The Legitimacy of Family Rights in Strasbourg Case Law

Carmen Draghici is a Senior Lecturer in Law at the City Law School, City, University of London.

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