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 with unequal implications for those whose family life does not match the parent/minor children standard.
Facts and Judgment
The applicant, a Russian national, used to live in Russia, where she had a husband who died in 2007 and a daughter who went missing in 2003 and is probably dead. In 2006, the applicant suffered a stroke with the result that her right side got apparently paralyzed. On 7 December 2008, she arrived in Finland with a 30-day tourist visa. Ten days after her arrival, she applied without success for a residence permit on the basis of family ties to her other daughter, who has resided in Finland permanently since 1988 and is a Finish citizen.
The Court held unanimously that there would be no Article 3 violation if the applicant were to be expelled to Russia. The conclusion was that the applicant’s need for health care did not show substantial grounds to believe that she would be exposed to a real risk of treatment contrary to Article 3. By a majority, the Court also declared the Article 8 complaint inadmissible. The majority reasoned that the family life between the applicant and her adult daughter had been interrupted for at least twenty years. Moreover, it noted that the five years they had lived together in Finland could not amount to family life given the applicant’s unlawful residence and awareness of her insecure situation. The Court also considered that the applicant had failed to prove any dependency on her daughter other than normal ties of affection, as both private and public institutions are available in Russia to care for her needs.
A highly restrictive approach
Applicants seeking protection of family life outside the “core” family usually have a hard time at Strasbourg as a result of a restrictive notion of family life applied predominantly but not exclusively in entry and expulsion cases. The principle in these cases is that recognition of family life is limited to parents and minor children (Slivenko v. Latvia §§ 94 and 97). One implication of this principle is that relationships between parents and adult children do not amount to family life unless applicants substantiate additional elements of dependency other than normal ties of affection. In Slivenko, for example, a case concerning the separation of a mother and her daughter from their (grand)parents following an expulsion order, the Court found that there was no family life between them. The elderly (grand)parents were “adults who did not belong to the core family and who have not been shown to have been dependent members of the applicants’ family …” (§ 97).
In practice, the Court has somehow softened this approach by counting as private life relationships falling short of family life (e.g. Slivenko § 97); by regarding as family life relationships between parents and young adult children who have not yet founded families of their own (e.g. Maslov v. Austria § 62); and by leaving open at the scope level the question of whether there exists family life between parents and adult children (e.g. Berisha v. Switzerland §§ 45-46).
Senchishak, however, adopts a highly restrictive approach: the relationship between the applicant and her adult daughter does not even fall within the scope of Article 8 and her complaint is considered incompatible ratione materiae:
… the Court … considers that no such “additional factors of dependence other than normal ties of affection” exist between the applicant and her daughter, and that there is thus no “family life” between them within the meaning of Article 8. This Article is therefore not applicable in the instant case due to the lack of family life.
In closing the discussion at the earliest stage of the analysis, this sort of approach obviously eschews all attempts at weighing applicants’ family ties against state interests. Moreover, in excluding a priori adult family ties from the scope of Article 8, this kind of approach overlooks how close these ties may be in reality. In fact, the approach seems at odds with the principle that family life is “essentially a question of fact depending upon the real existence in practice of close personal ties.” True, dependency offers a way in to relationships between adult children and their parents. Yet, as I briefly discuss below, the dependency criterion is narrowly construed and not without problems.
Affective Ties Sidelined
In assessing the applicant’s alleged dependency on her daughter, the Court holds:
… Even assuming that the applicant is dependent on outside help in order to cope with her daily life, this does not mean that she is necessarily dependent on her daughter who lives in Finland, or that care in Finland is the only option. As mentioned earlier, there are both private and public care institutions in Russia, and it is also possible to hire external help.
Note that the Court does not point to relatives but to institutions available elsewhere to care for the applicant. In any event, the approach suggests that the dependency requirement is not met as long as there is someone available in the country of origin to provide care to the dependent person – be it family members or institutions. This type of reasoning seems to be an implication of the Court’s sidelining of the emotional dimension when establishing the existence of family life. The applicant’s physical and material dependency may be attended to elsewhere but how about any emotional and psychological dependency on her daughter?
The dependency criterion as such has received criticism within the Court for sidelining emotion and affection when establishing the existence of family life. In Shevanova v. Latvia, which also concerned the expulsion of a mother living together with her adult child, Judge Spielmann said:
Giving precedence to the criterion of dependency to the detriment of that of normal affective ties strikes me as a very artificial approach to determining the existence of “family life”. It seems inconceivable to me that so little importance can be attached to the affective ties between a mother and her son that they can fall outside the scope of “family life.” This line of case-law which, admittedly, appears to be confined to the sphere of expulsions, greatly impoverishes the notion of “family life” (partly concurring opinion §§ 8-9).
The dissenters in Senchishak, judges Bianku and Kalaydjieva, seem similarly struck by the irrelevance in the majority reasoning of an elderly parent’s dependence on the loving care of her adult child. The dissenters’ approach makes room at least for relationships between adult children and elderly parents. They say:
A time comes when elderly parents do need the loving care of their adult children and actually receive it as a matter of moral duty and preserved feelings of affection. To deny this is to hold that once an individual comes of age, the emotional ties with his or her parents are to be considered once and for all de facto and de jure severed and that for this reason neither a moral nor a legal duty to provide care may be said to exist between them. In our understanding this is incorrect in both legal and moral terms.
Lack of Cultural Sensitivity and Inequality
Though the applicant alleged that “[i]n Russian culture the grandparents were considered as family members who needed protection” (§ 53), the Court remained insensitive to this aspect. Aware of cultural variation across Europe, past separate opinions have offered a more culturally sensitive approach to family life. In Sisojeva and Others v. Latvia, for example, Judge Kovler noted that the applicants, of Udmurt ethnic origin, “traditionally have much stronger family ties between parents and adult children than is appreciated in Western Europe.” The dissent in Senchishak is also more sensitive to the diversity of family lives across Europe:
The notion of “core family” and the level of preserved emotional ties between parents and separated adult children vary across the cultures and traditions of Europe as well as among individuals living in various countries (emphasis added).
In fact, this part of the dissent points to what in my view is one of the most problematic aspects of this line of the Court’s case law. The reasoning in cases such as Slivenko and Senchishak equates the “core” family with a certain notion of family life often idealized in some parts of Western Europe, namely that of parents and minor children. In so doing, this reasoning ends up privileging a particular cultural form over others and setting a standard against which many people’s family lives are judged wanting. A more culturally sensitive approach may reduce these inequality risks (for more on this argument, see here).
In re-affirming an impoverished notion of family life, Senchishak continues a problematic line of case law that restricts a priori the family bonds entitled to protection under family life to one particular cultural ideal. This does not only mute the radical inclusive potential of the notion of “family life” prevailing in the Court’s broader Article 8 case law. Most problematically, it disadvantages applicants’ family lives that do not conform to the “norm” either by excluding them from recognition (and sometimes from protection) or by encouraging them to fit into a form of family life they do not relate to. The equal protection of family life at Strasbourg would be far better served by an account of family life that makes room for other forms on a par with the nuclear family.
 See Judge Spielmann’s opinion referred to in this post.
 The case was referred to the Grand Chamber and ultimately struck out of the list. See also Kaftailova v. Latvia, which followed the same fate (this time, Judge Spielmann was joined by Judge Kovler).
 The case was referred to the Grand Chamber and ultimately struck out of the list.