Right to family life
Article 8 ECHR provides that everyone has the right to respect for family life. The European Court of Human Rights interprets the term ‘family life’ autonomously. Forms of cohabitation or personal relationships which are not recognized as falling in the ambit of ‘family life’ in the jurisdiction of a contracting state can still enjoy protection by article 8; family life is not confined to legally acknowledged relationships. The Court is led by social, emotional and biological factors rather than legal considerations when assessing whether a relationship is to be considered as ‘family life’. On the other hand, a legal tie may be sufficient to constitute ‘family life’. In Pini and others v Romania, the Court held that the mere fact that children have been adopted creates a relationship falling within the scope of article 8, even if the parents and children have never lived together and could not establish any emotional ties.
In this case, the applicants were two Italian couples (the Court had joined two applications) who had adopted children in Romania. The adoption had been granted without prior contact between the applicants and the children in question; the children had not been heard regarding the adoption due to their age. At the time of the adoption, the children lived in a privately run foster home. The adoptive parents asked that the children be enabled to travel to Italy to live with them. Since the foster home refused, the parents requested court orders to the effect that the children should be brought to Italy. The requests were granted. Although the decisions became final, the foster home did not comply and protracted the procedure of enforcing the court order by numerous requests to stay the execution of the decision. In the applicants’ view, the failure of the Romanian state to enforce the judgment which would have enabled them to live with their adopted children constituted an infringement of the right to family life. The Government submitted that no family life had existed between the applicants and their adopted children.
The Court pointed out that the adoption had vested the applicants with all rights of biological parents. It acknowledged that the applicants had not been able to establish an emotional connection with the children yet, but stated that intended family life may fall within the ambit of article 8, too. The Court held that article 8 was therefore applicable and that Romania had violated its obligations under article 8 by not enforcing the court orders and not enabling the children to live in a household with their parents.
Parents and children
The relationship between parents and their children falls under the scope of private life. Article 8 protects the tie between a parent and a child born out of a marriage. This bond is not cut in case of a divorce or if the parents separate.
The protection furnished by article 8 ECHR also extends to the relationship between a child and the biological parent if the child is not born out of a marriage (Keegan v Ireland). In Kroon and others v The Netherlands, the applicants had lived in a relationship and had had a son together. At the time of birth, the first applicant had still been married to another man, from whom she had separated. The applicants requested that the second applicant, who was the biological father, be entered into the register as the father of their son. According to Dutch law in force at the time, it was not possible to register another man than the husband of the child’s mother as father of the child unless the husband denied paternity. Since it was not possible to obtain a declaration to this effect from the husband of the first applicant, the request to enter the biological father in the registry was denied.
The European Court of Human Rights stated that the relationship between the second applicant and his son constituted family life, pointing out that ‘the notion ‘family life’ is not confined solely to marriage based relationships and may encompass other de facto family ties where parties are living together outside marriage’ (para 30). By refusing to recognize the family ties between the biological father and his son, the respondent stated had violated its positive obligations under article 8 ECHR.
Generally, the relationship between and adopted child and the adoptive parent is protected by article 8 ECHR in the same manner as the relationship between a child and a biological parent (Kurochkin v Ukraine)