Guide on Article 8 of the Convention – Right to respect for private and family life
enable their child, born abroad as a result of a surrogacy arrangement, to travel back with them to their country of origin, was considered to be manifestly ill-founded although the refusal had resulted in an effective separation of the parents and their child (D. and Others v. Belgium, § 64). 51 322. Paradiso and Campanelli v. Italy [GC] concerned the separation and placement for adoption of a child conceived abroad through surrogacy and brought back to Italy in violation of Italian adoption laws (§ 215). The Court found that no family life had existed in this particular case and considered it under the notion of “private life” 52(compare and contrast, Valdís Fjölnisdóttir and Others v. Iceland).
3. Children 323. According to well-established case-law, “in all decisions concerning children their best interests are of paramount importance. (...) It follows that there is an obligation on States to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development” (Vavřička and Others v. the Czech Republic [GC], §§ 287-288 and below, for instance, X v. Latvia [GC], § 96).
a. Mutual enjoyment 324. Regard for family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8 (Strand Lobben and Others v. Norway [GC], § 204). The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life within the meaning of Article 8 of the Convention (even if the relationship between the parents has broken down), and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (Monory v. Romania and Hungary, § 70; Zorica Jovanović v. Serbia, § 68; Kutzner v. Germany, § 58; Elsholz v. Germany [GC], § 43; K. and T. v. Finland [GC], § 151). 325. The Court has found that an applicant’s secret and extrajudicial abduction and arbitrary detention resulted in the deprivation of mutual enjoyment between family members and was therefore a violation of Article 8 (El-Masri v. the former Yugoslav Republic of Macedonia [GC], §§ 248-250). The Court has also found a violation of Article 8 where the applicant was kept in isolation for more than a year, separated from his family, who did not have any information on his situation (Nasr and Ghali v. Italy, § 305). 326. The Court has also found that a State’s continuing failure to provide an applicant with credible information as to the fate of her newborn son – who had gone missing from a State-run maternity ward shortly after birth – constituted a continuing violation of the right to mutual enjoyment and respect for her family life (Zorica Jovanović v. Serbia, §§ 74-75; and for the measures taken by the State in implementation of the said judgment, see Mik and Jovanović v. Serbia (dec.)). 327. A refusal to allow a child to accompany her mother to another country for the purposes of the latter’s postgraduate education based on the absence of the consent of both parents needs to be examined in the light of the child’s best interest, avoiding a formalistic and mechanical approach (Penchevi v. Bulgaria, § 75).
51 52
See also Legal parent-child relationship. See also Right to personal development and autonomy.
European Court of Human Rights
77/161
Last update: 31.08.2021
