hra-family life

Family life

This element of Article 8 protects your right to respect for your close family relationships and matters relating to those relationships, for example how parents choose to discipline their children. The question of whether a relationship will fall within the ambit of ‘family life’ for the purposes of Article 8 will depend on the nature of the relationship and the existence of close personal ties. In addition to the relationship between a mother and father and between children and their parents, ‘family life’ will include unmarried couples and the relationship between an illegitimate child and either parent as well as other family relationships, for example relationships between siblings and between adopted children and adoptive parents.

The ECHR has so far been reluctant to recognise same-sex couples as families, holding that these relationships fall within the ambit of private life – not family life

Separation of family members will normally constitute an interference with the right to respect for family life, although such interference may be justified, for example where a child is taken into care for his or her own protection or where a parent is sentenced to imprisonment.

Family life can be engaged in deportation cases if the person to be deported has an established personal and family life in the UK (for example, if the person has children living and settled in the UK). However, the courts have been reluctant to find that deportation is a violation of Article 8. Where there is an alternative country in which the husband and wife or family can reside and there are no ‘insurmountable obstacles’ to moving there, or where a person could return to their country of origin and obtain entry clearance as a family member in the ordinary way without risk or excessive delay it is unlikely that the court will find that there has been a violation of Article 8.

 

A qualified right

Article 8 is qualified right. This means that an interference with the right can be justified in certain circumstances. Where the interference is justified, there will be no breach of Article 8.
The circumstances where an interference with the right can be justified are set out in the second part of the article (Article 8(2)).

For an interference to be justified it must:
Be ‘in accordance with the law’ – this means that there has to be clear legal basis for the interference and that the law should be readily accessible.
Pursue a legitimate aim – there are six legitimate aims set out in Article 8(2), including ‘the prevention of disorder or crime’ and ‘the protection of the rights and freedoms of others’. A public authority which intends to interfere with a person’s rights under Article 8 must be able to show that what they are doing pursues one of these six legitimate aims. This is rarely a problem, as the legitimate aims are so widely drawn.
Be ‘necessary in a democratic society’ – This is usually the crucial issue. There must be a good reason for the interference with the right and the interference must be proportionate which means that it should be no more than is necessary. If there is an alternative, less intrusive, way of achieving the same aim then the alternative measure should be used.

 

Positive obligations

Article 8 and the other qualified articles are largely concerned with preventing the Government, the police or other state bodies interfering with people’s rights. They are negative obligations in that they require the State to refrain from taking certain action. However, there may be circumstances where State is under a positive obligation – a duty to do something in order to protect or promote your rights.

In order to determine whether such a positive obligation exists, consideration must be given to the fair balance that has to be struck between the general community interest and the interests of the individual. Because a positive obligation will require the State to take active measures or steps, it will always be much harder to argue that the State is under a positive obligation than under a negative one. Examples of where courts found that a positive duty exists include:
R (Bernard) v Enfield London Borough Council [2003] where the court held that the Borough Council had a duty to provide assistance to a disabled woman so that she could maintain basic physical and psychological integrity.
X and Y v Netherlands (1985) where the ECHR held that the Netherlands should have taken steps to protect the applic

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