Human Rights Centre submits a third party intervention in case concerning the right to family life of transgender parents and their children

Judith Vermeulen is a doctoral researcher and a member of the Law & Technology research group, the Human Rights Centre and PIXELS at Ghent University.

The Human Rights Centre of Ghent University (Belgium)[1] submitted a third party intervention (TPI) before the European Court of Human Rights in the communicated case of A.M. and Others v. Russia. The issue is the restriction of a trans woman’s parental rights in view of her gender identity. In our submission, we argue that this case raises important issues under the right to respect for family life (Article 8 ECHR), taken alone and in conjunction with the prohibition of discrimination (Article 14 ECHR), providing the Court with an important opportunity to clarify the standards in the area of human rights protection of trans persons and children. An overview of the facts as well as a summary regarding our main arguments are provided hereunder. Continue reading

(One More) Engaged Father(s) Before the ECtHR: Uzbyakov v Russia

By Alice Margaria (Research Fellow, Department of ‘Law & Anthropology’, Max Planck Institute for Social Anthropology)

Fathers who want to be or remain involved in their children’s lives have become frequent applicants before the ECtHR. Underlying many of their complaints are national measures reflecting a ‘conventional’ understanding of fatherhood, where paternal care is attached scant or no relevance. Such understanding lay also at the roots of the decisions of Russian courts to reject Mr Uzbyakov’s attempts to be reunited with his youngest daughter who had been adopted by third parties, after her mother’s death. In dealing with the resulting application under Article 8, the ECtHR brings its contribution to ongoing conversations on what makes someone a (legal) father. Next to biology and the nature of the father-mother relationship, ‘new’ elements are attached weight in the Court’s reasoning: in particular, Mr Uzbyakov’s actual behaviour towards his children and his promptness in bringing legal actions in view of having his daughter returned. This judgment (4 May 2020) offers therefore a clear illustration of the (re)construction of fatherhood that is quietly taking place within the Court’s jurisprudence under Article 8 (alone or in conjunction with Article 14). Continue reading

Pedersen et al v. Norway: Progress towards child-centrism at the European Court of Human Rights?

By Katre Luhamaa and Jenny Krutzinna, researchers at the Centre for Research on Discretion and Paternalism (University of Bergen)

Introduction

In February this year (2020), the European Court of Human Rights (ECtHR, Court) delivered two further judgments relating to the Norwegian child protection system (Hernehult v. Norway and Pedersen et al. v. Norway). In both of these, the ECtHR concluded that Norway violated the right to respect for family life (Article 8) when implementing child protection measures. This analysis focuses on Pedersen et al. v. Norway, where the Court addressed the issues of adoption and post-adoption contact.

National adoption proceedings are often hidden from public scrutiny. Indeed, research into the legal practice of eight European states showed that there are minimal accountability measures available in these cases (Burns et al. 2019). Thus, the cases that face the international scrutiny of the ECtHR give us a rare insight into the national argumentation and practice and reveal the complexity of these public care measures.

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The Court’s first ruling on Roma’s access to safe water and sanitation in Hudorovic et al. v. Slovenia: reasons for hope and worry

This blogpost is written by Valeska David who is an Affiliated Researcher at the Human Rights Centre of Ghent University and Assistant Professor of International Law at University of Navarra. She has recently published the book ‘Cultural Difference and Economic Disadvantage in Regional Human Rights Courts: An Integrated View’ (Intersentia, 2020).

On 10 March 2020, the Strasbourg Court delivered its judgment in Hudorovic et al. v. Slovenia (App. nos. 24816/14 and 25140/14). The case deals with two complaints from Roma families who have been living in informal settlements without access to water, sanitation, sewage, and electricity for decades. The Court has previously dealt with the living conditions of Roma irregular settlements (e.g. Winterstein and Yordanova) as well as with the contamination of water resources resulting in health and environmental risks (e.g. Dzemyuk and Dubetska). This is the first time, however, that it has to examine whether the right to access safe drinking water and sanitation is protected by the Convention (particularly under Article 8 ECHR). This important question is furthermore posed in relation to the social group most affected by inequality in access to water in the first European country to make water a constitutional right. The case understandably attracted third party interventions from the European Roma Rights Centre and the Human Rights Centre of Ghent University, the latter available here.

Access to clean water and sanitation might sound too basic to be an issue in today’s Europe. But the truth is that securing universal access to such essential goods continues to be a pending challenge, especially for Roma people. At a time in which the European Parliament and the Council are discussing the adoption of a so-called Drinking Water Directive,[1] the Strasbourg Court is being called to play its part. The Court can significantly contribute to develop common minimum standards to ensure that everyone, especially those historically discriminated against can effectively enjoy water rights in Europe. From this perspective, however, this post argues that the judgment in Hudorovic offers a mixed picture, one of both hope and worry. Before explaining why, I shall briefly summarise the facts of the case and the Court’s findings.   Continue reading

An inch of time is an inch of gold – the time factor in child abduction related proceedings: Balbino v. Portugal

This post was written by Nadia Rusinova who is attorney-at-law and lecturer in International private law at The Hague University.

On 29 January 2019 the European Court of Human Rights (hereinafter: The Court) delivered its judgment on the case Simoes Balbino v. Portugal which addresses procedural delay in the context of the attribution of the exercise of parental authority in child abduction cases and the obligations of the state under Art. 8 ECHR. A key factor, in this case, is the time factor in proceedings related to child abduction, under the Hague Convention and in general in proceedings related to children. In the present case, the Court has ruled in a rather unexpected way on the issue of how the wrongful removal of the child should be assessed in a pending parental dispute, and in particular, is the child abduction a factor which determines the procedural behaviour of the domestic courts.

In its previous case law, the Court had said that a national court could not order the return of the child, or enforce a return order, if it had not considered the child’s best interests (Neulinger and Shuruk v. Switzerland, B. v. BelgiumSneersone and Kampanella v. Italy). Later, in X. v. Latvia,  the most recent judgment on this matter delivered by the Grand Chamber, the Court explained that the consideration of the child’s best interests did not mean a detailed assessment of the entire situation, but instead an obligation to ‘genuinely take into account factors that could constitute an exception to the return’ (under Arts. 12, 13 and 20 of the Hague Convention), in particular if one of the parties invoked these factors. In Adzic v. Croatia the Court adds that the assessment must be done speedily, which is in line with the goal of the Hague  Convention. Subsequently, in its most recent judgment in Rinau v. Lithuania, the Court finds that the time it took for the Lithuanian courts to reach the final decision in the applicant’s case, the Lithuanian courts had ‘failed to respond to the urgency of their situation’ and the delay of two years already amounted to a violation of Art.8. The view of the Court in this case offers some challenging turns to the aforementioned precedent – namely on the issue of time proceedings –which will be discussed further below.

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Strand Lobben and Others v. Norway: from Age of Subsidiarity to Age of Redundancy?

In the recent judgment of Strand Lobben and Others v. Norway, the Grand Chamber found a violation of Article 8 ECHR (the right to respect for family life) on account of shortcomings in the decision-making process leading to the adoption of a boy who had been placed in foster care. The Grand Chamber in particular took issue with the fact that this decision had been taken without up-to-date expert evidence on the mother’s capacity to provide proper care and on her son’s vulnerability. As the case has already been discussed by Marit Skivenes on this blog, this post will only focus on a particular aspect of the case: the side-stepping of the important substantive issues in favour of a purely procedural review of the case, despite strong mobilization by third party interveners around the former. This certainly fits within the broader trend seen in the case law where there is an increasing reliance on procedural review, often associated with the idea of Strasbourg having entered the “Age of Subsidiarity”, a term coined by Judge Spano. It is argued that, by micromanaging domestic processes rather than providing guidance on substantive issues, at a moment in time in which no useful decision can still be made for the families affected, the Court risks making itself redundant in addressing human rights concerns in the area of child protection. Continue reading

Child protection and child-centrism – the Grand Chamber case of Strand Lobben and others v. Norway 2019

By Prof. Marit Skivenes, Centre for Research on Discretion and Paternalism (University of Bergen)

The backdrop for the Grand Chamber case, is the dissenting Chamber judgment of 2017 – Strand Lobben vs. Norway  – about a boy that had been adopted from foster care. Here, the Chamber concluded it had not been a violation of the mother´s right to respect for family life under Article 8 due to the Chamber’s strong emphasis on the child’s best interest and his de facto family situation, as well as his need for permanency. The dissenting minority of three judges argued for the importance of legal (de jure) bonds and the negative effects of cutting biological ties. In the Grand Chamber judgment, a majority of 13 judges concluded that Norway had violated the applicants’ right to family life on procedural grounds – not on the merits of adoption from care. By this, the Court bypassed a discussion on the tensions and challenges children´s strong position as right bearers implies for the traditional relationships between family and the state.

Although, the Grand Chamber judgement is a disappointment for some and a relief for others, I believe that from a child´s rights perspective there are three important messages that should be addressed: Continue reading

The protection of foster parents right to family and the best interests of the child

By Kartica van de Zon, assistant professor of Family Law, Leiden Law School, the Child Law Department

On 9 April 2019, the ECtHR delivered its judgement in the case V.D and others v Russia. The case concerned a seriously disabled boy who had been in the care of his foster mother for nine years. Typically in cases on long term foster care and adoption, parents complain about their loss of parental authority, or the fact that the child has not returned to their care. In this case, however, it was the foster mother who complained that the child did return to the care of his biological parents. This poses the Strasbourg Court with a difficult dilemma. On the one hand, the Court has often stated that the reunification of children and their parents is the primary goal of child protection measures. On the other hand, the family life between children and their foster parents also deserves protection under Article 8 of the Convention. Granting foster parents a right not to be separated from foster children might come in conflict with the primary goal of child protection measures. Thus how far does the protection of foster parents right to family life reach? Continue reading

The importance of time in child protection decisions; a commentary on Haddad v Spain

By Simona Florescu PhD fellow, Leiden Law School, the Child Law Department

On 18 June 2019 the European Court of Human Rights found a violation of Article 8 of the Convention in the case of Haddad v Spain. The main reason was that the Spanish authorities did not discharge of their positive obligations to facilitate reunification between the applicant and his daughter (who had been placed in care). The applicant was the child’s father who at the time of placement was suspected of domestic violence against his children and their mother. About one year and four months had elapsed by the time the applicant was legally able to contact his children. During this time, his youngest child (one year and a half old at the time) had been living with foster parents and the authorities were envisaging her adoption.

In addition to finding a violation, the Court called upon the Spanish authorities to re-examine the situation in light of the judgment. Thus, arguably the Spanish authorities are to endeavor to secure the applicant’s reunification with his daughter. Continue reading

Vladimir Ushakov V. Russia – The 1980 Hague Convention, the child’s best interests and gender biases

By Tine Van Hof, PhD researcher at the University of Antwerp

 On the 18th of June 2019, the European Court of Human Rights gave judgment in the case of Vladimir Ushakov v. Russia (application no. 15122/17). The Court held by six votes to one that there has been a violation of the applicant’s right to family life under Article 8 ECHR. The case concerns Mr Ushakov who sought the return of his daughter V. to Finland after the mother I.K. took her to Russia. The Russian court refused to order the return of the child and based this decision on Article 13(1)(b) of the Hague Convention on Child Abduction. The Court carefully applies the general principles that have emerged in its previous case law on international child abduction. In that respect, the case is not very noteworthy. However, the dissenting opinion of Judge Dedov, in which he is critical of the Hague Convention, invites for discussion. This post will in particular respond to what Judge Dedov has defined as “deficiencies” of the Hague Convention. Continue reading

Parental Child Abduction is back on the agenda of the European Court of Human Rights

Simona Florescu PhD fellow, Leiden Law School, the Child Law Department

Parental child abduction has been a frequent occurrence for the European Court of Human Rights with the case of O.C.I. and others v Romania being the latest in a series of more than 70 applications. The Court decided these cases in several formations, ranging from the Grand Chamber, to the Chamber and most recently to the Committee of three judges. These formations are indicative of the importance the Court attaches to the issues raised by parental child abduction cases. On the basis of O.C.I. and Others v Romania, we could thus infer that child abduction has become a matter of well-established case law which does not require a too detailed analysis.[1] This may well be the perspective of the ECtHR, however, child abduction is anything but well-established case law[2] and it is precisely in these cross border cases that the Court can and should make a significant contribution in standard setting.

It is for this reason that I have decided to write this blog post. I argue that the Court – and human rights practitioners in general – need to be alert of the difficulties that cross border cases raise for individuals. In these cases, domestic courts of one country are expected to defer the analysis of the merits of the case to the domestic courts of the other country. In the midst of such deferral, and because there is no supranational supervision (other than that of the ECtHR), there is a risk of lower or no protection for human rights. Therefore, dispensing with this case in a Committee of three judges does not do justice to the many complexities raised by child abduction cases. I argue that the case of O.C.I. and others v Romania is one example where, in my opinion, there is more at stake than what the Court makes of it. Continue reading

A and B. v. Croatia and the concurring opinion of Judge Wojtyczek: the procedural status of the ‘disappearing party’

Claire Loven – PhD researcher at the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University)

On 20 June 2019 the European Court of Human Rights (ECtHR or Court) delivered a judgment in A and B. v. Croatia on the investigation of allegations of child sexual abuse. A, the mother of B, accused B’s father of sexually abusing the four-year-old B. After the Croatian State Attorney’s Office decided against prosecuting the father, finding that it could not conclude that C had committed any prosecutable offence, A and B lodged a complaint before the Court. They complained about the failure of the Croatian authorities to provide a proper response to allegations of child sexual abuse. By four votes to three the Court found that there had been no violation of the procedural aspects of Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life). The sharp division within the Chamber is not only reflected in the bare majority vote on the outcome, but also in the fact that, together, the concurring and dissenting opinions are just as long as the Court’s judgment. The joint concurring opinion by Judges Koskelo, Eicke and Ilievski and the joint dissenting opinion by Judges Sicilianos, Turković and Pejchal focus on the scope of the case, whilst Judge Wojtyczek raises the issue of the father not having a role in the Court’s proceedings. In this blogpost, I leave the issues raised by Koskelo et al. and Sicilianos et al. for other commentators, and focus on the particular issues raised by Wojtyczek. Continue reading

Yeshtla v. the Netherlands: a missed opportunity to reflect on the discriminatory effects of States’ social policy choices

By Fulvia Staiano, Adjunct Professor of International Law and European Union Law (Giustino Fortunato University)

On 15 January 2019, the European Court of Human Rights (ECtHR) delivered an inadmissibility decision on the case of Emabet Yeshtla v. the Netherlands. In this case, the ECtHR was asked to determine whether the withdrawal of the applicant’s housing benefits (motivated by the fact that she cohabited with an unlawfully resident son) had breached her right to respect for private and family life under Art. 8 of the European Convention on Human Rights (ECHR), alone and in conjunction with the prohibition of discrimination under Art. 14 ECHR. This case raised interesting questions on the potential impact of social assistance and welfare policies on recipients’ family life, as well as on the discriminatory effects of domestic norms that use social benefits as a tool to discourage irregular residence. Regrettably, the ECtHR dismissed this case without a thorough consideration of such questions. Continue reading

Wunderlich v. Germany: enforcing compulsory home-schooling

By Daniel Monk, Professor of Law, Birkbeck, University of London

On 10th January 2019, the European Court of Human Rights unanimously held that there had been no violation of Article 8 in a case concerning the withdrawal of aspects of the authority of parents and the removal of children from their home for a period of three weeks. The case did not explicitly address Germany’s policy of compulsory schooling, but, rather the legality of the measures taken to enforce the policy. Nevertheless, the arguments raised highlight why home-schooling (or Elective Home Education) is an issue that goes to the heart of current debates about shifting understandings of parental responsibilities and the underlying potential tensions between the civil/political and the social/welfare functions of education. Continue reading

FRÖHLICH V. GERMANY: (AB)USING THE CHILD’S BEST INTERESTS TO SAFEGUARD THOSE OF OTHERS

By Evelyn Merckx, teaching assistant and PhD-researcher at Ghent University

To many, the simultaneous reading of Mandet v. France and Fröhlich v. Germany proves to be a crucial inconsistency in the case-law of the ECtHR. In Mandet v. France, the paternity of a legal father was withdrawn in favour of the biological father, despite the eleven-years-old child’s opposition to having his paternity changed which became evident from the letters addressed to the domestic judge. Subsequently, the domestic judge remarked that the child’s best interests “ne se trouvait pas tant là où le troisième requérant le voyait” (“did not lie where the child saw them himself”). The judge figured that the child should know the truth about his origins (for more information: see here). In Fröhlich v. Germany, a similar factual context existed, but in this case, the child was informed about the fact that a man started proceedings for contact and information rights, but not that this claim originated in his belief that he was her biological father. In the end, the domestic judge dismissed the request of the father on the grounds that the child’s best interests were endangered because the marriage between her legal parents could fall apart if the biological paternity of Fröhlich were to be established. Both domestic judgments were condoned by the ECtHR. Continue reading

Mohamed Hasan v. Norway: Solomon’s judgment gone wrong?

By Evelyn Merckx, teaching assistant and PhD-researcher at Ghent University

King Solomon has proven to be a widely-used character in titles of papers regarding the placement of foster children and adoption. With the risk of becoming repetitive, the following analysis reveals why this case so strikingly reminds the reader of the biblical narrative. Though the facts are very similar, the ultimate plot varies greatly as the judgment of the European Court of Human Rights does not favour the “real” or even the “fake” mother, but the domestic authorities. Continue reading

Inadmissibility decision in Bonnaud and Lecoq v. France – should the Court have recognized the specificity of a same-sex relationship?

By Pieter Cannoot, PhD researcher at the Human Rights Centre of Ghent University

On 6 February 2018, the European Court of Human Rights declared the application of Francine Bonnaud and Patricia Lecoq, two French women who were in a relationship at the time of the relevant facts, manifestly ill-founded. The application concerned the refusal by the domestic courts to grant the request by both women to delegate parental authority over their respective biological child to their partner. Although the Court prima facie seems to have come to a logical decision, the question arises whether the application was accurately framed to deal with the substantive issue at stake, i.e. the discrimination of same-sex couples regarding parental rights. Continue reading

The best interests of the child in deportation cases: An analysis of Ejimson v. Germany

By Dr. Mark Klaassen, Assistant professor at the Institute of Immigration Law (Leiden University)

Introduction

On 1 March 2018, the Fifth Section of the Court unanimously held in Ejimson v. Germany that the revocation of the right of residence in Germany of a Nigerian national after being criminally convicted for a drugs related offence did not breach Germany’s obligation to respect the private and family life of the applicant. Considering the character of the offence committed by the applicant the ruling may not come as a surprise as the Court is generally very strict in public order immigration cases in which the applicant has committed a drugs related offence. However, the reasoning of the Court is interesting for a number of reasons. After discussing the facts of the case and the judgment of the Court, I will analyse the ruling on three different aspects. Firstly, the role of the best interests of the child concept in the balancing of interests will be discussed. Secondly, the relationship between the right to respect for family life under Article 8 ECHR and the protection against expulsion under EU law will be assessed. Thirdly, I will shortly reflect on the manner in which the Court seems to redirect the case back to national decision makers. Continue reading

M.K. v. Greece – Implementing children’s rights in legal proceedings following an international parental abduction.

By Sara Lembrechts – Researcher at University of Antwerp & Policy Advisor at Children’s Rights Knowledge Centre (KeKi), Belgium

Summary

In the Chamber judgment M.K. v Greece of 1 February 2018 (application no. 51312/16), the European Court of Human Rights decided by a majority of five votes to two that the applicant’s right to family life under Article 8 ECHR had not been violated. The case concerns the inability of M.K., mother of two children, to exercise custody over her son A., despite various court decisions granting her this right. The Court, faced with the difficult task of balancing different rights and interests in this very sensitive area of family law, could not establish a violation of the Convention. Whereas the applicant was prevented from exercising her right to family life, returning A. to his mother in accordance with the 1980 Hague Convention and the Brussels IIbis Regulation would be against the child’s wishes and best interests. This conclusion challenges the boundaries of national authorities’ positive and negative obligations to protect the applicant’s rights under Art. 8 ECHR.   Continue reading

Oliari, Orlandi and Homophobic Dissenting Opinions: The Strasbourg Approach to the recognition of same-sex marriages

By Claire Poppelwell-Scevak, PhD FWO Fellow, Gent University

From first glance, the decision of Orlandi and Others v Italy on 14 December 2017, may appear as a step in the direction of same-sex couples being afforded the protection of Article 12 ECHR – the right to marry. However, when one digs a little deeper into this case, there is only dismay that the Strasbourg Court has continued to reinforce its ‘same same but different’ interpretation of the Convention instead of being at the forefront of this struggle for equality. Continue reading

A Child-Centred Court of Human Rights? Strand Lobben v. Norway (30. Nov. 2017)

By Amy McEwan-Strand and Prof. Marit Skivenes, Centre for Research on Discretion and Paternalism (University of Bergen)

In a case of adoption without parental consent – Strand and Lobben v. Norway – the Fifth Section of the European Court of Human Rights (the Court) did not find a violation of Article 8 of either the mother or the child. The outcome of this case may well be surprising to many, since the last few years have seen a massive uproar and negative media attention on child protection interventions internationally, with Norway having a prominent place in this spotlight. In 2015, the Norwegian child protection system received harsh criticism from the Czech president, and the Norwegian embassy in Lithuania even felt it necessary to engage public relation consultants to handle the pressure. The Norwegian word for child protection, “barnevern” is now a term associated with draconian interventions into the family sphere in certain European circuits. Continue reading

‘Of course a stranger must conform’: reading the Ndidi judgment with Euripides’ Medea

By Benoit Dhondt, Belgian lawyer specialized in migration and refugee law. As a teaching assistant, he is also connected to the Human Rights Centre of Ghent University, more specifically its Human Rights and Migration Law Clinic.

Recently the ECtHR took an umpteenth swing at the question to what extent the family life and private life of a settled migrant with a criminal record is worthy of protection. At a time in which Council of Europe Member States, such as Belgium, have developed new legislation concerning the deportation of migrants allegedly posing a threat to public order, the case of Ndidi v. the United Kingdom does little to clarify the Court’s rather heterogenous case law in this matter.  I will give a brief description of the case, after which I will propose a new approach to private life and family life in deportation cases, based on a reading of Euripides’ famous play Medea, and inspired by the dissenting opinion of Judge Turković to the case. Continue reading

Publication of a picture of a 3-year-old, representing him as an orphan, violates article 8 ECHR

By Ingrida Milkaite, Ghent University

The case of Bogomolova v. Russia concerns the use of an unauthorised photograph of a minor’s face on the front page of a booklet promoting adoption and help for orphans. It proves that the publication of pictures of children without parental consent may have a significant social impact on the family and may violate article 8 of the European Convention of Human Rights (ECHR), protecting the right to private and family life. Continue reading

K.B. and Others v. Croatia: the Court’s first steps to tackle parental alienation

By Evelyn Merckx, teaching assistant and PhD researcher at Ghent University

Children’s position during their parents’ separation remains a delicate matter. A variety of reasons can result in a child refusing contact with a parent in response to the challenging situation. Objective reasons can lead to the child’s decision, such as a parent’s aggressive or indifferent behaviour. However, it can also be the result of a smear campaign of the other parent. In the past, the European Court of Human Rights avoided to impose harsh obligations on the State Party to prevent a child alienating a parent. To prevent having to answer the question whether contact is in the best interests of the child in a given case, the Court mainly focuses on the State Parties’ procedural and positive obligations to adopt certain measures to regulate the relations between private individuals through the establishment of an effective regulatory framework of adjudicatory and enforcement machinery (amongst others: ECtHR, Stasik v. Poland, 2015, § 80). Steady case law examines whether the State Party adopted all necessary, relevant and sufficient measures that can be reasonably expected to facilitate contact between parent and child (amongst others: ECtHR, Bostina v. Romania, 2016, § 57) . Furthermore, the Court solely examines the parent’s right to contact with his or her child and hereby refusing to examine the child’s right not to be manipulated. K.B. and others v. Croatia seems to deviate from past case law, providing for a welcome change but entailing some risks as well. Continue reading

Paradiso and Campanelli v. Italy: Lost in Recognition. Filiation of an Adopted Embryo born by Surrogate Woman in a Foreign Country

By Elena Ignovska, Assistant professor, University Ss. Cyril and Methodius, Faculty of Law, Skopje, Macedonia.

Assisted Reproductive Technologies (ART) undoubtedly triggered an earthquake in the concept of parenthood, resulting in a fragmentation of the possible parents: genetic/biological, gestational, factual and legal. Their initial objective was to enable infertile couples to parent genetically related progeny. Yet, they have recently been used in ways that are detached from that initial purpose, which may be problematic from the viewpoint of national family law. A typical example of that is the case of Paradiso and Campanelli v. Italy which demonstrated the opposite intention: using foreign assistance in reproduction for purposes of parenting a non-gestational and genetically unrelated child. The issue before the Court concerned a removal of the child from his intended parents as a result of a (non)recognition of a foreign birth certificate. Continue reading

The Unbreakable Vow: Marital Captivity in Strasbourg

By Corina Heri, Visiting Scholar at Ghent University           

It has been the ECtHR’s constant case-law that Article 12 ECHR, while enshrining the right to marry an opposite-sex spouse, does not protect a right to divorce. The fact that the Court has resolutely held on to that idea despite the modern-day legalization of divorce in the Council of Europe Member States has been brought to the fore once again with the Fourth Section’s judgment in Babiarz v. Poland, issued on 10 January 2017. That case, brought under Articles 8 and 12 ECHR, concerned the applicant’s inability to obtain a divorce from his wife without her consent, as a result of which he could not marry the mother of his child. In short, Polish law gave higher priority to the legal fiction of an ongoing relationship between the spouses than to the de facto relationship between the applicant and his new partner, which had been ongoing for 11 years at the time of the Court’s judgment. The majority, in its judgment, found no violation of the ECHR. The present post will summarize the salient arguments made by the two dissenters, Judge Sajó and Judge Pinto de Albuquerque, and add some critiques of its own.

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Biao v. Denmark: Grand Chamber ruling on ethnic discrimination might leave couples seeking family reunification worse off

This guest post was written by Alix Schlüter, Ph.D. researcher at Bucerius Law School, Hamburg.

On May 24th 2016 the Grand Chamber found that the refusal to grant family reunion to a Ghanaian couple in Denmark violated Article 14 ECHR in conjunction with Article 8 ECHR. Overruling the Chamber’s judgment of 2014, the Court held by a majority of twelve votes to five that Danish Laws on Family Reunification in part constituted indirect discrimination on the basis of ethnic origin. In the past, the Court for the most part has confined itself to finding violations of the prohibition of discrimination on grounds of race or ethnic origin merely in certain tightly circumscribed case groups, namely cases concerning school segregation of Roma children and racist violence cases. Against that background, the ruling in Biao must be seen as a big step – all the more as critics have proclaimed that the Court might not yet have developed a satisfactory approach to cases of indirect discrimination.[1] The implementation of the judgment by the Danish government, however, has to be awaited with some uneasy suspense. It might result in leaving Danish nationals of non-Danish ethnic origin seeking family reunification worse off.

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Silence as Acquiescence: On the Need to Address Disability Stereotyping in Kocherov and Sergeyeva v. Russia

By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University

In Kocherov and Sergeyeva v. Russia, a Chamber judgment issued on 29 March 2016, the ECtHR held that the restriction of a mentally disabled father’s parental authority had violated his rights under Article 8 ECHR (the right to respect for private and family life). In the past, the ECtHR has found violations of Article 8 ECHR where the domestic authorities failed to provide sufficient reasons for measures withdrawing parental care or contact rights from disabled parents (compare Olsson v. Sweden (No. 1), Kutzner v. Germany, and Saviny v. Ukraine). One of the most interesting aspects of the Kocherov and Sergeyeva case, however, concerns another provision, namely the prohibition of discrimination in Article 14 ECHR. The complaint made in this regard concerned the fact that Mr. Kocherov was considered an unfit parent based on stereotyped assumptions about parents with mental disabilities, contrary to the evidence about his actual ability to care for a child. The fact that the majority did not find it necessary to examine this complaint represents a missed opportunity to confront stereotyping head-on.

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ECtHR condemns the punishment of women living in poverty and the ‘rescuing’ of their children

By Valeska David

The recently delivered ECtHR judgment in Soares de Melo v. Portugal (application No.72850/14) conveys a strong message on childrearing responsibilities and child protection: families living in poverty (mostly led by women) cannot be punished for their deprivation and their children should not be ‘rescued’ from them. Instead, and because children are not the exclusive responsibility of parents, states must fulfill their supportive role and provide material and other forms of assistance to make family life possible.

Following a summary of the facts and the findings of the Court, I will first briefly contextualize the importance of such a message within the Council of Europe (CoE). Subsequently, I will highlight some of the main contributions explicitly and implicitly made by the judgment. Finally, I will conclude by taking the opportunity to suggest that the way forward requires the Court to be more attentive to the discrimination and stereotypes often at play in these types of cases.

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European Court Buttresses Binational Same-Sex Couples’ Right to Family Reunification

This guest post was written by Zsolt Bobis, Program Coordinator with the Open Society Justice Initiative’s Equality and Inclusion Cluster @ZsoltBobis

The European Court of Human Rights (ECHR) has ruled in Pajić v. Croatia that Croatia’s former legal regime that had categorically denied same-sex couples the possibility of obtaining family reunification had violated human rights standards. The court sided with the applicant, a national of Bosnia and Herzegovina, who alleged she had faced discrimination on the basis of her sexual orientation during her application for a residence permit in Croatia.

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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.

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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.

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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.

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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.

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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’). According to an article from http://angelsbailbonds.com/, “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.

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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.

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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

Jeunesse v. the Netherlands: Quiet Shifts in Migration and Family Life Jurisprudence?

By Lourdes Peroni

Readers familiar with the Court’s case law on family life and immigration will know that applicants’ chances of success are slim if family life was formed at a time when those involved knew that the migration status of one of them was such that their family life would be precarious in the Contracting state. Where this is the case, the principle is that the expulsion of the non-national family member will amount to an Article 8 violation “only in exceptional circumstances” (Rodrigues da Silva and Hoogkamer v. the Netherlands, para. 39 and Nunez v. Norway, para. 70). The Court has been reluctant to find a violation where there are no “insurmountable obstacles” to enjoying family life elsewhere (Arvelo Aponte v. the Netherlands, para. 60 and Useinov v. the Netherlands, p. 9).

In the recent case of Jeunesse v. the Netherlands the Court’s Grand Chamber did find a violation of Article 8 despite the applicant’s awareness of her precarious residence status before starting her family life in the Netherlands and despite the absence of insurmountable obstacles for the family to settle in the applicant’s country of origin. So what was exceptional about the circumstances in Jeunesse? And what to make of the Court’s analysis of these exceptional circumstances? Might this analysis signal any shift or refinement in the Court’s approach to some issues in its immigration and family life jurisprudence? Continue reading

Biao: Danish family reunification policy does not violate the prohibition of discrimination

This post was written by Nadia Ismaili, Ph.D. researcher at the migration law section of the Free University Amsterdam (*)

On 25 March 2014 the second chamber of the European Court of Human Rights handed down its judgment in the case of Biao v. Denmark. The case concerned the refusal to grant family reunion in Denmark to the Ghanaian wife of a naturalized Danish national originally from Togo. The Court decided unanimously that there had been no violation of the right to family life (Article 8). By the smallest majority of four votes to three, the Court held that there had been no violation of the prohibition of discrimination (Article 14) in conjunction with Article 8. This post focuses only on the divided reasoning on the prohibition of discrimination.

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The application of the European Convention on Human Rights to the case of Leonarda Dibrani

This guest post was written by Georgios Milios*

On October 9 2013, Leonarda Dibrani, a 15-years old Roma girl, was arrested by the French police in front of her teachers and classmates and deported to Kosovo along with her parents and five siblings. Initially, it was argued that the family had left Kosovo some years ago seeking better opportunities but according to Leonarda’s father, the Kosovo story was a lie and the whole family had been living for many years in Italy where almost all of the children were born but had not managed to acquire the Italian nationality. Furthermore, the father argued that they moved to France in 2008 and sought asylum claiming that they all come from Kosovo. The ‘Kosovo lie’ did not work and the whole family was expelled on the grounds that they were residing illegally in France. Continue reading

Family Reunification in Berisha v. Switzerland: The Child’s Best Interests, Really?

This week, in a divided ruling, the Court rejected the case of Berisha v. Switzerland. By four votes to three, the Court held that the refusal of residence permits to the applicants’ three children – who were born in Kosovo and entered Switzerland illegally – did not violate the parents’ right to respect for family life. In this post, I discuss the Court’s analysis of the best interests of the children involved in the case and show how the analysis fails to live up to this principle.

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“Very Weighty Reasons” for Religion: Vojnity v. Hungary

It looks like freedom-of-religion season has arrived in Strasbourg. After leaving aside the “freedom to resign” doctrine in Eweida, the Court has just made another move towards greater recognition of the importance of freedom of religion. In Vojnity v. Hungary, the Court clearly recognizes religion as a “suspect” ground of differentiation. As a result – and just like distinctions based on race, sex and sexual orientation – states must give “very weighty reasons” if they wish to justify differences based on religion. In less than a month, the Court has thus put freedom of religion and non-discrimination on the basis of religion on firmer grounds in Strasbourg.

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Fernández Martínez v. Spain : Towards a ‘Ministerial Exception’ for Europe?

In its recent judgment in Fernández Martínez v. Spain, the European Court of Human Rights appears to have abandoned its tried and tested formula of ad hoc balancing between the collective dimension of freedom of religion and individual human rights, established in Obst v. Germany, Schüth v. Germany and Siebenhaar v. Germany. In Fernández Martínez,the Court accepted the Spanish courts’ categorical balancing to the benefit of church autonomy instead, thereby echoing the opinion of the United States Supreme Court on the ‘ministerial exception’ in Hosanna-Tabor.

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Roma Evictions Stopped in Strasbourg: Yordanova e.a. v. Bulgaria

This post is co-authored by Lourdes Peroni and Alexandra Timmer

The recent case of Yordanova and others v. Bulgaria concerns a pressing human rights issue: the mass eviction of Roma from their houses. The Court shows itself a strong defender of socially disadvantaged groups who risk eviction from land that they have lived on for a long time. We will highlight just a few aspects of the Court’s judgment, namely the Court’s outstanding proportionality analysis and the issue of racial tensions.

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Testimonial privilege for life-partners? The formalism of van der Heijden v Netherlands

When it comes to protecting family life, the Strasbourg Court is torn between realism and formalism. The recent Grand Chamber case of van der Heijden v Netherlands is a good example of this. The Court showed itself to be deeply divided over a question of testimonial privilege – meaning the right not to testify against one’s family member or partner. By 10 votes to 7 (and additionally 3 concurring judges expressing their hesitation), it held that the Dutch State cannot be criticized for limiting testimonial privilege to those who are related by blood and those who have formalized their relationship through marriage or registration.

At first glance this may well seem reasonable, but you might change your mind – as I did – when you hear the facts of this case. In a nutshell: Ms. van der Heijden was kept in detention for 13 days because she refused to comply with an order to testify against her life-partner, with whom she had been cohabiting for 18 years and with whom she has two children. In what follows, I will argue that it is regrettable that the Court departs from a flexible approach that puts people and not legal categories first. Continue reading

Remembering the private and family lives of mentally disabled persons

In the case of Stanev v. Bulgaria the Grand Chamber gives hope for future developments in the Court’s approach towards the protection of private and family lives of mentally disabled people (Lycette Nelson from the Mental Disability Advocacy Center has also blogged about this case, read it here). Even though the majority did not find it necessary to examine Mr. Stanev’s complaint under Article 8, the dissenting opinions of four judges show that there are voices within the Court that consider that the institutionalization of mentally disabled persons has more aspects the Convention should protect. Continue reading

Gender Justice in Strasbourg

Today, in the judgment of Konstantin Markin v. Russia, the Grand Chamber has re-defined its jurisprudence on sex discrimination. Regular readers of this blog will know that the “Strasbourg Observers” have taken a close interest in this case (see earlier posts here and here).  The Human Rights Centre of Ghent University – of which we are a part – actually actively participated in arguing the case: we had submitted a third party intervention to the Court. Our brief is available here.

So I am thrilled to be able to report good news on this judgment. The issue in the case is whether military servicemen can be refused parental leave when such leave is available to servicewomen. With a vote of 16 to 1, the Court has held that such a difference in treatment on the ground of sex violates article 14 (the anti-discrimination provision) in conjunction with article 8 (right to private and family life). The judgment includes a thorough gender discrimination-analysis; I will do my best to highlight the most interesting parts. Continue reading

Court condemns forced sterilization of Roma woman

This post is co-authored by Lourdes Peroni and Alexandra Timmer

The Court has recently ruled in V.C. v. Slovakia, a case brought by a Roma woman who complained that she was sterilized without her informed consent. The judgment is no doubt a landmark decision with crucial implications for women belonging to minority ethnic groups. In this post, we argue the Court’s reasoning is spot on in several respects and outline the reasons why.  

Outline of the judgment

The applicant’s forced sterilization was in violation of Article 3 (prohibition of inhuman and degrading treatment) and Article 8 (respect for private and family life). The Court condemns the Slovakian government in strong terms. Continue reading

S.H. and Others v Austria: margin of appreciation and IVF

In Austria, it is forbidden to use donated sperm or ova for in vitro fertilization (‘IVF’). Ovum donation is under all circumstances prohibited; sperm donation is only possible when the sperm is directly placed in the womb of a woman (in vivo artificial insemination). Two Austrian couples complained about this regulation; the first couple needs IVF treatment with use of donor sperm and the other couple needs IVF with use of a donor ovum to fulfill their wish for a child of which at least one of them is the genetic parent. In 2010, the First Section held in S.H. and Others v. Austria that the Austrian regulation violated Article 14 in conjunction with Article 8 of the Convention, with a vote of 6-1 regarding the first couple and 5-2 vote regarding the second couple. Stijn and I have both blogged about that Chamber judgment (see here and here).

The Grand Chamber reversed that judgment a few days ago. With a vote of 13 to 4, the Grand Chamber concludes that the restrictive Austrian assisted reproduction regulation is not contrary to the Convention. Quite frankly, I have difficulties writing this post. The case raises very complex issues, situated as it is within a highly contentious debate about the way the Court should adjudicate culturally or ethically sensitive issues. Recently, the Court has had to endure a barrage of critique for what is perceived as its usurpation of power from the Contracting States. The majority of the Grand Chamber goes to great lengths in this case to appease its critics and appear respectful of State sovereignty: ‘the Court’s task is not to substitute itself for the competent national authorities in determining the most appropriate policy for regulating matters of artificial procreation’ (par 92). And: ‘The Court considers that concerns based on moral considerations or on social acceptability must be taken seriously in a sensitive domain like artificial procreation’ (par. 100). The stakes are high; a lot of pressure is put on the Court. In its third-party intervention, the Italian Government practically announces the apocalypse if ovum donation were allowed: ‘to call maternal filiation into question by splitting motherhood would lead to a weakening of the entire structure of society’ (par 73).

It is impossible to navigate this debate and discuss all the facets of the case satisfactorily in a blog post. I will limit my discussion to the Court’s use of the margin of appreciation- and consensus-arguments, and Austria’s reasons in support of its restrictive legislation as regards assisted reproduction. Continue reading

Bah v UK: on immigration, discrimination and worrisome reasoning

This post was co-authored by Lourdes Peroni and Alexandra Timmer

The Court recently ruled on the case of Ms. Bah, a Sierra Leonean woman with indefinite leave to remain in the UK, who asserted that she was discriminated against in the allocation of social housing. The Court’s reasoning in Bah v. UK gives ample food for thought. We find two aspects of the Court’s reasoning especially worrisome: the Court’s explicit references to the need of a ‘comparator’ and the Court’s use of the ‘immutability-criterion’.  Though these are familiar concepts within discrimination law, the Court has thankfully largely steered clear of them through the years. With this post we question the Court’s present recourse to these concepts. The comparator-approach and the immutability-criterion are potentially harmful and, moreover, we are of the opinion that the Court could have reached the same decision without relying so heavily on these concepts. Continue reading