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 StatesIII. 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