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.

Same-Sex Adoption

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.

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.

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.


The issue of private life comes up frequently in the context of the enforcement of immigration and asylum legislation. Decisions taken by immigration and asylum authorities may have the effect of separating family members or denying entry to family members who seek to come to live with relatives in the respondent country.

The court has held that there is no right for a non-national to enter or reside in a particular country under the Convention. However, the refusal to admit may raise Convention rights.

Applications and orders to deport or exclude persons such that there is an interference with family life must be done in accordance with law. The degree of scrutiny is dependent on the extent and nature of interference with family life and the circumstances.

Deportation Standards

Deportation must serve a legitimate aim and be necessary in a democratic society. It must be proportionate and serve the need in question.

In CG v. Germany, Bulgarian, a Turkish national and families were the subject of a deportation order and summary deportation based on a threat to national security. He was, in fact suspected of being involved in drug dealing.  The court held that the deportation must be the subject of proper proceedings before an independent authority to verify and examine the reasons put forward. The court emphasised that even in a case involving national security where the degree of scrutiny was less in view of the sensitivity of the matter, slightly less strict criteria might apply in respect of serious criminality.

Al-Nashif v. Bulgaria involved a Palestinian national who was prosecuted and deported for engaging in teaching the Muslim religion without authority and having certain links to a fundamentalist organisation. The reasons for the decision were not given to the applicant or his legal advisers. The state’s decisions were taken without any adversarial process. This court, by a majority of 4 to 3, held there were sufficient safeguards against arbitrary action.

In Boultif v. Switzerland, the court indicated, “the Court will consider the nature and seriousness of the offence committed by the applicant; the duration of the applicant’s stay in the country from which he is going to be expelled; the time which has elapsed since the commission of the offence and the applicant’s conduct during that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage; other factors revealing whether the couple had a real and genuine family life; whether the spouse knew about the offence at the time when he or she entered into the family relationship; whether there are children of the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse would be likely to encounter in the applicant’s country of origin, although the mere fact that a person might face difficulty in accompanying her or his spouse cannot by itself preclude expulsion.”

Family Life & Deportation I

In this case, the applicant was an Algerian national living in Switzerland with his Swiss wife. He was prosecuted, convicted, and imprisoned for robbery and damage to property; the crimes were considered particularly ruthless and brutal. His residence permit was withdrawn. In the circumstances, there was a practical impossibility of him establishing a family life for himself and his wife outside of Switzerland. Accordingly, the deportation was not proportionate to the prevention of crime and disorder.

The test of family life is at the time relevant deportation or other equivalent order is made. In Maslov v. Austria, a 17-year-old who had lived in Austria for 11 years was convicted of multiple burglaries and was subject to a deportation order. The court indicated that very good and cogent reasons would be required for the deportation of a settled migrant who had lawfully spent all or most of his or her childhood or youth in the host country.

In Mustaquim v. Belgium, the applicant had lived in Belgium since the age of two years It was held that deportation would deprive him of family life with parents and siblings.

Family Life & Deportation II

In Nasri v. France, a deportation order against an Algerian national breached his right to family life in particular circumstances,  which were exceptional. He was convicted of gang rape. He was deaf and could not speak and had lived almost all his life in France with his parents and eight siblings.

In Al-Nashif v. Bulgaria the court said: Where immigration is concerned, Article 8 cannot be considered to impose on a state a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory. However, the removal of a person from a country where close family members are living may amount to an infringement of the right to respect for family life under the Convention.

In Nunez v. Norway, the applicant had been deported from Norway following a criminal conviction and reentered using false information. However, it was held that the state had not struck a fair balance between the applicant’s interests in remaining in Norway to maintain contact with their two children and the state’s interest. An expulsion and two year re-entry ban breached the protection.

In Antwi v. Norway, the first applicant had forged a passport and birth cert to obtain a work permit and residence permit in Norway, and subsequently to renew them. Both he and his wife and their 10-year-old child were deported to Ghana. It was found that this was not disproportionate, notwithstanding that the child had minimal links to Ghana.

The court in assessing whether there is family life, considers the relationship between persons who have been living together and the relevant length of  time. The court also recognises that family life may exist irrespective of the length of its existence. Other wider family ties may be part of family life which may form in fact, over time and become stronger as persons live and develop a life within the country with a wider circle of family ties.

Where there is no practical possibility of the family establishing elsewhere and other family members seek to join family members with a Convention country, their application must be examined with reference to their individual circumstances. In a number of cases, East African Asians v. United Kingdom (1970) a complaint was admissible by a husband to join his wife and six children who were lawful residents. The case was withdrawn, and permanent residence was afforded.

Family Life & Deportation III

The Convention in no way guarantees a right to family life in a particular country. It protects the family life somewhere but not necessarily in the Convention country concerned. In the case of children, they would generally be in a position to enjoy family life only where their parents reside.

In Abdulaziz and others v. United Kingdom, a challenge was made by the spouses of women who had become lawfully permanently settled in the United Kingdom. The court affirmed, as it had in previous cases, that family life could exist even if the couple had not yet established a home together. In this particular case, the parties had cohabited and in one case had a child. This constituted family life.

The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a contracting state to respect the choice by married couples of the country of their matrimonial residence and to accept the non-national spouse for settlement in that country. The court held that in the particular circumstances, there was no violation, coming to a different conclusion to the Commission.

In Abdulaziz and others v. United Kingdom, the court held that a UK effective practice of allowing a wife to join a husband, lawfully resident in the United Kingdom, was discriminatory relative to the practice of not generally allowing a husband to join a wife in the country when the Convention right to private life was considered together with the equality right.

In Berrehab v. Netherlands, the applicant was divorced from his Dutch wife and the child was born after their separation. The applicant was refused a residence permit, and this was held to constitute a violation of the right to family life as although he had only visitation rights to his daughter, he would be deprived of regular contact. It was not enough that he could travel from Morocco to the Netherlands. Even the public order exception was not available as it was disproportionate to in the circumstances.


In Boyle and Rice v. United Kingdom court indicated: When assessing the obligations imposed on the States by Article 8 in relation to prison visits, regard must be had to the ordinary and reasonable arrangements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner’s contact with his family. There was no admissible complaint where the applicant was permitted 12 visits a year of one- hour duration.

In Moiseyev v. Russia, the applicant was sentenced to four years in a  strict-security correctional prison. He initially had no visits for nine months and was thereafter afforded two visits per month of an hour. He was separated from his wife and children by a partition and a prison warden was present. In a seven-month period, while an appeal was pending, the visits were suspended entirely.

The refusal of visits was not clearly permitted by law which had predictable application as the investigator had unlimited discretion in relation to visits. It was held that limits on frequency and duration were not in the circumstances proportionate. The prisoner was not in high security category.

In Messina v. Italy involving high-risk mafia members, the presence of a security screen could be justified only if there was a security risk.

In Piechowicz v. Poland, a refusal to allow contact with the applicant’s established partner of two years was held to be disproportionate in terms of prevention of crime even in circumstances where she was indicted in similar proceedings. An outright refusal for a nine-month period was similarly considered disproportionate.

A refusal to afford compassionate leave for funerals, visiting seriously ill children and a refusal to permit attendance of a funeral of a close relative, may violate Article 8 (Giszczak v. Poland).

Prisoners continue to enjoy fundamental human rights and freedoms consistent with the deprivation of liberty involved in imprisonment. This includes the right to marry and right to maintain family life. The restrictions must be proportionate in terms of the competing interests of the state and the individual.

In Dickson v. United Kingdom, the applicant was convicted of murder with a minimum sentence of 15 years. He met the joint applicant through pen pal prison correspondence and they later married. The Secretary of State had the discretion in relation to facilitating their having a child together. They sought artificial insemination facilities. Court held that public opinion was insufficient for an automatic refusal. The welfare of a child was a relevant consideration.

Most states permitted conjugal visits. Although the court did not consider whether states were obliged to do so, it found by a majority that there had been a violation of the family life provision..

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.

Same-Sex Marriage

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.


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