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.
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 h,owever 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.
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.
State and Privacy
In Van der Heijden v. Netherlands, the applicant was required to give evidence against the person in criminal proceedings, who was a long-standing companion with whom she enjoyed family life. The court acknowledged the competing interest and upheld the requirement that persons had to register their relationships formally or legally married in order to avail of the exemption from testimony. States are entitled to set boundaries on the scope of testimonial privilege and draw the line at marriage or registered partnership.
The Convention requires states to respect private and family life, home and correspondence of persons. It is argued that this requires positive action on the part of states to respect these rights.
Custody & Access
In cases involving custody access and care, a balancing of state interests and private interests may arise. The State must balance those rights where they conflict. Each parent and, in some cases, other persons have a right to respect where their family ties with the child are the subject of the proceedings.
The child has the right to respect for his family life. The best interests of the child may require removal from parents on the state has a duty to protect the child from sexual, emotional and physical abuse.
The European Court does not review the findings of facts and decisions of domestic courts readily in these matters, which are dependent on particular facts and circumstances. It considers this sufficiency of reasons given and the fairness of the procedure involved.
The degree of appreciation will depend on the particular circumstances. The emergency taking of a child into care will involve a wider margin of appreciation than a decision on the child’s long-term removal from parents and a complete cutting of ties; Ageyevy v. Russia.
In Vojnity v. Hungary, the applicant’s right of access to a son was withdrawn on the basis of religious belief. This breached Article 14 and Article 8. The court did not accept the state’s argument based on the threat to the child’s psychological health from proselytism and the state’s opinion that the applicant’s participation in the child’s life is harmful. It concluded there was no convincing evidence to substantiate a risk of actual harm as opposed to mere discomfort, embarrassment and unease, which the child might have experienced on account of the parent applicant’s aim to transmit his religious belief.
In extreme cases, such as taking a child from a mother at birth due to evidence of psychotic illness, there was a breach of the Convention as alternatives were not considered; A& T v. Finland. If there is evidence of improvement in the health position, the arrangement should be capable of re-examination and assessment in light of the positive duty to facilitate family life.
States are expected to examine the position from time to time in the extreme circumstances of child removal to see whether there has been any improvement in the family situation. This is particularly so as the prospect of family re-unity may be diminished with time, and the relationship with a biological child may be progressively weakened and harder to reconstruct.
Where a care order is given effect in a manner which disperses children more than necessary and makes family reunification more difficult, there may be a breach of the state’s duty, Olsson v. Sweden. Similarly, where visitations are not practicable, there may be a breach of the Convention rights.
In RK & AK v. United Kingdom, a child of parents with little English was taken into care after attending hospital with a broken arm. The authorities became convinced that the injury was not accidental. It later emerged that the child suffered from a brittle bone condition which was likely to be the cause. The court held there had been no violation in the original care order as mistaken assessments in themselves do not render the measures incompatible with the Convention.
In Sommerfeld v. Germany, the majority of judges did not consider it necessary to obtain a psychological report where views had been expressed by children at the age of 10, 11 and 13. Three dissenting judges considered psychological evidence necessary in these circumstances.
In A.K. and L. v. Croatia, the applicant had been divested of parental rights in the context of care proceedings. She argued that she was incapable of participating in or understanding the proceedings. The court emphasised the importance of procedural safeguards. The court emphasised the importance of taking into account the views and interests of the natural parents. They must be made known and duly considered. Failure to do so may constitute a failure to respect family life.
In C v. United Kingdom, a care and placement order was challenged. The court indicated in seeking to identify the best interests of a child in assessing the necessity of any proposed measure in the context of placement, the domestic court must demonstrate that it has had regard to the age, maturity and ascertained wishes of the child, the likely effect on the child if ceasing to be a member of the original family and the relationship the child has with relatives.
An initial care decision may be of an emergency nature. A delay may constitute a breach of the right to respect for family life. The failure to deal diligently with the applicant’s request for visitations in itself breached the duty.
In Neulinger and Shuruk v. Switzerland, the applicant abducted the child from Israel to Switzerland. The court upheld the decision of the domestic court that the return of the child to Israel would not be in the child’s best interests.
In Sneersome & Kampenella v. Italy, the applicant challenged the decision of Italian courts to return his son to Latvia, being against his best interests and in breach of international and Latvian Law. The court emphasised, as in the Neulinger case, that the key issue was whether a fair balance between the competing interests of the child, parents and the public interest had been struck.
The child’s interest is a primary consideration and was primarily to be considered to be the right to have his ties with his family maintained unless it is proved that the ties are undesirable and to be allowed to develop in a sound environment. The court concluded that the return was not what was necessary in a democratic society. The child and father had no language in common. He had never lived separate from his mother and his mother was unable to move to Italy.
In Shaw v. Hungary, a complaint was made by the applicant that the respondent authorities did not take sufficient matters to ensure reuniting of the applicant with his daughter after abduction to France.
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