Children in the shadows. Why the European Court of Human Rights fails children witnessing domestic violence - and how to bring them into the spotlight

Abstract

Domestic violence is a widespread human rights violation, leaving children not only as silent spectators but as hidden victims in the shadows. Despite mounting evidence that children who witness domestic violence suffer profound psychological, physical- sometimes as severe as for the parent or caregiver directly abused- their experiences often remain invisible in legal discourse. This thesis confronts that invisibility by examining how the European Court of Human Rights addresses children who witness domestic violence under Articles 3 (prohibition of torture), 8 (Right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights, and wether the Court’s practice align with international and European children’s rights instruments. This thesis adopts a mixed-methods approach, combining a systematic mapping of 31 ECtHR judgments on domestic violence, sourced from the Court’s “Key theme Article 2 domestic violence” document, with qualitative insights from expert interviews with Prof. Dr Ann Skelton, former Chair of the UN Committee on the Rights of the Child, and ECtHR Judge Georgios Serghides. The mapping, which appears to be the first focused specifically on children who witness domestic violence before the ECtHR, offers a structured view of how such children feature- or are overlooked- in the Court’s reasoning. The findings reveal that children are present in 83.9% of the surveyed domestic violence cases, while the Court only found a violation for the child(ren) in 25.8% of the cases. The findings show that the children's rights and experiences often remain in the background, particularly when they are not applicants themselves. Overall, the research highlights significant gaps between the ECtHR’s current jurisprudence and international standards, suggesting that further developments are needed to ensure children who witness domestic violence are fully recognised as rights-holders in European human rights law. This thesis recommends that the European Court of Human Rights strengthen its protection for children who witness domestic violence by more consistently recognising the severe harm such children may suffer under Article 3 ECHR, including psychological trauma that can amount to inhuman or degrading treatment. It proposes that the Court should examine whether failing to protect these children could amount to age-based discrimination under Article 14, and more often treat violence committed in a child’s presence as an aggravating factor, as required by the Istanbul Convention. It also encourages the Court to use its power to recharacterise legal issues so that cases are examined under all relevant Articles, including Articles 3, 8 and 14, to fully capture the unique harm faced by child witnesses. Moreover, it highlights the value of third-party interventions from child rights organisations to shed light on children’s experiences and ensure child-sensitive reasoning. Finally, it urges deeper integration of international and European child rights standards, like the UNCRC and Istanbul Convention, into the Court’s judgments. This thesis hopes to shine a light on the gaps that still leave these children in the shadows and aspires to contribute to the Court, scholars, practitioners, and NGOs working together to bring these children into the spotlight where they belong.