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Published: Fri, 02 Feb 2018
Human Rights Freedom
Family Law and Human Rights
‘Human Rights’ refers to the fundamental rights and freedom enjoyed by human beings, mainly dealing with individual rights and responsibilities. The traditionally inherited concept of human rights has a long historical background; one of the greatest advantages of human rights is equality.
The term ‘family’ has particular cultural values. This particular concept has been developed in a significant manner during recent years. Family means a group of people holding a set of cultural values, there should be mutual understanding among the family members. In the context of family – ‘Marriage’ has an important; family means marriage and links to children.
During recent days, the living standard of people also got changed; this automatically affected the family lifestyle to a certain extent. Even though the term family has a worthwhile meaning, it should also have its own limitations. I will examine the term “family” in further detail with regard to cultural changes in society, such as same-sex couples, transsexual couples, adoption and the “normal” 2.4 children family.
Any definition of the family, whether it is in a personal, sociological, genetic or legal context is always going to be contentious. People’s experiences of family are vastly different from one place to the next and from one generation to another. How a ‘family’ is defined in one context may not be applicable in another. A genetic link may identify a family member but biology cannot be the only reference point when devising an appropriate definition. How ‘family’ is recognised in a legal sense is also dependent upon a number of factors.
If it is hard to define the family, then it is similarly difficult to provide a definition of family law. Probert states –“the boundaries of family law are no more static than are those of the family.” Family law changes with the forever changing definition of ‘family.’ Prior to the major cases from the 70’s onwards “family” was considered in legal terms to be a relationship between husband and wife.
Since then, an increase in divorce and a rise in the rights of the child have meant that the focus in family law has shifted to that of the parent-child relationship. A change in attitudes towards marriage and the rise of co-habitation has also led to a change in how families are seen as – no longer is it simply a case of a husband, wife and their children but it may involve, single parents, step-parents, adopted children or same-sex couples. The law too, must change to reflect this.
Many areas of family law have been required to change to take into account the varying types of relationships entered into. The historical basis of much of family law which is the married couple still makes up a proportionately high number of relationships but different types of relationships such as co-habitation, same sex and transgender relationships are now being recognised.
The issue of gender is essential to the defining ‘family.’ Traditionally, the family has been viewed as a male/female unit – legal marriage requires that there be one male and one female. This has led to questions over the legal status of transsexual marriage. Transsexualism has now been accepted as a gender disorder. Recent advances in medical science means that sufferers may opt for surgery to correct their identity disorder, this in turn leads to the question of the legal status of those people who have undergone this treatment and how the law views their status in terms of gender.
In Corbett v Corbett (Otherwise Ashley) , a male petitioner sought a decree of nullity on the basis that the respondent to the marriage had been born male. The respondent was living as a female after undergoing hormonal treatment and gender re-assignment surgery. The court held that as a person’s gender is fixed at birth, it could not be altered by surgery.
A person was defined only in biological and psychological terms, other characteristics were not relevant. The marriage was therefore void since despite surgery and social acceptance as a woman, the respondent remained male in terms of gender. This is known as the biological test.
Corbett v Corbett was heard before the Human Rights Act 1998 came into force. This Act meant that the provisions of the European Convention for the Protection of Human Rights (ECHR) were given effect in the law of England and Wales. The Act not only allows UK citizens to rely upon convention rights in the national courts, it also imposes an obligation upon courts and public bodies to abide by the provisions. The Human Rights Act 1998 (HRA) states that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights…” This means that all legislation must be interpreted in a way which gives effect to the ECHR provisions.
The HRA means that the provisions of the convention can be relied upon in national courts, preventing parties from having to undergo the costly process of going to Strasbourg in order to enforce ECHR legislation – as several transsexuals had already done. In Rees v UK , a female to male transsexual argued that the law as held in Corbett v Corbett violated Article 8 of the ECHR which states “everyone has the right to respect for his private and family life, his home and his correspondence.” It goes on to say that there should not be interference with this right by a public authority “except such as is in accordance with the law and is necessary in a democratic society…” Rees also argued that there was a breach of Article 12 ECHR – “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.”
As with many transsexuals, he argued that he was embarrassed and humiliated whenever he was required to produce the birth certificate and in addition, his rights were breached by the failure of the UK to allow him to legally marry a woman. It was held by the European Court of Human Rights that there had not been a breach of either Article 8 or 12 since this was an area of law which afforded states a wide interpretive margin.
In Goodwin v UK  a male-to-female transsexual successfully argued that the UK was in breach of both Article 8 and Article 12 in failing to recognise the legal status of transsexuals. The European Court of Human Rights unanimously held that the ‘no man’s land’ position of post-operative transsexuals was not sustainable especially as there was no public interest defence.
This case ended the biological test set out in Corbett. The court accepted that several factors changed, especially in terms of medical recognition and advances in treatment for gender disorders. Goodwin lived as a woman in a relationship with a man not allowing her to marry would be unjustifiable. The legal definition of “family” changed with this case, recognising that transsexuals were free to marry. Since then the Gender Recognition Act 2004 has been introduced, allowing transsexuals to obtain legal recognition of their change in gender.
Same-sex couples also faced problems in gaining legal recognition of their relationships. Previously, homosexuality was illegal; Same-sex couples therefore fell outside any legal definition “family”. In Harrogate Borough Council v Simpson , Simpson lived with her partner in a lesbian relationship over a year. When her partner died, the question arose as to whether Simpson could succeed to Mrs Rodrigo’s tenancy. Under the Housing Act 1980, in order to do so, Simpson had to show that she was a member of Mrs Rodrigo’s family.
The definition of ‘family’ was given as “spouse, parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece…or if they live together as husband and wife.” Simpson tried to argue that their lesbian relationship was similar to living as husband and wife – the court rejected this as the opportunity had been there for Parliament, when passing the legislation, to include same-sex relationships and they had chosen not to do so. Simpson took her case to the ECHR arguing that there had been a breach of Articles 8 and 14 – the action failed.
Therefore at the time of the Simpson case the term “family” legally did not include same-sex couples. In a more recent case of Secretary Of State for Work and Pensions v M stated that civil partnerships had “virtually identical legal consequences to marriage”. Lord Nicholls stated in the decision that a homosexual couple are as capable of constituting a family as a heterosexual couple.
In Fitzpatrick v Sterling Housing Association this involved the question regarding the Rent Act 1977. Mr Fitzpatrick had moved in with his partner in 1976 and had cared for him, for 8yrs until his death after he became tetraplegic following a stroke. Mr Fitzpatrick argued that he had been living with Mr Thompson as “his wife or husband” and secondly, that he had been a member of Mr Thompson’s family.
Unlike in Simpson, no definition of family was given and the courts were able to interpret the meaning of the term. The House of Lords held by a majority of 3 to 2, that the definition of “family” did include a surviving same-sex partner and Fitzpatrick was able to succeed to the tenancy. In the judgement, Lord Clyde said
“The concept of the family has undergone significant development during recent years, both in the United Kingdom and overseas. Whether that is a matter for concern or congratulations is of no relevance to the present case, but it is properly part of the judicial function to endeavour to reflect an understanding of such changes in the reality of social life.” The legal definition of ‘family’ developed to include same-sex partners. Since the passing of the Civil Partnership Act 2004, same-sex partners are now able to enter into a similar arrangement to that of heterosexual marriage.
Another of the various types of relationships that may exist includes those that are not formally “husband and wife” but partners living together. It has long been the case that parties to these informal arrangements have not had the protection given to married couples and recently civil partners. In Gammans v Ekins  the adverse view that the law took of co-habitating couples was clearly shown in the judgement – “to regard an unmarried couple living together masquerading as husband and wife and that they were members of the same family seems to be an abuse of the English language.” This shows the strong views that those not living as actual and legal husband and wife in the 1950’s were not considered to be a family – opinions have changed since due to the fast moving cultural differences in society today.
Since then, it can be said that the law has changed to take the needs of co-habitants into account and in Ghaidan v Godin-Mendoza ; same sex co-habitants were given the same rights as married couples on succession to a tenancy. In the UK there are approximately 2.6 million gay and lesbian people; this is a significant difference to years ago when homosexuality was illegal and socially unacceptable. Additionally, changes to the legislation regarding domestic violence means that all co-habitants, married couples and civil partners share the same rights in this respect.
In modern times, in my opinion less couples are becoming married, also in recent years the average age women tend to marry is in 2004 29 compared with 26 in 1994. The most common age for men to marry is 35-44 in 2004. Marriage is now an expensive form of developing a family and many people in my opinion tend to have children and marry at a later date, which would coincide with the average age of men marrying – “a sign of the times”. Marriages are declining in the UK and divorces are increasing, in 2001 there were 249,000 marriages which is the lowest figure since over 100yrs ago. It would seem wrong and confusing to state that a family has one definition, such as a husband and wife.
Another common variation are step-families, in a lot of cases of marriage breakdown, one partner may remarry and set up home with her child from a previous marriage. In this case, would this be a family, even though one parent is not biologically related to the child/children? In B v B  Husband and Wife lived together with their baby and the Husband’s son from a previous marriage. The Husband become violent and the Wife left with their baby. The issue for the court to decide was who should live in the marital home, the Wife and the baby or the Husband and his son.
The court’s decision was to allow the Husband and son to remain in the marital home as more harm would be caused to the Husbands son if they were required to leave – the balance of harm test was applied. It would seem that in a step family situation the non-biological parent has no parental responsibility over the child, although is technically still a family.
Surrogacy is another possible form of a family, which in some cases would mean that the child was carried by the surrogate mother on the agreement that after birth parental responsibility would be given to the couple for whom she is carrying the baby. The Warnock report considered surrogacy as both wrong for the child and for the surrogate mother, mainly due to financial gain on the surrogate’s part, surrogacy is legal and legislation is defined in The Surrogacy Arrangements Act 1985.
Adoption may be another family arrangement, there are lots of individuals who are foster carers and have temporary care of a child for a certain period of time. Although adoption is a formal and permanent adoption of care and guardianship for a child, this means that person/persons will take over parental responsibility for a child whilst holding no biological links to that child.
Many a circumstance may link with step families, whereby a step father may adopt his new Wife’s child – therefore will become that child’s legal father. Adoption is a way of giving a child a “new” set of parents to allow the child to be brought up in a safe and secure family home. Adoption means that legally the adoptive parents are now the child’s legal parents – therefore a “family” in the eyes of the law.
There are so many different forms of a “family” not always is it the perfect Husband, Wife and Child/Children situation – families are now such to include transsexual couples, adoption, IVF, surrogacy, Civil Partnerships, single parent families, and unmarried couples.
It is therefore true to say that the term ‘family’ has no independent general legal meaning. As discussed above, it changes over time, and according to the context in which it is used. The fact that there is not one accepted definition of “family” may not always present a problem. In law, however, certainty is a key aim and the fact that the term ‘family’ has no generalised meaning can lead to problems. However the lack of certainty may be an advantage as it allows the law to develop to take into account sociological and other changes. With family law affecting the daily lives of so many people, it is important that there is an effective legal definition of ‘family’ so that the law can reflect the changing needs of modern families.
Harris-Short, S, and Miles, J, (2007), Family Law, Oxford, Oxford University Press
Herring, J, (2007), Family Law, 3rd Edition, London, Longman,
Probert, R, (2006), Cretney’s Family Law, 6th Edition, London, Sweet & Maxwell
Standley, K, (2006) Family Law, 5th Edition, London, Palgrave Macmillan
Martin, J and Turner, C, (2007) Family Law Key Facts, 2nd Edition, London, Hodder Arnold
Probert, R, (2004), Family Law – a Modern Concept? 34 Family Law p 901
Domestic Violence, Crime and Victims Act 2004
Gender Recognition Act 2004
Housing Act 1980
Matrimonial Causes Act
European Convention for the Protection of Human Rights and Fundamental Freedoms
Family Law Act 1996
Human Rights Act 1998
The Rent Act 1977
The Surrogacy Arrangements Act 1985
Civil Partnership Act 2004
Table of Cases
Corbett v Corbett (Otherwise Ashley)  32 WLR 1306
Rees v UK  2 FLR 111
Goodwin v UK  2 FLR 487
Harrogate Borough Council v Simpson   2 FLR 91
Fitzpatrick v Sterling Housing Association  Ch 304
Gammans v Ekins   2 KB 328
Ghaidan v Godin-Mendoza ;  UKHL 30
Secretary Of State for Work and Pensions v M 1 FCR 497
B v B  1 FLR 715;  2 FCR 251 CA
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