Consultoría: ToR for a study on a potential EU legislative act on the child’s right to be heard

ToR for a study on a potential EU legislative act on the child’s right to be heard

Introduction

Save the Children aims to promote the child’s right to be heard “in any judicial and administrative proceedings affecting the child” across the European Union, in accordance with Article 12(2) of the UN Convention on the Rights of the Child. The Convention does not lay out any procedure and refers to national law in that respect.

The European Union has become a regulatory super-power. It can issue legislative acts in many different policy fields that Member States need to implement. Furthermore, EU law is implemented through many procedures in national law in which children may be affected.

The child’s right to be heard is enshrined in Article 24(1) of the European Union’s Charter of Fundamental Rights. The Charter does not expand the Union’s competences and applies to Member States only insofar as they implement Union law.

Despite the fact that many policy fields are governed by EU law, the question if and how children are heard in the corresponding procedures is left to national regulations. This leads to diverging practices among the Member States, meaning that the child’s right to be heard is not uniformly ensured across the EU nor in EU institutions. A first step has been taken in this second respect with the EU Children’s Participation Platform, which, however, is not based on any legislative act.

However, the fact that the right to be heard is considered an EU fundamental right means that the Union has an interest in making sure that any Member State action based on EU law is in conformity with that right.

While respecting the State’s margin of appreciation, this should necessarily lead to the emergence of common minimum standards. These may be constructed gradually through the interpretation of the Court of Justice. However, its case law on the child’s right to be heard remains sparse.

For these reasons, Save the Children is keen to explore whether the EU could adopt any legislative acts in order to:

  1. Lay down common rules on the child’s right to be heard in Member States’ administrative and court procedures affecting children, governed by EU law.
  2. Establish rules on the exercise of the child’s right to be heard in policy-making procedures affecting children as a group conducted by EU bodies.

Objective

Save the Children seeks to obtain a legal study on the possibilities for the EU to legislate on common rules on the child’s right to be heard in Member States’ administrative and court procedures affecting children governed by EU law, as well as in procedures affecting children conducted by EU institutions.

This study will be the first step in an advocacy strategy that will target key EU decision makers, as well as other stakeholders interested in the proposal, directed at obtaining such EU legislation. This strategy includes a qualitative study conducted among relevant EU officials and other stakeholders, but this has not been defined further yet.

The final product sought is a written legal study addressing the following items:

  • The state of play in EU law concerning the child’s right to be heard, including CJEU case law and soft law (pertinent recommendations, strategies, communications).
  • The need and the interest in the legal acts sought: How would the child’s right to be heard benefit from common rules across the EU, also from the perspective of the EU Charter of Fundamental Rights: How would the child’s right to be heard benefit from clear rules in relevant procedures before EU bodies?
  • The reasons why the legislative acts sought could be of interest for the European Commission
  • The legal bases the EU could invoke to issue the legislative acts sought. Whether EU accession to the UN Convention on the Rights of the Child could provide a useful legal basis should be briefly discussed here.
  • The most suitable category of legislative act (Directive or Regulation), both for the legislative act concerning procedures before EU bodies, and for the legislative act(s) addressed at Member States.
  • Related to the former, the number of legislative acts needed, and their sort (meaning: whether one legislative act could be enough to lay down common rules for all pertinent fields of EU law, or whether it would be more convenient to amend existing legislative acts, introducing rules on the right to be heard in each of them).
  • With regard to the legislative act(s) addressed at Member States, whether, and to what extent, they could include rules on the procedures to follow at national level to hear children, or whether they could only include substantive standards.

Requirements

The person(s)/institution selected for this study should have solid expertise in EU law and policy making as well as in children’s rights, especially on the child’s right to be heard. Expertise in basic, common features of administrative and court procedures will be highly valued.

The person/institution selected needs to have broad access to legal sources and legal literature on the relevant topics.

The person/institution selected needs to have strong command of English legal language, as the report should be written in English.

Price: 10.000 €, VAT and any other tax included. The contract will be signed with Save the Children Spain, a registered foundation under Spanish law.

Time frame: The final product should be delivered by the end of February 2025 (flexible). A mid-term delivery will be expected by the end of December 2024.

Applications: Applications should be sent before November 18, 23.59 CET, to Daniel Toda Castán: daniel.toda@savethechildren.org. Please use this address for any queries in relation to these terms of reference.

Applications should include the CVs of the persons who will participate in the project, a short description of the research resources to be employed, and a brief research plan including a timeline.