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Publication
Family disruption in the case-law of the European Court of Human Rights
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Abstract(s)
This workshop aims to analyse the principles drawn out by the case-law of the European Court of Human Rights in regard to family disruption matters, such as custody and access, children taken into public care and the right to respect for family life of prisoners and immigrants.
The right to respect for family life, within the meaning of Article 8 of the European Convention on Human Rights, requires a positive obligation of Member States to act in a manner calculated to allow family ties to develop normally. Furthermore, as the Strasbourg Court often stresses, the mutual enjoyment by parents and children of each other’s company constitutes a fundamental element of family life and thus one of the objectives pursued by Article 8.
Therefore, the restriction or non-enforcement of custody and visiting rights, as well as the compulsory taking of children into public care and the implementation of care measures, or the limitation or prohibition of visits from family members to prisoners, or even the refusal of family reunification of immigrants, represent an interference with the right to respect for family life under Article 8.
In this workshop, we intend to study under which grounds, according to this Court, Member States may legitimately interfere with the enjoyment of this right. This case-law analysis will allow us to conclude, e.g.¸ that, although a wide margin of appreciation may be granted to Member States in this field, the respect for family life will not be considered to be violated if parents’ procedural rights are safeguarded, if good faith efforts to enforce access arrangements are made, if measures of public care are taken with a view to the reunification of the family and if a fair balance between the conflicting interests is made.
Description
Comunicação apresentada na 47th Annual Conference of the Association of Family and Conciliation Courts – Traversing the trail of alienation: mountains of emotion, rocky relationships, mile high conflict, Denver, Colorado, 5th June 2010
Keywords
Family disruption Human rights