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


ISBN13: 9781509905270
Published: February 2017
Publisher: Hart Publishing
Country of Publication: UK
Format: eBook (ePub)
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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.

Subjects:
Family Law, eBooks
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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Published November 2012
Hart Publishing
£95.00
Federalism in the European Union ISBN 9781849462426
Published September 2012
Hart Publishing
£130.00
Federalism in the European Union (eBook) ISBN 9781847319982
Published September 2012
Hart Publishing
£117.00
(ePub)
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Children and the European Union: Rights, Welfare and Accountability ISBN 9781841137650
Published August 2012
Hart Publishing
£42.99
£38.69
(ePub)
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EU Counter-Terrorism: Pre-Emption and the Rule of Law ISBN 9781849461351
Published June 2012
Hart Publishing
£95.00
EU Counter-Terrorism: Pre-Emption and the Rule of Law (eBook) ISBN 9781847319609
Published June 2012
Hart Publishing
£29.69
(ePub)
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The Constitutional Dimension of European Criminal Law (eBook) ISBN 9781847319548
Published May 2012
Hart Publishing
£85.50
(ePub)
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The Constitutional Dimension of European Criminal Law ISBN 9781849461764
Published May 2012
Hart Publishing
£95.00
Public Liability in EU Law: Brasserie, Bergaderm and Beyond (eBook) ISBN 9781847318190
Published November 2011
Hart Publishing
£117.00
(ePub)
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Public Liability in EU Law: Brasserie, Bergaderm and Beyond ISBN 9781849461337
Published November 2011
Hart Publishing
£130.00
The Cyprus Issue: The Four Freedoms in a Member State under Siege ISBN 9781849460958
Published March 2011
Hart Publishing
£95.00
The Impact of EU Law on Minority Rights ISBN 9781841138725
Published January 2011
Hart Publishing
£90.00
The Employment Relationship: A Comparative Overview ISBN 9781841134208
Published December 2010
Hart Publishing
£54.99
£160.00
Legitimacy in EC Cartel Control ISBN 9781849460057
Published February 2010
Hart Publishing
£170.00
Principles of European Constitutional Law 2nd ed ISBN 9781841138220
Published December 2009
Hart Publishing
£250.00
EU Criminal Law ISBN 9781841135854
Published March 2009
Hart Publishing
Out of print
EU Criminal Law (eBook) ISBN 9781847317261
Published March 2009
Hart Publishing
Out of print
£100.00
Regulation of the State in Competitive Markets in the EU ISBN 9781841134970
Published August 2007
Hart Publishing
£49.99
Free Movement, Social Security and Gender in the EU ISBN 9781841136226
Published July 2007
Hart Publishing
£120.00
EU Food Law: Protecting Consumers and Health in a Common Market ISBN 9781841134987
Published March 2007
Hart Publishing
£80.00
The National Courts' Mandate in the European Constitution ISBN 9781841134765
Published March 2006
Hart Publishing
£160.00
European Union Law and Defence Integration ISBN 9781841134406
Published October 2005
Hart Publishing
£120.00
Partnership Rights, Free Movement, and EU Law ISBN 9781841134772
Published December 2004
Hart Publishing
£95.00
National Remedies Before The Court of Justice ISBN 9781841133959
Published December 2004
Hart Publishing
£95.00
Soft Law in European Community Law ISBN 9781841134321
Published September 2004
Hart Publishing
£160.00
Publication Abandoned