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The Right to Respect for Private and Family Life, Home and Correspondence

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What is meant by family life? The ECHR contains no definition of “family life” The notion is interpreted widely The existence of “family life” is a question of fact. Some family relationships automatically are protected by Article 8: a child born to parents who are lawfully married the relationship between a mother and her child

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Unconventional family life Unmarried fathers The extended family Family “ties” do not in themselves constitute family life Atypical family structures Transsexuals Same sex couples Artificial insemination/adoption Children born to unmarried parents

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Children and human rights The Convention applies to children as it does to adults No general provision recognising the need for special protection and assistance to be given to the child. The ECHR should be read with the UN Convention on the Rights of the Child Nielsen v Denmark (28.11.1988) the Court held that the rights of the child may be limited by those who have parental rights and responsibilities with regard to their custody and care. The importance of the family unit is recognised but, “the rights of the holder of parental authority cannot be unlimited and that it is incumbent on the State to provide safeguards against abuse.” Positive obligations exist

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Taking children into care Article 8 is engaged at all stages in care cases: • leading up to seeking a care order, • the judicial stage of care proceedings, and • after the care order has been made. In Olsson v Sweden (24.03.1988) the Court held that the making of the care decision was not a violation of the Convention but that the way in which that decision was subsequently implemented violated Article 8.

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Immigration and the European Convention on Human Rights Two category of cases have emerged: • Those involving the expulsion of integrated migrants (both second generation and long term residents) normally on public order grounds following a criminal conviction; • Those involving the decision to expel or to refuse to admit third country nationals with close family members in the Contracting State, normally on economic interest grounds, or for the maintenance of immigration policy.

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Developing principles before the European Court of Human Rights The Boultif criteria These include: the nature and seriousness of the offence; the length of the applicant’s stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant‘s conduct in that period; the nationalities of the various persons concerned; the applicant’s family situation such as length of the marriage, and other factors going to the effectiveness of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered in to a family relationship; and whether there are children of the relationship and if so their age.

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Restricting rights Any restriction on civil and political rights must be prescribed by law. The restriction must be justified by one of the aims recognised under the European Convention. The restriction must be shown to be “necessary in a democratic society”. Any qualification to rights cannot be applied in a discriminatory fashion.