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".

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.

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

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

and that of the natural father to his

illegitimate child.

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.

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".

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

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.

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".

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".

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