Ratified treaties¹

Action brought by a father from whom the custody of his three children had been withdrawn/ Analysis of the applicable legislation/ Reference to international law to strengthen a decision based on domestic law

A father’s custody of his three children had been withdrawn, since the social services had considered that in view of his financial circumstances and the circumstances of the family it would be in the interests of the children if they no longer lived with their father. The father appealed the decision before the Supreme Court of New Hampshire.

The Court analyzed the fundamental principles governing relations between families and the State, which established the rule that parents have authority over their children without any need for the State to confer it on them, since it is inherent in their capacity as parents. In order to add force to this analysis the Court referred in conclusion to international law, stating that:

 “On an International level, the United Nations Covenant on Civil and Political Rights holds that “the family is the natural and fundamental unit of society and the State” Art. 23, s.1, (1966). Likewise the United Nations Covenant on Economic, Social and Cultural Rights recognize that the “widest possible protection and assistance should be accorded to the family, which is natural and fundamental group unit of society”, Art. 10, s. 1 (1966).”

The reference to the two covenants reinforced the opinion of the Supreme Court of New Hampshire that the decision to withdraw custody of children from their parents should be based on clear and convincing evidence. The Court found in this instance that this condition had not been met and ruled that the complainant could recover the custody of his children

¹ International Covenant on Civil and Political Rights, 1966; International Covenant on Economic, Social and Cultural Rights, 1966.