1. Human Rights and the Family
"This presentation, intended for use in training of judges and prosecutors on the European Convention on Human Rights, was prepared by Jonathan Cooper under the Joint Initiative with Turkey of the European Commission and the Council of Europe. For further information please see

2. Article 8, ECHR
Every body has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Protection of family life is also a classic qualified right, therefore the State can interfere with it on the basis of legality, necessity, proportionality and non-discrimination.
This presentation will look at three issues. These are:
1.The definition of family life
2.Matters affecting children
3.Immigration

3. 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
Marckx v Belgium (13 June 1979) established that family life is created by an unmarried mother and her child by the fact of birth and the biological bond which it creates.
The Strasbourg Court has found that domestic laws relating to family ties must enable all concerned to lead a normal family life.
Family life includes the relationship that arises from a lawful and genuine marriage - even if "family life" has not yet been established (Abdulaziz, Cabales & Balkandali v UK (28 May 1985)).

4. 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
Unmarried fathers
An unmarried father may have right to a family life with his child. Even if an unmarried couple split up, the ties between the father and the child will remain. In Keegan v Ireland (26 May 1994) the unmarried father applied to be guardian of his child after the child was put up for adoption by his former girlfriend without his knowledge or consent. Family life can extend to the potential relationship which might develop between a natural father and his child born out of wedlock (Söderbäck v Sweden (28 October 1998))
Extended family ties
Family life can include ties with near relatives, such as grandparents and siblings (Bronda v Italy (9 June 1998)). Where a relative (such as an uncle) establishes a very close relationship with a child by acting as a 'father figure', family life may exist (Boyle v UK (28 February 1994)).
Atypical families
A family unit involving a transsexual parent can fall within the definition of family life (X, Y & Z v UK (22 April 1997)). Stable relationships between lesbian and/or gay couples are protected by the right to respect for private life and not family life, although discriminatory treatment in the enjoyment of family life for a homosexual parent may violate the Convention (Silva da Mouta v Portugal (21 March 2000)).
Artificial insemination/adoption
There is no right to establish a family life through artificial insemination or adoption. However, once an adoption has taken place family life will exist between the parent(s) and the child. The family life relationship between an adopted child and the natural family is not necessarily terminated (Eriksson v Sweden (22 June 1989)).
Children whose parents are not married
The Convention does not permit discrimination against children on the basis of the marital status of their parents (Marckx v Belgium). Children whose parents are not married have been afforded the highest level of protection under the Convention.

5. 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 ( ) 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
In family life cases the Court has held that where children are involved any dispute involving them must be resolved by reference to the best interests of the child. In order to establish what is in the child's best interest, it is perfectly proper to have reference to the UN Convention on the Right of the Child.
Whilst the State must facilitate "a normal family life" where children are at risk of abuse the State has a positive obligation to protect those children (Z v UK (10 May 2001)).

6. 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 ( ) 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.
When a child is being taken into care, it is essential that procedural safeguards, conforming to the standards of the right to a fair trial as guaranteed by Article 6, are built into the process (W v UK (8 July 1987)).

7. 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.
As a broad principle of international law a State is perfectly entitled to regulate who can, or cannot, enter that State. This general principle has, however, been influenced to a degree by the ECHR and the right to respect for family life.
Article 8 does not require that a State permits a married couple or family to reside in the country of their choice where one member of that family does not have permission to remain. In Abdulaziz, Cabales and Balkandali v UK (28 May 1985) the Strasbourg Court did not consider the UK were violating the applicants' right to respect for family life because the applicants were perfectly able to enjoy family life in the country of origin of their partners.
Where a family will be disrupted as a result of immigration controls Article 8 will be taken into consideration (Moustaquim v Belgium (18 February 1991); Beldjoudi v France (26 March 1992); Berrehab v Netherlands (21 June 1988); Gül v Switzerland (19 February 1996)).
The Strasbourg Court has been loath to engage in immigration matters and has therefore relied upon the margin of appreciation. The result of which is that, until recently, it has been difficult to establish clear principles, thus causing difficulties for both applicants and respondents. However, in the case of Boultif v Switzerland (2 November 2001) the Court laid down some clearer criteria.

8. 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.
The criteria established in Boultif need to be considered in cases where a person has a family in a State but has committed an offence or does not have permission to remain there any longer.
The judgement takes account of the fact that relationships and marriages take place between persons of different nationality and ethnic background, and that these and other obvious differences between them will have a profound impact upon where they ultimately can carry out their family life safely.
Differences in culture and language will also impact upon where they can carry out their family life.
The judgement is significant for its recognition that in cases where there are real barriers such as:
- lack of ties for some of the family members; or
- language difficulties
The court is likely to conclude that the family cannot be expected to follow the deportee and that the interference with family life is disproportionate, providing that other factors such as a serious criminal record do not come into play.

9. Restricting Family 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.
This is the standard test to justify or make lawful any interference with the right to respect for family life.