European Convention on Human Rights (ECHR)

European Convention on Human Rights (ECHR)

• The European Convention on Human Rights is also known as the Convention for the Protection of Human Rights and Fundamental Freedoms.
• Article 8 of the ECHR guarantees the right to respect for private and family life.
• Article 12 of the ECHR guarantees the right to marry.
• Article 14 of the ECHR prohibits discrimination.

European Court of Human Rights (ECtHR)

• The ECtHR has jurisdiction over Member States that are signatories to the European Convention on Human Rights.
• The ECtHR is part of the Council of Europe, which has 46 member states, including Greenland as part of Denmark.

Free Movement of Families within the EU

• EU citizens and their family members have the right to move and reside freely within the EU, regardless of sexual orientation.
• Challenges exist regarding the recognition of parenthood across different EU countries.

Role of Public Policy

• Public policy is a doctrine that addresses the principles underlying the operation of the legal system in a country or region.
• Public policy affects the entire population and concerns values that change and evolve over time.
• The law is most effective when it corresponds to general social norms.

Family Law

• Family life is an essential aspect of the right to respect for private and family life.
• The notion of family life is an autonomous concept, and the essential ingredient of family life is the right to live together.
• The concept of family can be defined in various ways, including:
• A married, civil partnered, or cohabiting couple with or without children, or a lone parent with at least one child who lives at the same address.
• A group of people related to each other, especially parents and children, whether by blood or through shared family names.

Comparative and International Family Law

• International family law entails rules for cross-border family relations and the body of international and (European) instruments and decisions of supranational courts that regulate family relationships.
• Comparative family law focuses on developments in various family law systems, comprising a general, instructive, and pointed comparison of different family law systems.

Legislative Framework

• The EU plays a significant role in legislating on family law matters with cross-border implications.
• The Court will consider de facto family ties, such as living together, when determining family relationships.

Private Life and Article 8 ECHR

• Private life encompasses multiple aspects of a person's physical and social identity.
• The interpretation of Article 8 ECHR grants flexibility to national authorities in fulfilling obligations under the ECHR, known as the "Margin of Appreciation".
• The degree of flexibility accorded to states in determining whether certain measures are necessary is subject to the terms provided by Article 8(2).

Burden of Proof in ECtHR Cases

• Applicants must prove issues within the scope of Article 8 and any interference.
• States must justify the interference with the Article 8 right in the terms provided by Article 8(2).

Adult Relationships

• Cohabiting without marriage has become increasingly accepted since 1970, leading to an increase in acceptance of cohabitation without marriage and same-sex marriages.
• The Netherlands was the first country to open marriage to same-sex couples on 1 April 2001.
• Marriage is a complex and dynamic institution, creating rights and obligations between persons, as well as between them and any resulting biological or adopted children.
• There is no definition of marriage, including in the new Brussels IIb Regulation.
• Capacity to enter into marriage requires the legal capacity to marry, which is a necessary condition for a valid marriage.