ECHR Article 8
The European Convention on Human Rights, Article 8, provides that every person has a right to respect for his private and family life, his home and correspondence.
There should be no interference by a public authority with the exercise of this right, except where it is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or 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 freedoms of others.
The obligation to respect family life entails both largely negative obligations not to interfere and, in some cases, positive obligations to take steps. However, interference is justifiable with reference to the above criteria. States may strike a balance between the competing interests of the family as such and individuals constituting it and the public as a whole.
The concept of family life under the Convention is different to that pertaining under the Irish Constitution. The Irish Constitution limits family to a family based on marriage. Cases have been taken in Ireland on the basis that this is too narrow a concept of family.
The European Convention protects arrangements which comprise family life in substance. The Convention protects the family based on non-marital relationships and potential relationships, such as that of engaged persons.
Family life refers to family ties between persons. The European Convention on Human Rights has enhanced the protection of family relationships. Family life exists between parents and children in most cases, regardless of the parent’s marital status, family living arrangements or apparent lack of commitment to the children.
Some stable informal relationships are protected, such as where the parties are a couple but are not married or engaged, provided that they are in a long-term relationship. Family life may exist between children, grandparents and other close relations.
This is in contrast with the emphasis under the Irish constitution on the right of the marital family in contrast with the non-marital family. Family life may exist for the purpose of the convention between siblings, grandparents, uncles and nephews and parents and children of a second relationship.
The concept has been extended to transsexuals, their partners and children. As of 2005, the position had not been considered in relation to whether other same-sex couples might constitute family life. In the early 1990s, a Commission decision for the country was made, but this would appear to be out of line with more modern cases and practices of the courts.
Family life exists once there are children, including unborn children. Unlike an unmarried mother, an unmarried father does not have an automatic family life with his child. The court considers the nature of their relationship, and in exceptional cases, there may be deemed to be no family life. A genetic link is not required.
Unconventional family forms may be protected such as transsexuals with children conceived by artificial insemination. The Commission has taken the view that stable relationships between same-sex parents and the child, including one through donor insemination, is covered by family life.
States may interfere with family life in the manner set out above. The interference must be in accordance with law and must have a legitimate base. It must be clear and precise. It must not allow arbitrariness on the part of a public authority.
The state may be permitted to interfere in family life, such as by way of taking children into care. The criteria must be certain and subject to test and examination. The interference with family life must be for a legitimate reason, such as to protect the health and morals of the persons concerned.
The interference must be such is necessary in a democratic society. In this context, necessary does not mean that there is absolutely no other choice. A fair balance must be struck between respect for family life and the public interest.
Article 12 declares that men and women of marriageable age have the right to marry and found a family according to the national laws governing this right. There are no express restrictions in the public interest but marriage between prohibited degrees is likely to be legitimately prohibited.
The Convention recognises that marriage confers a special status, so that it has refused discrimination claims made by unmarried persons in certain contexts such as for tax relief.
The court has upheld the right of persons who are imprisoned to marry in jail. Prisoners have been held to have the right to found a family. A prohibition on a father-in-law marrying a daughter-in-law under UK law was overturned as inconsistent with the Convention.
Spouses are to enjoy equality of rights and responsibilities in private law under Article 5 of Protocol 7. This also applies in the relationship with their children marriage, during marriage and in the event of dissolution. States may take measures as are necessary for the interest of children.
An unmarried father seeking to rely on the protections must establish that his relationship with his child falls under the scope of family life before he may be protected by the provisions.
Provisions in relation to taking children into care and restricting contact with parents must satisfy the requirements of the Article. Restrictions must be lawful in both in a strict legal sense and in the sense of fair procedures.
The protection of the child’s health and morals in accordance with his best interest appears compatible with the convention. However, the measures must be proportionate. The interference with family life must be proportionate to the underlying needs.
The EU Charter of Fundamental Rights provides that every person has the right to respect for his private or family life, home and communications. It also provides that everyone has a right to the protection of personal data concerning him or her.
Accordingly, the basic data protection rights which largely emanate from the European Union are embodied in the charter. See generally the sections on data protection.
Personal data must be processed fairly for specified purposes on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has a right of to access data which is being collected concerning him and the right to have it rectified. Compliance with the rules must be subject to control by an independent authority.