8. Respect for private and family life under Article 8

Question 1

What is art. 8?

Answer 1

Respect for private and family life

Question 2

Which other art. must you have in mind when talking about art. 8?

Answer 2

art. 12 - right to marry and to found a family

Question 3

What is the character of art. 8?

Answer 3

art. 8 is one of the most open-ended provisions of the convention.

Question 4

Sommerfeld v. Germany, 8 July 2003 (paras 42-75)

Custody, access, and care proceedings

(expert not needed)

Answer 4

The case concerned a 13-year- old girl that had expressed her clear wish not to see her father, and had done so for several years, and where forcing her to see him would seriously disturb her emotional and psychological balance; the decision to refuse contact with the father can be taken to have been made in the interests of the child. No expert reports were needed.

Question 5

Art. 8, 12 og art. 5 of protocol 7?

Answer 5

• These 3 articles are somewhat disparate (forskellige). In article 8 the right to respect for family life, the right to respect for private life, and the right to respect for the home and correspondence may be read together as guaranteeing collectively more than the sum of their parts. Subject to that important point, it is not possible to categorise the rights protected by article 8 in providing synthesis of the case-law.

Question 6

Hows family defined?

Answer 6

• A mother and father and children who are dependent on them, including illegitimate and adopted children, constitute a family. The court has said, that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. De facto family ties can arise where parties are living together outside marriage.

o The family also exists even where the parents does not live together at the time of the child’s birth. Only in exceptional cases this bond between parent and child will be broken.
o It is a violation to article 8 to deny a mother the opportunity to enable recognition of the biological father of her child. A legal presumption that the husband is the father of a child born in wedlock (ægteskab) which cannot be denied by the mother may violate article 8.

Question 7

Defining family life - adoption situation

Answer 7

• Adoption places the adoptive parents in the same position as biological parents for the purposes of the protection of family life, even where there has been a little contact with the adopted child and where the adoption is contested.
o Relationships between brother and sisters are also covered.
o In some circumstances the relationships with grandparents may be protected under article 8. More remote relationships does not fall within family life, but may be protected under private life.

Question 8

Hows “Family” after ones death?

Answer 8

• The need for respect for family life continues beyond death

Question 9

Defining family life - unmarried

Answer 9

• In deciding whether a relationship between unmarried adults is under the protection as family life, the court has a number of factors which should be taken into account:
o Does the couple live together, the length of their relationship, do they have children together and so on.

Question 10

Defining family life - same-sex couples

Answer 10

Same-sex couples have also recognised as enjoying a family life under article 8.

Question 11

Positive obligations and family life

Answer 11

• The notion of “respect” in the article is a relatively imprecise one, but the commission and the court have applied an interpretation which serves to give effect to the continuing evolution of concepts of privacy and family life. Article 8 prohibits arbitrary interferences by a state into respect for family and private life, the home and correspondence.
• Positive obligations under article 8 can arise in two situations:

1. Where a state must take some action to secure respect for the rights included in the article.
   i. For example immigration cases where a state must allow a person to enter or remain in the country.
2. Where the duty arises for a state to protect an individual from interference by other individuals.

Question 12

A right to reproduce by means of assisted reproduction and/or surrogacy?

Answer 12

• Not surprising that the court has faced this question about reproducing using such technology.
• Violation of article 8 where a state prohibit all egg donation and sperm donation for the purposes of IVF.
o A complete ban on IVF will be harder to defend.
• Also cases about surrogacy (til ufrivilligt barnløse) -

Question 13

Custody, access and care proceedings

Answer 13

• Many application under article 8 concern the relationship of parents and children after a marriage breakdown or other family crisis - where the court make an order concerning the custody of/access to the children. Or when children are taken into care of the public authorities.
• In these situations, the states are required to balance a number of right, which may compete or conflict with each other. Each parent (or grandparents) has a right to respect for his of her family ties with the child under article 8 - and the child has a right to respect for his of her family life. But the best interests for the child may not to be with the birth parents (by removing it from a bad home environment). Here the overriding interest is the child’s safety and well-being.

Question 14

Custody, access and care proceedings - decession

Answer 14

• Often in respect of care decisions, time will be of the essence.
o In the context of care decisions, the court sometimes has the difficult task of balancing parental rights against the best interests of the child, which is recognised to be the primary consideration.

Question 15

International child abduction (bortførelse) cases

Answer 15

• Increasing number of cases.
• The court has made clear in a number of cases that the state’s obligations under article 8 in this context are to be interpreted in harmony with the general principles of international law, with particular account to be given to the provisions of the Hague Convention.
o In a case the court concluded that the son’s return to his father in Italy was not necessary in a democratic society. Relevant factors: the father and child had no language in common, he had never lived without his mother and his mother was unable to live in Italy with him. This were the best for the child.

Question 16

The right to adopt

Answer 16

• The court has held that the convention does not include a right to adopt a child. Adoption means “providing a child with a family, not a family with a child”. Where there are competing interests between those of the child and of those seeking to adopt, then the best interests of the child till be key in determining how those competing interests are to be resolved.
• In recent years, cases have arisen concerning second parent adoption within same-sex couples - that is the situation where one partner has a child and the other partner wants to adopt the child in order to share legal parentage. The court has confirmed that the refusal of adoption on the basis of sexuality was a violation of article 14 in conjunction with article 8.

Question 17

Inheritance (arve) rights

Answer 17

• The court has accepted that the rights of succession between near relatives came within the sphere of family life.
• Many cases involving rights of inheritance are pleaded under article 1 of protocol 1 and article 14.

Question 18

The family life of non-nationals - when expelling or refusal of admission.

Answer 18

• Actions by states, such as expelling a person from a country or refusing to admit someone, may result in separation of husband and wife or parents and children. When expulsion or refusal of admission is the source of the complaint, that action itself cannot constitute a breach of the convention. The convention does not guarantee any right to reside in a particular country. Even though it is necessary to examine whether such complaints in relation to article 8 where such measure might disrupt the family unit. Such questions can involve the protection of private life as well as family life.

Question 19

The family life of non-nationals - exclusion or deportation

Answer 19

• Where there has been an interference with family life by reason of an exclusion or deportation, that decision must be made in accordance with law, which requires a legal basis that is accessible and foreseeable. The level of protection will depend on the nature and extent of the interference with family life. Safeguards will be required even in cases involving national security, since the individual must be able to challenge the executive’s assertion that national security is at stake

Question 20

The family life of non-nationals - Is law criteria is satisfied whats next to examin in deportation cases?

Answer 20

• If the quality of law criterion is satisfied, the court will go on to consider whether the deportation or exclusion serves a legitimate aim. This has not generally proved problematic. In the most commonly met cases in which the applicant has become involved in some criminal activity, the measure will serve the purpose of being for the prevention of disorder or crime.
• Finally the court will decide whether the deportation or exclusion is necessary in a democratic society, which requires states to show that the action is justified by a pressing social need and is proportionate to the aim pursued.

Question 21

The family life of non-nationals

• When considering whether there exists an effective family life, the court normally requires two elements:

Answer 21

1. A close relationship

2. One between persons who have been living together at the time of, or shortly before, the alleged interference.

Question 22

The family life of non-nationals

Answer 22

• THE CONCLUSION: the convention does not guarantee the right to family life in a particular country, but only an effective family as such, no matter where. This is modified in the case of the relationships between parents and their children if the latter are not admitted to the country here the former have their residence.

Question 23

The family life of prisoners

Answer 23

• Applicants detained in prison have frequently complained of interference with the right to respect for family life. Some have complained that they have been refused permission to have visits from their children. The commission have rejected such complaints under paragraph (2), for example on the ground that such interference with family life was necessary for the prevention of crime.
• In a number of other cases, the court has recognised that a prisoner’s right to respect for family life requires that prison authorities assist him in maintaining contact with his family.
• A refusal to grant compassionate leave to attend the funeral of the prisoner’s father may breach family life in article 8. Also a violation if it is a refusal to see a very sick child in the hospital.

Question 24

The right to marry and found a family

Answer 24

• Article 12 guarantees the right to marry and to found a family. These rights are not subject to the limitations in the paragraph (2) of article 8-11. Instead the limitations are found in the provision.

Question 25

The right to marry and found a family - the scope

Answer 25

• The scope of this qualification is not clear. It is evident that the exercise of the rights guaranteed cannot be wholly governed by the national law. But the purpose of the convention, is to guarantee certain human rights irrespective of the provisions of national law. THE CORRECT VIEW is therefore, that article 12 imposes an obligation to recognise, both in principle and practice, the right to marry and to found a family. The obligation implies that the restrictions placed on these rights by national law must be imposed for legitimate purpose, for example to prevent polygamy or incest. The precise scope may vary among the states, for example the marriageable age.

Question 26

Art 14 in relation to art. 12

Answer 26

• Article 14 is also of special importance in relation to article 12, since it prohibits discrimination on grounds of sex. This, in relation to marriage and founding a family, there must be no discrimination between men and women.

Question 27

Art. 12 in relation to art. 8

Answer 27

• While the right to marry and the right to found a family are two separate rights, it seems from the wording of the article, that only married heterosexuals can found a family. If the article said “Everyone has…” it might have been easier for unmarried people or same-sex couples to found a family.
o The wording also says “this right” and not “these right” and it shows the connection between the two rights.
o But even if unmarried persons may have no right under article 12 to found a family, the term “family” in article 8 has a wider meaning as we have seen.

Question 28

What about the right to get divorced?

Answer 28

• Several applications have sought to read into the provisions of article 8 and 12 a right to divorce, but the court has concluded, that the right to divorce cannot be deprived from the provisions of article 12 or 8. But there will in article 12 be a right to remarry.