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Legitimacy of Family Rights in Strasbourg Case Law

‘Living Instrument’ or Extinguished Sovereignty?

By: Carmen Draghici
Media of Legitimacy of Family Rights in Strasbourg Case Law
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Published: 09-02-2017
Format: Hardback
Edition: 1st
Extent: 456
ISBN: 9781509905256
Imprint: Hart Publishing
Series: Modern Studies in European Law
Dimensions: 234 x 156 mm
RRP: £70.00
 

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Loren Epson

About Legitimacy of Family Rights in Strasbourg Case Law

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.

Table Of Contents

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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