Family and Private Life
Article 8 of the European Convention provides that everyone has the right to respect for his family and private life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom.
Article 12 guarantee protects the right to marry and found a family. It provides that men and women of marriageable age have the right to marry and found a family according to the national laws that govern the exercise of this right.
Article 5, Protocol 7 provides for equality of rights and responsibilities between family members, including parents and children.
Nature of Family life
The European Court has defined family life as a matter of fact in the circumstances. The mutual enjoyment by parent and child of each other’s company is in a fundamental element of family life. Family life may exist by reason of effective ties and relationships of persons outside marriage; Johnston v Ireland.
The court found that “intended family life may exceptionally fall within the ambit of Article 8 in cases in which the de facto family life has not been established and is not attributable to the applicant. This applies in particular to the relationship between a child born out of wedlock and the child’s biological father, which are inalterably linked by a natural bond, while the actual relationship may be determined for practical and legal reasons by the child’s mother and, if married, by her husband.”
In Marckx v. Belgium it was indicated that marriage creates a presumption of family life between husband and wife even if they did not live together. Family life exists between parents and children from birth, irrespective of whether the parents live together. The ties of parent and child are broken only in the most exceptional circumstances.
In S.H. and Others v. Austria, the court found that a prohibition on egg and sperm donation breached Article 8 for couples for whom this represented their only chance to become genetic parents. The court acknowledged that there was a wide margin of appreciation for states as there was no European consensus on the matter.
Right To Marry
Article 12 of the European Convention on Human Rights guarantees the right to marry and the right to have a family. The limitations in many of the other key rights are not provided. The right is to be exercised in accordance with national laws governing its exercise. Not every limitation imposed by law is necessarily consistent with the general right. The limitations must be reasonable, legitimate and proportionate.
In B and L v. United Kingdom, the protection was violated in relation to a prohibition on marriage between a father-in-law and daughter-in-law during the lifetime of the former spouse. Its purpose was to protect the family. There had been proposals to amend the provision and the justification was not accepted.
In O ‘Donoghue v. United Kingdom it was held that a requirement for the Secretary of State to consent to marriages of non-EEA nationals in the United Kingdom was reasonable in principle in order to ascertain whether it was a genuine marriage or a marriage of convenience. A complete prohibition without any investigation of the marriage at the discretion of the Secretary was found to breach the right, as was a £295 fee.
Article 14 prohibits discrimination in relation to Convention rights, including the right to marry. This covers gender, race, religion, and other grounds. Any discrimination or differentiation must be justified.
A fixed designation of sex at birth was found to breach the rights of transsexuals to marry in Goodwin v. United Kingdom and L v. United Kingdom.
In Schalk and Kopf v. Austria, the Grand Chamber refused to interpret Article 12 in a more modern and potentially literal context to guarantee a right to same-sex marriage. Given the evolution of human rights since the Convention, it considered that the right to marry was no longer necessarily limited to couples of different sex.
However, it considered that the general right of same-sex couples to marry was within the margin of discretion of and a matter for the states. There was no obligation to allow same-sex marriage with reference to the equality provisions of Article 14. Equally evolving categories of civil partnership were matters of state discretion, the position was evolving and there was no consensus.
In Burden v. United Kingdom, tax incentives for marriage were held to be consistent with the equality guarantee requirement.
Right to Divorce & Remarry
In Johnson v. Ireland, it was held that there was no Convention right to a divorce.
In VK v. Croatia, where it was held that Article 12 required that the right to remarry should not be subject to unreasonable delay, uncertainty and restrictions. A prohibition on remarriage within three years in F v. Switzerland was found to breach Article 12 as being disproportionate, where it was applicable to the spouse found at fault in the breakup of the marriage.
Article 5 Protocol 7 provides, that spouses shall enjoy equality of rights and responsibilities of a private law character between them and in their relations with their children, as to marriage during marriage and in the event of its dissolution. This Article shall not prevent states from taking such measures as are necessary in the interests of children.
Adopted parents have the same potential for family life as biological parents. This is so even where there has been little contact and the adoption has been contested, Nepini and others v. Romania.
The concept of family life covers relationships between siblings in conjunction with those between parents and children. Relationships with grandparents may be included in some cases, Vermeire v. Belgium. Remote a multi-relationship are not usually covered. They may be protected by the guarantee in respect of private life.
In considering whether the relationship between unmarried adults constitutes family life for the purpose of the Convention, the court takes into account a number of factors;
- the length of the relationship,
- whether the couple lived together,
- whether they have demonstrated commitment to each other by having children together or by other means.
Same-sex couples may potentially enjoy family life under the Convention; Schalk and Kopf v. Austria. The court has acknowledged the rapid evolution towards same-sex couples and marriage in many states.
It appears that the court approaches the matter of family life with reference to a hierarchy. The highest degree of protection is enjoyed by married heterosexual couples, non-married couples and then more diverse and removed relationships.
Article 8 requires that the mother may enable recognition of the biological father. An irrebuttable presumption that the mother’s husband is the father is incompatible with the Convention. Koon v. Netherlands.
It appears however that third-party alleging patterning unilaterally is not protected by the guarantee of family life, where there was not an effective relationship between mother and father or where the relationship had ceased and the relationship was of a purely sexual nature after that. Family life requires signs of commitment to the child prior to birth, particularly so when another is providing legal father provides effective family life on an ongoing basis.
Questions of maternity may raise issues of private life for the putative father. On these issues, states are afforded a wide area of appreciation given that there is no consensus across Europe on the treatment of putative fathers in these circumstances.
In Anayo v. Germany, the refusal to grant access to a biological child on the basis that there was no established family life or relationship between them was held to violate Article 8. The fact that the father had not yet met the child was not a factor against him. The applicant did not have any contact with his biological children because their mother and legal father, who were entitled to decide on contact with other persons, refused this request to allow contact.
The court has taken a similar approach even in cases where the applicant has not established himself to be the biological father; Schneider v. Germany.
In Keegan v. Ireland, the applicant was an unmarried father whose daughter had been adopted against his wishes. The relationship with the child’s mother broke down shortly after she became pregnant. He had visited the child after birth but was thereafter denied access. The applicant sought guardianship and custody, which was opposed by the mother and prospective adopters.
The court held that there was family life in the circumstances of conception. The court emphasised the importance of the quality and procedural regularity of the adoption process, given its critical effect and generally irreversible nature. The court held that a process which allowed no involvement by the father could not be justified by the exceptions under the Article.
The Convention may require that a non-custodial parent has a right of access to a child born outside marriage. In Elsholz v. Germany, the court acknowledged the state’s margin of appreciation. The views of the child and psychological evidence are relevant.
The European Court has held that there is no Convention right to adopt a child. In Pini v. Romania, Italian parents had agreed to adopt Romanian children placed for adoption after abandonment by their parents. There had been little contact with the adoptive parents. Adoption orders were made and later overturned in the Romanian courts when the children were nine. The children expressed a desire not to be adopted.
The court having regard to the key importance of the best interests of the child, found that the Romanian courts had not breached the Convention. The court emphasised that while adoption might be in the child’s interests in many cases, adoption was a means of providing a child with a family rather than a family with a child.
In Emonet v. Switzerland, the effect of an adoption order where the child was adopted by her step parent, the relationship with her natural mother was deemed terminated. The automatic loss of right to by the natural mother and the failure to accommodate the particular circumstances was a breach of the Convention.
In EB v. France and X v. Austria, the court held that the refusal by a state to allow same-sex couples to adopt a child breached Article 14 and the protection of family life. Where the same-sex couple lived in a stable relationship, there was family life under the Convention. In X v. Austria the emphasis was on discrimination relative to different-sex couples because the second parent could not legally adopt in a same-sex couple.
In an earlier case Gas and Dubois v. France, there was a refusal to allow adoption in the case of two women living together in a civil partnership of a child conceived by them by means of assisted reproduction, brought up by both. This constituted family life, but the refusal did not violate the Convention because married couples only were permitted to have joint parentage in this manner.
The court had rejected the respondent’s claim for a wide margin of appreciation, as it considered the matter one of discrimination on the basis of sexual orientation, which accordingly was subject to a narrower margin of appreciation. The matter is controversial and seven dissenting judges were of the view that the majority had gone ahead of and anticipated social change.
Rights of succession have been held in Marckx v. Belgium to come within the concept of private life. In Pla and another v. Andorra, a will was interpreted so as to exclude an adopted child from succession against the apparent intention of the testator. This was held to violate the right to private life and the equality protection in Article 14.
In X v-Austria, the law did allow same heterosexual couples to have second parent adoptions and accordingly, the refusal was discriminatory under Article 14 and in breach of the family life protection.
Chbihi Loudoudi and Others v. Belgium concerned the procedure in Belgium for the adoption by the applicants of their Moroccan niece, who had been entrusted to their care by “kafala”1. The applicants complained in particular of the Belgian authorities’ refusal to recognise the kafala agreement and approve the adoption of their niece, to the detriment of the child’s best interests, and of the uncertain nature of her residence status. The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention concerning the refusal to grant the adoption, and no violation of Article 8 (right to respect for private and family life) concerning the child’s residence status.
Zaieţ v. Romania concerned the annulment of a woman’s adoption, at the instigation of her adoptive sister, 31 years after it had been approved and 18 years after the death of their adoptive mother. This was the first occasion on which the Court had to consider the annulment of an adoption order in a context where the adoptive parent was dead and the adopted child had long reached adulthood. In the applicant’s case, the Court, finding that the annulment decision was vague and lacking in justification for the taking of such a radical measure, concluded that the interference in her family life had not been supported by relevant and sufficient reasons, in violation of Article 8 (right to respect for private and family life) of the Convention. The Court noted in particular that, in any event, the annulment of an adoption should not even be envisaged as a measure against an adopted child and underlined that in legal provisions and decisions on adoption matters, the interests of the child had to remain paramount.
Right to know Origins
Mandet v. France concerned the quashing of the formal recognition of paternity made by the mother’s husband at the request of the child’s biological father. The applicants – the mother, her husband and the child – complained about the quashing of the recognition of paternity and about the annulation of the child’s legitimation. The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It noted in particular that the reasoning in the French courts’ decisions showed that the child’s best interests had been duly placed at the heart of their considerations.
Lavanchy v. Switzerland concerned the Swiss courts’ refusal to allow an exception to the time-limit laid down by domestic law (one year from the date of reaching the age of majority) for bringing an action to establish a legal parent-child relationship, and the consequent dismissal of the applicant’s action seeking to have the relationship with her biological father recorded in the civil-status register. The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention, finding that the delay on the applicant’s part in bringing proceedings to establish a legal parent-child relationship, as noted by the domestic courts, could not be regarded as justifiable for the purposes of the Court’s case-law. Hence, the Swiss courts had not failed in their obligation to strike a fair balance between the interests at stake. The Court noted, in particular, that the Swiss courts’ decisions had been carefully reasoned, taking the Court’s case-law into account.
Paparrigopoulos v. Greece concerned proceedings for the judicial determination of paternity of the applicant’s daughter. The applicant alleged in particular that domestic law had not afforded him the opportunity to acknowledge paternity voluntarily and that this had had the consequence of limiting his parental responsibility in respect of his daughter. As to the discrimination alleged, the Court held that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the Convention, finding that there was no reasonable relationship of proportionality between the preclusion of the applicant’s exercise of parental responsibility and the aim pursued, which had been to protect the best interests of children born out of wedlock.
The Court also held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in the present case. In this respect, it noted in particular that the proceedings had spanned nine years and four months and that the arguments put forward by the Government could not account for such a delay. Having regard to the positive obligation to exercise exceptional diligence in such cases, the Court found that the lapse of time could not be regarded as reasonable.
Scalzo v. Italycase concerned the applicant’s inability to bring an action to establish paternity on the part of her alleged biological father, owing, firstly, to the fact that under Italian law no paternity action could be brought until a final judgment had been delivered excluding paternity on the part of the putative father, and, secondly, to the length of the proceedings to contest paternity, which had been pending for over 12 years.
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention in respect of the applicant. It noted in particular that the applicant remained in a state of prolonged uncertainty with regard to her personal identity and that the way in which the proceedings were conducted constituted disproportionate interference with her right to respect for her private life. The Court therefore found that, in the circumstances of the case, the authorities had failed in their positive obligation to secure that right to the applicant.
León Madrid v. Spain 2021 concerned the applicant’s request to reverse the order of the surnames under which her minor daughter (born in 2005) was registered. At the relevant time Spanish law provided that in the event of disagreement between the parents, the child would bear the father’s surname followed by that of the mother. The applicant argued that this regulation was discriminatory.
The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private life) of the Convention, finding that the reasons given by the Spanish Government had not been sufficiently objective and reasonable in order to justify the difference in treatment imposed on the applicant. In particular, the automatic nature of the application of the law at the relevant time – which had prevented the domestic courts from taking account of the particular circumstances of the case at hand – could not, in the Court’s view, be validly justified under the Convention.