Right to private and family life

Question 1

What is family life?

Answer 1

1. No clear definition, it’s a matter of facts
2. Living together is not necessary
3. Must include:
   - Stability
   - Care (‘love’)
   - Dependency
4. In a marriage, there is presumption of family life
5. Adoption has the same position as if it were biological parents
6. Grandparents might be protected if there is dependency, care and stability

Question 2

What is private life?

Answer 2

1. No clear definition
2. Right to privacy includes:
   - Right to live as one wishes
   - Right to establish relationships with other human beings (this includes a right to work)

Question 3

What are the different categories of private life?

Answer 3

1. Freedom from interference with physical and biological integrity
2. Freedom from unwanted access to and collection of information
3. Freedom from environmental pollution
4. The right to freedom and development of one’s identity
5. The right to live one’s life in the manner of one’s choice

Question 4

Goodwin v. the UK

Answer 4

1. The interests of the individual:
   - Private life can be interfered with when personal identity is in conflict with domestic law
   - Applicant is under stress, vulnerable and humiliated (human dignity)
   - Incoherence between admin./legal practice and social reality
2. The interests of the community:
   - Birth registry requires relatively minor change
   - There is no consensus although there is more acceptance
3. There is no clear legal status:
   - Convention must be interpreted in ‘present-day conditions’
   - Significant burden on the applicant
   - Change in the system is possible
   - Society can be expected to tolerate inconvenience when the human dignity of others is at stake
   - UK can not claim that this matter falls within its MoA

Question 5

Hämäläien v. Finland

Answer 5

1. NO or PO? PO!
2. Interests of the individual:
   - Discordance between reality and law
   - 3 options - (i) divorce, (ii) maintain status and marriage is still valid or (iii) civil union if wife consents
3. Community has a wide MoA:
   - Can regulate the effects gender change
   - No European consensus on the matter
4. Fair balance?
   - With civil union, the legal status of the applicant does not change, family life is not affected. His paternity is not questioned
   - Consent requirement protects marriage, it prevents unilateral decision-making
5. Option (iii) is a good alternative - Fair balance!

Question 6

What is the MoA?

Answer 6

For positive obligation - wider

For negative obligation - smaller

Question 7

S. and Marper v. the UK

Answer 7

1. The mere storing of data relating to the private life of an individual amounts to an interference
2. Storing of such data must offer sufficient safeguards, clear detailed rules governing the scope and application of:
   - Duration
   - Storage
   - Usage
   - Access of 3rd parties
   - Preserving the integrity and confidentiality
   - Destruction

Question 8

Is there a right to marry for homosexuals?

Answer 8

Oliari and Others v. Italy:

1. There is no right to marry.
2. However, Italy had to recognize homosexual relationships because of popular consensus as well as judicial consensus