Posts tagged HRC
Posts tagged HRC
The right to respect for family life is grounded in the protection of family integrity. Family can be based inter alia on blood ties, economic ties, marriage and adoption. The European Court has generally considered family to consist of husband and wife and children who are dependent on them. The relationships between brothers and sisters and in some instances relationships with grandparents are protected under Article 8 (seeVermeire v. Belgium, Application No. 12849/8, Judgement of 29 November 1991). Some weight is also placed on de jure family life through marriage, but more on de facto family life through daily practice, leaving the option to evaluate each family unit claim on a case-by-case basis. Given modern changes in the social and cultural patterns of family life, this flexibility is important. In Berrehab v. The Netherlands (Application No. 10730/84, Judgement of 21 June 1988), the Court held that in case of a lawful and genuine marriage:
It follows from the concept of family life on which Article 8 is based that a child born of such a union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to “family life”, even if the parents are not living together.
Although the Court did not see cohabitation as a sine qua non of family life between parents and minor children, ‘irregular’ living arrangements have complicated determination of the existence of family life and the states’ obligations towards the individual.
The Human Rights Committee has in General Comment 16 interpreted the term family broadly ‘to include all those comprising the family as understood in the society of the State party concerned.’ In Hopu and Bessert v. France , the Committee discussed the definition of family.
Although the European Court appears to favour vertical family relationships (children/parents/grandparents) over ‘horizontal’ relationships (siblings/nephews/nieces), siblings may have a right to enjoy family life with each other (see Olsson v. Sweden , Application No. 10465/83, Judgement of 24 March 1988). The Court has also established that family encompasses de facto relationships in addition to those established by marriage. Whether a relationship can be said to amount to ‘family life’ depends on a number of factors such as whether the couple lives together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means (see Marckx v. Belgium , Application No.6833/74, Judgement of 13 June 1979,Keegan v. Ireland , Application No.16969/90, Judgement of 26 May 1994 and Kroon et al. v. The Netherlands , Application No. 18535/91, Judgement of 27 October 1994). In the case of Abdulaziz, Cabales and Balkandali v. The United Kingdom, the Court found that ‘this does not mean that all intended family life falls entirely outside [Article 8’s] ambit’. In X.Y.Z v. The United Kingdom, the European Court established that family is not limited to relationships established by blood or marriage.
It is worth noting that Article 5 of Protocol No. 7 to the European Convention sets out equality of rights and responsibilities of spouses, both during marriage and after its dissolution. A state must always make its decisions according to the best interests of the child standard, under either case-law or the Convention provisions. Although the Court considers that states may determine which parent should have custody of a child, it also maintains that the other parent has a right of access in order to preserve the right to family life under Article 8. The Court confirmed this position in Hokkanen v. Finland (Application No. 19823/92, Judgement of 23 September 1994) in which a father contested custody and access issues with the child’s grandparents. On the death of the mother, the father had surrendered their child to the care of the grandparents. Although he had a right of custody and access, the Finnish authorities did not enforce these rights: he ultimately lost custody to the grandparents. The European Court found a violation of Article 8 on the access issue but held that the transfer of custody fell within the state’s margin of appreciation. In K. A. v. Finland (Application No. 27751/95, Judgement of 14 January 2003) the European Court concluded that there had been a violation of Article 8 as a result of the state’s failure to take sufficient steps to reunite the applicant and his children. (See also Venema v. The Netherlands , Application No. 35731/97, Judgement of 17 December 2002). The case of Hansen v. Turkey is demonstrative; here the European Court found that Turkey had violated the right to respect for family life by failing to ensure the applicant’s rights of access to her two daughters.
A similar case was brought to the Human Rights Committee: Fei v. Colombia