’s representation was made by Judge Borrego, one of the dissenting judges. Judge Borrego noted that while the pupils were the applicants, they were absent from the courtroom, and instead only ‘lawyers from London and New York’, were present: None of the applicant children… were present at the hearing. The individual circumstances of the applicants and their parents were forgotten. I put a very simple question to the two British and American Representatives – had they met the minor applicants and/or their parents? Had they been to Ostrava [the city where the children were living N.P]? I did not receive an answer.65 This somewhat cynical comment raises important questions about public interest litigation. For the context of this article, the questions whether the usage of children’s rights discourse was only a tactical move, and whether children’s rights, especially the right to participation (Article 12 UNCRC), were being respected by those who claimed to represent children, are important ones. However, given the skepticism of Judge Borrego, similar doubts should be raised about the Court: does the Court consider children as rights-holders? Why does it focus on the state’s margin of appreciation or parental rights in cases where the victims of rights violations are clearly children? Nonetheless, and despite these difficulties, DH’s approach toward children’s rights is rare and stands for a much welcomed change, no matter how narrow this change is. Following DH, the ECtHR has heard a series of cases concerning segregation of Roma pupils using similar tactics, deeming Roma pupil as in need for special education and consequently separating them from pupils belonging to the ethnic majority group. These cases did not follow the same course of reasoning. The case of Sampanis v Greece,66 for example, involved eleven applicants, Greek nationals of Roma origin. Despite a formal governmental policy that encouraged Roma pupils to enroll in the national education system, the applicants—all parents—claimed that their children were subject to a segregation policy. At first the parents were denied the opportunity to enrol their children in the local schools. When this obstacle was lifted, a series of violent incidents began. Parents of non-Roma children blocked the entrances to the schools and boycotted classes that Roma pupils attended. The headmaster therefore decided to place the applicants’ children in a separate building annexed to the school, where they were taught by less qualified teachers and using a different, lower standard, curriculum. In its response, the Greek Government mimicked the Czech Republic’s claims in DH, and claimed that the motivation to separate the applicants was not racial, but rather pedagogical, arguing that separate education would better prepare them for the future. Similar to its decision in DH, the Court found that there were no objective or reasonable justifications for the discrimination against the applicants’ children, and therefore the policy in question violated the right to non-discrimination in conjunction with the right to education. However, unlike the case of DH, the judgment did not refer to the children as rights-holders but rather focused on the violation of the parents’ rights. The Court decided that the vulnerability of Roma children creates a duty for the state to pay attention to their needs, including in the context of education. The Court found that the policy in question was not based on educational criteria, ruling that even if the separation was a temporary measure, the Government failed to provide a single example of a child who was reintegrated into mainstream education. Nor was there any assessment conducted in order to see which children could be moved to the ordinary classes. The Court also rejected the Government’s claim that some of the parents consented to the separate setting, deciding that, even if such consent has been given, it could not waive the right of the children not to be discriminated against based on their race or ethnicity.67 It therefore seems that the new children’s rights rhetoric embraced in DH did not mark a paradigm shift of the Court’s treatment of Roma children’s rights. This lack of consistency is further demonstrated in two recent cases that addressed a similar issue of segregation of Roma pupils. The first case is Oršuš v Croatia.68 This case dealt with a long trail of events that led fifteen Roma pupils in Croatia to study in a separate building of the local school, where they followed a narrower curriculum (up to 30 per cent narrower comparing to the regular curriculum) taught by less qualified teachers. This was due to objections from non-Roma parents to their attendance in their children’s school and classes. Overturning the Chamber judgment, the Grand Chamber, by 9 votes to 8, ruled that this policy constituted a violation of the right to education in conjunction with the right to non-discrimination. The Croatian Government denied the existence of any centralised segregation policy, but also did not claim that the Roma children had any special needs. Instead, it justified the decision to separate the children as a decision taken by the local authorities. This argument was rejected not least because the Court found that similar segregation policies had been implemented in a number of schools in different districts: [T]he measure in question was applied exclusively to the members of a singular ethnic group, [and] coupled with the alleged opposition of other children’s parents to the assignment of Roma children to mixed classes, calls for an answer from the State to show that the practice in question was objectively justified by a legitimate aim and that the means of achieving that aim were appropriate, necessary and proportionate.69 The Court further rejected the Croatian Government’s claim that the children’s lack of knowledge of the Croatian language justified their segregation, and that segregated education would enable them to catch up with the necessary language skills. The Court ruled that none of the pupils involved were even tested for his or her language knowledge, and that the pupils’ progress was never monitored. These were clear indications that the children’s educational achievements were not the reason for the decision to separate them from their peers. The joint partly dissenting opinion of the Grand Chamber accepted the Government’s pedagogical arguments. Judges Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer, Berro-Lefèvre and Vučinić reasoned that there was a justification for separating these children in that the children needed a secure and stable environment to enable them to gain the necessary linguistic skills. Unlike the majority judgment, their dissent referred to children’s rights, but with respect to the rights of pupils belonging to the majority group. They stated that the majority failed to balance the competing interests of the majority Croatian-speaking children to ‘progress properly at school’.70 This line of reasoning adopts the Croatian Government’s preposterous explanation, and prioritises the rights of majority children over the rights of minority children. Framing the case as a dispute between the rights and interests of two groups of children is superficial, as it ‘fails to undertake a rigorous assessment as to how the rights of a child are to be balanced against other competing considerations’.71 But most of all, it is a factual error and a conceptual mistake. On an empirical level, it was not established that the Roma children had lower achievements to the extent that it would undermine the progression of other children, nor that the segregation was ever going to end once the Roma children achieved a certain level of proficiency in the Croatian language. On the conceptual level, prioritising the right to education of the privileged group (in terms of their opportunities, structure and access to public goods in comparison to Roma children), over the rights to education and non-discrimination of children who are members of a disadvantaged and systematically discriminated group, is morally wrong. The case is about ethnic minority children and their treatment by the state, and not about the relationship between two groups of children. This is not to suggest that the rights of the majority children should not be respected, but respecting the rights to education of all children is not a zero sum game, and the rights of one group do not come at the expense of those of others. Respecting the majority children’s rights cannot be achieved at the expense of the right of Roma children to education and non-discrimination. In that sense, even though the Court had referred to Articles 28 and 30 of the UNCRC,72 this reference does not make this decision a child’s rights decision. It is a decision that upholds racism and diverts from the long established precedent that separation cannot mean equal treatment73 and cannot be justified without a compelling objective. The last case in this series is Horváth and Kiss v Hungary.74 This case involved two applicants, both Hungarian Roma pupils, who, like Roma children in Croatia and Greece, were sent to special needs schools without being diagnosed as having any learning difficulties. The treatment of these children was a result of a national policy, which created a reality where approximately one out of five Roma children in Hungary were declared as mentally disabled, and many more of them were sent to either special education schools or vocational training schools, which effectively blocked their ability to get a university level education.75 In the town where the two applicants lived, Roma children were 8.7 per cent of the total number of students attending primary school, but composed 40 to 50 per cent of the special school population. The Court unanimously found that they were subject to a segregation policy that constituted a violation of their right to education and non-discrimination. Similar to previous cases, the Court based some of its factual findings and subsequent legal conclusions on statistics that demonstrated a high proportion of Roma children were being sent to special needs schools. The Court rejected the Hungarian Government’s claim that the applicants had learning difficulties, and concluded that the policy’s objective was not pedagogical, but rather (racial) segregation. In addition to deciding that the policy in question violated the applicants ECHR rights, it also restated that the ‘state has specific positive obligations to avoid the perpetuation of past discrimination’.76 Thus, it restated that states have positive duties to respect the education rights of marginalised groups. The judgment does not engage with the fact that the applicants were children, nor did it use children’s rights discourse. Most of the judgment focused on the history of Roma in Hungary and the ongoing discriminatory policies Roma peoples were subject to as a community. Consequently, the core of the judgment’s legal framework is Article 14 and questions surrounding it, such as the scope of the margin of appreciation and the positive duty that the right to non-discrimination establishes. In that sense, children enjoy protection of their rights as members of a minority group (‘a collective’), but their status as children, and the rights that this entails, is overlooked. The Court overlooked the plaintiffs’ individual right, and status as rights-holders. Instead, the Court favoured the approach that associates children, and essentially conceptualises their standing, with their social group. Thus, once again there is inconsistency with respect to how the Court conceptualises children’s agency. This case also demonstrates that, despite the change that DH had the potential to make, the status of children as rights-holders is not yet entrenched in the Court’s jurisprudence. 4. DISCUSSION AND CONCLUSIONS Segregation in education constitutes a violation of core children’s human rights, especially the right to education and the right to non-discrimination. Violation of the right to education, the UN Committee on Economic, Social and Cultural Rights has stated, has subsequent implications as ‘education is both a human right in itself and an indispensable means of realising other human rights.’ It is an empowering right that is ‘directed to the human personality’s “sense of dignity”’,77 and its violation by means of segregation therefore disrespects the human dignity of Roma children and sends a message to other children, and to society at large, that Roma pupils are less worthy. While avoiding labelling segregation policies as such,78 the ECtHR nonetheless has been consistent in finding that separating Roma children from their peers constitutes a violation of the right to education, in conjunction with the right to non-discrimination. However, the Court has not distinguished between physical segregation (that is, distinguishing between Roma and non-Roma children) as a violation of rights, and substantive segregation (that is, providing inferior education to Roma children), which is a discriminatory act too,79 as the cases in Croatia, the Czech Republic and Hungary show. Although the Court has concluded its judgments with findings that rights have been breached and therefore remedies should be provided, albeit on individual bases, it has not demonstrated any consistent or systematic recognition of Roma children as rights-holders. In all cases, it was children who were labelled with the stigma of having special needs, and subsequently were segregated from their peers. It was the children who were humiliated and whose dignity was not respected, but this victimhood has not been actively identified, named or denounced by the Court. It seems that the Court is more concerned with the rights of parents and the social positionality of Roma communities. The judicial rhetoric acknowledges the unfortunate position in which minority communities are in and shows preference, in the form of recognition and enforcement, to parental rights in the context of education—a key theme of minority rights framework. This approach overlooks the unique vulnerability of minority children, which is rooted in their affiliation to two marginalised groups: children and Roma. Instead of recognising the intersectionality of Roma children’s marginalisation, and realising that their rights are being violated due to these dual affiliations, these children are being discriminated against by their national government due to their ethnic origin and race, and by the Court due to their age. Kimberlé Crenshaw’s theory of intersectionality provides a helpful framework for unpacking Roma children’s experiences of discrimination and their treatment by the Court.80 Intersectionality proposes that social categorisations, such as race, ethnicity, religion, class, gender and sexual orientation are inherently interconnected, mutually constituted and converging, thereby creating interdependent systems of disadvantage and discrimination. I would argue that age is another social category that should be taken into account in this context. Using the example of black women and women of colour, Crenshaw demonstrates how the law can be blind to categories of difference. This makes the law an oppressive structure of power in and of itself, which can further perpetuate the marginality of vulnerable and disadvantaged populations. Similarly, Roma children’s experiences in relation to their education should be understood in the light of their overlapping and intersecting social positions as both Roma people and as children. As members of the Roma minority, Roma children are subject to systematic discriminatory practices and policies across Europe, which are not limited to the field of education. At the same time, as children their agency is rarely respected, their voices are not heard and their human rights are consistently overlooked by national governments and the Court alike. In segregation cases, the Court, by and large, fails to take an intersectional approach in seeing Roma children’s discrimination on account of both their status as children and as members of an excluded minority. While governments discriminate against Roma children because they are Roma, the Court overlooks children’s status as rights-holders because they are children. I do not suggest that the Court’s approach here should be described as ‘childism’,81 not least because childism requires recognition of children as a social group. For the Court to account for the two important dimensions of Roma children’s identity, namely age and ethnicity/race, it requires establishing and applying an integrated and intersectional approach,82 similar to the approach that UN human rights committees have developed with respect to social categories of exclusion.83 The failure of the Court to consider Roma children rights, agency and voice—even when addressing their rights, as the Court did in the case of DH—can result in the perpetuation of their subordination and vulnerability. Taking an intersectional approach to these cases requires us to acknowledge not only age and ethnicity/race as constitutive of the marginality and experiences of Roma children, but also other social categories of exclusion such as gender, sexuality, class and disability.84 For example, girls, LGBTIQ children, disabled children and young children have different needs and experiences of discrimination. Notably, segregation policies had been applied across the age range, from early days of primary school (Sampanis v Greece) to secondary education and high school (DH, Horváth and Kiss). However, Roma children in different age groups experience degrading treatment differently. This has two important implications: first, it shapes children’s ability to cope with and process a policy that implies or stipulates their inferiority. Second, there are long-term developmental implications that these policies might have. When the Court overlooks children as rights-holders, it inherently disrespects their human dignity and agency, and overlooks the potential violation of their own rights when assessing the compatibility of a certain policy with the ECHR. Ignoring children’s status as rights-holders also leads to ignoring their views about the subject-matter, thus violating their right to participation in proceedings that affect their lives and rights. As the case of Sampanis v Greece demonstrates, the Court even finds it difficult to address an opinionated teenager as a right holder, let alone cases where children are less able to articulate their views. The Court’s utilisation of child’s rights discourse and conceptualisation of children as rights-holders is summarised in the following table. Case name  Children as applicants  Refers to children as rights-holders and utilises child’s rights discourse  Belgium Linguistics Case (No 2)  X  ∼√  Valsamis v Greece  √  X  DH v Czech Republic  √  √  Sampanis v Greece  √  X  Oršuš v Croatia  √  √  Horváth and Kiss v Hungary  √  X  Case name  Children as applicants  Refers to children as rights-holders and utilises child’s rights discourse  Belgium Linguistics Case (No 2)  X  ∼√  Valsamis v Greece  √  X  DH v Czech Republic  √  √  Sampanis v Greece  √  X  Oršuš v Croatia  √  √  Horváth and Kiss v Hungary  √  X  The above table demonstrates an inconsistent treatment of children and their rights. Since the Belgium Linguistics Case (No 2), children are usually invisible from the judgment’s narrative, and at best are portrayed as passive objects to a dispute between their parents and the state. Even in cases where the Court recognises the vulnerability of Roma children, and the subsequent role of states to ensure their rights, it focuses on parents and their rights—saying that these parents are members of a minority group and as such should receive special protection. The Court might hold the view that protecting the rights of adults also means protecting the rights of their children. This approach might have some merit in some cases,85 certainly in the context of education where the ECHR, as well as other human rights treaties, acknowledges parental rights; but it nonetheless undermines the duty to explicitly respect the rights and dignity of every child, especially in cases in which they are the applicants, and thus parties, which requires direct attention. A further twofold inconsistency with respect to Roma children can be identified. First, the Court does not employ a child’s rights framework in cases concerning children. This approach is rooted, I argue, in the Court’s unwillingness to separate children’s rights and interests from their parents, and the rights of the former from the latter.86 Second, when the Court does refer to Roma children’s rights, it says nothing substantial about these rights, beyond mentioning their existence. This indicates that the Court has not internalised an understandings of children as rights-holders (with the exception of DH, which in itself should be criticised for not paying full attention to children’s rights).87 The fact that the text of the right to education in Article 2 of Protocol 1 does not explicitly mention children as rights-holders should not preclude the Court from seeing them as such. Not least because it is children who see their right to education being violated. Furthermore, even if the text does not mention children explicitly, they should be seen as rights-holders under the general, comprehensive, jurisdiction of the Convention, which states in Article 1 that ‘[t]he High Contracting Parties shall secure to everyone within their Jurisdiction the rights and freedoms’. This approach also results in a failure to uphold a core principle of children’s human rights law, namely taking the child’s best interests as the primary consideration in any decision concerning them (Article 3(1) UNCRC). In a different context, where children’s agency had been respected, the Court has stated that the best interests principle should be given a high priority in the interpretation process, stating that, ‘in all decisions concerning children, their best interests should be paramount.’88 Such a statement requires consideration of all the relevant interests and rights of the child or children, and balancing these interests and rights against any compelling state interests or the rights of other people. This is a task that the Court sometimes fails to deliver more broadly.89 However, in relation to minority children, the Court’s jurisprudence is even further behind. The fact that the best interests principle has not been mentioned in any of the cases concerning Roma children is a clear indication that the Court does not consider these cases as children’s rights cases. Although it was thought that the language employed in DH would mark a shift in the Court’s approach to such cases, and that children’s rights would become the framework it employs in such cases, it seems that such a change has yet to come. In subsequent cases the Court has ignored its own judicial narrative in DH. Further, despite the increasing usage of international human rights law in developing European human rights law, the Court does not utilise or refer to the three layers of protection that are available to Roma children (international human rights law, international children’s rights law and domestic human/civil rights laws). If all the legal instruments in these three layers were used, or if the Court’s interpretation utilised a more nuanced cross-fertilisation of the child’s rights and minority rights frameworks as well as the European Human Right Convention itself, the table would have been different. In a similar vein, the lack of a child’s rights analysis means that the Court does not develop a substantive child-centred jurisprudence, which in turn signals to states that, by and large, children’s rights are at the margin of the Court’s attention. The problems that I identify with the Court’s jurisprudence can be illuminated by the following exercise: think about a claim brought by adults, who would argue that their rights have been violated, but the judgment includes no references to the applicants’ rights. While for adults this scenario is unheard of, for some odd reason this scenario is rather common when it comes to children. In other words, judicial rhetoric is not insignificant and the ways in which the Court conceptualises a dispute dictates, at least to an extent, the outcome. If Roma children were explicitly recognised as rights-holders, and also recognised as being uniquely vulnerable due to their status as children as well as members of a marginalised group, their rights would not be so easily overlooked. Such a normative change—adopting a child’s rights-centered analysis—has the potential to impact both the process and outcomes of the adjudication process. The rights to be heard and represented in court are not unique to children.90 However, when it comes to children, these rights (as with unfortunately most rights of children) become controversial, and practical concerns about their implementations are often raised. Not to mention that there are those who argue that there is no need for a separate representation of children, although no such claim would be acceptable when it comes to adults. It is therefore rather surprising to see that even in cases where Roma children were the applicants, or when child’s rights arguments were made, children themselves were not heard in the process and child’s rights were absent from the judgments. A child’s rights-centred approach does not inherently lead to a different outcome for the adjudication process, compared to the current rulings of the Court. Rather, it focuses on and advances the idea that in cases involving children the child should be positioned at the centre of analysis. Such an approach can prevent the further marginalisation of children by the Court. In that sense the Court is not expected to do anything that it does not do in other contexts or with respect to what it does when it comes to adults. As mentioned earlier, the Court has gone a long way, even if not far enough, towards adopting a child’s rights approach in cases relating to family life in Article 8, and in upholding the principle of the best interests of the child even though the European Convention itself does not expressly mention it. In the case of Roma children, and in cases relating to education in general, the changes needed in the Court’s approach are somewhat easier to make, not least because the right to education is the only right that centrally has children as rights-holders.91 Perceiving Roma children as rights-holders will require the Court to address their rights during the adjudication process. This, in and of itself, would be a positive change as it will respect children’s agency. It would also require the Court to be aware of Roma children’s unique position in society. This is not just a procedural matter, as those changes can influence judicial reasoning and alter the way in which the judges, and future parties, approach similar situations.92 The realisation of the child’s right to education depends, to a large extent, on the children’s parents, and the structure of the education system in a given country. Parents have a recognised interest in influencing their children’s education (Article 29 UNCRC and Article 2 Protocol 1 ECHR), including the content of education. Parents also decide whether to send their children to public or private schools, to faith-based schools, or to home school their children. These kinds of decisions inevitably influence the ways that children enjoy their right to education. The public, via the national government or local authorities, also participate in shaping children’s education. For example, the state decides how much money to invest in education, how many schools to build and where, how to train teachers and the content of the curricula.93 The state also decides which enrolment policies to apply.94 However, all of these decisions that parents and public authorities take should aim to fulfil the rights of children, including their right to non-discrimination in the context of education. The weight and level of respect given to the rights of parents and the public ought to be balanced against those of the children. Indeed, the latter should be considered as a primary consideration (to borrow Article 3 UNCRC terminology). This child rights-centred approach to education—to which the case of Roma children in Europe is absolutely vital—has yet to be taken by the Court. ACKNOWLEDGEMENTS Earlier versions of this article were presented at the 2013 Law & Society Annual Meeting and the UNSW Law staff seminar (2016). I would like to thank the participants of these forums for their feedback. I am grateful to Brian Sloan and Helen Stalford for their very helpful comments. Finally, many thanks for the anonymous reviewer for the illuminating comments. The Konrad-Adenauer-Stiftung/HUJI European Forum Research Grant provided financial support for this research. Special thanks to Denitsa Mladeno and Angela Kintominas for their excellent research assistance. Errors are all mine. Footnotes 1 Tobin, ‘Judging the Judges: Are They Adopting the Rights Approach in Matters Involving Children?’ (2009) 33 Melbourne University Law Review 579; Tobin, ‘Courts and the Construction of Childhood: A New Way of Thinking’ in Freeman (ed.), Law and Childhood Studies (2011) 55. 2 Thomas, ‘Towards a Theory of Children’s Participation’ (2007) 15 International Journal of Children’s Rights 199; Alderson et al., ‘The Participation Rights of Premature Babies’ (2005) 13 International Journal of Children’s Rights 31; Hill et al., ‘Moving The Participation Agenda Forward’ (2004) 18 Children & Society 77. 3 European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols Nos 11 and 14) 1950, ETS 5. 4 999 UNTS 171. 5 993 UNTS 3. 6 1577 UNTS 3. 7 With the exception of the European Convention on the Exercise of Children’s Rights 1996, ETS 160. Also note the soft law mechanism that enables Roma children who move from one EU country to another to exercise their right to education. 8 Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 163. 9 Council of Europe, Framework Convention for the Protection of National Minorities, 1 February 1995, ETS 157. 10 Kilkelly, ‘The CRC in Litigation under the ECHR’ in Liefaard and Doek (eds), Litigating the Rights of the Child (2015) 193. 11 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135 (1992). 12 European Commission, The Situation of Roma in an Enlarged European Union (2004). 13 On the history of Roma in Europe, see Stewart, ‘Roma People’ 20 International Encyclopedia of the Social & Behavioral Sciences, 2nd edn, (2015) at 748; Bunescu, Roma in Europe: The Politics of Collective Identity Formation (2014) at 13–14; Martínez-Cruz et al., ‘Origins, Admixture and Founder Lineages in European Roma’ (2015) 24 European Journal of Human Genetics 1. 14 Kostadinove, ‘Minority Rights as a Normative Framework for Addressing the Situation of Roma in Europe’ (2011) 39 Oxford Development Studies 163 at 164. 15 Council of Europe, Council of Europe and Roma: 40 Years of Action (2012) at 19. 16 Ibid. at 20. 17 Bennett, ‘The Roma Early Childhood Inclusion (RECI) Research Report’ in Miller (ed.), International Perspectives in the Early Years (2014) at 77; Roth and Mosia, ‘The Right to Education of Roma Children in Romania: European Policies and Romanian Practices’ (2011) 19 The International Journal of Children’s Rights 501. 18 Kostadinove, supra n 14 at 166–8. 19 Ringold et al., Roma in an Expanding Europe: Breaking the Poverty Cycle (World Bank, 2005), cited in UNICEF, The Right of Roma Children to Education: Position Paper (2011) at 15, available at: www.unicef.org [last accessed 6 December 2017]. 20 UNICEF, Breaking the Cycle of Exclusion (UNICEF, 2007), cited in UNICEF, ibid. at 15. 21 Ibid. 22 European Roma Rights Centre, Stigmata: Segregated Schooling of Roma in Central and Eastern Europe (European Roma Rights Centre, 2004), available at: www.errc.org [last accessed 6 December 2017]. 23 Hobcraft, ‘Roma Children and Education in the Czech Republic: DH v Czech Republic: Opening the Door to Indirect Discrimination Findings in Strasbourg’ (2008) 2 European Human Rights Law Review 245 at 246. 24 Kilkelly, supra n 10. 25 Stalford, Children and the European Union (2012) at 37. 26 Fortin, ‘Rights Brought Home for Children’ [1999] Modern Law Review 350 at 357. 27 Stalford, supra n 25 at 38. 28 Campbell and Cosans v United Kingdom Application No 7511/76, Merits, 25 February 1982. 29 Rahimi v Greece Application No 8687/08, Merits and Just Satisfaction, 5 May 2004; Mubilanzila v Belgium Application No 13178/03, Merits and Just Satisfaction, 12 January 2007); Tarakhel v Switzerland Application No 29217/12, Merits and Just Satisfaction, 4 November 2014, Nunez v Norway Application No 55597/09, Merits and Just Satisfaction, 28 June 2011; Jeunesse v The Netherlands Application No 12738/10, Merits and Just Satisfaction, 3 October 2014. 30 See Letsas, A Theory of Interpretation of the European Convention on Human Rights (2007) at 61–4. 31 Schmidt v Germany Application No 13580/88, Merits and Just Satisfaction, 18 July 1994; Inze v Austria Application No 8695/79, Merits and Just Satisfaction, 28 October 1987; Karner v Austria Application No 40016/98, Merits and Just Satisfaction, 24 July 2003. 32 O’Connell, ‘Cinderella Comes to the Ball: Article 14 and the Right to Non-Discrimination in the ECHR’ (2009) 29 Legal Studies 211. 33 For a comprehensive analysis of Article 13, see Beiter, The Protection of the Right to Education in International Law (2006) at 459–570. 34 Jovanovic, ‘Recognizing Minority Identities through Collective Rights’ (2005) 27 Human Rights Quarterly 625. 35 Gilbert, ‘The Council of Europe and Minority Rights’ (1996) 11 Human Rights Quarterly 160; Gilbert, ‘The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights’ (2002) 24 Human Rights Quarterly 736. 36 Wright, ‘Minority Groups, Autonomy, and Self-Determination’ (1999) 19 Oxford Journal of Legal Studies 605 at 608. 37 Human Rights Committee, General Comment No 23: The rights of minorities (art. 27), 8 April 1994 at para 5.1. 38 Kymlicka, ‘National Cultural Autonomy and International Minority Rights Norms’ (2007) 6 Ethnopolitics 379 at 381–2. 39 Article 2 of Protocol 12 uses similar language. 40 Article 29(2) reads: ‘No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.’ 41 Kostadinova, supra n 14 at 179. 42 Ibid. 43 On Roma and the use of law to combat discrimination and fundamental other human rights violations, see Cviklova, ‘Direct and Indirect Racial Discrimination of Roma People in Bulgaria, the Czech Republic and the Russian Federation’ (2015) 38 Ethnic and Racial Studies 2140. 44 Velyo Velev v Bulgaria Application No 16032/07, Merits and Just Satisfaction, 27 May 2014. 45 Lautsi v Italy Application No 30814/06, Merits and Just Satisfaction, 18 March 2011. 46 Kjeldsen, Busk Madsen and Pedersen v Denmark Applications Nos 5095/71 et al., Merits, 7 December 1976. 47 Dogru v France Application No 27058/05, Merits and Just Satisfaction, 4 December 2008; Aktas v France Application No 43563/08, Admissibility, 30 June 2009. 48 Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ v Belgium (‘Belgian Linguistics Case (No 2)’) Applications Nos 1474/62 et al., Merits, 23 July 1968. See also Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ v Belgium Applications Nos 1474/62 et al., Merits, 9 February 1967. 49 Belgian Linguistics Case (No 2), ibid. at paras 42–43. 50 Tobin, supra n 1 at 587. 51 Belgian Linguistics Case (No 2), supra n 48 at para 29. 52 See Hunter-Henin (ed.), Law, Religious Freedom and Education in Europe (2011). 53 Declour and Hustinx, ‘Discourses of Roma Anti-Discrimination in Reports on Human Rights Violation’ (2015) 3 Social Inclusion 90 at 96. 54 Application No 21787/93, Merits and Just Satisfaction, 18 December 1996. 55 Fortin, Children’s Rights and the Developing Law, 3rd edn (2009) at 68. See also Taylor, ‘Parental Responsibility and Religion’ in Probert et al. (eds), Responsible Parents and Parental Responsibility (2008) at 138. 56 Valsamis v Greece, supra n 54 at para 9. 57 Dahlab v Switzerland Application No 42393/98, Admissibility, 15 February 2001 at paras 451–52; See also Evans, ‘The “Islamic Scarf” in the European Court of Human Rights’ (2006) 7 Melbourne Journal of International Law 52. 58 Application No 27058/05, Merits, 4 December 2008. 59 Chělini-Pont, ‘The French Model: Tensions Between Laïc and Religious Allegiances in French State and Catholic Schools’ in Hunter-Henin (ed.), Law, Religious Freedom and Education in Europe (2011) 153 60 Application No 57325/00, Merits and Just Satisfaction, 13 November 2007. 61 Ibid. 62 Ibid. 63 Ibid. at paras 205–210. 64 Ibid. at para 100. 65 Ibid. at Dissenting Opinion of Judge Borrego, para 9. 66 Application No 32526/05, Merits and Just Satisfaction, 5 June 2008. 67 Kosko, ‘Parental Consent and Children’s Rights in Europe: A Balancing Act’ (2010) 11 Journal of Human Development and Capabilities 425. 68 Application No 15766/03, Merits and Just Satisfaction, 16 March 2010. 69 Ibid. at para 155. 70 Ibid. at Joint Partly Dissenting opinion, para 9. 71 Tobin, supra n 1 at 602. 72 Oršuš v Croatia Application No 15766/03, Merits and Just Satisfaction, 16 March 2010 at para 95. 73 Brown v Board of Education of Topeka 347 U.S. 483 (1954). 74 Application No 11146/11, Merits and Just Satisfaction, 29 January 2013. 75 Akoglu, ‘Removing Arbitrary Handicaps: Protecting the Right to Education in Horvath and Kiss v. Hungary’ (2014) 37 Boston College International and Comparative Law Review 1 at 1–2. 76 Horváth and Kiss v Hungary, supra n 74 at para 116. 77 Committee on Economic Social and Cultural Rights, General Comment 13: The Right to Education (art. 13), 8 December 1999. 78 With one exception in the case of DH v Czech Republic, supra n 60 at para 198. 79 Greenberg, ‘Report on Roma Education Today: From Slavery to Segregation and Beyond’ (2010) 110 Columbia Law Review 919 at 934–6. 80 Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color’ (1991) 43 Stanford Law Review 1241. 81 Young-Bruehl, Childism (2012) at 1–17. 82 Cf Nura Taefi, ‘The Synthesis of Age and Gender: Intersectionality, International Human Rights Law and the Marginalisation of the Girl-Child’ (2009) 17 International Journal of Human Rights 345.  83 Chow, ‘Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights Treaty Body Practice and the Issue of Ambivalence’ (2016) 16 Human Rights Law Review 453. 84 McCall, ‘The Complexity of Intersectionality’ (2005) 30 Journal of Women in Culture and Society 1771 at 1780–4. 85 Guggenheim, What’s Wrong with Children’s Rights (2007). 86 For a similar argument made with respect to other children’s related cases and the ECtHR, see: Fortin, ‘Children's Rights: are the Courts Now Taking Them More Seriously?’ (2014) 15 King’s Law Journal 253. 87 Akermark, ‘Images of Children in Education: A Critical Reading of DH and Others v Czech Republic’ in Brems (ed.), Diversity and European Human Rights (2013) at 40–67. 88 Neulinger and Shuruk v Switzerland Application No 41615/07, Merits and Just Satisfaction, 6 July 2010, at para 135. 89 Smyth, ‘The Best Interests of the Child in the Expulsion and First-Entry Jurisprudence of the European Court of Human Rights: Principled in the Court’s Use of the Principle?’ (2015) 17 European Journal of Migration and Law 701. 90 In re Gault 387 U.S. 1 (1967). 91 Kilkelly, The Child and the European Convention on Human Rights (1999) at 234–6. 92 Tobin, supra n 1 at 71–2. 93 Newman, Realizing Educational Rights (2013) at 24–62. 94 Harris, Education, Law and Diversity (2007) at 258–60. © The Author(s) [2018]. 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Marginalisation by the Court: The Case of Roma Children and the European Court of Human Rights

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Abstract

ABSTRACT This article analyses the European Court of Human Rights’ conceptualisation of children as human rights-holders, using Roma children’s access to education as a case study. It argues that the Court consistently fails to treat children as agents in their own right in cases where their rights are being compromised. Roma children, as members of an ethnic or racial minority group, suffer discrimination through their segregation from other children within the education systems across Europe. They are further discriminated against by the Court because of the overriding focus on their parents’ rights, while ignoring their independent status as rights-holders. Thus, the article argues that Roma children are marginalised on account of their status as children and as members of a subordinated social group. The article then proposes an alternative, child-centred, judicial narrative which has the potential to remedy this situation. This approach repositions children and brings them to the centre of the Court’s analysis, essentially asking the Court to directly engage with children as rights-holders, and potentially to strike a different balance between children’s rights, parental interests and the state. 1. INTRODUCTION This article asks how the European Court of Human Rights (‘the Court’ or ECtHR) addresses children’s agency and rights using adjudication concerning Roma children’s right to education as a case study. The cases discussed illuminate the Court’s treatment of minority children’s rights in the context of what might be the most important social site for children—education. Despite the expectation that a human rights court will enhance the protection provided for the rights of those who are at the margin of society and are subject to systematic discriminatory policies, the article argues that the Court fails to recognise Roma children’s status as human rights-holders and thus perpetuates their double marginality—as children and as Roma. The article applies a child’s rights-centred approach to the analysis of the judgments. This conceptual and methodological approach focuses on children and analyses the cases from their point of view. My approach builds upon what John Tobin called the substantive child’s rights-centred approach,1 and it is based on three pillars: a conceptual principle, a procedural principle and an empowerment principle. The conceptual principle requires, and asks, whether the judge positions the child and her rights at the centre of analysis, and examines the dispute from the child’s point of view. The judge should ask whether any rights of the child (or children) were violated in the case. The procedural principle requires the judge to respect the child as a party to the dispute, and to ensure that all the procedural rights that any party is entitled to, as part of the rights to a fair trial and due process, are respected. This principle should be followed even when the child herself, or a group of children, is not listed as a formal party to the case, a not uncommon situation in cases concerning children. It inherently provides the child with the opportunity to participate in a process that relates to her rights.2 The empowerment principle requires the judge to substantiate her reasoning on a child’s rights analysis, and to provide a child-friendly version of the judgment. This approach should remedy an adult-centric approach that ignores children, and perpetuates their social marginality. This form of a child’s rights-centred approach also identifies cases in which courts might be paying lip service to child’s rights discourse, but does not use it in any substantive way. In any given national legal system in Council of Europe states, three human rights regimes can be applied, often simultaneously, in order to enhance the protection of rights for Roma children. The first regime includes ‘general’ human rights law, across domestic, regional and international human rights law, including, for example, the domestic human rights framework, the European Convention on Human Rights 1950 (ECHR),3 the International Covenant on Civil and Political Rights 1966 (ICCPR)4 and the International Covenant on Economic, Social and Cultural Rights 1996 (ICESCR).5 A second regime is the children’s rights framework, at both the local and international levels, at the latter of which the UN Convention on the Rights of the Child 1989 (UNCRC or ‘the Convention’) applies.6 The regional mechanism provides a somewhat slim protection, given that the ECHR lacks an explicit child’s rights provision, and there is no other binding child’s rights instrument.7 However, the European Social Charter8 and the Framework Convention for the Protection of National Minorities9 should be mentioned. It has been suggested that the ECtHR is increasingly using children’s rights discourse, and refers to the UNCRC regularly.10 This article argues that such a development is not demonstrated in cases concerning Roma children, but rather the opposite is the case. A third regime is the minority rights framework, including, for example, Article 27 of the ICCPR, and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.11 Despite their somewhat differing approaches to the relationship between the individual and the community, children’s rights frameworks and minority rights frameworks share a similar objective, which is to protect the rights of those who are at the margin of society, first and foremost by recognising their vulnerability. But, for children who belong to a minority group, the causes of their marginality are often cumulative and intersectional. The article has three parts. The first part outlines the relevant provisions in the ECHR that relate to children’s rights, that is, the right to education and minority rights. A short comparison between provisions in international human rights law, primarily the UNCRC, will be drawn, as a demonstration of a different way to conceptualise children’s rights and given the increasing usage of it by the ECtHR. The second part identifies and analyses key ECtHR cases concerning the segregation of Roma pupils, focusing on the Court’s treatment of children’s agency and rights. The third and last part criticises the current treatment of minority children’s rights in the context of education. It argues that while the ECtHR is increasingly using a children’s rights framework and discourse, it does not utilize this framework in cases concerning Roma children. This part concludes with a suggestion for the Court to adopt an alternative judicial narrative, which can remedy the current shortcoming in its jurisprudence. A. The Realities of Roma Children Before moving to the first part of the article, there is a need to say a few words of introduction about the Roma and Roma children. The Roma are the largest and most marginalised ethnic minority group in Central and Eastern Europe.12 Their total population is unclear, primarily because hundreds of thousands of people do not identify themselves as Roma as they fear stigmatisation and discrimination. Another reason is that the term ‘Roma’ does not represent a homogenous group of people. Rather, it is used as a category that brings together people with diverse ethnic, religious and linguistic backgrounds.13 Furthermore, while official censuses tend to lower the numbers of Roma for political reasons,14 current estimates indicate that between 10 to 12 million Roma live in Europe,15 with Bulgaria, Romania and Hungary being the three countries with the highest percentages (9.94 per cent, 8.63 per cent and 7.49 per cent of the total population, respectively).16 When it comes to children, it is estimated that 309,000 Roma children live in Bulgaria, 926,000 Roma children live in Romania and 246,000 Roma children live in Hungary.17 The human rights of Roma are violated on a daily basis.18 By and large, Roma live in poor and disadvantaged communities with unemployment rates that are usually five times higher than the average in their country.19 They live in urban conditions that are much poorer than the general population. For example, in Serbia, 35 per cent of Roma settlements have no running water, and in Montenegro the proportion of settlements without running water is even higher at 75 per cent.20 The figures on education are alarming too. For example, only 0.2 per cent of Roma children in Kosovo attend pre-school. According to the World Bank, the average gap in primary school enrolment for Roma children is a quarter of the corresponding rate for non-Roma children, and only 64 per cent of Roma girls attend school, in comparison with 96 per cent of girls who come from similar socio-economic backgrounds elsewhere in Central and Eastern Europe. Roma children also have low levels of educational achievement, which UNICEF attributes to segregation policies.21 Roma children are racially discriminated against in school systems all across Eastern Europe, mainly by one of three means: being placed in ‘special needs’ schools; classroom segregation in the same school; or residential school segregation, where non-Roma parents do not send their children to school within Roma populated areas.22 The separation of Roma children in ‘special needs’ schools, which follow simplified curricula and are generally run by low quality and unqualified teachers, leads to long term disadvantage ‘because of the difficulties to progressing into secondary or tertiary education’.23 The cases that came before the Court and analysed in the article refer to the first practice of discrimination. 2. CHILDREN’S RIGHTS AND MINORITY RIGHTS PROTECTION MECHANISMS This part analyses the ECHR protection of children’s rights, minority rights and the right to education, and compares it to the framework offered by the UNCRC and other human rights treaties. This comparison is a useful exercise for three reasons: first, the UNCRC is the most comprehensive and most widely ratified treaty concerning children’s rights, and as such it provides the best comparison to other child’s rights mechanisms. Because of this, as noted above, the ECtHR often refers to the UNCRC in its children related judgments.24 Second, given that all states parties to the ECHR are also parties to the UNCRC, the UNCRC is a positive source of law in those states. Third, investigating how international human rights law constructs children’s rights and agency in the context of the right to education can illuminate some of the difficulties with the ECtHR’s treatment of similar situations. The ECHR lacks a comprehensive or a concrete children’s rights provision, referring to children in the context of juvenile justice only (Articles 5 and 6). Children are also not mentioned as rights-holders in contexts that clearly relate to them, such as the right to education (Article 1 Protocol 2). This omission is problematic, but not uncommon, for at least three reasons. First, it ignores children unique positionality in society and the need—both socially and legally—to explicitly recognise children as rights-holders. Second, it leads the Court to consider children’s rights as synonymous with other groups’ or individuals’ rights, typically the rights of the family or of the parents.25 Third, this perception might undermine the feasibility of the ECHR being used as a vehicle to promote children’s rights.26 Nonetheless, as Helen Stalford notes, over the years the Court has shown increasing willingness to ‘ensure adequate protection for children in a range of contexts’,27 primarily in the contexts of child protection and juvenile justice, reading into the European Convention the status of children as individual rights-holders. Thus, the Court has managed to overcome the shortcomings of the ECHR’s text, including in the context of the right to education, where the Court explicitly recognised that children’s right to education is distinct from any right that their parents might have in the context of their education.28 Most recently in the context of the rights of migrant children,29 the Court has also developed a rather substantial jurisprudence about the principle of the best interests of the child—another term that the ECHR does not mentioned explicitly. Yet another testament to the ability of the Court, when it chooses to do so, to expand the protection provided for rights not enumerated.30 When the ECHR is compared with contemporary international human rights law standards, especially those in the UNCRC, its failure to refer to children is clearer. The UNCRC is solely dedicated to the human rights of children, and its main innovation is its recognition of children as rights-holders. For Roma children and questions surrounding their access to education, the UNCRC is a useful tool as it safeguards the right to education (Articles 28–29), including access to education on a non-discriminatory basis (Article 2). Article 30 of the UNCRC adds a unique right to identity preservation of minority children and indigenous children, which, inter alia, explicitly recognition of the agency of minority children in the context of education. At the European level, the right to protection against discrimination is not as straightforward. Article 14 of the ECHR prohibits discrimination on potentially unlimited grounds,31 including those that the provision specifically mentions: ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property or birth’. However, discrimination is prohibited only in conjunction with other rights under the Convention.32 In the context of education, discrimination can be based on the child’s language, religion, national or social origin, or for the child’s association with a national minority. Protocol 12 of the ECHR extends the prohibition on discrimination to the context of any legal right, even when this right is not explicitly protected by the ECHR, as long as national law protects this right. This extension is meaningful to Roma children against claims denying their affiliation to a minority, either racial, ethnic or religion, groups. The right to education is protected in a number of international human rights treaties, most notably by Article 13 of the ICESCR. Article 13 protects the ‘right of everyone to education’, and ‘everyone’ in principle includes children.33 As noted earlier, Article 28 of the UNCRC recognises the right of every child to education. Reading this provision together with Article 2 of the UNCRC means that every child has the right to education without discrimination on any ground. Therefore, the right to access to equal education is a right of the child under the UNCRC. On the European level, Article 2 of Protocol 1 uses similar language to Article 13 of the ICESCR, which means that Roma children should also enjoy the right to equal access to education under the ECHR. Roma children also enjoy a unique set of rights that minority people enjoy under international human rights law. One approach views minority rights as individual rights that any member holds on account of their membership in a minority group. A different, more communal approach, conceptualises minority rights as collective rights that ‘belong’ to the group, which the individual members can enjoy.34 When it comes to Roma children, this communal approach applies to their social affiliation and not to their age-related group, that is, their identity as Roma rather than as children. In other words, the minority rights framework applies to Roma children’s rights as Roma, rather than as children. This dimension will be further explored below. The ECHR lacks a specific minority rights framework. The Framework Convention for the Protection of National Minorities provides only partial protection and, therefore, the main avenue for protecting minority rights is using Article 14 ECHR and the right to non-discrimination, usually in the context of Article 8 of the ECHR.35 Unlike the ECHR, international human rights law has a better developed and more nuanced minority rights regime that can be divided into two regimes. The first regime comes under the general right to non-discrimination (Article 7 of the Universal Declaration of Human Rights, Article 2 of the ICESCR and Article 2 of the ICCPR). The second regime is an explicit minority rights regime, which can be found in Article 27 of the ICCPR. It reads: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Article 27 names three minority groups (ethnic, religious and linguistic minorities), and acknowledges the right to identity preservation for members of these groups. This is a closed list,36 composed of individuals ‘who belong to a group and who share in common a culture, a religion and/or a language’.37 Will Kymlicka argues that ‘culture’ should be read in the broadest sense of the word, to enable the interpretation of Article 27 as an Article that protects a universal identity right.38 Reading in religion and language as well can better accommodate and correspond to children’s complex identity structures. Article 27 is relevant to the context of education, as it relates to questions of integration and segregation, school curricula, religion in schools, language and school uniform. With respect to parents’ interests in their children’s education, Article 27 of the ICCPR should be read together with Article 18(4): The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.39 This is a key provision in articulating the relationship between minority children, their parents and the nation state. It positions parents and the nation state as active actors, while children are positioned as passive subjects. It strikes a balance in favour of cultural and religious preservation, as determined by adults, over respecting children’s agency. Another implication of this approach is the discretion (and one can argue the right) given to parents to shape the curricula of religious and ‘moral’ education of their children. Similar language can be found in Article 29(2) of the UNCRC.40 In that sense, realising children’s rights in the context of education not only requires overcoming some deeply rooted conceptions about parental autonomy, but also a power shift that respects children’s rights in this context. It has been argued that the minority rights framework is particularly relevant to Roma, as it addresses the multifaceted structures of discrimination that Roma are subject to.41 International minority rights law, according to Galina Kostadinova, captures ‘the need for structural reform … it can contribute towards changing the societal structures that generate socio-economic exclusion and racial intolerance and discrimination’42 of Roma. But before we speak about social transformation, we need to examine whether ‘the law’ can protect basic rights of Roma children, namely the right to education without discrimination. In other words, while using the law as a vehicle of redistribution is a novel goal, we should ask if human rights law fulfils some of its more traditional goals, namely fighting racism and its consequences.43 3. ROMA CHILDREN AND THE EUROPEAN COURT OF HUMAN RIGHTS: A CHRONOLOGY OF INVISIBILITY This section begins with analysing two early cases that address the rights of children who belong to other minority groups. These cases introduce the Court’s jurisprudence concerning minority rights and education, and contextualise the discussion about Roma children that follows. The ECtHR case law concerning education and discrimination dates back to the 1960s. Since then, and albeit the total volume of cases discussing these issues is not big, the Court has had the opportunity to rule on issues surrounding the right to education, including access to education,44 religion in school,45 sex education,46 school dress,47 etc. One of the communalities of these cases is that although it is children who were attending school and who were subject to the policies and laws, the Court rarely addressed any child, or a group of children, as rights-holders, let alone employed a child’s rights discourse when analysing the law applicable in those cases. Instead, the Court tended to examine these situations from a parental rights perspective. The 1968 Belgian Linguistics Case48 set the tone for the Court’s treatment of issues relating to education, non-discrimination and minority groups, and it is still an important precedent. The case involved a group of parents who challenged the legality of a law, which provided that the language of education should be Dutch in the Dutch-speaking regions of Belgium, French in the French-speaking regions and German in the German-speaking regions of the country. The parents claimed that in their Dutch-speaking region, there were no adequate schools that offered teaching in the French language, which was the language that they used at home and wanted their children to be educated in. The parents also claimed that the authorities prevented them from sending their children to French-speaking schools outside their local area, thus forcing them to either enrol their children into local schools where they would not be taught in their language of choice. Subsequently, the parents argued that the law violated their right to family life (Article 8) and the right to education in conjunction with the right to non-discrimination (Article 2 Protocol 1 and Article 14). In their submissions, the parents referred to the rights of their children, arguing that one of the aims of education is to develop children’s intellect and culture, which includes linguistic skills. In its reply, the Belgium Government argued that the right to education in one’s own language is not protected by the ECHR or its Protocols. Further, the parents did not belong to a national minority within the meaning of Article 14, and therefore they could not argue that they were subject to a discriminatory policy. The Court decided that although Article 2 Protocol 1 is formulated in negative terms, it nevertheless enshrines a positive right. The Court rightly noted that, without establishing positive obligations, including the duty to ensure access to education, the right to education would essentially be meaningless. Ensuring pupils’ access to education creates, according to the Court, a corresponding duty for the state to respect parents’ linguistic preferences. The Court added that it would be absurd not to recognise this obligation and to prevent certain students from being educated in their language of choice based on their place of residence.49 Although it was children whose education was at stake and although the applicants’ submission described children as rights-holders—an unusual advancement for 1960—we heard nothing about the children’s views on the matter, or about the influence that this law has on their rights. While it can be argued that children’s rights can be realised within the context of the family, or via parental support,50 such an argument carries less weight in this context. This is not least because it is not the family that can be a site for rights realisation in the realm of education, but rather the state and the national spheres. The Court’s framing of the case left children at the margin, and ignored them as rights-holders. Children were not entirely absent from its judgment, as the Court did mention that the case involved ‘the rights or freedoms of a child’.51 Unfortunately, this statement was not followed by any meaningful discussion about their rights. Between 1968 and the mid-1990s, there were a limited number of cases that referred to questions of discrimination and children’s education. However, from the mid-1990s there is a rise in the number of these cases, and a slight change in the Court’s treatment of children and their rights, coinciding with the adoption of the UN Convention on the Rights of the Child by the UN General Assembly in 1989 and its rapid ratification across Europe. This change corresponds with the rise of a ‘European movement’ to fight discrimination, discussion surrounding multiculturalism and secularism,52 greater awareness of the marginalisation of Roma,53 and the joining of Eastern European countries to the Council of Europe, which brought more Roma under the jurisdiction of the Court. The case of Valsamis v Greece54 represents the beginning of these changes. Although this case did not involve Roma or claims about discrimination in the context of education, it is nonetheless important in the context of this article because it showcases the early advancement of a new child’s rights rhetoric. In this case, the applicants were Victoria, a 12 year-old girl at the time of the incident (and 16 years-old when the case was finally decided in Strasbourg), as well as her two parents. Victoria and her parents, Jehovah’s Witnesses who lived in Athens, approached the Court after Victoria was suspended from school for one day due to her refusal to attend a parade commemorating the war between Greece and Italy. They claimed that a parade associated with ‘war and violence’ conflicted with their religious beliefs and therefore Victoria decided not to attend it. Thus, it was claimed, the school’s reaction in the form of suspension constituted a violation of her right to freedom of conscience and religion (Article 9), and her right to education under the ECHR. The Court rejected these claims, stating that participating in the parade, which took place during the weekend, did not violated Victoria’s or her parents’ pacifistic convictions to the extent they were protected by the ECHR. However, the Court found that the right to an effective remedy (Article 13) in conjunction with the right to education was breached. While the Court accepted Greece’s claim that the state has the prerogative to decide the curriculum, it held that this power could not be used to pursue an aim of indoctrination, which disregards the parents’ religion or philosophical conviction. The judgment does not separate between the parents’ rights to freedom of religion, and Victoria’s independent rights, referring mainly to the former. The reason for this might be, as Jane Fortin notes, because the Court was not very ‘enthusiastic about the notion of children being rights-holders themselves, particularly in situations where the rights of parent and child are both at stake’.55 Ignoring Victoria’s position as a rights-holder led the Court to conclude that it was the parents’ decision not to allow Victoria to attend the parade, which did not constitute a violation of her right to education. This is a strange description of the events because it is clear from the judgment itself that it was Victoria who chose not to attend the parade. According to the Court: ‘Victoria informed the headmaster that her religious beliefs forbade her from joining the parade’.56 Further, it was the legality of the school’s decision to suspend Victoria that was challenged, and not any actions that her parents might have taken. Ignoring children while focusing on parents’ rights and scrutinising states’ actions in isolation from their impact on the alleged victims is the Court’s, as will be discussed below, general approach to cases concerning children and education. There are a number of other cases where the ECtHR dealt with claims where pupils, mostly Muslims, had been expelled from school and subsequently claimed that the decision violated their right to freedom of religion and conscience.57 In cases such as Dogru v France,58 for example, it was argued that their expulsion was justified according to the principle of Laïcitě, which applied to adults and children alike. Laïcitě means that no one, neither members of the majority group nor members of the minority group (for example, Christians, Muslims or Jews), can attend school wearing religion dress.59 Therefore, and in contrast with Valsamis, arguing that the school’s decision is discriminatory in its nature carries less weight. A case that marks a radical shift in the Court’s treatment of minority children’s right is the 2007 case of DH v Czech Republic.60 This case involved eighteen Roma pupils, Czech nationals, who argued that they were subject to a segregation policy where Roma children were being sent to schools for children with special needs. With some local variation, children were first being sent to ‘regular’ primary state schools, but after a year or two they were asked to take some diagnostic tests (which the Court later deemed to be unsuitable for Roma pupils on linguistic and cultural grounds), and subsequently were sent to special schools. In some instances, this segregation policy was executed without even trying to portray it as a pedagogical policy, and Roma children were placed in schools for children with special needs without any prior diagnosis. In this case, the pupils were the applicants, and it was explicitly argued that the policy in question violated their individual right to education. In its response, the Czech Republic denied the existence of any segregation policy, and claimed that all decisions were made for pedagogical reasons. The Chamber, in a majority of 6:1, found that there was no violation of the children’s rights.61 But on appeal, the Grand Chamber found, in a majority decision of 13:4, that the pupils’ rights had been violated, and that they were subject to a discriminatory policy that had the sole objective of separating children based on their ethnicity and race. Grounding the decision in statistical data, the Grand Chamber ruled that there was a policy that disproportionally placed Roma children in special needs schools. The Grand Chamber stated that because these children belong to a minority group, the state was under ‘an obligation to protect their identity and lifestyle’, and that ‘their right to education was of paramount importance’.62 The Grand Chamber rejected the claim that sending Roma pupils to special needs schools was the proper response to their poor education outcomes, stating that, as members of a minority group that suffered from continuing institutional neglect and discrimination, it was inevitable that these children would have poor results in school. But their low marks were not an indication of any special learning needs, the Grand Chamber concluded, but rather relevant to the State’s duty to adequately protect their right to education without discrimination.63 This case marks a departure from previous precedents where the Court conceptualised these types of cases in terms of parental rights. Instead, for the first time the Court directly addressed racial discrimination in schools from a children’s rights perspective. The case demonstrates that when children are visible as applicants and the arguments are framed in relation to their own rights, the Court is likely to address children as rights-holders. It is therefore not surprising that the Court referred to Articles 28 and 30 of the UNCRC to support to its conclusion that children’s rights were violated.64 An interesting comment about children’s rights and children’s representation was made by Judge Borrego, one of the dissenting judges. Judge Borrego noted that while the pupils were the applicants, they were absent from the courtroom, and instead only ‘lawyers from London and New York’, were present: None of the applicant children… were present at the hearing. The individual circumstances of the applicants and their parents were forgotten. I put a very simple question to the two British and American Representatives – had they met the minor applicants and/or their parents? Had they been to Ostrava [the city where the children were living N.P]? I did not receive an answer.65 This somewhat cynical comment raises important questions about public interest litigation. For the context of this article, the questions whether the usage of children’s rights discourse was only a tactical move, and whether children’s rights, especially the right to participation (Article 12 UNCRC), were being respected by those who claimed to represent children, are important ones. However, given the skepticism of Judge Borrego, similar doubts should be raised about the Court: does the Court consider children as rights-holders? Why does it focus on the state’s margin of appreciation or parental rights in cases where the victims of rights violations are clearly children? Nonetheless, and despite these difficulties, DH’s approach toward children’s rights is rare and stands for a much welcomed change, no matter how narrow this change is. Following DH, the ECtHR has heard a series of cases concerning segregation of Roma pupils using similar tactics, deeming Roma pupil as in need for special education and consequently separating them from pupils belonging to the ethnic majority group. These cases did not follow the same course of reasoning. The case of Sampanis v Greece,66 for example, involved eleven applicants, Greek nationals of Roma origin. Despite a formal governmental policy that encouraged Roma pupils to enroll in the national education system, the applicants—all parents—claimed that their children were subject to a segregation policy. At first the parents were denied the opportunity to enrol their children in the local schools. When this obstacle was lifted, a series of violent incidents began. Parents of non-Roma children blocked the entrances to the schools and boycotted classes that Roma pupils attended. The headmaster therefore decided to place the applicants’ children in a separate building annexed to the school, where they were taught by less qualified teachers and using a different, lower standard, curriculum. In its response, the Greek Government mimicked the Czech Republic’s claims in DH, and claimed that the motivation to separate the applicants was not racial, but rather pedagogical, arguing that separate education would better prepare them for the future. Similar to its decision in DH, the Court found that there were no objective or reasonable justifications for the discrimination against the applicants’ children, and therefore the policy in question violated the right to non-discrimination in conjunction with the right to education. However, unlike the case of DH, the judgment did not refer to the children as rights-holders but rather focused on the violation of the parents’ rights. The Court decided that the vulnerability of Roma children creates a duty for the state to pay attention to their needs, including in the context of education. The Court found that the policy in question was not based on educational criteria, ruling that even if the separation was a temporary measure, the Government failed to provide a single example of a child who was reintegrated into mainstream education. Nor was there any assessment conducted in order to see which children could be moved to the ordinary classes. The Court also rejected the Government’s claim that some of the parents consented to the separate setting, deciding that, even if such consent has been given, it could not waive the right of the children not to be discriminated against based on their race or ethnicity.67 It therefore seems that the new children’s rights rhetoric embraced in DH did not mark a paradigm shift of the Court’s treatment of Roma children’s rights. This lack of consistency is further demonstrated in two recent cases that addressed a similar issue of segregation of Roma pupils. The first case is Oršuš v Croatia.68 This case dealt with a long trail of events that led fifteen Roma pupils in Croatia to study in a separate building of the local school, where they followed a narrower curriculum (up to 30 per cent narrower comparing to the regular curriculum) taught by less qualified teachers. This was due to objections from non-Roma parents to their attendance in their children’s school and classes. Overturning the Chamber judgment, the Grand Chamber, by 9 votes to 8, ruled that this policy constituted a violation of the right to education in conjunction with the right to non-discrimination. The Croatian Government denied the existence of any centralised segregation policy, but also did not claim that the Roma children had any special needs. Instead, it justified the decision to separate the children as a decision taken by the local authorities. This argument was rejected not least because the Court found that similar segregation policies had been implemented in a number of schools in different districts: [T]he measure in question was applied exclusively to the members of a singular ethnic group, [and] coupled with the alleged opposition of other children’s parents to the assignment of Roma children to mixed classes, calls for an answer from the State to show that the practice in question was objectively justified by a legitimate aim and that the means of achieving that aim were appropriate, necessary and proportionate.69 The Court further rejected the Croatian Government’s claim that the children’s lack of knowledge of the Croatian language justified their segregation, and that segregated education would enable them to catch up with the necessary language skills. The Court ruled that none of the pupils involved were even tested for his or her language knowledge, and that the pupils’ progress was never monitored. These were clear indications that the children’s educational achievements were not the reason for the decision to separate them from their peers. The joint partly dissenting opinion of the Grand Chamber accepted the Government’s pedagogical arguments. Judges Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer, Berro-Lefèvre and Vučinić reasoned that there was a justification for separating these children in that the children needed a secure and stable environment to enable them to gain the necessary linguistic skills. Unlike the majority judgment, their dissent referred to children’s rights, but with respect to the rights of pupils belonging to the majority group. They stated that the majority failed to balance the competing interests of the majority Croatian-speaking children to ‘progress properly at school’.70 This line of reasoning adopts the Croatian Government’s preposterous explanation, and prioritises the rights of majority children over the rights of minority children. Framing the case as a dispute between the rights and interests of two groups of children is superficial, as it ‘fails to undertake a rigorous assessment as to how the rights of a child are to be balanced against other competing considerations’.71 But most of all, it is a factual error and a conceptual mistake. On an empirical level, it was not established that the Roma children had lower achievements to the extent that it would undermine the progression of other children, nor that the segregation was ever going to end once the Roma children achieved a certain level of proficiency in the Croatian language. On the conceptual level, prioritising the right to education of the privileged group (in terms of their opportunities, structure and access to public goods in comparison to Roma children), over the rights to education and non-discrimination of children who are members of a disadvantaged and systematically discriminated group, is morally wrong. The case is about ethnic minority children and their treatment by the state, and not about the relationship between two groups of children. This is not to suggest that the rights of the majority children should not be respected, but respecting the rights to education of all children is not a zero sum game, and the rights of one group do not come at the expense of those of others. Respecting the majority children’s rights cannot be achieved at the expense of the right of Roma children to education and non-discrimination. In that sense, even though the Court had referred to Articles 28 and 30 of the UNCRC,72 this reference does not make this decision a child’s rights decision. It is a decision that upholds racism and diverts from the long established precedent that separation cannot mean equal treatment73 and cannot be justified without a compelling objective. The last case in this series is Horváth and Kiss v Hungary.74 This case involved two applicants, both Hungarian Roma pupils, who, like Roma children in Croatia and Greece, were sent to special needs schools without being diagnosed as having any learning difficulties. The treatment of these children was a result of a national policy, which created a reality where approximately one out of five Roma children in Hungary were declared as mentally disabled, and many more of them were sent to either special education schools or vocational training schools, which effectively blocked their ability to get a university level education.75 In the town where the two applicants lived, Roma children were 8.7 per cent of the total number of students attending primary school, but composed 40 to 50 per cent of the special school population. The Court unanimously found that they were subject to a segregation policy that constituted a violation of their right to education and non-discrimination. Similar to previous cases, the Court based some of its factual findings and subsequent legal conclusions on statistics that demonstrated a high proportion of Roma children were being sent to special needs schools. The Court rejected the Hungarian Government’s claim that the applicants had learning difficulties, and concluded that the policy’s objective was not pedagogical, but rather (racial) segregation. In addition to deciding that the policy in question violated the applicants ECHR rights, it also restated that the ‘state has specific positive obligations to avoid the perpetuation of past discrimination’.76 Thus, it restated that states have positive duties to respect the education rights of marginalised groups. The judgment does not engage with the fact that the applicants were children, nor did it use children’s rights discourse. Most of the judgment focused on the history of Roma in Hungary and the ongoing discriminatory policies Roma peoples were subject to as a community. Consequently, the core of the judgment’s legal framework is Article 14 and questions surrounding it, such as the scope of the margin of appreciation and the positive duty that the right to non-discrimination establishes. In that sense, children enjoy protection of their rights as members of a minority group (‘a collective’), but their status as children, and the rights that this entails, is overlooked. The Court overlooked the plaintiffs’ individual right, and status as rights-holders. Instead, the Court favoured the approach that associates children, and essentially conceptualises their standing, with their social group. Thus, once again there is inconsistency with respect to how the Court conceptualises children’s agency. This case also demonstrates that, despite the change that DH had the potential to make, the status of children as rights-holders is not yet entrenched in the Court’s jurisprudence. 4. DISCUSSION AND CONCLUSIONS Segregation in education constitutes a violation of core children’s human rights, especially the right to education and the right to non-discrimination. Violation of the right to education, the UN Committee on Economic, Social and Cultural Rights has stated, has subsequent implications as ‘education is both a human right in itself and an indispensable means of realising other human rights.’ It is an empowering right that is ‘directed to the human personality’s “sense of dignity”’,77 and its violation by means of segregation therefore disrespects the human dignity of Roma children and sends a message to other children, and to society at large, that Roma pupils are less worthy. While avoiding labelling segregation policies as such,78 the ECtHR nonetheless has been consistent in finding that separating Roma children from their peers constitutes a violation of the right to education, in conjunction with the right to non-discrimination. However, the Court has not distinguished between physical segregation (that is, distinguishing between Roma and non-Roma children) as a violation of rights, and substantive segregation (that is, providing inferior education to Roma children), which is a discriminatory act too,79 as the cases in Croatia, the Czech Republic and Hungary show. Although the Court has concluded its judgments with findings that rights have been breached and therefore remedies should be provided, albeit on individual bases, it has not demonstrated any consistent or systematic recognition of Roma children as rights-holders. In all cases, it was children who were labelled with the stigma of having special needs, and subsequently were segregated from their peers. It was the children who were humiliated and whose dignity was not respected, but this victimhood has not been actively identified, named or denounced by the Court. It seems that the Court is more concerned with the rights of parents and the social positionality of Roma communities. The judicial rhetoric acknowledges the unfortunate position in which minority communities are in and shows preference, in the form of recognition and enforcement, to parental rights in the context of education—a key theme of minority rights framework. This approach overlooks the unique vulnerability of minority children, which is rooted in their affiliation to two marginalised groups: children and Roma. Instead of recognising the intersectionality of Roma children’s marginalisation, and realising that their rights are being violated due to these dual affiliations, these children are being discriminated against by their national government due to their ethnic origin and race, and by the Court due to their age. Kimberlé Crenshaw’s theory of intersectionality provides a helpful framework for unpacking Roma children’s experiences of discrimination and their treatment by the Court.80 Intersectionality proposes that social categorisations, such as race, ethnicity, religion, class, gender and sexual orientation are inherently interconnected, mutually constituted and converging, thereby creating interdependent systems of disadvantage and discrimination. I would argue that age is another social category that should be taken into account in this context. Using the example of black women and women of colour, Crenshaw demonstrates how the law can be blind to categories of difference. This makes the law an oppressive structure of power in and of itself, which can further perpetuate the marginality of vulnerable and disadvantaged populations. Similarly, Roma children’s experiences in relation to their education should be understood in the light of their overlapping and intersecting social positions as both Roma people and as children. As members of the Roma minority, Roma children are subject to systematic discriminatory practices and policies across Europe, which are not limited to the field of education. At the same time, as children their agency is rarely respected, their voices are not heard and their human rights are consistently overlooked by national governments and the Court alike. In segregation cases, the Court, by and large, fails to take an intersectional approach in seeing Roma children’s discrimination on account of both their status as children and as members of an excluded minority. While governments discriminate against Roma children because they are Roma, the Court overlooks children’s status as rights-holders because they are children. I do not suggest that the Court’s approach here should be described as ‘childism’,81 not least because childism requires recognition of children as a social group. For the Court to account for the two important dimensions of Roma children’s identity, namely age and ethnicity/race, it requires establishing and applying an integrated and intersectional approach,82 similar to the approach that UN human rights committees have developed with respect to social categories of exclusion.83 The failure of the Court to consider Roma children rights, agency and voice—even when addressing their rights, as the Court did in the case of DH—can result in the perpetuation of their subordination and vulnerability. Taking an intersectional approach to these cases requires us to acknowledge not only age and ethnicity/race as constitutive of the marginality and experiences of Roma children, but also other social categories of exclusion such as gender, sexuality, class and disability.84 For example, girls, LGBTIQ children, disabled children and young children have different needs and experiences of discrimination. Notably, segregation policies had been applied across the age range, from early days of primary school (Sampanis v Greece) to secondary education and high school (DH, Horváth and Kiss). However, Roma children in different age groups experience degrading treatment differently. This has two important implications: first, it shapes children’s ability to cope with and process a policy that implies or stipulates their inferiority. Second, there are long-term developmental implications that these policies might have. When the Court overlooks children as rights-holders, it inherently disrespects their human dignity and agency, and overlooks the potential violation of their own rights when assessing the compatibility of a certain policy with the ECHR. Ignoring children’s status as rights-holders also leads to ignoring their views about the subject-matter, thus violating their right to participation in proceedings that affect their lives and rights. As the case of Sampanis v Greece demonstrates, the Court even finds it difficult to address an opinionated teenager as a right holder, let alone cases where children are less able to articulate their views. The Court’s utilisation of child’s rights discourse and conceptualisation of children as rights-holders is summarised in the following table. Case name  Children as applicants  Refers to children as rights-holders and utilises child’s rights discourse  Belgium Linguistics Case (No 2)  X  ∼√  Valsamis v Greece  √  X  DH v Czech Republic  √  √  Sampanis v Greece  √  X  Oršuš v Croatia  √  √  Horváth and Kiss v Hungary  √  X  Case name  Children as applicants  Refers to children as rights-holders and utilises child’s rights discourse  Belgium Linguistics Case (No 2)  X  ∼√  Valsamis v Greece  √  X  DH v Czech Republic  √  √  Sampanis v Greece  √  X  Oršuš v Croatia  √  √  Horváth and Kiss v Hungary  √  X  The above table demonstrates an inconsistent treatment of children and their rights. Since the Belgium Linguistics Case (No 2), children are usually invisible from the judgment’s narrative, and at best are portrayed as passive objects to a dispute between their parents and the state. Even in cases where the Court recognises the vulnerability of Roma children, and the subsequent role of states to ensure their rights, it focuses on parents and their rights—saying that these parents are members of a minority group and as such should receive special protection. The Court might hold the view that protecting the rights of adults also means protecting the rights of their children. This approach might have some merit in some cases,85 certainly in the context of education where the ECHR, as well as other human rights treaties, acknowledges parental rights; but it nonetheless undermines the duty to explicitly respect the rights and dignity of every child, especially in cases in which they are the applicants, and thus parties, which requires direct attention. A further twofold inconsistency with respect to Roma children can be identified. First, the Court does not employ a child’s rights framework in cases concerning children. This approach is rooted, I argue, in the Court’s unwillingness to separate children’s rights and interests from their parents, and the rights of the former from the latter.86 Second, when the Court does refer to Roma children’s rights, it says nothing substantial about these rights, beyond mentioning their existence. This indicates that the Court has not internalised an understandings of children as rights-holders (with the exception of DH, which in itself should be criticised for not paying full attention to children’s rights).87 The fact that the text of the right to education in Article 2 of Protocol 1 does not explicitly mention children as rights-holders should not preclude the Court from seeing them as such. Not least because it is children who see their right to education being violated. Furthermore, even if the text does not mention children explicitly, they should be seen as rights-holders under the general, comprehensive, jurisdiction of the Convention, which states in Article 1 that ‘[t]he High Contracting Parties shall secure to everyone within their Jurisdiction the rights and freedoms’. This approach also results in a failure to uphold a core principle of children’s human rights law, namely taking the child’s best interests as the primary consideration in any decision concerning them (Article 3(1) UNCRC). In a different context, where children’s agency had been respected, the Court has stated that the best interests principle should be given a high priority in the interpretation process, stating that, ‘in all decisions concerning children, their best interests should be paramount.’88 Such a statement requires consideration of all the relevant interests and rights of the child or children, and balancing these interests and rights against any compelling state interests or the rights of other people. This is a task that the Court sometimes fails to deliver more broadly.89 However, in relation to minority children, the Court’s jurisprudence is even further behind. The fact that the best interests principle has not been mentioned in any of the cases concerning Roma children is a clear indication that the Court does not consider these cases as children’s rights cases. Although it was thought that the language employed in DH would mark a shift in the Court’s approach to such cases, and that children’s rights would become the framework it employs in such cases, it seems that such a change has yet to come. In subsequent cases the Court has ignored its own judicial narrative in DH. Further, despite the increasing usage of international human rights law in developing European human rights law, the Court does not utilise or refer to the three layers of protection that are available to Roma children (international human rights law, international children’s rights law and domestic human/civil rights laws). If all the legal instruments in these three layers were used, or if the Court’s interpretation utilised a more nuanced cross-fertilisation of the child’s rights and minority rights frameworks as well as the European Human Right Convention itself, the table would have been different. In a similar vein, the lack of a child’s rights analysis means that the Court does not develop a substantive child-centred jurisprudence, which in turn signals to states that, by and large, children’s rights are at the margin of the Court’s attention. The problems that I identify with the Court’s jurisprudence can be illuminated by the following exercise: think about a claim brought by adults, who would argue that their rights have been violated, but the judgment includes no references to the applicants’ rights. While for adults this scenario is unheard of, for some odd reason this scenario is rather common when it comes to children. In other words, judicial rhetoric is not insignificant and the ways in which the Court conceptualises a dispute dictates, at least to an extent, the outcome. If Roma children were explicitly recognised as rights-holders, and also recognised as being uniquely vulnerable due to their status as children as well as members of a marginalised group, their rights would not be so easily overlooked. Such a normative change—adopting a child’s rights-centered analysis—has the potential to impact both the process and outcomes of the adjudication process. The rights to be heard and represented in court are not unique to children.90 However, when it comes to children, these rights (as with unfortunately most rights of children) become controversial, and practical concerns about their implementations are often raised. Not to mention that there are those who argue that there is no need for a separate representation of children, although no such claim would be acceptable when it comes to adults. It is therefore rather surprising to see that even in cases where Roma children were the applicants, or when child’s rights arguments were made, children themselves were not heard in the process and child’s rights were absent from the judgments. A child’s rights-centred approach does not inherently lead to a different outcome for the adjudication process, compared to the current rulings of the Court. Rather, it focuses on and advances the idea that in cases involving children the child should be positioned at the centre of analysis. Such an approach can prevent the further marginalisation of children by the Court. In that sense the Court is not expected to do anything that it does not do in other contexts or with respect to what it does when it comes to adults. As mentioned earlier, the Court has gone a long way, even if not far enough, towards adopting a child’s rights approach in cases relating to family life in Article 8, and in upholding the principle of the best interests of the child even though the European Convention itself does not expressly mention it. In the case of Roma children, and in cases relating to education in general, the changes needed in the Court’s approach are somewhat easier to make, not least because the right to education is the only right that centrally has children as rights-holders.91 Perceiving Roma children as rights-holders will require the Court to address their rights during the adjudication process. This, in and of itself, would be a positive change as it will respect children’s agency. It would also require the Court to be aware of Roma children’s unique position in society. This is not just a procedural matter, as those changes can influence judicial reasoning and alter the way in which the judges, and future parties, approach similar situations.92 The realisation of the child’s right to education depends, to a large extent, on the children’s parents, and the structure of the education system in a given country. Parents have a recognised interest in influencing their children’s education (Article 29 UNCRC and Article 2 Protocol 1 ECHR), including the content of education. Parents also decide whether to send their children to public or private schools, to faith-based schools, or to home school their children. These kinds of decisions inevitably influence the ways that children enjoy their right to education. The public, via the national government or local authorities, also participate in shaping children’s education. For example, the state decides how much money to invest in education, how many schools to build and where, how to train teachers and the content of the curricula.93 The state also decides which enrolment policies to apply.94 However, all of these decisions that parents and public authorities take should aim to fulfil the rights of children, including their right to non-discrimination in the context of education. The weight and level of respect given to the rights of parents and the public ought to be balanced against those of the children. Indeed, the latter should be considered as a primary consideration (to borrow Article 3 UNCRC terminology). This child rights-centred approach to education—to which the case of Roma children in Europe is absolutely vital—has yet to be taken by the Court. ACKNOWLEDGEMENTS Earlier versions of this article were presented at the 2013 Law & Society Annual Meeting and the UNSW Law staff seminar (2016). I would like to thank the participants of these forums for their feedback. I am grateful to Brian Sloan and Helen Stalford for their very helpful comments. Finally, many thanks for the anonymous reviewer for the illuminating comments. The Konrad-Adenauer-Stiftung/HUJI European Forum Research Grant provided financial support for this research. Special thanks to Denitsa Mladeno and Angela Kintominas for their excellent research assistance. Errors are all mine. Footnotes 1 Tobin, ‘Judging the Judges: Are They Adopting the Rights Approach in Matters Involving Children?’ (2009) 33 Melbourne University Law Review 579; Tobin, ‘Courts and the Construction of Childhood: A New Way of Thinking’ in Freeman (ed.), Law and Childhood Studies (2011) 55. 2 Thomas, ‘Towards a Theory of Children’s Participation’ (2007) 15 International Journal of Children’s Rights 199; Alderson et al., ‘The Participation Rights of Premature Babies’ (2005) 13 International Journal of Children’s Rights 31; Hill et al., ‘Moving The Participation Agenda Forward’ (2004) 18 Children & Society 77. 3 European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols Nos 11 and 14) 1950, ETS 5. 4 999 UNTS 171. 5 993 UNTS 3. 6 1577 UNTS 3. 7 With the exception of the European Convention on the Exercise of Children’s Rights 1996, ETS 160. Also note the soft law mechanism that enables Roma children who move from one EU country to another to exercise their right to education. 8 Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 163. 9 Council of Europe, Framework Convention for the Protection of National Minorities, 1 February 1995, ETS 157. 10 Kilkelly, ‘The CRC in Litigation under the ECHR’ in Liefaard and Doek (eds), Litigating the Rights of the Child (2015) 193. 11 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135 (1992). 12 European Commission, The Situation of Roma in an Enlarged European Union (2004). 13 On the history of Roma in Europe, see Stewart, ‘Roma People’ 20 International Encyclopedia of the Social & Behavioral Sciences, 2nd edn, (2015) at 748; Bunescu, Roma in Europe: The Politics of Collective Identity Formation (2014) at 13–14; Martínez-Cruz et al., ‘Origins, Admixture and Founder Lineages in European Roma’ (2015) 24 European Journal of Human Genetics 1. 14 Kostadinove, ‘Minority Rights as a Normative Framework for Addressing the Situation of Roma in Europe’ (2011) 39 Oxford Development Studies 163 at 164. 15 Council of Europe, Council of Europe and Roma: 40 Years of Action (2012) at 19. 16 Ibid. at 20. 17 Bennett, ‘The Roma Early Childhood Inclusion (RECI) Research Report’ in Miller (ed.), International Perspectives in the Early Years (2014) at 77; Roth and Mosia, ‘The Right to Education of Roma Children in Romania: European Policies and Romanian Practices’ (2011) 19 The International Journal of Children’s Rights 501. 18 Kostadinove, supra n 14 at 166–8. 19 Ringold et al., Roma in an Expanding Europe: Breaking the Poverty Cycle (World Bank, 2005), cited in UNICEF, The Right of Roma Children to Education: Position Paper (2011) at 15, available at: www.unicef.org [last accessed 6 December 2017]. 20 UNICEF, Breaking the Cycle of Exclusion (UNICEF, 2007), cited in UNICEF, ibid. at 15. 21 Ibid. 22 European Roma Rights Centre, Stigmata: Segregated Schooling of Roma in Central and Eastern Europe (European Roma Rights Centre, 2004), available at: www.errc.org [last accessed 6 December 2017]. 23 Hobcraft, ‘Roma Children and Education in the Czech Republic: DH v Czech Republic: Opening the Door to Indirect Discrimination Findings in Strasbourg’ (2008) 2 European Human Rights Law Review 245 at 246. 24 Kilkelly, supra n 10. 25 Stalford, Children and the European Union (2012) at 37. 26 Fortin, ‘Rights Brought Home for Children’ [1999] Modern Law Review 350 at 357. 27 Stalford, supra n 25 at 38. 28 Campbell and Cosans v United Kingdom Application No 7511/76, Merits, 25 February 1982. 29 Rahimi v Greece Application No 8687/08, Merits and Just Satisfaction, 5 May 2004; Mubilanzila v Belgium Application No 13178/03, Merits and Just Satisfaction, 12 January 2007); Tarakhel v Switzerland Application No 29217/12, Merits and Just Satisfaction, 4 November 2014, Nunez v Norway Application No 55597/09, Merits and Just Satisfaction, 28 June 2011; Jeunesse v The Netherlands Application No 12738/10, Merits and Just Satisfaction, 3 October 2014. 30 See Letsas, A Theory of Interpretation of the European Convention on Human Rights (2007) at 61–4. 31 Schmidt v Germany Application No 13580/88, Merits and Just Satisfaction, 18 July 1994; Inze v Austria Application No 8695/79, Merits and Just Satisfaction, 28 October 1987; Karner v Austria Application No 40016/98, Merits and Just Satisfaction, 24 July 2003. 32 O’Connell, ‘Cinderella Comes to the Ball: Article 14 and the Right to Non-Discrimination in the ECHR’ (2009) 29 Legal Studies 211. 33 For a comprehensive analysis of Article 13, see Beiter, The Protection of the Right to Education in International Law (2006) at 459–570. 34 Jovanovic, ‘Recognizing Minority Identities through Collective Rights’ (2005) 27 Human Rights Quarterly 625. 35 Gilbert, ‘The Council of Europe and Minority Rights’ (1996) 11 Human Rights Quarterly 160; Gilbert, ‘The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights’ (2002) 24 Human Rights Quarterly 736. 36 Wright, ‘Minority Groups, Autonomy, and Self-Determination’ (1999) 19 Oxford Journal of Legal Studies 605 at 608. 37 Human Rights Committee, General Comment No 23: The rights of minorities (art. 27), 8 April 1994 at para 5.1. 38 Kymlicka, ‘National Cultural Autonomy and International Minority Rights Norms’ (2007) 6 Ethnopolitics 379 at 381–2. 39 Article 2 of Protocol 12 uses similar language. 40 Article 29(2) reads: ‘No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.’ 41 Kostadinova, supra n 14 at 179. 42 Ibid. 43 On Roma and the use of law to combat discrimination and fundamental other human rights violations, see Cviklova, ‘Direct and Indirect Racial Discrimination of Roma People in Bulgaria, the Czech Republic and the Russian Federation’ (2015) 38 Ethnic and Racial Studies 2140. 44 Velyo Velev v Bulgaria Application No 16032/07, Merits and Just Satisfaction, 27 May 2014. 45 Lautsi v Italy Application No 30814/06, Merits and Just Satisfaction, 18 March 2011. 46 Kjeldsen, Busk Madsen and Pedersen v Denmark Applications Nos 5095/71 et al., Merits, 7 December 1976. 47 Dogru v France Application No 27058/05, Merits and Just Satisfaction, 4 December 2008; Aktas v France Application No 43563/08, Admissibility, 30 June 2009. 48 Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ v Belgium (‘Belgian Linguistics Case (No 2)’) Applications Nos 1474/62 et al., Merits, 23 July 1968. See also Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ v Belgium Applications Nos 1474/62 et al., Merits, 9 February 1967. 49 Belgian Linguistics Case (No 2), ibid. at paras 42–43. 50 Tobin, supra n 1 at 587. 51 Belgian Linguistics Case (No 2), supra n 48 at para 29. 52 See Hunter-Henin (ed.), Law, Religious Freedom and Education in Europe (2011). 53 Declour and Hustinx, ‘Discourses of Roma Anti-Discrimination in Reports on Human Rights Violation’ (2015) 3 Social Inclusion 90 at 96. 54 Application No 21787/93, Merits and Just Satisfaction, 18 December 1996. 55 Fortin, Children’s Rights and the Developing Law, 3rd edn (2009) at 68. See also Taylor, ‘Parental Responsibility and Religion’ in Probert et al. (eds), Responsible Parents and Parental Responsibility (2008) at 138. 56 Valsamis v Greece, supra n 54 at para 9. 57 Dahlab v Switzerland Application No 42393/98, Admissibility, 15 February 2001 at paras 451–52; See also Evans, ‘The “Islamic Scarf” in the European Court of Human Rights’ (2006) 7 Melbourne Journal of International Law 52. 58 Application No 27058/05, Merits, 4 December 2008. 59 Chělini-Pont, ‘The French Model: Tensions Between Laïc and Religious Allegiances in French State and Catholic Schools’ in Hunter-Henin (ed.), Law, Religious Freedom and Education in Europe (2011) 153 60 Application No 57325/00, Merits and Just Satisfaction, 13 November 2007. 61 Ibid. 62 Ibid. 63 Ibid. at paras 205–210. 64 Ibid. at para 100. 65 Ibid. at Dissenting Opinion of Judge Borrego, para 9. 66 Application No 32526/05, Merits and Just Satisfaction, 5 June 2008. 67 Kosko, ‘Parental Consent and Children’s Rights in Europe: A Balancing Act’ (2010) 11 Journal of Human Development and Capabilities 425. 68 Application No 15766/03, Merits and Just Satisfaction, 16 March 2010. 69 Ibid. at para 155. 70 Ibid. at Joint Partly Dissenting opinion, para 9. 71 Tobin, supra n 1 at 602. 72 Oršuš v Croatia Application No 15766/03, Merits and Just Satisfaction, 16 March 2010 at para 95. 73 Brown v Board of Education of Topeka 347 U.S. 483 (1954). 74 Application No 11146/11, Merits and Just Satisfaction, 29 January 2013. 75 Akoglu, ‘Removing Arbitrary Handicaps: Protecting the Right to Education in Horvath and Kiss v. Hungary’ (2014) 37 Boston College International and Comparative Law Review 1 at 1–2. 76 Horváth and Kiss v Hungary, supra n 74 at para 116. 77 Committee on Economic Social and Cultural Rights, General Comment 13: The Right to Education (art. 13), 8 December 1999. 78 With one exception in the case of DH v Czech Republic, supra n 60 at para 198. 79 Greenberg, ‘Report on Roma Education Today: From Slavery to Segregation and Beyond’ (2010) 110 Columbia Law Review 919 at 934–6. 80 Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color’ (1991) 43 Stanford Law Review 1241. 81 Young-Bruehl, Childism (2012) at 1–17. 82 Cf Nura Taefi, ‘The Synthesis of Age and Gender: Intersectionality, International Human Rights Law and the Marginalisation of the Girl-Child’ (2009) 17 International Journal of Human Rights 345.  83 Chow, ‘Has Intersectionality Reached its Limits? Intersectionality in the UN Human Rights Treaty Body Practice and the Issue of Ambivalence’ (2016) 16 Human Rights Law Review 453. 84 McCall, ‘The Complexity of Intersectionality’ (2005) 30 Journal of Women in Culture and Society 1771 at 1780–4. 85 Guggenheim, What’s Wrong with Children’s Rights (2007). 86 For a similar argument made with respect to other children’s related cases and the ECtHR, see: Fortin, ‘Children's Rights: are the Courts Now Taking Them More Seriously?’ (2014) 15 King’s Law Journal 253. 87 Akermark, ‘Images of Children in Education: A Critical Reading of DH and Others v Czech Republic’ in Brems (ed.), Diversity and European Human Rights (2013) at 40–67. 88 Neulinger and Shuruk v Switzerland Application No 41615/07, Merits and Just Satisfaction, 6 July 2010, at para 135. 89 Smyth, ‘The Best Interests of the Child in the Expulsion and First-Entry Jurisprudence of the European Court of Human Rights: Principled in the Court’s Use of the Principle?’ (2015) 17 European Journal of Migration and Law 701. 90 In re Gault 387 U.S. 1 (1967). 91 Kilkelly, The Child and the European Convention on Human Rights (1999) at 234–6. 92 Tobin, supra n 1 at 71–2. 93 Newman, Realizing Educational Rights (2013) at 24–62. 94 Harris, Education, Law and Diversity (2007) at 258–60. © The Author(s) [2018]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com

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