Behind closed doors. Challenging the Osman test in safeguarding minors from domestic violence

Abstract

Historically seen as a private matter, domestic violence against children has only been recently acknowledged as a human rights violation. The European Court of Human Rights has contributed significantly to this shift by extending the State’s responsibility to prevent violations of Art 2 ECHR perpetrated by non-State actors. As the main tool for assessing compliance with the core obligation to take protective operational measures, the Osman test holds substantial relevance within the Court’s jurisprudence. In recent years, the ECtHR has invoked the Osman test in various scenarios beyond its original conception, including in the context of domestic violence. By thoroughly analysing relevant case law and highlighting international legal standards, this thesis critically assesses the application of the Osman test in the context of domestic violence, identifying its limitations in addressing the ongoing and escalating threats faced by children. It emphasises the need for revising the Osman test by omitting the immediacy requirement to better protect children from the far-reaching consequences of this distinct form of criminality. This thesis thus advocates adopting a more proactive approach that recognises the cyclical and unpredictable nature of domestic violence.