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The Legitimacy of Family Rights in Strasbourg Case Law

The Legitimacy of Family Rights in Strasbourg Case Law 'Living Instrument' or Extinguished Sovereignty?

Author: Carmen Draghici
Publisher: Hart Publishing
ISBN: 9781509928910

Published In: May 2019
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781509905256

List Price: HKD 545.87

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Modern family life exhibits a huge variety of new forms. Legal responses to these new forms illustrate the continuing differences between European nations. Nonetheless, the Strasbourg Court has been increasingly active in this area, which provides fertile ground for testing the legitimacy of the Court's interpretation of the European Convention on Human Rights.

When national law refuses to recognize a claimed right, litigants regularly reassert that right before the Strasbourg Court. This has forced it to seek answers to complex domestic controversies such as the legal recognition for same-sex partners and transgender persons, the ethics of adoption and reproductive rights, the legal regime for cohabitants, or the accommodation of immigrants' aspiration to family reunion.

Placing family rights at the core of the judicial legitimacy debate, this book provides a critical analysis of the standards of family rights protection under the Convention. It evaluates the Court's interpretive methodology and discusses the tensions inherent in its supranational quasi-constitutional function.

These include the risk of excessive deference to national authorities, at the expense of the effective enforcement of universal rights; the addition of "new rights"; and inattention to the division of responsibilities between democratic processes within sovereign States and the subsidiary international review.

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

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