Mandet v. France: Child’s “duty” to know its origins prevails over its wish to remain in the dark

By Evelyn Merckx, academic assistant and doctoral researcher at the Human Rights Centre (Ghent University)

The European Court of Human Rights has delivered many judgments about a child’s right to know its origins and whether this right can prevail over the refusal of the anonymous biological parent. In Mandet v. France, the opposite scenario took place. A presumed biological father wanted to have his paternity recognised vis-à-vis a child who already had a legal and social father and asked the judges not to change his established family ties. However, the domestic courts decided that it was in the son’s best interests that he knew the truth about his origins.

Continue reading

No obligation on States to recognize a marriage contracted abroad: the case of Z.H. and R.H. v. Switzerland

Guest post by Sanne Konings, Stafmedewerker Familiaal Internationaal Privaatrecht, Agentschap Integratie en Inburgering.

On 8th of December 2015 the European Court of Human Rights pronounced a judgment in the case of Z.H. and R.H. v. Switzerland. The main question was if the Swiss authorities violated the right to respect of family life under article 8 European Convention of Human Rights of the applicants by not recognizing their religious marriage and removing the second applicant to Italy while the first applicant was allowed to stay in Switzerland.

Continue reading

Oliari and Others v. Italy: a stepping stone towards full legal recognition of same-sex relationships in Europe

This guest post was written by Giuseppe Zago, Researcher of Comparative Sexual Orientation Law, Leiden University (*)

Last 21 July, the European Court of Human Rights (ECtHR) in Oliari and others v. Italy had once again the opportunity to analyze the status of same-sex couples wishing to marry or enter into a legally recognized partnership. This resulted in a groundbreaking judgment, with the Court asserting that the absence of a legal framework recognizing homosexual relationships violates the right to respect for private and family life, as provided by the European Convention of Human Rights (ECHR) in article 8.

Its relevance is twofold, as the Court poignantly plunges into the current legal situation of Italy, and at the same time builds up on the outcomes of its previous cases, Shalk and Kopf v. Austria and Vallianatos and others v. Greece, to slightly, yet significantly, extend the interpretation of the ECHR principles concerning same-sex individuals who enter stable intimate relationships.

Continue reading

A.S. v. Switzerland: missed opportunity to explain different degrees of vulnerability in asylum cases

By Salvo Nicolosi and Ruth Delbaere (Ghent University)

In the recent judgment of last 30 June 2015 in A.S. v. Switzerland, the European Court of Human Rights offers another occasion to reflect on the issue of vulnerability in asylum cases.

The ruling represents another episode of the ongoing saga concerning the Dublin System to determine the State responsible for asylum applications and builds upon the previous case law relating to Article 3 considerations when expelling seriously ill persons, on the one hand, and when deporting asylum seekers to another country, pursuant to Dublin II Regulation 343/2003 (now replaced by Dublin III Regulation 604/2013), on the other hand. Both lines of reasoning will be taken into account in the following analysis.

Continue reading

Family Visits for Life Prisoners: Khoroshenko v Russia

Guest post by Kanstantsin Dzehtsiarou (University of Surrey) and Filippo Fontanelli (University of Edinburgh)

On 30 June 2015, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case Khoroshenko v. Russia. With this decision, the Court set the boundaries of State regulation in the area of penitentiary policy, namely with respect to the right to family life of lifelong prisoners. The Court has often declared that Contracting Parties enjoy a broad margin of appreciation in this area, yet the margin has limits: the Court has recently taken upon it the task to map them. The judgment of Khoroshenko v. Russia, indeed, fits within a recent strand of the case law through which the Court has scrutinised the condition of incarceration of prisoners for life.

The applicant is serving a life sentence in Russia. Generally, all prisoners in Russia can receive short- and long-term family visits. For prisoners serving life terms, instead, the law prohibits long-term visits for the first decade of imprisonment (the ‘blanket ban’). Long-term visits last up to three days and can be unsupervised; short-term visits last up to four hours, they always take place under the supervision of guards and in rooms set up to exclude all physical contact with visitors (including sexual intimacy). Mr Khoroshenko challenged before the ECtHR the blanket ban that he endured from 1999 to 2009, invoking Articles 8 and 14 of the ECHR.

Continue reading

Adžić v. Croatia: The difficult task that child abduction brings

This guest post was written by Thalia Kruger, Senior Lecturer, Research Group Personal Rights and Real Rights, University of Antwerp and Honorary Research Associate, University of Cape Town.

Adžić v. Croatia is yet another case in the long row of cases about international parental child abduction that hit the role of the European Court of Human Rights. These cases pose a particular challenge to the Court in a very difficult and sensitive domain of family law. Jurists and lawyers in various fora have attempted to find workable solutions by instruments such as the Hague Child Abduction Convention of 1980, the Council of Europe Custody Convention (Luxembourg, 1980), the Brussels II bis Regulation (2201/2003) in the EU, and national legislation. Mediators try to find appropriate ways in which to resolve child abduction issues.

Continue reading

Impoverished “Family Life”: Its Problematic Pervasiveness at Strasbourg

By Lourdes Peroni

At a time when family life takes increasingly diverse forms in Europe and elsewhere, the recent judgment in Senchishak v. Finland clings to the ideal of parents and minor children as the yardstick to determine the existence of family life at Strasbourg. The Court declared the complaint under Article 8 inadmissible, after finding that an elderly mother seeking to reunite with her adult daughter failed to prove that she was dependent on the latter. Senchishak reaffirms a problematic line of jurisprudence, which restricts the notion of family life to the “core” family, namely parents and minor children. This restrictive understanding of family life is especially pervasive in family reunion and expulsion cases. The Court’s approach in these cases does not only seem out of place in growingly diverse societies. This approach impoverishes the notion of family life[1] with unequal implications for those whose family life does not match the parent/minor children standard. Continue reading