Guide on Article 8 of the Convention – Right to respect for private and family life
297. In spite of the absence of a biological tie and of a parental relationship legally recognised by the respondent State, the Court found that there existed family life between the foster parents who had cared for a child on a temporary basis and the child in question, on account of the close personal ties between them, the role played by the adults vis-à-vis the child, and the time spent together (Moretti and Benedetti v. Italy, § 48; Kopf and Liberda v. Austria, § 37 - compare Jessica Marchi v. Italy, where the Court found that family life did not exist between a foster mother who had obtained pre-adoption approval and the child that had lived with her for one year in the context of a “legal risk” placement, §§ 49-59 and the references therein). 298. In addition, in the case of Wagner and J.M.W.L. v. Luxembourg – which concerned the inability to obtain legal recognition in Luxembourg of a Peruvian judicial decision pronouncing the second applicant’s full adoption by the first applicant – the Court recognised the existence of family life in the absence of legal recognition of the adoption. It took into consideration that de facto family ties had existed for more than ten years between the applicants and that the first applicant had acted as the minor child’s mother in every respect. In these cases, the child’s placement with the applicants was respectively recognised or tolerated by the authorities. On the contrary, in Paradiso and Campanelli v. Italy [GC], having regard to the absence of any biological tie between the child and the intended parents, the short duration of the relationship with the child (about eight months) and the uncertainty of the ties from a legal perspective, and in spite of the existence of a parental project and the quality of the emotional bonds, the Court considered that the conditions enabling it to conclude that there had existed a de facto family life had not been met (§§ 156-157) (compare and contrast, D. and Others v. Belgium (dec.), and Valdís Fjölnisdóttir and Others v. Iceland, §§ 59-62 applying the test for the applicability of “family life” as laid down in Paradiso and Campanelli). 299. Article 8 does not guarantee either the right to found a family or the right to adopt. The right to respect for “family life” does not safeguard the mere desire to found a family; it presupposes the existence of a family, or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father, or the relationship that arises from a genuine marriage, even if family life has not yet been fully established, or the relationship between a father and his legitimate child even if it proves, years later, to have had no biological basis (Paradiso and Campanelli v. Italy [GC], § 141). An applicant’s intention to develop a previously non-existent “family life” with her nephew by becoming his legal tutor lies outside the scope of “family life” as protected by Article 8 (Lazoriva v. Ukraine, § 65). 300. However, where family life is not found, Article 8 may still be applicable under its private life head (Paradiso and Campanelli v. Italy [GC], § 165; Lazoriva v. Ukraine, §§ 61 and 66 concerning the applicant’s nephew; Azerkane v. the Netherlands, § 65). Finally, although the exercise of Article 8 rights pertains, predominantly, to relationships between living human beings, it may extend to certain situations after death (Polat v. Austria, § 48 and the references therein).
B. Procedural obligation 301. Whilst Article 8 contains no explicit procedural requirements (as noted above), the decisionmaking process involved in measures of interference must be fair and sufficient to afford due respect to the interests safeguarded by Article 8 (Petrov and X v. Russia, § 101), in particular in relation to children being taken into care (W. v. the United Kingdom, §§ 62 and 64; McMichael v. the United Kingdom, § 92; T.P. and K.M. v. the United Kingdom [GC], §§ 72-73) and the withdrawal of parental responsibility and consent to adoption (Strand Lobben and Others v. Norway [GC], §§ 212-213, 220). Also, the Court has stated that in cases in which the length of proceedings has a clear impact on the applicant’s family life, a more rigorous approach is called for, and the remedy available in domestic law should be both preventive and compensatory (Macready v. the Czech Republic, § 48; Kuppinger v. Germany, § 137).
European Court of Human Rights
72/161
Last update: 31.08.2021
