The Gazette 1978

GAZETTE

JANUARY/FEBRUARY 1978

out, no such recommendation has yet been made (and the Charter has been in force since the 26th February, 1965), the Committee of Ministers has had to endure very strong pressure from both the Parliamentary Assembly and the Independent Committee of Experts.' When one considers the difficulty encountered by a European (albeit Governmental) body such as the Committee of Ministers in trying to secure harmonisation in various social, legal and economic fields, without at the same time incurring the wrath of the Government of a Contracting State, their inaction can to some extent be understood but most certainly not condoned. Still, despite this inaction it cannot be denied that the Charter has produced many concrete results and it should be remembered that "the primary purpose of the Social Charter is not the indictment of the Contracting Parties but an attempt to raise the standard of living and promote the social well being of their populations". 9 The success and achievements of the Social Charter were remarked on by the Independent Committee of Experts in their conclusions to the second biennial report and they expressed satisfaction at the manner in which some laws and administrative regulations had been amended to comply with undertakings entered into in accordance with the Charter. 10 The Charter and Illegitimacy With regard to the more specific provisions of the Charter and particularly its application to illegitimate children, one should first refer to the distinction between Articles 16 and 17. Art. 17 in fact is the relevant article in this context, although one could also argue that Art. 16 covers the position of the unmarried couple living together and their child. Art. 16 is headed "The right of the family to social, legal and economic protection" and provides as follows: "With a view to ensuring the necessary conditions for the full development of the family which is a fundamental unit of society, the Contracting Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means". It would seem however that the "family" in this context is one founded on the institution of marriage 11 and this is reinforced by the reference to "benefits for the newly married". Interestingly enough, the European Commission has held that the term "family life" under Art. 8 of the European Convention on Human Rights includes the relationship of both a mother to her illegitimate child 12 and that of the natural father to his illegitimate child. 13 However, at the same time, the term "family" under Art. 12 of the Convention would seem to have a more restrictive meaning and although this point has not yet been resolved by the Commission, it would appear that this article is similar to Art. 16 of the European Social Charter in that it is confined to a lawful family founded on the institution of marriage. 14 In any event, the Independent Committee of Experts have treated the subject of illegitimate children and the unmarried mother under the provisions of Art. 17. This Article is headed "The right of mothers and children to social and economic protection" and provides that, "With a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services". 19 6

It will be noted that there is one very important difference or rather omission in the heading of Art. 17 as opposed to that in Art. 16 (apart from the reference to "family" in the latter and the reference to "mothers and children" in the former) — namely the omission of the word "legal". Does this mean that the family under Art. 16 is entitled to social, legal and economic protection whilst the mother and child under Art. 17 are only entitled to social and economic protection? On the face of it the answer would appear to be in the affirmative and a resolution of the Committee of Ministers 16 entitled "Social Protection of Unmarried Mothers and their Children", would seem to support this argument as it refers specifically to Paragraph 17 of Part 1 and Art. 17 of Part II of the Social Charter in urging the Governments of Member States to promote and encourage help and financial assistance for single pregnant women and mothers who are on their own. The Resolution does not refer to any legal rights whatsoever which leads one to pose the following questions: (a) Did the Committee of Ministers consider that legal rights could be encompassed by the provisions of Paragraph 17 of Part 1 and Article 17 of Part II of the Charter? (b) If so, was it for political reasons that they decided not to mention those rights? They may have hoped that the "defaulting" Governments would have noted the Independent Committee of Experts Report and have taken steps to rectify the position without the necessity of their hav i ng to make a f o rmal Re s o l u t i on or Recommendation. (c) As the Committee of Ministers have not made any Resolution or Recommendation regarding the legal rights of unmarried and single mothers, does this mean that the Social Charter is not meant to embrace these rights vis-a- vis those persons? One may say that this constitutes discrimination between the family, under Art. 16, who are entitled to social, legal and economic protection and the mother and children (irrespective of marital status and family relations) under Art. 17, Part n , and Paragraph 17, Part I, who are only entitled to social and economic protection; however I doubt if this argument would hold much substance as the anti-discriminatory clause contained in the Preamble to the Charter only guards against discrimination in the enjoyment of social rights. The Committee of Experts Report relating to Ireland The Independent Committee of Experts examined the position of children born out of wedlock under Art. 17 of the Social Charter and in Ireland's case they examined, inter alia, "the general legal position of illegitimate children and protection of unmarried mothers". 17 How- ever the Sub-Committee of the Governmental Social Committee in rejecting the Independent Committee of Experts conclusions in this matter made specific reference to the exclusion of the word "legal" from Art. 17 and in fact based their argument on this point: " . . . the Committee wished to point out that Art. 17 unlike Art. 16 did not mention legal protection . . . i t . . . felt that the problems arising from family law and from the law of inheritance did not enter into the sphere of Art. 17". 1 ' The whole argument of course depends on whether or not one regards social and economic rights as being intertwined with legal rights as to be inseperable therefrom. Certainly the Preamble to the Social Charter clearly shows that it is meant to complement the human rights and fundamental freedoms set out in the European Convention on Human Rights but whether this means