Torture and other cruel, inhuman or degrading treatment or punishment (CO 41)
38. On 28 February 2019, the ECHR charged France47 for subjecting a 12 year-old unaccompanied minor to "degrading treatment", during the several months he spent in the Calais Jungle shantytown, “in an environment totally unsuited to his status as a child, whether in terms of safety, housing, hygiene or access to food and care, and in unacceptably precarious conditions in view of his young age”. The ECHR issued France with a very firm reminder of the obligation to protect unaccompanied minors, whose situation of extreme vulnerability must take precedence over their foreign national status. The ECHR thus ordered the French authorities to pay compensation for their failings in deploying appropriate and sufficient measures for identifying and protecting minors. To date, the situation of unaccompanied minors remains a concern – there are many of them in camps in particular and they do not benefit from any suitable care arrangement.
What measures does the State intend to take with regard to unaccompanied minors to follow up on the Khan v France judgment and prevent any similar abuse to the one found by the Court?
Freedom of the child from all forms of violence The reality of institutional violence (CO 43)
39. The Acts of 14 March48 and 14 April 201649 have strengthened the existing mechanisms for preventing and combatting violence in institutions. Two interministerial plans to
45 Report of the French Court of Auditors "La prévention et la prise en charge de l’obésité", November 2019
46 Decree no. 2017-1866 of 29 December 2017 defining the National Health Strategy for the 2018-2022 period
47 Khan v France case of 28 February 2019
48 Act No. 2016-297 of 14 March 2016 on child protection, Art. 4
49 Act No. 2016-457 of 14 April 2016 on the notification of the administration by the judicial authority and on protection of minors
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prevent and counter violence against children (2017-2019 and 2019-202250) also demonstrate the State’s commitment to protecting each child in all places and in all contexts; the most recent one includes violence in institutions.
40. Despite these recent efforts, the Defender of Rights receives referrals about a growing number of situations51 in which it finds that children suffer institutional violence, especially in the school setting, in social or medico-social settings and in hospitals. It draws attention to the fact that public institutions – through their inappropriate response, lack of action or response or organisational or operational failings – do not afford sufficient consideration to the needs and best interests of children, which can thus lead to actual violence against them. Some of the children consulted, entrusted to child welfare services, speak of a continuum of violence, beaten by their family, sent to a home where they will also be mistreated, then become victims of bullying at school, since they are placed in a home and are not protected from these forms of violence. They ask for a substantive and tangible right to protection.
41. Although there have been mechanisms in place for a number of years now for ensuring the quality of care, welfare and respect for the dignity of children accommodated in social and medico-social establishments, they are still having little impact. The administrative inspections or assessments provided for under the law do not provide the necessary guarantees of independence, impartiality and, in the absence of frameworks of reference, quality.52 The children consulted brought this up by suggesting that inspections be carried out over several days within foster families, as they claim to feel manipulated by the families during the child welfare officers’ visits, which are not considered to last long enough.
What measures and resources is the State considering putting in place to guarantee the safety and respect for the rights of children within public institutions?
Treatment of minors during law enforcement operations
42. The Defender of Rights receives regular referrals about situations where law enforcement does not comply with ethical rules in the presence of children, who may be direct or indirect victims of police interventions. In 2018-2019, the question of police operations in the school setting arose particularly against the backdrop of sixth-form college protests. The Defender of Rights has received referrals about law enforcement operations near or within high schools, with some minors claiming to have been injured during these or roughly handled with no respect for their rights. It also took up an own-initiative referral following the online posting of a video concerning the conditions in which high school students were being stopped by police officers near their establishment. The video showed several students kneeling on the ground (some with their hands behind their head, others kneeling opposite a wall, hands behind their back).
All of these cases raise the question of respect for the physical and mental integrity of children near or within their school. They also raise the question of respect for children’s freedom to protest and call for a review of law enforcement techniques in their presence.
The Defender of Rights advocates for the police to consider the best interests of the child when choosing their operational tactics. It also calls for greater vigilance to be shown in
50 Plan to combat violence against children, published on 21 November 2019
51 Annual report on the rights of the child 2019, “Childhood and violence: the part played by public institutions”
52 Ibid.
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implementing their general obligation regarding the proportionate use of force and in ensuring that the necessary assistance is provided to any casualties.53
What measures does the State intend to take to ensure compliance with the security forces’ code of ethical conduct – particularly in the presence of children?
43. On the subject of deportations of irregular foreign nationals by air, the Defender of Rights’ attention has been drawn to law enforcement’s failure to consider the best interests of children witnessing such measures concerning their parents, who are taken to the aircraft in a horizontal position, handcuffed and with Velcro straps around their legs.
Does the State intend to adopt an instruction on the precautions to take during the enforcement of an expulsion order in the presence of children?
44. The Defender of Rights has been referred several complaints revealing an alarming rise in the number of searches conducted in the presence of children, particularly amid the state of emergency declared in France between 2015 and 2017, following the terror attacks. These referrals report searches conducted in the middle of the night with no precautions having been taken as regards children and impacting the latter’s health.54
Does the State intend to include a module in police forces’ initial training and continuing professional development on the specific measures to take to respect children’s rights before and during operations?
Corporal punishment: securing its prohibition in the French Education Code (CO 44)
45. With the promulgation of the Act of 10 July 201955 on the prohibition of ordinary disciplinary violence, France became the 56th country to prohibit ordinary disciplinary violence. Article 371-1 of the French Civil code thus stipulates that parental authority shall be exercised without physical or psychological violence. On the other hand, despite the Defender of Rights’ recommendation, the prohibition to use corporal punishment towards children has not been incorporated into the French Education Code or Social Action and Family Code.
46. The Defender of Rights received a referral about the situation of children in an infant school complaining of violent behaviour on the part of their headmistress. Although children and professionals working in the school had spoken out about this on many occasions, the headmistress was only suspended by her supervisory authority after several months, after being placed under judicial supervision. She was taken to court,
53 Decision 2020-131
54 Decision No. 2016-069
55 Act 2019-74 of 10 July 2019
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and in her defence before the Court of Cassation,56 cited a teacher’s “right to punish”
her pupils. At present, only a ministerial instruction provides for the inclusion of the prohibition of violence in schools’ rules of procedure.57
What provisions does the State intend to lay down to guide professionals in guaranteeing children an education that is free from violence? Does the State intend to incorporate the prohibition of corporal punishment in the French Education Code?
Harmful practices towards intersex children: towards application of a precautionary principle by professionals (CO 48 b)
47. The Defender of Rights notes a relative improvement in practices, where treatment or operations on children presenting a variation in sexual development are no longer routine, especially in the units of the Medico-Surgical reference centre for Rare Developmental and Differentiation Disorders. That said, it is still concerned about the performance of surgical operations even though the condition is not life-threatening.
These are apparently carried out with the parents’ consent, for therapeutic purposes, to help the child to integrate into the family and avoid giving it a complex and prevent potential stigmatisation. Whilst such aims might appear legitimate in principle, it is important to remember that operations practised on intersex children can be irreversible and take a heavy lifelong toll on their physical and mental health. Early surgery may entail subjecting the child’s body to considerable medicalisation, often requiring multiple invasive treatments and/or surgery throughout childhood, depending on the child’s growth and puberty.58
48. In the context of the revision of the bioethics legislation,59 the lawmaker is considering introducing new measures aimed at improving the care provided to intersex children, which should improve the consideration given to their best interests. However, it is regrettable that the precautionary principle is not expressly set out in the text. This would allow for the more systematic possibility of delaying operations, until the children themselves are able to give their informed consent, unless their life is in danger.
What measures does the State intend to take to ensure that the precautionary principle guides the specialist multidisciplinary medical teams in the detailed, balanced and evidence-based assessment of the situation and best interests of the child? How does it intend to train professionals in complying with this precautionary principle?
56 Decision of the Defender of Rights 2017-120 (Observations before the Court of Cassation on the right to punish – violence of an infant school headmistress towards her pupils)
57 Opinion of the Defender of Rights No. 18-28 of 19 November 2018
58 Opinion No.17-04 of 20 February 2017, Defender of Rights
59 https://solidarites-sante.gouv.fr/grands-dossiers/bioethique/les-evolutions-proposees-par-le-projet-de-loi/article/loi-de-bioethique-les-etapes-de-la-revision
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