Valdís Fjölnisdóttir and Others v Iceland: cross-border surrogacy and foster care. What about the best interests of the child?

By Dr Marianna Iliadou, Teaching Fellow in Medical Law and Ethics at Durham University, UK.

On 18 May 2021, the Third Section of the European Court of Human Rights (ECtHR or the Court) delivered a judgment on the contested issue of non-recognition of the parent-child relationship for a child born through cross-border surrogacy. Surrogacy is the practice where a woman (surrogate) carries and gives birth to a child for someone else.

Valdís Fjölnisdóttir and Others v Iceland gave the Court the opportunity to rule on the refusal of parentage recognition where no intended parent is genetically related to the child, but the child is under their foster care. The Court found no violation of Article 8 ECHR (private and family life), because based on the foster care arrangements there were no actual, practical hindrances in the enjoyment of family life, while given the same (in principle) nature of the complaint under private life it did not see any reason to depart from the above conclusion. Lastly, the Court did not engage with the claim under Article 14 (non-discrimination) and rejected it as manifestly ill-founded.

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Parents in Marginalized and Vulnerable Situations, Family Life and Children’s Best Interests: A.I. v. Italy

Dr. Gamze Erdem Türkelli is a Research Foundation (FWO) Flanders Post-Doctoral Fellow at the Law and Development Research Group, University of Antwerp*

Introduction

On 1 April 2021, the First Section of the European Court of Human Rights (ECtHR) rendered its judgment in A.I. v. Italy (Application no. 70896/17). The judgment sheds light on the States Parties’ obligations under the European Convention on Human Rights (ECHR) in relation to children’s rights and the rights of parents in situations of vulnerability and marginalization (of the parent and the child) as well as of cultural diversity where the family in question belongs to a minority culture in the State Party.

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Anti-vaxxers before the Strasbourg Court: Vavřička and Others v. the Czech Republic

By Katarzyna Ważyńska-Finck, PhD researcher at the European University Institute and
a former assistant lawyer at the European Court of Human Rights.

Compared to our ancestors, we are lucky to have at our disposal safe and effective vaccines against illnesses such as polio, measles or hepatitis B. To ensure that the number of immunized people is high enough to prevent diseases from spreading, some governments make vaccinations compulsory. This is especially the case for childhood vaccination schemes. However, some parents who oppose to having their children vaccinated against these illnesses are ready for lengthy legal battles to challenge the mandatory vaccinations as violating their human rights. In a recent judgment the European Court of Human Rights refuted the applicants’ claim that the Czech compulsory vaccination programme violated their Convention rights.

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The Bitter Price of Being an Inactive Parent: Lyapin v. Russia

By Nadia Rusinova, attorney-at-law and lecturer in International private law at the Hague University

On 30 June 2020 the European Court of Human Rights (hereinafter: The Court) delivered its judgment on the case Ilya Lyapin v. Russia. The case addresses the divestment of parental rights from a biological father due to his inaction in exercising his parental responsibilities. This inaction led to a voluntary and prolonged separation from the child, already well integrated into mother’s new family from an early age, and subsequently served as a main reason for the domestic court to fully deprive the father from his parental rights and duties. What is striking – and will be discussed in this post – is the obvious and already acknowledged inflexibility of the Russian laws, the lack of proportionality when taking such drastic measures, and the inconsistent conclusion of the Court that the mere passive behaviour of the father appears to be enough to strip him of all his parental authority and to pose absolute restrictions in the restoration of contact with his son. 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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