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HUMR 5120
The right to private and family life
Lecture 13 November 2006, 14.15-16
Maria Lundberg
The right to private and family life
Readings:
Eide, pp 353-372
Ovey, pp 241-299
NB. The readings in Ovey are extensive on Art. 8. All is required reading, but focus on
the areas which are indicated in this overview.
Cases:
Hatton and others v. UK (App. 36022/97), Judgment of the Grand Chamber of 8 July
2003, para. 98) see also dissenting judges
KT v. Finland (App. 25702/94), Judgment of 12 July 2001 (Grand Chamber)
Marckx v. Belgium, Judgment of 13 June 1979, Ser. A, No. 31.
Laskey, Jaggard and Brown v. United Kingdom (Apps. 21627/93, 21826/93, 21974/93),
Judgment of 19 February 1997
Abdulaziz, Cabales and Balkandali v. United Kingdom, Judgment 28 May 1985, Ser. A,
No. 94.
Recommended reading:
Nowak’s Commentary on Arts. 17 and 23 – Nowak is good to understand some of the
basic concepts involved.
ECHR
Art. 8
Art.12
Art. 5 Protocol 7 to the ECHR
ICCPR:
Arts. 17 and 23
NB. CRC corresponding and relevant articles, see Art. 53 ECHR
I. Defintions:
Private life:
Is difficult to define, but the respect for private life “involves respect for a person’s moral
and physical integrity, personal identity, personal information, personal sexuality, and
personal or private space” .
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”Privacy” and ”private life”, it may be assumed that the two expressions in Art. 17
ICCPR and in Art. 8 ECHR basically mean the same thing. The “private life” includes all
manifestations of privacy which do not fall under the specified categories of home,
correspondence etc.(Nowak, p. 385)
Family:
The protection of the integrity of the family
The family unit generally includes husband, wife and children dependent upon them (also
adopted or illegitimate). De facto family ties by living together. More remote relations
may be included in private life. (Jacobs and White, p. 247-249).
The ICCPR includes a broader concept of family life. The “family” should be interpreted
within the different cultural settings of the State parties. Art. 17 “protect[s] not only
marital families but also extramarital and “natural” families, the extended family,
relations between father and son after divorce etc.” (Nowak, p.518).
Home:
A requirement to respect the physical security of the individual’s home and the
belongings, but not right to have a home, or to a particular home. A broad interpretation
of home, as including business premises, caravan sites, house boats.
Correspondence:
Written materials including telephone communications.
It is distinct from Art. 10 ECHR (expression) because it concerns direct communications
between individuals.
II. Positive and negative obligations:
Art. 8 ECHR :
Arbitrary interference is prohibited. The wording “respect for ..” indicates not merely the
abstention from interference, but a positive obligation to establish a protection of the
essential aspects of Art. 8. A failure to intervene by the State may amount to a violation
of this article.
At the core of the provisions lie that a balance of the interests of the society as whole and
the interests of the individual(s) concerns needs to be found. The “margin of
appreciation” has been explained in the following manner,
Whether the case is analysed in terms of a positive duty on the State to take reasonable
and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8
or in terms of an interference by a public authority to be justified in accordance with
paragraph 2, the applicable principles are broadly similar. In both contexts regard must
be had to the fair balance that has to be struck between the competing interest of the
individual and the community as whole; and in both contexts the State enjoys a certain
margin of appreciation in determining the steps to be taken to ensure compliance with the
Convention. Furthermore, even in relation to the positive obligation flowing from the first
paragraph of Article 8, in striking the required balance the aims mentioned in the second
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paragraph may be of a certain relevance. (Hatton and others v. UK (App. 36022/97),
Judgment of the Grand Chamber of 8 July 2003, para. 98) CHECK!
The court makes less difference in the treatment of positive and negative obligations
Private life:
Balance, more than in respect of family life. The existence of safeguards within the
national legal order of great importance if an interference is to be regarded as necessary
in a democratic society.
III. Family life:
A. Marriage
Separately regulated in Art. 12 ECHR - The right to marry and found a family
Men and women of marriageable age have the right to marry and found a family,
according to the national laws governing the exercise of this right.


An obligation to recognize this right both in principle as well as in practice.
Any limitation has to be imposed for a legitimate purpose and be proportionate to
that aim.
 On discrimination, Art. 14 ECHR
 Only heterosexual couples
 Not unmarried couples, while they are included in “family” under Art. 8
Remarriage may be limited. Family planning allowed while coercive measures may
involve a violation of Arts. 2 and 3 ECHR.
 No right to divorce, see Johnston and others v. Ireland, Judgment 18 December
1986, Ser. A, No. 112
B. Children:
See relevant articles of the CRC, in particular Arts 3 and 5
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The family life of the parents and their children does not end by a divorce or
separation of the parents.
Mutual enjoyment by parent and child of each others’ company constitutes a
fundamental element of family life.
Includes also the protection of rights concerning illegitimate children (Marckx v.
Belgium, Judgment of 13 June 1979, Ser. A, No. 31)
No right to adoption. (Fretté v. France (App. 36515/97), Judgment of 13 June
1979, )
Succession between near relatives included (Marckx v. Belgium, Judgment of 13
June 1979, Ser. A, No. 31)
1. Fair procedure for issues relating to care and custody of children
The “margin of appreciation” will vary in light of the nature of the issues and the
seriousness of the interests at stake, such as protecting a child in which his health or
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development may be seriously at stake and the objective of reuniting the family as soon
as circumstances permit. “When a considerable period of time has passed since the child
was first placed in care, the child’s interests in not undergoing further de facto changes to
its family situation may prevail over the parents’ interests in seeing the family reunited.”
Kutzner v. Germany (App. 46544/99), Judgment of 26 February 2000, paras. 66-67.
2. Children taken into care by public authorities:

Appropriateness of public authorities taking children into care varies among the
State Parties
 Consideration of what is in the best interests of the child
 The margin of appreciation will vary… see above
KT v. Finland (App. 25702/94), Judgment of 12 July 2001 (Grand Chamber)?
Paras. 151, 154, 155
2. Adoption:
Adoption means “providing a child with a family, not a family with a child”. (Fretté v.
France (App. 36515/97), Judgment of 13 June 1979, )
Keegan v. Ireland, Judgment of 26 May 1994, Ser. A, No. 290.
4. Inheritance rights
Marckx v. Belgium, Judgment of 13 June 1979, Ser. A, No. 31.
C. Immigration

Expulsion or refusal of admission to a country may entail a violation of Art. 8. Cf.
Art. 2 Protocol 4 to the ECHR.
 Close relationship, husband and wife, parent and child where some situation of
dependence exists
 Not a right to a family life in a particular country, but to an effective family life
somewhere.
 No obligation to admit a spouse, but dependent children
Abdulaziz, Cabales and Balkandali v. United Kingdom, Judgment 28 May 1985, Ser. A,
No. 94.
Integration through their family since childhood make it difficult for the host country to
deport, Nasri v. France, Judgment of 13 July 1995, Ser, A, No 324 – deaf person, cf.
Bensaid v. United Kingdom (App. 44599/98), Judgment of 6 February 2001, - mental
illness.
In criminal cases a number of criteria are relevant for assessing a violation of Art. 8,
Amrollahi v. Denmark (App. 56811/00), Judgment of 11 July 2003, para. 35.
Slivenko v. Latvia (App. 48321/99), Judgment of the Grand Chamber of 9 October 2003,
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Violation since no reason to consider the family as a threat to national security.
IV. Private life
A. Homosexuality
 A persons sexual life falls normally within the domain of his and hers private life.
 The limitations based on health and morals or the protection of the rights of others
are discussed. Dudgeon v. United Kingdom, Judgment of 22 October 1981, Ser. A,
No. 45.
 BUT “not every sexual activity carried out behind closed doors necessarily falls
within the scope of private life ”see Laskey, Jaggard and Brown v. United
Kingdom (Apps. 21627/93, 21826/93, 21974/93), Judgment of 19 February 1997,
para. 36
Decriminalization of homosexual consenting adults acting in private is required by the
ECHR. (ATD v. United Kingdom (App. 35765/97), Judgment of 31 July 2001),
B. Transsexuality
An area of “dynamic interpretation of the ECHR
 The recognition of a new sexual identity for legal purposes.
See changes between Rees v. United Kingdom, Judgment of 17 October 1986, Ser. A, No.
106. and Cossey v. United Kingdom, Judgment of 27 September 1990, Ser. A, No 184.
 The change of gender in official documents
Godwin v. United Kingdom (App. 28957/95), Judgment of 11 July 2002, (para. 85) and I.
v United Kingdom (App. 25680/94), Judgment of 11 July 2002, (para. 65)
 The right to marry, Art. 12, gender is no longer considered on purely biological
criteria .
A change in Godwin v. United Kingdom (App. 28957/95), Judgment of 11 July 2002,
and I. v United Kingdom (App. 25680/94), Judgment of 11 July 2002.
 The recognition of parenthood
See X, Y and Z v. United Kingdom (App. 21830/93), Judgment of 22 April 1997, NB.
This case was decided before the Goodwin and I cases. Within Art. 8 “de facto family
ties, no common practice in the Council of Europe States, therefore a wide margin of
appreciation.
C. Privacy

What is privacy: See Joint dissenting opinion in Hatton and others v. UK (App.
36022/97), Judgment of the Grand Chamber of 8 July 2003, paras 10, 11)

Privacy and the press, Von Hannover v. Germany (App. 59320/00), Judgment 24
June 2004, para. 63
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“reporting facts … capable of contributing to a debate in a democratic society relating to
politicians in their exercise of their functions, for example, and reporting details of the
private life of an individual who, moreover, in this case does not exercise official
functions”