The relevant sections for family proceedings are:
- Article 8 (1) – the right to respect for a person's family life and home.
- Article 12 - the right to marry and found a family.
Any interference in these rights must: be in accordance with the law; be necessary; be for a legitimate aim and proportionate; i.e. there are relevant and sufficient reasons for taking action; a less restrictive alternative does not exist, the rights of all interested parties were taken into account and safeguards exist to prevent an abuse of power.
These considerations are especially relevant to care proceedings brought by local authorities where the removal of a child from his or her parents should only be done in exceptional circumstances.
As yet Article 8 has not been interpreted by the European Court of Human Rights to recognise a stable relationship between lesbian and gay couples as "family life". Although Article 8 has been interpreted to recognise relationships between transsexuals and their opposite sex partners as "family life".
Family life also includes ties between near relatives as well as the parent/child relationship. The European Court of Human Rights has also recognised that the protection of family life includes the right to separate as well as protecting such rights as contact to a child.
Possible challenges may arise, for example, in the area of adoption law where refusal of contact between a natural parent and their child once adopted may breach Article 8 if the refusal is not based on protecting the child's best interests.
If a party in family proceedings wishes to rely on a provision of the Human Rights Act they must specify in their application, answer, petition or other originating document, precise details of the Convention rights they allege have been infringed.
Contact Collette O'Connor for more information on any area of Family Law. |
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