Right to Respect for Family Life

Court condemns forced sterilization of Roma woman

Lourdes Peroni Prohibition of Inhuman Treatment, Right to Respect for Family Life, V.C. v. Slovakia, Women's Rights

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

Alexandra Timmer Grand Chamber, Margin of Appreciation, Right to Private Life, Right to Respect for Family Life, S.H. and others v. Austria, Women's Rights

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

Alexandra Timmer Bah v. UK, Prohibition of Discrimination, Right to Respect for Family Life

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 →

The right to bury one’s relatives

Maris Burbergs Girard v. France, Right to Private Life, Right to Respect for Family Life

In a recent judgement in the case of Girard v. France  (in French) the Court recognized a new right under Article 8 – the right to bury one’s relatives. This case involved three aspects of dealing with an individual’s remains under the Convention: returning the body to relatives, organizing and attending a funeral, and treatment of samples taken from the body for investigation purposes. The Court had dealt with these issues separately before. The outcome was different when the issues got mixed.  Continue reading →

When is Family Life Family Life? A Look at Deportation Cases

Lourdes Peroni A.A. v. the United Kingdom, Right to Respect for Family Life

In A.A. v. the United Kingdom, a recent case involving the deportation of a young Nigerian man, the Court faced, once again, the question whether relationships between adult children and parents/siblings amount to family life in deportation cases. The Court’s Fourth Section did not give a clear answer to this question. The 24-year-old applicant resided with his mother and did not have children of his own.

In this post, I take a quick look at the Fourth Section’s reasoning on this issue and try to situate it in the wider context of the Court’s deportation case law. One word of caution:  this is an attempt to briefly look at one specific question the Court asks to decide whether the deportation has interfered with an applicant’s right to respect for her family life. Do the ties invoked by the applicant constitute family life within the meaning of Article 8 § 1? To be more specific, do relationships between adult children and parents/siblings amount to family life in deportation cases?   Continue reading →