The Legitimacy of Family Rights in Strasbourg Case Law: ‘Living Instrument’ or Extinguished Sovereignty?

Description

Modern family life exhibits a huge variety of new forms. Legal responses to these new forms illustrate the continuing differences between European nations. Nonetheless, the Strasbourg Court has been increasingly active in this area, which provides fertile ground for testing the legitimacy of the Court’s interpretation of the European Convention on Human Rights. When national law refuses to recognize a claimed right, litigants regularly reassert that right before the Strasbourg Court. This has forced it to seek answers to complex domestic controversies, such as the legal recognition for same-sex partners and transgender persons, the ethics of adoption and reproductive rights, the legal regime for cohabitants or the accommodation of immigrants’ aspiration to family reunion. Placing family rights at the core of the judicial legitimacy debate, this book provides a critical analysis of the standards of family rights protection under the Convention. It evaluates the Court’s interpretive methodology and discusses the tensions inherent in its supranational quasi-constitutional function. These include the risk of excessive deference to national authorities, at the expense of the effective enforcement of universal rights, the addition of ‘new rights’ and inattention to the division of responsibilities between democratic processes within sovereign States and the subsidiary international review. Volume 64 in the Series Modern Studies in European Law Acknowledgements Contents Table of Cases Introduction I. The Limits of Interpretation of Human Rights Treaties II. Constitutional and International Tribunals: Legitimacy and Methods III. The Court"s Interpretive Repertoire IV. An Elastic Notion of "Family" V. Towards a Taxonomy of Family Rights VI. "Evolutive" or Ultra Vires? 1 The Formalisation and Dissolution of Intimate Relationships I. Introductory Remarks II. Civil Effects of Religious Celebration and Guarantees against Child Marriages III. Objectionable Unions? Prohibited Relations and Sham Marriages IV. Polygamous Marriage between Cultural Relativism and Public Order V. Controversies Surrounding Prisoners" Right to Marry VI. A Right to Divorce and Re-partnering? VII. Concluding Remarks 2 Protection of De Facto Families: Cohabitation and Illegitimate Filiation I. Introductory Remarks II. The Progressive Recognition of De Facto Couples as Protected Family Units III. Economic Advantages: Distinctions between Cohabitants and Spouses IV. The Different Treatment of Unmarried Fathers V. Protection of Illegitimate Children: From Legal Affiliation to Inheritance Rights VI. Concluding Remarks 3 The Right (Not) to Become a Parent: From Assisted Reproduction to Adoptive Filiation I. Introductory Remarks II. Procreative Rights: Negative and Positive Obligations for States III. Access to Assisted Reproduction Services and Non-genetic Attribution of Parenthood IV. Adoption as Social Parenthood V. The Right of Prisoners to Found a Family: A Non-exercisable Right? VI. Unwanted Parenthood and Conflicts of Rights VII. The Right to Parental Leave Allowance VIII. Concluding Remarks 4 The Impact of Sexual Orientation and Gender Identity on Family Rights I. Introductory Remarks II. Same-Sex Families: Coupledom and Parenting III. Transsexualism and Family Rights IV. Concluding Remarks 5 Conflicts of Rights between Family Members I. Introductory Remarks II. The Principle of Equality of Spouses III. Private Disputes over Children IV. The Child"s Right to Know Their Genetic Origins V. Concluding Remarks 6 Family Autonomy, Public Interest and Legitimate State Intervention I. Introductory Remarks II. Pre-eminence of Parental Choices with Respect to the Child"s Upbringing III. Hasty or Belated Removal of Children from Abusive Homes IV. Rights of the Natural Parents with Regard to Adoption Proceedings V. The Tension between the Right to Contact and Deprivation of Liberty VI. Concluding Remarks 7 Cross-border Families, Human Rights and Immigration Barriers I. An International Right to Family Reunification and/or Preservation of Family Unity? II. The Option to Continue Family Life Elsewhere: The "Insurmountable Obstacles" Test III. Irrelevance of Family Life Built on an Irregular or Temporary Immigration Status IV. Balancing Family Rights against the Protection of the Community V. The Uncertain Place of Children"s Best Interests in Immigration Cases VI. The Imbalance between the Approach to Admission and Removal Cases VII. Concluding Remarks Conclusions Index