Family Law Analysis: Parental Rights, Child's Best Interest, and ECHR

This document presents an analysis of a Family Law case concerning parental rights and responsibilities following the separation of Alexander and Kim, Austrian nationals. The assignment examines the court's decisions regarding parental responsibility, considering the best interests of the children, who were born out of wedlock and primarily cared for by their mother. The analysis delves into the application of Article 8 of the European Convention on Human Rights (ECHR), focusing on the right to family life and the court's role in protecting it, even when parents are not married. The report highlights the father's claims of human rights violations related to parental responsibility and visitation rights, leading to an appeal to the Supreme Court. The assignment also references relevant legal precedents and legislation to support its arguments, covering various aspects of family law in the context of the case.

Family Law

Table of Contents
Question b...................................................................................................................................................2
Question c....................................................................................................................................................2
Question d...................................................................................................................................................3
References...................................................................................................................................................4
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Question b
Court had carried out the case for the best interest of the children. After the separation of
Alexander and Kim, the children were living with their mother and she was taking care of them.
Even before separation Kim always took care of them. Alexander never took responsibility for
his children and they were never agreed on joint parental responsibility1.
In April 2015 Alexander submitted an application in City District Court to get sole parenting
responsibility or joint parental responsibility with Kim. But, the court denied his request and
provides Kim with the sole joint parental responsibility as the child born out of wedlock. The
joint parental responsibility can be granted to the parents if one parent requested for shifting of
parental responsibility or wants to take care of the children together2. However, the mother is not
bound to agree on joint parental responsibility. Kim had been taking care of the children and
there was no evidence to prove that the children were at risk. As per the Civil Code, parental
responsibility can be only transferred if the children’s best interest at risk. Alexander also
requested for authorization to visit his children which was approved by the court.
Question c
Article 8 of the convection (ECHR) is applicable in this case. Under article 8, it is defined that
people have a right to live in a family so that the relationship develop positively and all the
member may enjoy together. There is no family life between Kim and Alexander. Alexander
never cared about his children; they were living with their mother. Article 8 is not only confined
to those couples who married legally but also those parties who are living together without
marriage3. The couple has the same responsibilities to their child which is born out of wedlock.
The court has also mentioned under article 8 that the family life has already been established and
it needs to be protected by both the parties. If the relationship does not go well like in this case,
where the family rights have been hampered, the court has a right to interrupt. And the mother
1 John J Kirton and Jelena Madunic, Global Law (Ashgate 2009).
2 Ian Sumner and H. C. S Warendorf, Family Law Legislation Of The Netherlands (Intersentia 2003).
3 Loukis Loucaides, The European Convention On Human Rights (Nijhoff 2007).
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has a right to take care of the child unless there is any risk to the children. Father has also right to
visit the child; he has full right to spent time with the child.
Question d
He can claim right to respect for private and family life, right to an effective remedy and
Prohibition of discrimination under article 8, 13 and 14. As per the decision of the court,
Alexander did not get the sole parental responsibility of his children. He can claim the violation
of family life and right as he cannot live with his children4. And at the same time, he may also
complain about the violation of his human right. The parenting responsibility had been given to
Kim only which seems unfair to him because he is also a father of his children and he has equal
right to spend time with the children and to spend rest of his life. Keeping this in mind Alexander
has submitted an appeal in Supreme Court.
4 WILLIAM A SCHABAS, EUROPEAN CONVENTION ON HUMAN RIGHTS (OXFORD UNIV PRESS 2017).
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References
Kirton J Madunic, Global Law (Ashgate 2009)
Loucaides L, The European Convention On Human Rights (Nijhoff 2007)
SCHABAS W, EUROPEAN CONVENTION ON HUMAN RIGHTS (OXFORD UNIV PRESS
2017)
Sumner IH Warendorf, Family Law Legislation Of The Netherlands (Intersentia 2003)
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