The Right to Family Life in the Case Law of the European Court of Human Rights

In the scientific article the author conducted a scientific study of the protection of family rights of persons who are married or other family unions in the case law of the European Court of Human Rights, in particular such family unions as de facto marriage, separation, civil partnership, we come to the following conclusions. This legal status is recognized by the European Court of Human Rights as conferring the right to protection against interference with family life, ie it is a family, similar to how a family arises as a result of a registered marriage. In this case, according to the court, the concept of "family" includes the actual family relationship, when the parties live together outside of marriage. A child born as a result of such a relationship is a member of the family from birth and due to the fact of birth. There is a connection between a child and his or her parents that is equivalent to family life, even if at the time of his or her birth the parents no longer lived together or their relationship has ended. Cohabitation is usually a prerequisite for family life, but in exceptional cases, other factors may indicate that specific relationships are stable enough to be considered as actual family ties. Another type of family union - marriage during the period of separate residence of the spouses, in the case law of the European Court of Human Rights is somewhat weak and usually concerns the possibility to use the procedure of separation, but the court recognizes that the spouses have an inalienable right to initiating such a procedure. Until 2010, the European Court of Human Rights generally showed a rather restrained attitude towards this type of relationship as same-sex, not recognizing them as family, but after 2010, given the rapid liberalization of the prevailing public morality regarding same-sex relations in Europe, the European Court on human rights could not deny that the relationship of such couples is essentially "family life".

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Marriage, Family, Discrimination & Contradiction: An Evaluation of the Legacy and Future of the European Court of Human Rights' Jurisprudence on LGBT Rights

German Law Journal ◽

10.1017/s2071832200017545 ◽

2011 ◽

Vol 12 (10) ◽

pp. 1746-1763 ◽

Cited By ~ 2

Author(s):

Sarah Lucy Cooper

Keyword(s):

Human Rights ◽

Family Life ◽

European Convention ◽

Same Sex ◽

Registration System ◽

Same Sex Couples ◽

European Court ◽

Opposite Sex ◽

Grand Chamber ◽

The Right

The European Court of Human Rights (ECtHR) has been considering whether same-sex couples should have the rights to marry and to be recognized as a family under the European Convention of Human Rights (ECHR) for over thirty years. In the 1980s the European Commission of Human Rights (the Commission) and the ECtHR respectively rejected the notion that same-sex relationships constituted a “family life” under Article 8 of the ECHR, and that post-operative transgendered persons had the right to marry under Article 12. However, throughout the 1990s and the first decade of the new millennium, the ECtHR handed down a body of judgments that incrementally liberalized these rights (albeit not always smoothly) in favor of LGBT persons. This evolution culminated in part on 24 June 2010, when the ECtHR passed judgment inSchalk and Kopf v. Austria.In that case the First Section of the ECtHR made a number of major, but seemingly contradictory rulings. For the first time in its history, the ECtHR ruled that same-sex relationships expressly constitute a “family life” under Article 8, and that the right to marry under Article 12 was not confined to opposite-sex couples in “all circumstances.” However, the ECtHR simultaneously ruled that Member States are under no obligation to protect that “family life,” by providing same-sex couples with access to marriage under Article 12, or an alternative registration system under Articles 8 and 14. The Grand Chamber denied the applicants' subsequent request for a referral.

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An Emerging Right to a “Gay” Family Life? The CaseOliari v. Italyin a Comparative Perspective

German Law Journal ◽

10.1017/s2071832200019830 ◽

2016 ◽

Vol 17 (3) ◽

pp. 451-485 ◽

Cited By ~ 2

Author(s):

Sabrina Ragone ◽

Valentina Volpe

Keyword(s):

Human Rights ◽

Family Life ◽

European Convention ◽

Constitutional Court ◽

Constitutional Courts ◽

Same Sex Couples ◽

European Court ◽

National Perspective ◽

The Right

This Article analyses, through the lens of comparative law, theOliari and others v. Italyjudgment, which was issued by the European Court of Human Rights (ECtHR) in July 2015. TheOliaricase is important for being the first judgment in which the ECtHR established the granting of legal “recognition and protection” to same-sex couples as a positive obligation for the Member States of the Council of Europe on the basis of Article 8 of the European Convention on Human Rights. In order to understand the role of judicial bodies in the progressive protection of homosexual rights, this Article combines an analysis of European case law with the national perspective. As it concerns the supranational facet, the authors illustrateOliari's reasoning and situate the case in the jurisprudence of the ECtHR. Elements of both continuity and innovation emerge from the analysis, as well as a relevant dimension of judicial dialogue supporting the incremental recognition of gay rights in Europe. As it concerns the national facet, this specific case was initially dealt with at the domestic level and was the object of judgment 138/2010 by the Italian Constitutional Court. The judgment is critically put into perspective through the examination of the jurisprudence of other European Constitutional Courts (France, Portugal and Spain) that were called on to decide similar cases in the same period. Therefore, the Article offers a comparative analysis of theOliarijudgment clarifying its relevance and speculating on the potential value of this case for the future recognition of the right to a “gay” family life in Europe.

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papel del artículo 8 CEDH en la construcción del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado

Anales de Derecho ◽

10.6018/analesderecho.452681 ◽

2020 ◽

Author(s):

Lara Redondo Saceda

Keyword(s):

Human Rights ◽

Family Life ◽

Case Law ◽

European Convention ◽

Derechos Humanos ◽

European Court ◽

Margin Of Appreciation ◽

The Right

El artículo 8 del Convenio Europeo de Derechos Humanos –que protege los derechos al respeto la vida privada y familiar, el domicilio y la correspondencia– se ha configurado en estos setenta años de Convenio como uno de los escenarios habituales del desarrollo del margen de apreciación nacional y la doctrina de las obligaciones positivas del Estado. Esto parece justificarse en el contenido y estructura de este artículo y en las restricciones y limitaciones al ejercicio de estos derechos establecidas por su párrafo segundo. En este marco, el objetivo de este artículo es analizar cuál ha sido el papel del artículo 8 CEDH en el desarrollo de estos estándares interpretativos y cómo ha influido en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Article 8 of the European Convention on Human Rights –which protects the right to respect for private and family life, home and correspondence– has been configured as a traditional place for the development of the margin of appreciation and the doctrine of State’s positive obligations. The scope and structure of this article and its limitation clause in the second paragraph seem to justify these developments. In this context, the objective of this article is to analyse the role of Article 8 ECHR in the development of these interpretative standards and its influence in the European Court of Human Rights case-law.

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‘Marry in Haste …’: The (Partial) Abolition of Same-sex Marriage in Bermuda

Human Rights Law Review ◽

10.1093/hrlr/ngaa004 ◽

2020 ◽

Vol 20 (1) ◽

pp. 153-188

Author(s):

Nicola Barker

Keyword(s):

Human Rights ◽

Supreme Court ◽

European Convention ◽

Same Sex ◽

Same Sex Marriage ◽

Same Sex Couples ◽

European Court ◽

Legal Context ◽

The Right ◽

Court Of Appeal

Abstract In 2018, the British Overseas Territory of Bermuda revoked the right to marry for same-sex couples. In a judgment that reconceives the relationship between sexual orientation and religious freedoms, the Bermuda Supreme Court and Court of Appeal found this revocation to be unconstitutional. I explore the political and legal context in which same-sex marriage was granted and then revoked in Bermuda. I also consider the Bermuda Courts’ judgments in light of the subsequent judgment of the United Kingdom’s Supreme Court in Steinfeld, among others. While there was an assumption from both the Bermuda and United Kingdom Governments that the revocation provision was compatible with the European Convention on Human Rights, I argue that this underestimates the significance of the distinction between declining to recognise a right to same-sex marriage and revoking a right that has already been exercised. While the European Court of Human Rights has not yet found the absence of same-sex marriage to be a violation of Article 12 of the Convention, I argue that the revocation of a right to marry between same-sex couples that had been recognised in accordance with national law changes the terrain on which the Convention arguments would be made.

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Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases

Netherlands Quarterly of Human Rights ◽

10.1177/0924051919844387 ◽

2019 ◽

Vol 37 (2) ◽

pp. 157-177

Author(s):

Mark Klaassen

Keyword(s):

Decision Making ◽

Human Rights ◽

Family Life ◽

Case Law ◽

Best Interests ◽

Primary Role ◽

European Court ◽

The Right ◽

Compliance Tests

The European Court of Human Rights plays a subsidiary role in the protection of the rights and freedoms set forth in the Convention. To enable national authorities to perform their primary role, it is important that the Court offers sufficient guidance on the interpretation of the Convention. It has already been argued that the case law of the Court on the right to respect for family life in immigration cases, lacks consistency in terms of procedural and substantive protection. The inconsistency in the case law is mostly the case in the admission and regularisation case law. This manifests itself in specific issues including the determination of whether an interference has occurred as well as the court’s determination of the best interests of the child. Consequently, the case law difficult to apply by national authorities which leads to widely diverging practices by the Contracting Parties. The objective of this article is to outline the differences and inconsistencies in the different forms of immigration cases and the corresponding compliance tests of the Court. The article aims to offer a solution that would enable both the Court and the Contracting Parties to differentiate the level of protection that is offered by Article 8 in immigration cases, while providing sufficient guidance to national decision-making authorities and judiciaries so that they can efficiently and effectively exercise the primary role they play in the protection of the right to respect for family life in immigration cases.

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Strasbourg’s Response to Gay and Lesbian Parenting: Progress, then Plateau?

The International Journal of Children s Rights ◽

10.1163/15718182-02402012 ◽

2016 ◽

Vol 24 (2) ◽

pp. 358-377 ◽

Cited By ~ 2

Author(s):

Lydia Bracken

Keyword(s):

Human Rights ◽

Case Law ◽

Gay And Lesbian ◽

European Convention ◽

Same Sex ◽

Same Sex Couples ◽

Lesbian Parents ◽

European Court ◽

Lesbian Parenting ◽

Gay And Lesbian Parents

This article examines the advancement of parenting rights for gay and lesbian persons as established through the case law of the European Court of Human Rights. It notes that, after many years of progress, this advancement has seemingly now reached a plateau. In particular, although the Court has previously been effective in ending discrimination against single gay and lesbian parents, it has been reluctant to find that discrimination against same-sex couples seeking access to joint parenting rights is contrary to the European Convention on Human Rights (echr). This article examines this plateau and it questions whether consideration of the rights and interests of children could be used to overcome it. It is argued that this consideration may ultimately demand that joint parenting opportunities are made available.

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X and Others v. Austria (Eur. Ct. H.R.)

International Legal Materials ◽

10.5305/intelegamate.53.4.0620 ◽

2014 ◽

Vol 53 (4) ◽

pp. 620-661 ◽

Cited By ~ 1

Author(s):

Kathleen A. Doty

Keyword(s):

Human Rights ◽

Same Sex ◽

Same Sex Couples ◽

European Court ◽

Fundamental Freedoms ◽

Protection Of Human Rights ◽

Opposite Sex ◽

Grand Chamber ◽

The Right ◽

First Time

The Grand Chamber of the European Court of Human Rights, in X and Others v. Austria, held by a majority of ten to seven that Austria violated Article 14 (prohibition on discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) when it denied an unmarried same-sex couple the right to a second-parent adoption when second-parent adoptions are available to unmarried opposite-sex couples. This is the first time the European Court of Human Rights (the Court) has recognized a right to second-parent adoption by same-sex couples.

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The influence of judicial practice on the legislation in the sphere of LGBT community rights

Socioloski pregled ◽

10.5937/socpreg55-32553 ◽

2021 ◽

Vol 55 (3) ◽

pp. 690-713

Author(s):

Ana Čović

Keyword(s):

Human Rights ◽

Supreme Court ◽

Supreme Court Decision ◽

Case Law ◽

The United States ◽

Same Sex ◽

Same Sex Couples ◽

Lgbt Community ◽

The Law ◽

The Right

In the light of the announced adoption of the Law on Same-Sex Unions, the question arises whether the draft law is in accordance with the Constitution, especially after the announcements that the law will not be signed. Although the Constitution specifies that marriage is a union of a man and a woman, experts point out that in this case it is not a law on marriage and family, nor does it provide for the possibility of adoption of children by same-sex couples, but that it regulates property, health, pension and other legal relationships of same-sex partners living in the union. At the same time, many public figures have invited traditional religious communities to react in order to defend the "right to freedom and future of the people", emphasizing that contentious issues related to the regulation of mutual rights and obligations of same-sex couples could be resolved by amending the existing laws in those areas. In the countries where similar laws exist, case law has played a significant role, just as various medical and psychological associations. The European case law is not uniform, and cases often end before the European Court of Human Rights, while in the United States at the federal level, all anti-homosexual laws are repealed by a Supreme Court decision (Lawrence v. Texas, 539 U.S. 558 [2003]). Nevertheless, there is no single law in this area and the rights of same-sex couples vary from country to country. The paper will provide an overview of significant court decisions in this area in European countries, as well as the decisions of the US Supreme Court, which may lead us to think about the possible legal consequences of (non)adoption of the disputed Law on Same-Sex Unions, about procedures that could be initiated if partners decided to request judicial protection for the purpose of recognizing their guaranteed human rights, as well as the content and significance of such court judgments.

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Parental Rights for Lesbian, Gay, Bisexual and Transsexual Persons: A Comparison Between the European and Inter-American Systems of Human Rights

Revue générale de droit ◽

10.7202/1055490ar ◽

2019 ◽

Vol 49 ◽

pp. 207-235

Author(s):

Jolane T Lauzon

Keyword(s):

Human Rights ◽

Parental Rights ◽

Same Sex ◽

Right To Privacy ◽

Same Sex Couples ◽

The Right To Privacy ◽

European Court ◽

The Right

This article addresses the question of parental rights for lesbian, gay, bisexual and transsexual persons (LGBT). Through an analysis of the relevant jurisprudence of the Inter-American Court of Human Rights and the European Court of Human Rights, it will look at the right to a family, the right to privacy and the right to non-discrimination, since these rights are the ones that are always invoked by the petitioners. More precisely, this article will look at the question of adoption for homosexual individuals and same-sex couples, as well as the issue of children custody rights.

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