Litigating in Europe to Stop a Stolen Generation
25 August 2015
From Australia to Europe
The phrase “stolen generations” usually refers to those Aboriginal and mixed children, forcibly taken from their parents and communities and placed in institutions by federal and state authorities in Australia from about 1905 until the 1970s. The aim of this racist state policy was to assimilate and “resocialise” Aboriginals – children were removed brutally and forcibly, in some cases shortly after their birth, and placed in state institutions, often operated by church organisations. Parental rights were also removed and transferred to the state.
Following an inquiry in 1995 the “Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families” was published in 1997. In the 2007 Trevorrow v South Australia litigation case, Bruce Trevorrow became the first member of the Stolen Generations to successfully sue the state for compensation for his being removed from his family as a baby. A full ten years after the publication of the report, in February 2008, the Federal Government finally made a formal apology.
This is not a uniquely Australian brand of racism. In Central and Eastern Europe, child protection authorities target Romani families, and Romani children are forcibly removed from their parents and communities. There are differences: this is 2015, so there is no official government policy, but we know Roma are targeted, and in the context of deeply racist societies, this raises the spectre of something equally sinister, if not as systematic.
What we know about Roma in care in Europe
The ERRC conducted research on the child protection systems in six countries (Hungary, Slovakia, Czech Republic, Italy, Bulgaria, Romania) and found that Romani children are disproportionately overrepresented in state care. Those committed to the current, segregating system can tell an easy story: Roma families are poor and, as a result, are more likely to suffer from related problems (inadequate housing, lack of disposable income, school absenteeism, difficulty finding employment), which make it more appropriate to take their children into care. But the law tells us a different story. In a series of cases,1 the European Court of Human Rights has repeatedly said that poverty is not a justification for taking children into care: the appropriate response to family poverty is social support.
In theory, States understand this. In Hungary, for example, the Child Protection Act clearly prohibits the separation of children from their biological families solely for financial reasons; yet in certain locations, Roma families are targeted by the child protection authorities, and many Romani children are removed from their families for reasons that are clearly poverty related. The authorities systematically fail to provide the preventative care and support the families need to improve their situation in a meaningful way. The only possible solution they envisage is the immediate forceful removal of the children from the families.
The ERRC’s study showed that the child protection and social service systems do not adequately support families and children, especially Romani families, to avoid endangerment and the placement of children in institutional care in Europe. And the placement is often a life sentence: once a Romani child enters state institutions or is placed with foster parents it is very unlikely that they will leave state care and be returned to their biological family. The consequences of forced removals on the families and children are similar to those of Aboriginal children and families: trauma, depression, loss of identity, loss of social connections, addictions to drug and alcohol, criminal records.
How to Litigate
First and foremost we want to attack the practice of taking Romani children from their families at or just after birth.
There is an instinctive litigation response: support families in child-care proceedings to stop it. We have tried that. It feels right from a humanitarian perspective, put it fails as a form of strategic litigation. You can see why from our strategic litigation plane: the law here is not very innovative, given the previous Strasbourg case law, and the litigants involved are desperate to improve their situation. This is classic legal aid work, and while someone needs to be doing it, the ERRC cannot support a large enough practice to try to get a strategic breakthrough. These individual cases are inevitably about their individual facts; we cannot take enough of them to expose the discriminatory nature of the practice.
Instead, we are trying to find litigants whose interests are more aligned with the strategic aims of the case, increasing the likelihood that a single case will make a big impact. In Hungary, we have already identified several families whose children were forcibly removed and placed in state care (or with foster parents) overwhelmingly as a result of poverty. They cannot stop what has happened to them, but we can get justice for them now through a single civil, discrimination case which exposes the full extent of this practice.
At the same time, we are on the lookout for cases of children about to be taken into care at birth. Although there is a high risk here of a conflict between the long-term strategic aims of the case and the pressing, immediate goals of the litigants, it is worth negotiating that conflict in order to score a unique victory: we can use interim measures (in the domestic courts or the European Court of Human Rights) to try to stop the removal. These are brutal cases where new-born babies are removed from their mothers, forcing the mother and families to leave the hospitals without their children. While these cases are tricky, the potential impact in exposing the damage of this practice is enormous.
The ERRC is committed to reducing the number of Romani children whose lives are destroyed by forcefully ending up in state care due to arbitrary decisions. In Europe’s racist societies, the possibility of a stolen generation is not far away. We are going to court to stop it.
Endnote:
- See: Moser v Austria, judgment of 21 September 2006, Application no. 12643/02.; Wallowá and Walla v the Czech Republic, judgment of 26 October 2006, Application no. 23848/04; and Zhou v Italy, judgment of 21 January 2014, Application no. 33773/11.
