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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

The Right to a Family Life

Alison Perry

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 19 January 2020

Subject(s):
Right to family life — Fundamental rights — Natural rights — Universalism

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction and Definitions

In the context of constitutional law it is difficult to disentangle the idea of a ‘right to family life’ from other related rights. These include: the protection of the family, the rights of family members (see rights of children; rights of women), marriage, and notions such as equality (see LGBT rights; gender discrimination). This entry will not attempt to cover these in any detail, but will instead seek to focus as far as possible on constitutional recognition of a right to family life as such.

The fact that the object of the right to family life, ‘the family’, is shaped far more by cultural traditions and concepts than most other fundamental rights, makes this right particularly relevant to the general debate on universalism versus cultural relativism of human rights. While international instruments recognize the importance of the family to human society and development (see Art. 16(3) of the Universal Declaration on Human Rights; Art. 23(1) of the International Covenant on Civil and Political Rights (1966); Art. 10(1) of the International Covenant on Economic, Social and Cultural Rights (1966); Art. 18 of the African Charter on Human and Peoples’ Rights (1981) (Banjul Charter); Art. 17 (1) of the American Convention on Human Rights (1969) (Pact of San José)), these documents do not ascribe specific meaning to the concept of ‘family’, the understanding of which can vary from state to state and community to community depending on historical, social, cultural, and economic factors. Differing concepts of family will often exist even within national jurisdictions, particularly those comprising a number of cultures or indigenous groups (cultural diversity; rights of indigenous communities). Indeed, the United Nations (‘UN’) Human Rights Committee has concluded that it is ‘not possible to give the concept [of family] a standard definition’ (Human Rights Committee 7).

Traditional concepts of family, which often involve fixed gender roles and expectations and which generally have a narrow focus on a particular family form, can raise difficult issues with regard to potentially conflicting rights concerned, for example, with equality and protection from discrimination. Human rights bodies have expressed the view that a ‘wide’ understanding of the idea of family is required (for example, Committee on Economic, Social and Cultural Rights, para. 6). An example of such a wide understanding is provided by the 2006 law on domestic violence in Brazil (Federal Law 11340, known as the Lei Maria da Penha) which extends the notion of family to a community formed by individuals who are or consider themselves to be related, and regardless of sexual orientation. Another example can be found in the definition adopted by the UN for the purposes of its International Year of the Family in 1994:

[a]ny combination of two or more persons who are bound together by ties of mutual consent, birth and/or adoption or placement and who, together, assume responsibility for, inter alia, the care and maintenance of group members, the addition of new members through procreation or adoption, the socialization of children and the social control of members.

Such broad approaches are liable to attack from those who support more ‘traditional’ ideas of family.

Like family, the concept of a right to family life does not have a fixed and definite meaning. There is lack of consensus about the spheres of activity and experience that the concept can or should embrace. The idea of a right to family life has the potential to encompass a number of components, from family-based rights against the state, such as the legal recognition of family status and the right not be to be separated from one’s family, to rights between private parties, such as the right to financial support from family members. Arguments centred on ‘family life’ have featured in cases concerning marriage, divorce, paternity proceedings, the position of the unmarried father, the recognition and status of same-sex couples, adoption of children, and entitlement to use a particular name, among other topics. The relevance of the right to family life is not, however, confined to issues of family law. The right has also been invoked in relation to deportation, the movement of persons, sexuality and sexual behaviour, the regulation of reproduction, property rights, succession, equality, and religious freedom. The precise meaning and ambit of family life have frequently been the subject of academic and judicial discussion (see eg Okon; Naldini; Banda and Eekelaar; as well as the jurisprudence of the European Court of Human Rights (ECtHR) on this issue).

A number of national constitutions make specific reference to family life, for example:

And the protection of family life has been read into others (eg in South Africa via Dawood v Minister of Home Affairs (2000) (S Afr), and in France by the Constitutional Council of France (Conseil Constitutionnel) decision n° 99–419 DC (9 November 1999) (Fr)).

Most constitutions do not, however, refer explicitly either to a right to family life nor indeed to family life at all. Many constitutions refer to protecting aspects of the family, for example:

Others declare the family to be the fundamental unit of society, for example:

Some constitutions make no reference to the family at all, for example:

B.  Origins and Evolution

While reference to the special status of the family and the state’s duty to protect the family can be found in pre-Second World War documents (eg Constitution of Ireland 1937(Ir)), the concept of respect for a right to family life as such seems to have its origins in post-Second World War instruments, notably the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) (note, there is a substantial body of case law on when family life does and does not exist under Article 8 ECHR, but that is outside the scope of this work). From the travaux préparatoires on Article 8 ECHR it is evident that the primary focus was upon protection from state interference. Some argued that family-oriented rights should not be guaranteed by the Convention at all as they were not essential for the functioning of democratic institutions. This argument was defeated by reference to examples of state interference with the family, such as racial restrictions on the right to marry made by totalitarian regimes. There is no evidence of discussion of the meaning of family or family life in the Article 8 travaux préparatoires, quite possibly because there was at the time no perceived need to consider the meaning of these concepts.

10  The Western notion of family has, however, been the subject of significant reinterpretation since the right to family life was formulated in the ECHR. In many jurisdictions, there has been a trend towards liberalization of the concept of family and the so-called ‘nuclear family’ has been to some extent abandoned in favour of a more inclusive and less rigid understanding (consider, for example, developments around divorce, the de facto family, the same-sex couple, and the acceptance of the need to cater for transsexual people within legal notions of family).

11  It should also be remembered that the starting point of the nuclear family, apparently taken for granted by the drafters of the ECHR, is not universal. In Japan, for example, the traditional concept of family is based not around the nuclear family, but around a household of three generations or more and extends to members of the household who are not relatives. Part of the debate in Japan about whether ‘respect for the family and for the home’ should be established in the constitution (Art. 24 of the Constitution of Japan: 3 November 1946 (Japan) protecting ‘marriage’ but not ‘family’) centred on concerns arising from the differences between the Japanese concept of family and the Western understanding of the same (Research Commission on the Constitution 408).

12  Similarly, while there is a discernible trend towards liberalization and expansive interpretation of notions of family and family life under many constitutions, plentiful examples may be found of jurisdictions where this is not the case. Nigeria offers one example. The Nigerian constitution guarantees ‘privacy’ in family life: see Nwali (2014) (Nigeria) interpreting Section 37 of the constitution (Constitution of the Federal Republic of Nigeria: 29 May 1999 (Nigeria)), but at the same time Nigerian law criminalizes gay sex and same-sex marriage (a 2014 challenge to the latter’s constitutionality (Teriah Joseph Ebah v Federal Government of Nigeria (2014) (Nigeria)) was thrown out on the ground that the petitioner lacked standing (locus standi). The family under Nigerian law is thus an incontrovertibly heterosexual institution (the laws of Botswana, Uganda and The Gambia, among others, take the same approach).

C.  The ‘Right to Family Life’ in the Context of Selected Constitutions

13  On the questions of whether, why, and on what basis the right to family life should enjoy constitutional protection, arguments put forward in the Japanese debate are illuminating. Arguments for a constitutionally protected right to respect for family life included the view that this would reconfirm the importance of the family as the basis of society and rebuild the roles that have been played by the family; further, some thought the constitution should provide behavioural norms. On the other hand, against constitutional protection for the family it was argued that provisions with moral objectives should not be written into constitutions; that constitutional values should be universal, whereas respect for the family was not a universal value; and that inclusion of respect for the family in the constitution would be a retrograde step, giving new life to outdated family systems, and would be of only ‘ideological’ significance. It was further argued that ‘the Western perspective on the Constitution and human rights, based on opposition between the individual and the power of the state, does not conform with the Japanese and Asian perspective of emphasizing the family, the home, and the community over the individual’. In the Japanese context at least, the question of whether the family should enjoy constitutional protection is located in debates about individualism versus communitarianism, as well as about changing social structures (Final Report of Japan’s Research Commission on the Constitution 408).

14  The following sections provide a brief overview of some key developments around family life under constitutions selected because they illustrate differing approaches taken against different social, religious, and political backdrops. Three of the sample constitutions (Germany, Ireland, Brazil) give protection or special status to the family, family life, or family-based rights, while the others (Canada, India, Israel, US) make no express reference to the family at all.

1.  Brazil

15  Title VIII, Chapter VII of the Constitution of the Federative Republic of Brazil: 5 October 1988 (Braz), is dedicated to ‘Family, Children, Adolescents, and the Elderly’. ‘The family, which is the foundation of society, shall enjoy special protection from the State’ (Constitution of the Federative Republic of Brazil: 5 October 1988, Art. 226 (Braz)). The provision represents the first time that express constitutional protection had been afforded to the family in Brazil. The constitution ensures recognition of religious and civil marriages. In contrast to the constitutions of 1937, 1946, 1967 and the Constitutional Amendment of 1969, the 1988 constitution did not adopt a description of family as an entity constituted by marriage, and includes ‘stable unions’ (de facto couples) within the concept of family, as well as units formed by parents and their children.

16  Under the Brazilian constitution, human dignity and citizenship are fundamental principles, while equality is seen as a fundamental right. The constitution guarantees equality between natural and adopted children, and between married couples and those in unmarried ‘stable unions’. In doing so, it recognizes that family can have a broad ambit and can be based on function, not just form.

17  The constitution does not expressly refer to same-sex marriage (see same-sex marriage / registered partnership), which has been the subject of some considerable controversy in Brazil. Legal implications arising from same-sex relationships (such as the granting of standing to same-sex couples in divorce proceedings, and the rights of same-sex couples to adopt) came to be recognized from 1999 onwards. In 2011, the Brazilian Supreme Court extended to same-sex unions the same rights and duties as stable unions between a man and woman (Attorney General v National Congress and Governor of the State of Rio De Janeiro v Court of Justice of the States (2011) (Braz)). In the Court’s view same-sex civil unions were constitutional and were a type of family that is constitutionally protected by Brazilian law. Justice Britto held that Articles 226 and 227 of the Federal Constitution outline a constitutional sense of family ‘in its colloquial or proverbial meaning of domestic nucleus, regardless of whether formally or informally constituted or composed of heterosexual couples or openly homosexual couples’. Many notaries public and state judges interpreted this decision as if it also allowed same-sex marriages, and started to convert stable same-sex unions into marriages, and to licence same-sex marriages. Others, however, refused to do so. In 2013 in order to try to end this resistance the Brazilian National Council of Justice passed a resolution (Resolution 175, 14 May 2013) denying notaries the right to refuse to perform same-sex marriages, thereby effectively extending marriage to same-sex couples across the country. The National Council of Justice is an administrative rather than judicial body. The fact that the acceptance of this change in the constitutional understanding of the family ultimately rested on the action of an administrative body makes it potentially fragile (Benvindo 1). This fragility is perhaps reflected in subsequent developments. In September 2015 the Special Commission on the Family Statute controversially approved Bill 6583/13 which defines family as ‘the union of a man and a woman’ or the community formed by parents and their descendants: Family Statute Bill No. 6583/13 (2013) (Braz). Critics argued that this conservative definition of family is unconstitutional in light of the previous decision of the Supreme Court of Brazil. The Bill was suspended in 2015.

2.  Canada

18  The Canadian Charter of Rights and Freedoms (Can) has constitutional rank (Section 52(1) Constitution Act (1982) (Can)). While the Charter stresses certain core values, none of the written constitutional documents refers directly to protection of the family or family life. Constitutional protection has nonetheless been afforded to a number of aspects of family life in Canada. Supreme Court of Canada (Cour suprême du Canada) cases of interest include: Augustus v Gosset (1996) (Can), no constitutional protection of any right to maintain and continue a parent–child relationship (see para. 53); B (R) v Children’s Aid Society of Metropolitan Toronto (1994) (Can), protection of liberty in Section 7 of the Charter did not protect the ‘integrity of the family unit’ (at para. 72); New Brunswick v G (J) (1999) (Can), interference with the parent–child relationship is a gross intrusion into a private and intimate sphere, and could violate a parent’s liberty interests; Winnipeg Child and Family Services v W (KL) (2000) (Can), the court should recognize the child’s interest in being nurtured and brought up by his or her parents (view expressed by dissenting judges at para. 12); Trociuk (2003) (Can), legislation giving mothers sole authority to decide whether the unmarried father’s name should appear on the birth certificate and giving father no opportunity to register his paternity was unconstitutional; Baker v Canada (Minister of Citizenship and Immigration) (1999) (Can), deportation order stayed in part on the basis that inadequate consideration had been given to the state’s obligation to place important weight on maintaining connections between close family members; but compare MM v United States of America (Can), the surrender of a mother to the US would not result in a violation of her constitutional family-based rights (see para. 135); and Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) (Can), parental punishment of children fell within a protected sphere of family life.

19  In the Canadian jurisprudence, the judiciary seem to have felt more comfortable using constitutional argument to correct inequalities in the family sphere than to recognize and protect family life as such. Judicial invocation of the Charter and constitutional principle has led in Canada to legislation changing the legal approach to the concepts of ‘spouse’ and ‘parent’ and has promoted reforms relating to recognition of informal and same-sex relationships (Bala and Lecky 50). In M v H (1999) (Can) the Supreme Court upheld a decision that the exclusion of same-sex couples from a legislative definition of ‘spouse’ was unconstitutional, thereby paving the way to the Court’s expression of support for same-sex marriage and view that legislation allowing the same could be introduced: Reference re Same-Sex Marriage (2004) (Can). The Supreme Court has held legislation which treated married and unmarried couples differently (in the context of support for families following motor accidents) to be unconstitutional on the basis that the differential treatment amounted to a violation of the right to dignity and freedom: Miron v Trudel (1995) (Can). The Court has, however, resisted the idea that protection of family life necessitates the equal treatment of married and unmarried couples in all areas: see eg Nova Scotia (AG) v Walsh (2002) (Can) and Hodge v Canada (2004) (Can).

20  What emerges from the Canadian case law is some recognition that the Charter can apply in relation to family matters either indirectly, because legislation must conform to the Charter, or more directly because the Charter can be used as a corrective measure for inequalities that may arise out of the interpretation or application of legislation (Shulakewych 106).

3.  Germany

21  The Constitution of the Federal Republic of Germany: 23 May 1949 (Ger) (Basic Law, GG) offers ‘special protection’ to ‘marriage and family’: GG Article 6 Section 1. In interpreting the Basic Law, German courts must consider human rights instruments, including the Article 8 ECHR jurisprudence. Mothers are afforded the ‘protection and care of the community’, GG Article 6 Section 4.

22  According to the Federal Constitutional Court of Germany (Bundesverfassungsgericht) (‘FCC’), family for the purposes of constitutional protection under Article 6 can include single parents and their children as well as ties between close relatives, in particular between grandparents and their grandchildren (1 BvL 16/62, 1 BvL 17/62, 1 BvL 18/62, 1 BvL 19/62, 1 BvL 20/62, 1 BvL 21/62, 1 BvL 22/62, 1 BvL 23/62, 1 BvL 24/62, 1 BvL 25/62 (1964) 106 (Ger); 1 BvL 17/87 (1989) 267 (Ger); 1 BvL 9/04 (2007) (Ger); 1 BvR 2926/13 (2014) paras 22–23 (Ger)). The level of protection will depend to an extent on the degree of kinship. The protection granted to the family under the German constitution has been held not to be restricted to German citizens (1 BvL 2/10 1 BvL 3/10, 1 BvL 4/10, 1 BvL 3/11 (2012) (Ger) and 1 BvL 14/07 (2012) (Ger)). The traditional understanding was of family based on marriage between a man and a woman (1 BvR 205/58, 1 BvL 100/58, 1 BvL 27/58, 1 BvR 367/58, 1 BvR 333/58, 1 BvR 332/58 (1959) 66 (Ger) and 1 BvL 136/78, 1 BvR 890/77, 1 BvR 1300/78, 1 BvR 1440/78, 1 BvR 32/79 (1980) 225 (Ger)), but legislation allowing same-sex marriage (the law of 28 July 2017) came into force in 2017. Despite some views to the contrary, it seems that it was possible to achieve this change without a constitutional amendment because the constitution itself did not define family or marriage.

23  The FCC has held that Article 6 protects a couple’s right to shape marriage and their family life according to their own choices (1 BvL 136/78, 1 BvR 890/77, 1 BvR 1300/78, 1 BvR 1440/78, 1 BvR 32/79 (1980) (Ger)), but it has also upheld legislation aimed at encouraging greater involvement of fathers in child-care during the early months of a child’s life, despite a lower court’s finding that it represented an unconstitutional interference in the freedom of parents to decide how to allocate family responsibilities: see 1 BvL 15/11 (2011) (Ger). In a similar vein, the court has held that coercive measures to enforce the parental duty to have contact with a child, while generally unconstitutional as interfering with the protection of individual personality, could be compatible with the constitution if such measures could be shown to be in the best interests of the child: 1 BvR 1620/04 (2008) (Ger).

24  A number of FCC decisions concern same-sex relationships as family under the constitution. In 2013 the court found that a same-sex couple living with a child in a long-term arrangement constituted a family for the purposes of the constitution, and that it was unconstitutional as a matter of equality to deny adoption to those in same-sex partnerships in circumstances where it would be available to married partners: 1 BvL 1/11, 1 BvR 3247/09 (2013) paras 65–66 and para. 71ff (Ger). Unequal treatment of opposite-sex marriage and same-sex registered civil partnerships in relation to tax legislation and occupational pensions schemes has also been held to be unconstitutional: 1 BvR 1164/07 (2009) (Ger) and 1 BvR 611/07 und 1 BvR 2464/07 (2010) (Ger).

25  The FCC has not extended recognition as such to the de facto family: 1 BvR 684/98 (2004) (Ger). In relation to unmarried parents, the FCC has held that while it is constitutionally acceptable initially to confer parental custody on the mother alone, and to not grant parental custody to the father automatically when his paternity is recognized, legislative provisions making his right to establish parental custody dependent upon the consent of the mother were unconstitutional in that they failed to give adequate protection to the father’s family-based rights: 1 BvR 420/09 (2010) (Ger).

26  In Germany, the constitution has been held to guarantee protection from state measures which restrict the personal sphere of the family (eg 1 BvL 4/54, BVerfGE 6, 55, 76 and 1 BvL 78/86, 1 BvL 79/86, BVerfGE 81, 1, 6) and to protect the family as an institution, which can be seen as wider than a right to family life (1 BvL 4/54, BVerfGE 6, 55, 72). The FCC sees the constitutional protection of the family as giving rise to obligations to prevent damage to the family either by the state or by private individuals, to ensure the family is not discriminated against and to support the family (see Zacharias 45).

4.  India

27  The Constitution of the Republic of India: 26 January 1950 (India) guarantees the fundamental rights to equality, freedom, protection of life, and personal liberty, but offers no explicit protection to family or family life. In India, family matters are governed by separate Hindu and Muslim personal laws, a background against which it is difficult to find evidence of any right to family life at a constitutional level. Many cases before the Supreme Court of India do, however, concern aspects of family life: for example, property, inheritance, and succession rights. The Supreme Court of India has recently heard a number of cases concerned with marriage and divorce (particularly the talaq), but not directly with a right to family life.

28  There have been several significant recent developments in matters pertaining to family life. At the time of writing the Supreme Court of India is considering a petition pertaining to the practice of polygamy and certain other forms of marriage practices (Nikah Halala, Nikah Mutah and Nikar Misyar): Sameena Begum v Union of India and Others (2018) (India). In 2017, a majority of the Supreme Court held the practice of divorce by triple talaq to be invalid and unconstitutional: Shayara Bano v Union of India and Others (India). This judgment was ground-breaking in establishing the jurisdiction of the court to adjudicate the constitutional validity of personal laws on the basis of a conflict with fundamental rights. Finally, in September 2018, the Supreme Court of India unanimously held Section 377 of the Indian Penal Code, which criminalized gay sex in India, to be unconstitutional: Navtej Singh Johar v Union of India (2018) (India), a development which could open the possibility of recognition of same-sex relationships in the future.

29  According to Article 44 of Part IV of the Constitution of the Republic of India: 26 January 1950 (India) the state shall endeavour to secure a Uniform Civil Code throughout its territory. Were a Uniform Civil Code to be introduced, the country’s various religious denominations would cease to be governed by personal laws and customary practices on matters of family law (see Ahmed). The Supreme Court of India first called on parliament to draw up such a code in 1985 in Mohammad Ahmad Kahn v Shah Bano Begum (1985) (India). The introduction of a Uniform Civil Code has been a highly controversial issue, with particular opposition from the Muslim minority. The Law Commission of India was tasked with examining the issue in 2016 and as at March 2018 is actively involved in that project (for discussion of personal family law systems in India and elsewhere see Tagari).

5.  Ireland

30  The Constitution of Ireland: 29 December 1937 (Ir) makes express reference to and provides robust protection for the family. It sets up the family as ‘the natural primary and fundamental unit group of Society’, and a ‘moral institution’ with ‘inalienable and imprescriptible rights, antecedent and superior to all positive law’ (Art. 41.1.1). The state guarantees to protect the family and the institution of marriage ‘against attack’ (Arts 41.1.2 and 41.3.1). The Irish constitution makes specific reference to the importance of the role of women in the family ‘within the home’ (Art 41.2.1) (for discussion of objections to this provision see the All-Party Oireachtas Committee on the Constitution Tenth Progress Report: The Family (2006) (Ir)). It should be noted that the protections under the Constitution of Ireland are for the family as a unit, and do not extend to individual family members within the family. While there is strong protection for the family as recognized by the constitution, there is no explicit right to family life under the Irish constitution.

31  Under the Constitution of Ireland there is a strong preference for the married family. The Supreme Court of Ireland (Cúirt Uachtarach na hÉireann) has held that Article 41 protects only the marital family and that it would be unconstitutional to confer equal status in law on the unmarried family: Nicolaou (1966) (Ir). To offer equal protection to the unmarried family would be an ‘attack’ against marriage, it would undermine the status of marriage and discourage couples from marrying (at 590, 622). A number of decisions have confirmed that legislation must not cause disadvantage to the marital family over other family forms: eg Hyland (1989) (Ir) and Greene (1990) (Ir). On the other hand, policies that discriminate in favour of the marital family have been upheld on the basis of a positive obligation to protect the same: eg O’B v S (1984) (Ir). The preferential treatment of the family based on marriage under the Irish constitution creates inequality in the treatment of children born into alternative family forms. Arguably this interferes with children’s rights to be cared for and to be protected within the family unit (Harding 159). The Supreme Court decisions in Re JH (1985) (Ir) and N v HSE (2006) (Ir) illustrate the strength of the protection for the Irish constitutional family. In each case the Court found that it must apply a constitutional principle that the welfare of the child is presumed to be best protected in the care of the natural, marital family (even where the child had been living settled with an adoptive family for some considerable time) (see Mulligan for discussion).

32  One of the most significant developments in relation to family life under the Irish constitution was the removal in the mid-1990s of the ban on divorce, which resulted in part from the decision in Johnston v Ireland and arguments around the right to family life: parties to marriages which had ended in all but their legal status were prevented by the ban from regularizing their de facto relationships, with significant implications for themselves and their children (for discussion of the background and divorce debate in Ireland see Dillon). According to the All-Party Oireachtas Committee on the Constitution the introduction of divorce redefined the family in the Irish constitution: the family ‘in the Constitution is now based on a potentially temporary arrangement’, and second or subsequent families resulting from marriage, including spouses and stepbrothers and stepsisters, as well as lone parents created following divorce, must now be part of the family recognized by the constitution (Committee on the Constitution 39).

33  A recognized consequence of the constitutional protection of the marriage-based family in Ireland has been the marginalization of the unmarried father. In the Nicolaou (1966) (Ir) case the Supreme Court held that an unmarried father was not a member of the family within Article 41, was not a parent within Article 42, and had no personal right in relation to his child which the state was obliged to protect. In JMcD v PL (2010) (Ir) the court reiterated that the de facto family does not benefit from constitutional protection. In that case a mother, her same-sex partner, and child were found not to be a family for the purposes of the constitution, and the donor father was found to be in the same position as the non-marital father (ie with no constitutional right to guardianship or custody, but, in light of legislative changes since Nicolaou (1966) (Ir), with the right to apply for guardianship). Recommendations have been made to amend the constitution to make clear that family life includes family life not based on marriage (Constitution Review Group (Ir)), and to afford equality of treatment of parents regardless of gender or marital status (Law Reform Commission ‘Report on Legal Aspects of Family Relationships’ (2010) LRC 101/2010 (Ir)). For discussion of whether the Irish approach here can be reconciled with Ireland’s obligations under Article 8 ECHR see O’Mahony.

34  The Irish constitutional family was until recently based on marriage between a man and a woman (DT v CT (2003) (Ir); Tobin). In 2015, the 34th amendment to the Irish constitution extended the right to marry to same-sex couples, thereby extending the Irish constitutional understanding of family. This reform was the first time that that a sovereign state has extended the right to marry to same-sex couples by means of a popular referendum (Ryan (2015)).

6.  Israel

35  Israel’s Basic Law of 1992: Human Dignity and Liberty, 25 March 1992 (Isr) protects liberty, dignity, and privacy, but makes no reference to marriage, family, or equality. The omission from the Basic Law of specific family-based rights was probably due to fears of their impact on existing religious family law (see discussion in Blecher-Prigat; relation of religion to state and society). Israeli law does not allow civil marriage in Israel, but recognizes only religious marriages, the availability of which is in turn subject to considerable restrictions, including a prohibition on interfaith marriage. The Supreme Court of Israel (Beit Ha Mishpat Ha Elyon) has nonetheless recognized a right to family life (as well as a right to marry) as a constitutional right, that is, as one protected by the Basic Law: see Adalah (2006) (Isr). The right to family life is protected and conceived of as part of an individual’s right to human dignity. The Adalah (2006) (Isr) case was relied on in the Noahides Case (2005) (Isr), in which the Supreme Court held (after years of resisting doing so on the basis that this was a matter for legislation) that civil marriage performed abroad between Israeli citizens is valid under Israeli law.

36  Perhaps because of the restrictions on marriage in Israel, the Supreme Court of Israel has a long history of accepting the unmarried de facto family and of extending legal protections to it: see eg Shachar v Friedman (1984) (Isr), the presumption of community property then applicable to married couples applied to unmarried cohabitants; and CA 2000/97 Lindorn v Karnit (1999) (Isr), the term ‘partner’ in accident compensation legislation interpreted to include unmarried cohabitants. The Lindorn decision potentially allowing any statutory provisions for ‘spouses’, to be read to include unmarried cohabitants.

37  Since 2006, same-sex marriages and partnerships conducted abroad between Israeli residents can be registered in the Population Registry: Ben-Ari v Director of Population Administration, Ministry of the Interior (2006) (Isr)). While not conferring actual legal status, such registration means that the couple will benefit from rights and benefits arising from marriage. However, in 2017 the Supreme Court of Israel declined to find a constitutional right to marriage between persons of the same sex, instead holding that this was a matter for the Knesset (legislature) and not the court (Israel Organization for Protection of Individual Rights v Ministry of Interior (31August 2017) HCJ 7339/15 (Isr)).

7.  South Africa

38  The Constitution of the Republic of South Africa: 11 October1996 (S Afr) makes no reference to family life. The constitution is grounded in respect for human rights and democracy, and identifies specific values on which the constitutional order is premised (Chaskalson 181). Among these are human dignity and equality (Constitution of the Republic of South Africa 11 October 1996, Chapter 2, Bill of Rights, see in particular Sections 7, 9 and 10). Section 9(3) of the Constitution prohibits unfair discrimination on a number of grounds which might be considered closely related to, or embraced by, the concept of family life, including gender, sex, pregnancy, marital status, and sexual orientation. The constitution also provides for the recognition of marriages ‘concluded under any tradition, or system of religious, personal or family law’, and of ‘systems of personal and family law under any tradition or adhered to by persons professing a particular religion’ (Constitution of South Africa: 11 October1996, Section 15(3) (S Afr)), but there is no explicit recognition of a right to family life. Aspects of family life (for example, the role of the unmarried father in adoption proceedings relating to his child (Fraser (1997) (S Afr)) have been protected under Chapter 2 Section 28 (1)(b), which explicitly protects the right of every child to ‘family care or parental care’, but this provision is primarily focussed on the rights of children.

39  In considering whether a right to family life should have been included in the South African Constitution, the Constitutional Court of South Africa took the view that the explicit inclusion of such a right could lead to the risk of the constitutionalization of a particular family form to the exclusion of others—an undesirable consequence in a diverse society—and that the rights to dignity, freedom, and equality could be used to afford adequate protection to an individual’s right to family life: In re Certification of the Constitution of the Republic of South Africa (1996) paragraphs 97, 98, and 99 (S Afr). In Dawood (S Afr) (a case turning on the right of spouses to cohabit) the Constitutional Court, building on its previous decision, took the view that although not expressly mentioned in the Bill of Rights within the constitution, the right to family life is constitutionally protected. In this particular case, the legislation in question (relating to the issuing of residence permits) was held to be unconstitutional as being inconsistent with the constitutional protection of the right to marry and establish a family, such protection having been read into the constitution on the basis of the protection of the right to dignity.

40  The right to dignity has also been applied in the South African jurisprudence to protect aspects of the family life of same-sex couples, see: National Coalition for Gay and Lesbian Equality (1999) (S Afr), concerning the failure to confer spousal immigration benefits to same-sex life partners, and Du Toit (S Afr), exclusion of same-sex couples from joint adoption was unconstitutional. In the National Coalition for Gay and Lesbian Equality case, Ackermann (at para. 53) points to the fact that those in same-sex relationships were unable to benefit from protections designed ‘to protect [opposite-sex spouses’] family and family life’. In the Fourie (2006) (S Afr) case the recognition of the right of same-sex couples to marry was again based upon the constitutional protection of dignity. The right to marry was seen by the Court as part of full moral and social citizenship of gay people, and therefore as embraced by the right to dignity. For a critique of the thinking of the Court around marriage and dignity in this and other cases, see Sloth-Nielsen and Van Heerden (at 131).

41  Attempts to rely on the South African Constitution to extend the right to family life to the de facto family have been unsuccessful. The constitution was invoked in Volks v Robinson (2005) (S Afr) in an attempt to claim that legislation concerning the right to maintenance from the estate of a deceased spouse unfairly discriminated against survivors of informal, permanent life-partnerships on the basis of marital status. A majority of the Constitutional Court refused to declare this differential treatment of unmarried partners to be unconstitutional. Rather than focussing on the function of the family unit as it could have done, the Court took a formalistic approach towards marriage. While the judgment of Justice Ngcobo arguably leaves open the door to a future finding that other provisions concerning unmarried life-partners could violate the right to family life by impairing the dignity and equality provisions (see para. 86), the majority ultimately gave greater weight to the autonomy rights also implicit in dignity, than to the de facto family life of the applicant.

42  The meaning of family life was considered outside the usual family law context in Hattingh and Others v Juta (2013) (S Afr). The case concerned protection afforded to family life under the Extension of Security of Tenure Act 62 of 1997. At paragraph 24, Zondo reiterated the Court’s earlier concern that ‘there is no need to attempt to define the term family with any precision other than to say that it cannot be limited to the nuclear family’. It is clear from this case that in the Court’s view family life can exist between members of the extended family, not just between parents and dependent children.

D.  Comparative Analysis of Constitutional Approaches to the ‘Right to Family Life’

43  Given the difficulty in defining the concept at the heart of the right to family life, it is unsurprising to find that among the constitutions examined there is no one, clear concept of family qualifying for constitutional protection. Among those constitutions making express reference to family life or to the family more broadly, there is a shared conception of the family as the foundation unit of society: see eg the constitutions of Brazil, Ireland, and Germany, but the precise meaning or ambit of family even here is generally left undefined. A common theme relates to how, if at all, to accommodate within the constitutional guarantee modern forms and concepts of family alongside more traditional and well-established family forms. Another key issue relates to the extrinsic limits of the right to family life: limits to constitutional protection of the family may result from the legitimate interests the state may take in shaping and regulating family life as the ‘foundation’ of society. In the constitutions and case law examined, protection of the family tends to be conceived in terms of protection of the rights of individual family members rather than in terms of protection of the family as a group.

44  There is widespread concurrence under the constitutions examined and beyond that the concept of family at a constitutional level refers to a married opposite-sex couple and their children. The question of where family and therefore family life extend beyond this leads immediately to differences of approach. There often remains scope for argument about whether family life exists, for example, between an unmarried father and his child, or between grandparents and their grandchildren. Under some constitutions, family life is seen as existing between three generations, not just two (eg Japan, Germany, and South Africa).

45  Recent years have seen a movement towards constitutional recognition of the family based on a same-sex couple, particularly in Europe, the Americas, and South Africa. In some cases constitutional courts have led on this issue, interpreting the constitutional protection of the family to include the right, for example, to same-sex marriage (see eg South Africa, Brazil and the US). In other cases (eg Ireland) the constitution itself has been amended, while in others still (eg Germany) the approach has been to legislate below constitutional level on the understanding that the constitutional concept of family is sufficiently broad and undefined to accommodate such a change. But, while there is widespread and growing acceptance that family life can exist between same-sex partners and their children, this acceptance is by no means universal. For example, in a 2016 decision of the Constitutional Court of the Czech Republic (Judgment No. Pl ύ‎s 7/15 (2016) (Czech)) the court, while accepting that a law preventing partners in a same-sex registered partnership from jointly adopting a child was unconstitutional (on the basis of a failure to respect human dignity), at the same time refused to recognize same-sex registered partners as falling within the notion of family.

46  The de facto family remains outside many constitutional understandings of family life. The Brazilian constitution is unusual in explicitly including informal family units in its conception of family (Constitution of the Federative Republic of Brazil: 5 October 1988 (Braz)). Most written constitutions are not so clear on this issue. Many constitutional or supreme courts have been reluctant to find that the de facto family should necessarily benefit from constitutional protection, instead adopting the more cautious approach of recognizing the existence of family in particular circumstances, for example between an unmarried father and his child (see eg cases from Canada, Germany, Ireland above).

47  In the numerous states where family matters are partially or completely governed by religious rules and courts (eg Israel, India, Morocco, Iran, Malaysia, and Indonesia) the sorts of issues potentially within a right to family life often lie outside the remit of review by the constitutional or Supreme Court. In such contexts notions of family life are very strongly influenced by the tenets of the religion in question. Tussles have arisen between judicial attempts to amend family laws on the basis of broad constitutional principles (like equality and dignity) and the views of religious authorities: see eg Bavli (Isr), as discussed in Blecher-Prigat.

1.  The ‘Right to Family Life’ in Conflict with Interests of the State: the Case of Family Reunification

48  The interests of the state in maintaining control over immigration and with national security provide a good example of state interests which might limit the constitutional protection of the family. The right to family life often plays a significant role in cases concerning entry of persons to and removal of persons from particular states. In this context, family-based rights can come into direct conflict with the interests of the state: see eg L and O (2003) (Ir); Adalah (2006) (Isr).

49  The removal of a family member from, or the refusal to admit a family member to, a state might well amount to a prima facie breach of any right to family life, a fact which has led Supreme Courts to conclude that the right to family life does not include or imply a right to reside in a place of an individual’s choice: see Osheku v Ireland (1986) (Ir); Kerry v Din (2015) (US); 2 BvR 1226/83, 2 BvR 101/84, 2 BvR 313/84 (1987) (Ger); Adalah (2006) (Isr); and Zahava Gal-On (2012) (Isr). In the latter case the Israeli Supreme Court upheld a law which restricts the ability of Palestinian-Arab citizens to be joined by their spouses and children if the latter are resident in certain territories or states, noting that there is a constitutional right to family life, but ruling that that right does not guarantee being permitted to exercise family life within Israel (see Blecher-Prigat). Courts have also held that the right to family life must be balanced against the interests of the state, and that protection of the state’s rights may involve restrictions on the fundamental rights of individual citizens (including family-based rights) (see eg Osheku v Ireland (1986) (Ir)). The United Kingdom (‘UK’) Supreme Court has held that the question in family life cases is whether a fair balance has been struck between the competing public and individual interests involved, applying a proportionality test: R (on the application of Agyarko) (2017) paras 46–53 (UK). Similarly, any interference with the right to family life must be exceptionally serious before this can outweigh the importance of extradition: Norris (2010) para. 56 (UK), see also Hesham Ali (2016) paras 26–33 (UK). The UK Supreme Court has upheld minimum income requirements for those seeking to bring family members into the UK, despite interference with the right to family life: R (on the application of MM (Lebanon)) v Secretary of State for the Home Department paras 81, 82 (2017) (UK).

50  These cases demonstrate limits to the right to family life. Genova highlights the US Supreme Court’s narrow approach to defining constitutional rights relating to the family: the majority reasoning in Kerry v Din (2015) (US) that the right to live with one’s spouse, and the right to live within in the US, were distinct and could be enjoyed separately. The Irish and Israeli courts have adopted the same reasoning: that the right to family life does not include a right to exercise that right within the particular state. This reasoning arguably renders rather hollow the right to family life. Gotzelmann argues that, in light of the importance of the family for society, the state should rethink the balance between the protection of migrant families and economic concerns (Gotzelmann 98; for a critique of the Irish Supreme Court’s approach to ECHR and constitutional family-based rights in the context of immigration see Mullaly).

2.  The Theoretical Basis of the ‘Right to Family Life’ in the Constitutional Context

51  The jurisdictions examined adopt differing approaches to the right to family life. In many states (including some of the states highlighted here), constitutional courts in framing constitutional protection of family life are able to make reference to relevant jurisprudence of international human rights courts, such as the ECtHR or the Inter-American Court of Human Rights (IACtHR). In addition, national constitutional courts have developed their own approaches, of which the examined constitutions provide two distinct examples.

52  The first is evident in the jurisprudence of South Africa, Israel, and Brazil, where the right to family life has primarily been found as part of a constitutional right to ‘dignity’ (for discussion of dignity see Siegel particularly from 374; O’Mahony and Bamforth). In South Africa and Israel recourse to constitutionally protected ‘human dignity’ has been the way in which protection of family life has been incorporated into constitutions which themselves make no express reference to the family as a protected institution.

53  The second approach is that found in the jurisprudence of the Supreme Courts of Canada and the US. Here again the constitutional documents make no reference to family life, and the Supreme Courts have faced the challenge of finding family-based rights in the context of constitutions very much focussed on conferring individual rights (Bala and Leckey 24). In the Canadian jurisprudence, provisions which have been invoked to indirectly protect family life include the right to ‘liberty’ (Charter, Section 7), the equality protections in Section 15 of the Charter, the ‘core values’ associated with the Charter and the ‘principles of fundamental justice’ (see for examples and discussion Bala and Leckey). In the United States, courts have recognized a ‘freedom of intimate association’ as a derivative of other more explicit constitutional rights (see Udell). Privacy and the rights to life, liberty, property, and equality, coupled with substantive due process, have also formed the basis of protection of family life in the US, but according to Elrod the Supreme Court of the United States’ fundamental-rights analysis has made ‘it difficult to accommodate new social values and non-traditional families’ (Elrod 169; see Bamforth for a critique of equality-based argument).

54  A further basis upon which protection of the family has been founded is natural law (theory of natural law). In Ireland, the constitution evokes natural law in protecting the family, and justices of the Supreme Court have appealed to ‘nature itself’ as the justification for recognition and protection of the family (eg in G v An Bord Uchtála (1980) 55 (Ir). In Ireland the very strength of the protection afforded to the narrowly defined ‘natural’ constitutional family can, however, present a challenge to the idea of a right to family life (for example, of unmarried partners).

55  In seeking a theoretical basis for a right to family life, reference might also be made to feminist thinking (see eg Sheppard 108 and 109). Hasso cautions that reliance on states to protect and support intimate life can result in perpetuation of gender inequalities, an issue which can have particular relevance in states adopting systems of ‘personal laws’ (see Hasso; Mackinnon). Capabilities arguments have also been used to provide a theoretical basis for protection of family life (see Nussbaum 235). See also Rubio-Marin (especially 807 onwards) for discussion of comparative constitutional approaches towards equality, gender neutrality, and caring roles within families.

E.  Conclusion

56  As a concept, the right to family life is not capable of precise definition, being capable of encompassing a broad range of family-related issues in a wide variety of contexts. The right to family life does not feature frequently either in constitutions or in the jurisprudence of constitutional or supreme courts. Because the right to family life is rarely explicitly included in constitutions and court judgments, constitutional recognition of any right to family life generally falls to be extrapolated from decision-making on family-based issues. Views on the need for and the content of (explicit or implied) constitutional protection of a right to family life depend very much upon legal, social, religious, and political context and standpoints. For example, the Constitutional Court of South Africa concluded in the Certification case that the right to family life was not a universally accepted fundamental right requiring explicit constitutional protection (In re Certification of the Constitution of the Republic of South Africa (1996) at paras 97 and 98 (S Afr)). By contrast, for a critique calling for unequivocal recognition of the familial relationships as fundamental human rights deserving constitutional protection (in the Canadian context) see Sheppard (at 106). The concepts of human dignity, liberty, and equality have underpinned attempts to introduce or expand family-based rights at the constitutional level, but there is no accepted universal definition of family life in constitutional law, nor universal agreement about the extent and limits of the right to family life.

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