European Rights Committee Finds Finland’s Current Childcare Coverage Scheme Discriminatory
In a new decision, the European Committee of Social Rights (ECSR) assessed Finland’s lower level of childcare coverage for families with one parent who is unemployed or on parental leave, and found that the difference in treatment was discriminatory and violated the children’s and parents’ rights to social protection under the Revised European Social Charter. [ECSR Press Release] Finland’s 2016 amendments to the Act on Early Childhood Education and Care limited early childhood education and care to 20 hours per week (rather than full-time) depending on the employment or parental leave status of a child’s parent. See ECSR, Central Union for Child Welfare (CUCW) v. Finland, Complaint No. 139/2016, Merits, 4 February 2020, paras. 11, 14, 115. In its decision, the ECSR noted that the Finnish government had already introduced new amendments to the law, reinstating the right to full-time early childhood education and care for all children, and that those amendments would bring Finland into compliance with the Charter when they become law. [ECSR Press Release] The 2019 amendments to the Act on Early Childhood Education and Care are part of a broader effort by the government of Finnish Prime Minister Sanna Marin to “better equality between parents and diversity among families,” which includes a new law increasing parental leave to a total of 164 days for all new parents, regardless of parents’ gender or form of family. [Reuters; Ministry of Social Affairs and Health: Press Release]
In 2016, Finland amended the Act on Early Childhood Education and Care in an effort to cut costs associated with its preschool facilities. See ECSR, Central Union for Child Welfare (CUCW) v. Finland, 4 February 2020, paras. 41, 70. The 2016 amendments to Finland’s legislation limited access to early childhood education and care to 20 hours per week (four hours a day) for children of unemployed parents or parents on parental leave for a sibling. See id. at para. 64. Prior to these amendments, all children who had not “reached mandatory school age” were entitled to full-time childhood education and care. See id.
In response to the changes, the Central Union for Child Welfare (CUCW) lodged a complaint before the ECSR on November 14, 2016, alleging that the 2016 amendments violated Article E (prohibition of discrimination) of the Charter in conjunction with the right of families to economic, legal, and social protection (Article 16) and the right of children and young people to economic, legal, and social protection (Article 17), as well as the right of workers with family responsibilities to equal treatment and opportunities (Article 27). See id. at paras. 1-2, 11. The ECSR admitted the complaint on May 10, 2017. See id. at para. 3.
Article E & Article 17
The ECSR first considered whether there had been a violation of Article E taken in conjunction with Article 17 (children’s right to social, legal, and economic protection) of the Charter. See id. at paras. 39-40. Article 17 requires that States parties to the Charter ensure that children and young people “grow up in an environment which encourages the ‘full development of their personality and of their physical and mental capacities.’” See id. at para. 65 (citing the Charter). Article E is triggered if there is a difference in treatment between individuals in comparable situations, and the difference in treatment does not have “an objective and reasonable justification.” See id. at 65-69. The ECSR stated that there was a difference in treatment in this situation given that “children whose parents are unemployed or on parental leave do not have equal access to early childhood education services.” See id. at para. 67.
While the Committee acknowledged Finland’s effort to reduce its public spending – estimated at 62 million euros per year on preschool facilities – could be “justified in the public interest and serve a legitimate purpose,” the Committee was not convinced that the public interest would be served by limiting access to early childhood education and care on the basis of parents’ employment or parental leave status. See id. at paras. 41, 70-71. In particular, the ECSR highlighted that early childhood education and care promotes child development, and restricting it based on parents’ circumstances or socio-economic status “creates inequality” and “bars access…to those children who need it most.” See id. at paras. 72, 74, 76. The Committee concluded that “the difference in the treatment of children whose parents are unemployed or on maternity, paternity or parental leave, compared to those of parents who work, has no objective and reasonable justification.” See id. at para. 77. Thus, it found that there had been a violation of Article E, taken in conjunction with Article 17 of the Charter. See id. at para. 78.
The Committee stated that its analysis with regard to Article E and Article 17 of the Charter, also applies to Article 27, which guarantees all workers with family responsibilities equal treatment and opportunities. See id. at paras. 93-95. The Committee held that there had been a violation of Article 27, reiterating that Finland “failed to provide an objective or reasonable justification for [the] difference in treatment” that the 2016 amendments created with respect to access to childcare between parents who are unemployed or on parental leave and parents who work. See id. at 93-94. The Committee emphasized that these measures penalize parents “who are in most need of support to be able to enter or re-enter employment.” See id. at para. 95.
Article E & Article 16
While Article 17 protects the right of children to social, legal, and economic protection, Article 16 of the Charter protects the right of the family unit to social, legal, and economic protection. See id. at para. 97. The CUCW argued that the policy excluding unemployed parents from full-time childhood education and care placed them at “an even more disadvantaged position than others,” contrary to Article 16. See id. at 100.
The Committee analyzed Article E in conjunction with Article 16, finding that as a result of the 2016 changes to Finnish law, families “face a twofold discrimination” given that when a parent is unemployed or on parental leave, both the children and parents in those families are not granted access to the full-time early childhood education and care that is available to employed parents and their children. See id. at para. 110. The Committee acknowledged that migrant families, whose children may be the most in need of full-time early education to “overcome cultural and linguistic barriers,” and single-parent families are often the most affected by the policy because parents in these situations may be unemployed or not work full time. See id. at para. 111. The ECSR again found that the Finnish government did not provide an “objective and reasonable justification for [the] difference in treatment for the most vulnerable or disadvantaged families.” See id. at para. 113. Thus, the Committee concluded that there had also been a violation of Article 16. See id. at para. 114.
The ECSR, which has its seat in Strasbourg, France, oversees the protection of economic and social rights in most of Europe. The Committee was established under the European Social Charter of 1961 and is tasked with monitoring the implementation of the 1961 European Social Charter, the 1988 Additional Protocol, and the 1996 Revised European Social Charter. See IJRC, European Committee of Social Rights. Unlike many other international human rights bodies, the Committee receives collective—as opposed to individual—complaints against States that have accepted the collective complaints procedure. See id. Several types of organizations are entitled to file complaints with the Committee regarding a State’s violation of the Charter, including certain international nongovernmental organizations and national employer organizations and trade unions. See id. Following a Committee decision, the State must report annually to the Secretary General of the Council of Europe regarding the steps it has taken to implement the Committee’s recommendations. See id.
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