European Human Rights and Family Law

Shazia Choudhry, Jonathan Herring

• Publisher: Hart Publishing
• Year: 2010
• Print ISBN: 9781841131757
• eBook ISBN: 9781847317445
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

This book examines the potential impact of human rights in the way the law interacts with families. Traditionally family law has been dominated by consequentialist/utilitarian themes. The most notable example of this occurs in the law relating to children and the employment of the "welfare principle". This requires the court to focus on the welfare of the child as the paramount consideration. Hitherto the courts and, to a certain extent, family law academics, have firmly rejected the use of the language of rights, preferring the discretion and child-centred focus of welfare. However, the incorporation of the European Convention on Human Rights via the Human Rights Act now requires family law to deal more clearly with the competing rights that family members can hold. In addition, it is clear that, to date, the courts have largely ignored or minimised the different demands that the HRA imposes on the judiciary and, in particular, judicial reasoning. This book challenges that view and suggests ways in which the family courts may improve their reasoning in this field. No longer can cases be dealt with on the basis of a simple utilitarian calculation of what is in the best interests of the child and other family members - greater transparency is required. The book clarifies the different rights that family members can hold and, in particular, identifies ways in which it may be possible to deal with the clash of rights between family members that will inevitably occur. Whether this requires an abandonment of the utilitarian nature of family law, or a reworking of it, is a theme that runs throughout the book.

1

The European Convention on
Human Rights and Family Law

The impact of the European Convention on Human Rights (ECHR) on family law has undoubtedly been significant. The most relevant article is, of course, Article 8, which directly protects the right to family life and the impact of this Article can most obviously be seen in the law relating to disputes concerning children both in terms of legal process and decision making. However, as we shall see throughout this study, a number of other articles, in addition to Article 8, have had a significant effect in other areas of family law, including, for example, the development of the law relating to corporal punishment, the recognition of transgender rights and the rights of prisoners to access fertility treatments in order to create a family. A detailed analysis of these articles will take place as and when relevant throughout the following chapters. However, it is necessary to outline the basic structure of the main articles that have had the most impact upon family law in order to fully understand how certain principles and concepts employed by the European Court of Human Rights (ECtHR), such as proportionality and the margin of appreciation, which will also be examined in detail in this chapter, affect their operation.

An Introduction to the General Structure of
the Convention Articles

Not all the Convention rights are formulated in the same way. There are two types of Convention rights: unqualified rights, some of which are ‘non-derogable’, and qualified rights. Of those rights that are most relevant to family law the following fall within the unqualified category: the right to life (Article 2); the right to protection from torture, inhuman and degrading treatment and punishment (Article 3), the right to liberty and security (Article 5), the right to a fair trial (Article 6), the right to marry (Article 12), the right to an effective remedy (Article 13) and the prohibition of discrimination in Article 14. Qualified rights that are most relevant to family law include the right to respect for private and family life (Article 8), religion and belief (Article 9), freedom of expression (Article 10), the right to peaceful enjoyment of property (Protocol 1, Article 1) and to some extent the right to education (Protocol 1, Article 2). The main articles of relevance to this chapter will be set out in brief.

Article 2

Article 2 provides:

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 2 is therefore an unqualified and ‘non-derogable’ right: it may not be denied even in time of war or other public emergency threatening the life of the nation.[1] However, it is not entirely absolute, as its terms not only preserve the death penalty[2] but also permit the use of force. Nonetheless, it is clear that it ranks as one of the most fundamental provisions in the Convention and a large amount of case law has been developed from its provisions. This case law has established that Article 2 contains two fundamental elements which are reflected in its two paragraphs: a general obligation to protect the right to life ‘by law’, and a prohibition of deprivation of life, delimited by a list of exceptions. Although this is similar to the structure of Articles 8–11 of the Convention there are some differences.[3] First, additional weight is given to the right by virtue of the fact that the right itself must be ‘protected by law’ as opposed to being merely ‘provided for’. Second, while States are not generally required to incorporate the Convention into their domestic law, as far as the right to life is concerned, they must still at the very minimum have laws in place which protect that right to an extent and in a manner that substantively reflect the Convention standards of Article 2.[4] The concept of ‘law’ as required by the Convention in turn means that the relevant rules must be accessible, and reasonably precise and foreseeable in their application.[5] Third, as far as the second paragraph is concerned, Article 2 allows for exceptions to the right to life only when this is ‘absolutely necessary’ for one of the aims set out in sub-paragraphs (2)(a)–(c) as opposed to, under Articles 8–11, being simply ‘necessary in a democratic society’ for the ‘legitimate aims’ listed in them. Finally, the Court has held that Article 2 imposes a ‘positive obligation’ on States to investigate deaths that may have occurred in violation of this Article.[6]

Article 3

Article 3 provides:

No one shall be subject to torture or to inhuman or degrading treatment or punishment.

Article 3 thus prohibits, in absolute terms, torture or inhuman or degrading treatment or punishment. It is therefore an unqualified and non-derogable right. No provision is made for exceptions and no derogation from it is permissible, even in time of war or other national emergency.[7] The Court has referred to the need for the alleged ‘ill-treatment’ to attain a minimum level of severity[8] if it is to fall within the scope of Article 3. The Court has also made it clear that the assessment of treatment is relative and will depend upon all the circumstances of the case. Factors that have been taken into account by the Court have included the nature and context of the treatment; its duration; its physical and mental effects; and, in some cases, the sex, age and state of health of the victim.[9] Thus, just because a form of conduct is not degrading treatment for one person does not mean that it cannot be so for another. The Court, which views the ECHR as a living instrument,[10] has also stated that it will be possible to reclassify its definition of ill-treatment in light of developments in policy of the Member States.[11]

Article 3 imposes primarily a negative obligation on States: to refrain from inflicting serious harm on persons within their jurisdiction. Most cases involving Article 3 have thus involved State agents or public authorities inflicting treatment on individuals.[12] However, the Court has been developing a certain level of flexibility in addressing the application of Article 3 within the ‘private context’[13] which will be examined in detail in this chapter and others where relevant.

Article 8

Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. 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.

Article 8 is thus a qualified right: the rights contained in the first paragraph may be justifiably interfered with on the basis of the limitations set out in the second. The article has four components: privacy, family life, home and correspondence. As a result a wide array of case law has emanated from its provisions and there have been, as we shall see in subsequent chapters, significant developments in respect of the notion of private and family life. In addition, as Ovey and White[14] note, since each right is reinforced by its context, the grouping together of these four rights within the same article further strengthens the protection given by it. The requirement to provide ‘respect’ for private and family life, home and correspondence has reinforced the development of positive obligations under the Article because it requires Member States to take positive action rather than to simply refrain from interfering with the rights protected. Positive obligations upon Member States may also arise with respect to protecting an individual against interferences by another individual. These issues will be explored further in the section on positive obligations below and in subsequent chapters where relevant.

Article 12

Article 12 provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 12 thus guarantees the right to marry and found a family; however, unlike Article 8, it is not a qualified Article by virtue of the absence of a set of limitations of the kind set out in Article 8(2). Equally, although it is regarded as an unqualified right, some limitations upon the right can be found in the very terms of the Article, that is, the right is limited to men and women of marriageable age and in accordance to the national laws governing the exercise of the right. This is not to say that the right can be interfered with by any national law no matter how reasonable. The Court has held on a number of occasions that any limitations set by national laws must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired.[15]

Article 14

Article 14 provides:

The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 14 thus represents a general prohibition against discrimination in relation to the rights guaranteed by the Convention, a principle so fundamental that it has an unqualified status. That is not to say, however, that it is without limitations. The right under Article 14 is not a freestanding one; the ECtHR has held that it has effect solely in relation to the ‘rights and freedoms’ safeguarded by those provisions. Thus, Article 14 will only be engaged if the facts of the case fall within the ambit of one or more of the other Convention rights.[16] In addition, the Court has repeatedly held that a difference in treatment will only be held to be discriminatory if it does not have an objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.[17]

The Role of the Margin of Appreciation and Proportionality

Although the doctrine of proportionality is, in reality, pervasive throughout the whole Convention,[18] it is only with the qualified rights that interference has been specifically provided for, in the conditions laid down in the second paragraph of those rights. As a result, the ECtHR has developed a standard formula in its case law that is followed in cases concerning these ‘qualified’ rights. Thus, a violation of these Articles will be found unless the interference alleged:

— is ‘in accordance with the law’; and

— is done to secure a legitimate aim set out in paragraph 2 of the relevant Article, for example for the prevention of crime, or for the protection of public order or health; and

— is necessary in a democratic society. In reality this is broken down into two factors that must be satisfied: the interference must fulfil a ‘pressing social need’, and be ‘proportionate to the legitimate aim pursued’.

In addition, when assessing whether or not a ‘pressing social need’ exists the State is generally allowed a certain amount of discretion, the so called ‘margin of appreciation’. The important doctrines of proportionality and margin of appreciation will be discussed in full detail below.

General Principles, Doctrines and Aids to Interpretation used by the ECtHR

A number of principles have emerged from the ECtHR’s approach towards the interpretation of the Convention in addition to the general principles of international law[19] that apply to the interpretation of treaties.[20] First, that the doctrine of precedent in the Court does not operate in the way in which stare decisis operates in common law jurisdictions and thus it is not the case that the ECtHR will follow its earlier decisions or reasoning. It is, however, clear that the Court values consistency and reasonable predictability[21] and has thus commented that ‘it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases’.[22] Second, the ECtHR adopts a purposive and dynamic approach to the interpretation of its provisions in order to ensure as effective and practical effect of the Convention rights as possible.[23] This ensures the maintenance of the third characteristic of the Convention: that it is meant to be a ‘living instrument’. It must therefore be interpreted in the light of the development in social and political attitudes and cannot be confined to the circumstances that existed at the time of its inception.[24] This is no more apparent than in the field of family law. In the 50 plus years since ratification, substantial changes have occurred in the form and definition of ‘the family’ and the ECtHR has been able to take account of those changes precisely because of the Convention’s evolutive nature.[25] At the same time, however, it should be noted that this method of interpretation does not allow the reading of new rights into the Convention that were not included at the outset.[26] Finally, it should also be noted that the ECHR not only establishes ‘vertical’ duties between the State and the individual by imposing obligations upon the State to prote...

Table of contents

• Cover
• Title
• Copyright
• Blurb
• Foreword
• Acknowledgements
• Contents
• Abbreviations
• Table of Cases
• Table of Legislation
• Table of Conventions, Treaties, etc
• 1. The European Convention on Human Rights and Family Law
• 2. The Human Rights Act: Scheme, Principles and Implementation
• 3. Human Rights in Family Law
• 4. Marriage
• 5. Parenthood and Parental Rights: Intention, Family Life and the Parent
• 6. Children’s Rights
• 7. Private Law Children Cases: A Rights Perspective
• 8. Human Rights and Child Protection
• 9. Domestic Violence: The Extent of the Problem and the Recognition and Use of a Human Rights Discourse
• 10. Financial Disputes and Human Rights
• 11. Concluding Thoughts
• Index