ERA: Recent European Court of Human Rights Case Law in Family Matters (conference report)

Report written by Tine Van Hof, researcher at the University of Antwerp

On the 13th and 14th of
February 2020, the Academy of European Law (ERA) organized a conference on
‘Recent ECtHR Case Law in Family Matters’. This conference was held in
Strasbourg and brought together forty participants coming from twenty-one
different countries. This report will set
out some of the issues addressed at the conference.

The presentation, made by Ksenija
Turkovi?, Judge at the European Court of Human Rights, focused
on children on the move and more specifically on minors in the context of
migration. On this topic the European Court of Human Rights (ECtHR) has developed
a child-specific human rights approach. This approach implies taking into
account three particular concepts: vulnerability, best interests and autonomy.
Judge Turkovi? pointed to the interesting discussion on whether vulnerability could
only apply to young migrant children. On this discussion, there is now agreement
that the vulnerability applies to all children under the age of 18 and regardless
whether they are accompanied by adults. The ECtHR made very clear in its case law
that migrant children are especially vulnerable and that this vulnerability is a
decisive factor that takes precedence over the children’s migrant status. This
vulnerability also plays a role in the cases on the detention of children. The
more vulnerable a person is, the lower the threshold for a situation of
detention to fall within the scope of Article 3 of the European Convention on Human
Rights (ECHR), encompassing the prohibition of torture.

Family unification and the free movement of family
status was the second topic of the day. Michael Hellner,
professor at Stockholm University, discussed several cases of the ECtHR
(Ejimson v Germany) and the Court of Justice of the EU (CJEU) (K.A. v Belgium,
Coman and S.M.). He concluded that family life does not automatically create a
right of residence but it can create such a right in certain circumstances. In
the Coman case for example, the CJEU decided that Romania had to recognize the
marriage between the two men for the purpose of enabling such persons to
exercise the rights they enjoy under EU law (i.e. free movement). Professor
Hellner noted that it seems to be quite easy to circumvent national law in the
future if one looks at the Coman case. He considered it positive if the
consequence was that same-sex marriages and surrogacy arrangements created abroad
were recognized. However, he made the interesting observation that it might be
a very different story if one thinks about child marriages and the recognition
thereof.

Maria-Andriani Kostopoulou,
consultant in family law for the Council of Europe, thereafter shared her
insights on parental rights, pre-adoption foster care and adoption. She
discussed i.a. the evolution in the case law of the ECtHR on the representation
of the child before the Court. In the Strand-Lobben case, the Court stated that
the issue of representation does not require a restrictive or technical
approach and thus made clear that a certain level of flexibility is necessary. In
the Paradisio and Campanelli case, the ECtHR provided three criteria that
should be taken into account for assessing the representation of the child: the
link between the child and the representative, the subject-matter of the case
and any potential conflict of interests between the interests of the child and
those of the representative. The latest case, A. and B. against Croatia,
introduced a security safeguard. In this case, the ECtHR asked the Croatian Bar
Association to appoint a legal representative for the child for the procedure
before the ECtHR since the Court was not sure that there were no conflict of
interests between the child and the mother, who proposed to be the
representative.

To end the first conference day, Dmytro
Tretyakov, lawyer at the Registry of the ECtHR, enlightened us about
the misconceptions and best practices of submitting a case to the Court. His
most important tips for a submission to the Court are the following:

Use the current application form and not an old one;
Submit well in time and certainly within the six-month
period;
Summarize the facts of the case on the three pages
provided. This summary has to be clear, readable (for those that do it in
handwriting) and comprehensible;
To state claims, refer to the relevant Article from
the ECHR (do not cite it) and explain what the specific problem is with regard
to that Article;
Support each claim with documents; and
Sign the form in the correct boxes and carefully look
where the signature of the applicant and where the signature of the
representative is required.

The second day of the conference started with the
presentation of Nadia Rusinova, attorney-at-law and lecturer at
the Hague University of Applied Science, on international child abduction. She
discussed i.a. the issue of domestic violence in child abduction cases. Several
questions can be raised in this regard, for example: what constitutes domestic
violence? When should a court accept the domestic violence to be established? What
is adequate protection in light of the Hague Convention on International Child
Abduction (1980) and who decides on this? In the case O.C.I. and others v
Romania, one of the questions was whether there is such a thing as light
violence that does not amount to a grave risk in the sense of Article 13(1)(b)
of the Hague Convention. The ECtHR approached this issue very critically and
stated that no form of corporal punishment is acceptable. Regarding the
adequate measures, the Court stated that domestic authorities have a discretion
to decide what is adequate but the measures should be in place before ordering the
return of the child. Another point raised by Ms. Rusinova is the time factor
that is required. If one looks at Article 11(2) of the Hague Convention and at
Article 11(3) of the Brussels IIbis Regulation together, six weeks is the required
time period for the return proceedings. The Brussels IIbis Recast clarified
that the procedure should take no more than six weeks per instance. However, according
to Ms. Rusinova it is hardly possible to do the procedures in six weeks; it
will only work when the proceeding is not turned into an adversarial proceeding
in which all kinds of claims of both parents are dealt with.

Samuel Fulli-Lemaire, professor
at the University of Strasbourg, addressed the interesting evolution of
reproductive rights and surrogacy. In the case of C. and E. v France, the
French Court of Cassation asked the ECtHR for an advisory opinion on the
question whether the current state of the case law in France was compatible
with the obligations under Article 8 ECHR (the right to respect for private and
family life). The status of the French case law was that the genetic parent was
fully accepted but the other intended parent was required to adopt the child if
he or she wished to establish parentage links. The ECtHR replied that the
obligation under Article 8 entailed that there must be a possibility of
recognition of the parent-child relationship but that it is up to the States to
decide how to do this. Adoption is a sufficient method of recognizing such relationship,
provided that it is quick and effective enough. The Court also refers to the
possibility of transcription of the birth certificate as an alternative to
adoption. However, professor Fulli-Lemaire pointed out that there is a
misconception on what transcription means under French law. The mere
transcription of the birth certificate does not establish legal parentage in
France. The fact that the ECtHR says that an intended parent can adopt or
transcribe the birth certificate is therefore tricky because under French law
the effects of the two methods are not at all the same.

The very last presentation of the conference was given
by Gabriela Lünsmann, attorney-at-law and member of the Executive
Board of the Lesbian and Gay Federation in Germany. She spoke about LGBTQI
rights as human rights and hereby focused i.a. on transsexuals’ gender identity
and the case of X. v North-Macedonia. The question raised in that case is whether
the state must provide for a procedure to recognize a different gender. The
applicant had tried to change their gender but North-Macedonia did not offer
any possibility to undergo an operation or to have medical treatment in that regard.
The applicant then went abroad for treatment. Back in North-Macedonia, he had
his name changed but it was not possible to change his officially registered gender.
The applicant claimed that this amounted to a violation of Article 8 ECHR and
specially referred to the obligation of the state to respect a person’s
physical and psychological integrity. The Court found that there was indeed a
violation. What is as yet unclear, and is thus an interesting point for
reflection, is whether states are under an obligation to provide for a
procedure for the recognition of a change of gender without the person having
had an operation.

The author would like to thank ERA for the excellent
organization of the conference and for the interesting range of topics
discussed.