Truancy and suspensions allocs . What about the Council of Europe [ 1] ?
by Philippe Lecorne member of EUROCEF Bureau
In April 2012, EUROCEF [2] , upon referral by the CNAEMO , filed with the European Committee of Social Rights (ECSR ) [3] a collective complaint [4] against France for violation of the European Social Charter [5 ] . This complaint concerned the provisions of suspension of allowances for parents whose children had evidence of truancy . Although the law was repealed fortunately [6] , it seems interesting to return the report by the CDES following this claim , it is now public . [7]
THE STATEMENT OF CLAIM
The suspension of allowances in case of truancy of children is a measure that had been prescribed by law n ° 2010-1127 of 28 September 2010 to fight against truancy ( Official Journal No. 0226 of September 29, 2010 page 17553 text No. 1) and law No. 2011-267 of 14 March 2011 relating to the parental responsibility contract
EUROCEF for the suspension of family allowance is used as a penalty for parenting behaviors , which amounts to consider these benefits, not as a right, as guaranteed by Article 16 of the Charter, but as a reward reserved for single parents that do not meet educational challenges. Moreover, their constituent suspension, sanction against parents is harmful to the best interests of children who, in French law, are considered beneficiaries of social benefits .
Moreover, the suspension of allowances infringes the principle of non-discrimination set out in Article I of the Charter [8] , because the punishment for truancy of a child is not only applicable to families receiving family allowances , leaving in » impunity » families with only one dependent child under 20 years; further suspension from the allowances on the child exhibiting the truancy has the effect of reducing the income of the family unit , thus penalizing other members of the family, parents and siblings , even the members of the latter are not responsible or involved in misconduct . On the register of discrimination EUROCEF also mentions the risk of unequal treatment of families according to their intellectual background and interpersonal skills (oral or written ) .
Finally, EUROCEF argues that in a country where 8 million people live below the poverty line , family allowances are otherwise an absolute essential part of their income. Therefore , affect the income , even temporarily , is likely to penalize people already weakened by undermining the fragile economic balance that is theirs or aggravating an economic situation may already be severely degraded .
PROCEDURE
The complaint was registered by the ECSR April 4, 2012 .
The ECSR then invited the French government to file a brief before 31 July commenting on both the admissibility of the claim on its merits , in the case where such claim is admissible. Already there emerges the double concern of the Committee : before deciding on the merits , it should check that the form , the court filing the claim is eligible to do so.
The memory of the French government was recorded July 25, 2012 . Its contents may surprise since it applies to justify the provisions at issue even though less than three months ago, has been elected a new President of the Republic has committed itself , under campaign to repeal the law on the suspension of family allowances. It appears the one hand that memory does not seem to have been brought to the attention of elected officials, the answer was written by a writer of the Sub-Directorate of Human Rights of the Directorate of Legal Affairs of the Ministry of Foreign Affairs Foreign , other than the date of writing this paper , there is still no draft or bill officially filed translate this commitment of the Head of State . This may explain the essentially legal nature of the response of the French government.
EUROCEF invited to produce a reply in response to the reaction of the French Government will transmit this new document dated 24 October 2012.
REPORT OF ECSR
In a 28-page document , the ECSR first presents the findings of each of the parties and a detailed analysis of the law and jurisprudence applicable in France on the subject of the claim. It then discusses the merits of the case in terms of the admissibility of the complaint and its merits .
1 . On the admissibility of the complaint
The ECSR decision on the admissibility of the approach , it – based on a number of conditions and substantive – is a prerequisite for processing the claim
The Committee notes as well as France ratified the protocol for the collective complaints procedure and it is therefore linked . He finds that the complaint has been submitted in written form and is motivated .
The Committee also notes qu’EUROCEF is an international non -governmental organization in consultative status with the Council of Europe and it appears on the list of international non-governmental organizations entitled to lodge collective complaints.
As regards the particular skill EUROCEF in the areas of complaint, having examined the statutes which state that EUROCEF develop social and educational assistance to children and families it is intended for their living environment , the Committee considers that the organization has submitted a claim within its fields of competence and is particularly well qualified to do so .
For all these reasons , the Committee finds this claim inadmissible.
2 . On the merits of the claim
a. Alleged violation of Article 16 of the Charter
EUROCEF considers that since the suspension of allowances is used as parental sanction the behavior of children, these benefits are no longer considered as a right guaranteed by Article 16 [9] of the European Social Charter.
The government, meanwhile, argues that to make the payment of family benefits to attendance takes into account the best interests of the child [10] ( sic) , this device is essentially an incentive and the suspension can only be decided in highly regulated circumstances.
From the outset , the ECSR recalls the importance of the right of the family to social, legal and economic protection in the context of European law on human rights in general and in particular the European Social Charter . States Parties are free to choose the means to achieve this protection , and the Committee considers that family allowances subject of this complaint constitute a means while noting the existence of other benefits are not affected by the possibility of a suspension.
According to Article 17 of the Charter , measures should be taken to encourage school attendance and reduce absenteeism . Again , States enjoy a margin of appreciation in determining these measures.
The Committee analyzes the contested measure as a restriction on the exercise of the right provided for in Article 16. If it finds that such action is required by French law , it pursues a legitimate aim – that of reducing truancy – the procedural aspects do not raise particular [11] problems , the Committee shows many more critical of the proportionality of the measure and its merits . Recalling that the phenomenon of truancy is complex and involves a framework of shared between parents schools and public authorities responsibilities , he finds that the said measure bases the penalty of suspension with possible elimination of family allowances for pattern truancy only one of the parties having obligations in this area , namely the parents. Exclusive punishment of this part amounts to a failure by the public authorities of positive obligations on them in the field of education.
In addition, the Committee considers that the suspension of allowances for absenteeism due to a child not only may make it more vulnerable to economic and social situation of the family concerned … but it is not established that it contributes to the objective of reintegrating the child in school (which is also a target set by the Charter in Article 17 ) .
The ECSR also notes , in light of the parties’ submissions , that the issue of the suspension or removal of family allowances has resulted in many changes in French law since 1959 , which shows the doubts about the practical significance and effectiveness of this measure. Based on the statistics provided by the parties on truancy and the number of families who have been affected by the suspension of their allowances , the Committee concludes that these figures show in any event , that the measure does not had the desired effect . Finally, a significant number of affected families by the contested provision , family allowances represent additional revenues necessary to enable them to achieve economic sufficiency , social vulnerability (due to their difficulties in fulfilling their parental responsibilities attendance school ) , often together with a heightened economic insecurity. Therefore, the controversial measure does not prove reasonable in the light of Article 16 of the Charter.
In conclusion , the Committee considers that the impugned suspension with possible removal of family allowances measure poses exclusively on the parents full responsibility to ensure to reduce truancy and increase economic and social vulnerability of affected families. Therefore, the measure is not proportionate to the objective pursued and therefore constitutes a restriction on the right of the family to social , legal and economic protection guaranteed by Article 16 of the Charter does not under the conditions permitted by Article G [ 12] of the Charter.
Therefore , the Committee said that because of the law No. 2010-1127 of 28 September 2010 , to fight against truancy, there had been a violation of Article 16 of the Charter.
However, the Committee recalls that act under the legal situation prevailing at the date of adoption of the decision. [ ]
In this case , he finds that the relevant provisions were repealed by Act No. 2013-108 of 31 January 2013.
Therefore , the Committee said that there was no violation of Article 16 of the Charter because of the repeal of the contested measure by the law of 31 January 2013.
b . Alleged Violation of Article E of the Charter ( non-discrimination)
If the Committee considers that the legislation in question could have a significant impact on some of the most disadvantaged sections of the population in France , it nevertheless considers that the complainant organization has not sufficiently substantiated arguments about this and that n therefore is not necessary to examine this question.
c.Violation of Article 30 of the Charter (right to protection against poverty and social exclusion)
Given the nature of the additional benefits to potentially affected by the contested measure suspending families, the Committee believes that the loss of this additional income, although contrary to Article 16 of the Charter , can not be regarded as a violation of Article 30 of the Charter for lack of sufficient resources . To decide in this regard , the Committee draws on previous work showing that in the field of protection against poverty, comprehensive and coordinated approach implemented by the French Government formed a clear analytical framework and set priorities and relevant actions.
CONCLUSION OF THE REPORT
For these reasons , the Committee:
- A unanimously declares the complaint admissible
- By 9 votes against 2 , concludes that there is no violation of Article 16 of the Charter because of the repeal of the law
- Unanimously, concludes that it is not necessary to examine the allegations of non- compliance with Article E of the Charter read in conjunction with Article 16 of the Charter
- Unanimously, concludes that no violation of Article 30 of the Charter
- A unanimously concluded that no separate issue arose under Article E of the Charter in conjunction with Article 30 of the Charter
REMEMBER THAT ?
– The procedure itself
It is first necessary to acknowledge the existence of the collective complaints procedure . Even as citizens increasingly a sense of dissatisfaction with representative democracy , the expression of participatory democracy helps to give a different image of Europe as an inaccessible and remote from technocracy their concerns.
Note also the highly democratic nature of this procedure, in accordance with legal rules which the parties may express their vision of the problem by a back and forth game between the complainant and the State party in question. Contributes to this democratic spirit , the same composition of the Committee ( 11 independent experts from 11 different countries) and the option offered to each of these experts can make a specific public expression as we alluded to below .
Finally underline the seriousness given to the study of the arguments of both parties and the national context within which the contested all this put into perspective with the European doctrine illustrated by the existing conventions and charters available .
– On the same suspension system of family allowances
The position of « wise men » suffers no ambiguity , since it is said that such a device was a violation of Article 16 of the European Social Charter.
However it is regrettable that the report’s conclusion is not as clear in its condemnation , because simply stating that there is no violation of Article 16 of the Charter because of the repeal of the law. Note that this conclusion is not passed unanimously , but only nine of the eleven judges . To our delight , two judges , one Greek , one Italian, took the view that would have been contrary to assert that there was violation of the charter until the repeal of the said Act. And they explain each in a text entitled Dissenting Opinion , annexed to the report made public. Among the arguments raised by the two judges , we retain a particular , from the Italian judge rule on the merits of adopting a device saying « there is no violation » of the Charter , once that was explicitly appreciated in the opposite direction , the claim made by the claimant party […] was well founded , and that the situation covered by the procedure was indeed contrary to the Charter is not an appropriate way […] or to do justice to the claimant party and the preceptive value of the Social Charter , or strengthen the credibility of the work of the European Committee of Social Rights as a body of quasi-judicial control rights social .
In conclusion, we retain the approach initiated by EUROCEF was recognized as founded , thoroughly considered on the merits, and the answer that was given is a formal disavowal of the suspension system of family allowances to fight against truancy .
I bet that such a decision of the European institution will , if not impossible , at least much more difficult any attempt to reintroduce such a measure in the French legal arsenal.
Finally, and this is not the slightest interest in the process, and evidence is provided that social workers can take part and part to the construction of social Europe and challenged by their vigilance, their decisions not pretend not conform to the rights of those they accompany . When they wish to seize this opportunity , they know they will find an interpreter EUROCEF quite able to bring their concerns .
[ 1] This article appeared in the December 2013 issue of the journal Social Space, is reproduced here with the kind permission of the National Crossroads of Educational Action Open Environment ( CNAEMO ) , a French NGO that disseminates this review : www . cnaemo.com
[2] European Committee for Priority Action for the child and family in their living environment , INGOs whose CNAEMO is a founding member and has participatory status with the Council of Europe in the framework of the Conference of INGOs. EUROCEF is also authorized by the ECSR to file collective complaints.
[3] The European Committee of Social Rights is an institution of the Council of Europe judging the compliance of national laws and practices of Member States to the European Social Charter. It is composed of 11 independent experts from 11 different member countries of the Council of Europe.
[4] The detailed presentation of the collective complaints procedure has been developed in the area number Social March 2013 Article : Europe : an appeal for the defense of social work values ?
[5] The European Social Charter , guaranteeing the rights of the socially and economically , complements the European Convention on Human Rights which guarantees the civil and political . Signed in 1961 and revised in 1996, it applies to all countries that have ratified it ( including France) . It establishes a monitoring system that ensures compliance with these rights by the States Parties.
[6 ] Law No. 2013-108 of 31 January 2013 to repeal the law n ° 2010-1127 of 28 September 2010 to fight against truancy
[7 ] This report, dated March 19, 2013 , was forwarded to the Committee of Ministers of the Council of Europe and could not be made public until after the adoption of a resolution by the Committee. It was adopted on 10 July 2013. It may take knowledge of all the pieces of this 82/2012 , including the text of the complaint file, the memory of the French government, the replica EUROCEF and the full report of the ECSR by following this link : www.coe.int / t / dghl / monitoring / socialcharter / complaints / complaints_fr.asp
[8] The principle of non -discrimination set out in Article E is a fundamental article in that it applies to all the rights recognized by the Charter .
[9] Article 16: Right of the family to social , legal and economic protection :
In order to achieve the necessary conditions for the full development of the family, the basic cell of society , the Parties undertake to promote the economic, legal and social protection of family life by such means as social benefits and family, tax provisions to encourage the construction of housing suited to the needs of families, youth support centers , or any other appropriate measures. «
[10] The principle of respect for the best interests of the child, affirmed by the Convention on the Rights of the Child is a key concept in international law. It is often invoked his vague outline for supplying many arguments pro domo …
[11] Again , from the point of view EUROCEF , one might question the information and the real parents’ access to their right to legal assistance or representation by a third party to remedies .
[ 12] Section G admits that the rights recognized by the Charter may be subject to restrictions when it comes to ensuring the rights and freedoms of others or for the protection of public order , national security , public health or morals . .