Family Law Essay

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Family and Child Law 2012/13

The Protection of the Family under International Law

The purpose of these lectures is to outline and consider how International Law promotes and protects the right to family life and, in particular, the rights of children. The UK is a party to numerous human rights instruments and many of these are relevant to the rights of children and families. The UK is bound by these instruments which therefore form part of the legal framework regulating families.

Human Rights Law
Universal Declaration of Human Rights 1948
Art 16
1.Men and Women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution.
2.Marriage shall be entered into only with the free and full consent of the intending spouses.
3.The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Art 25
2.Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
Art 8
1.Everyone has the right to respect for his private and family life, his home and his correspondence.

Art 12
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

International Covenant on Civil and Political Rights 1966
Art 23 – very similar to UDHR Art 16 but see also para 4:
...Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses to the marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Art 24
1.Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
2.Every child shall be registered immediately after birth and shall have a name.
3.Every child has the right to acquire a nationality.

American Convention on Human Rights 1969
Art 17 – very similar to ICCPR Art 23 but see also:
Para 4: ...In the case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests. (emphasis added)
Para 5: The law shall recognise equal rights for children born out of wedlock and those born in wedlock.

African Charter on Human and Peoples’ Rights 1981
Art 18
1.The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health.
2.The State shall have the duty to assist the family which is the custodian of morals and traditional values recognised by the community.
3.The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.
4.The aged and the disabled shall also have the right to special measures of protection in keeping with their physical and moral needs.

Art 27
1.Every individual shall have duties towards his family and society...

Art 29
The individual shall also have the duty:
1.To preserve the harmonious development of the family and to work for the cohesion and respect of the family; to respect his parents at all times, to maintain them in case of need...

Johnston V Ireland, Judgment of 18 December 1986 (No.112), 9 EHRR 203
Marckx v Belgium, Judgment of 13 June 1979 (No. 31), 2 EHRR 330
Berrehab v The Netherlands, Judgment of21 June 1988 (No. 138), 11 EHRR 322