REMEMBRANCE IN TIME - Index of

486
Remembrance in Time
The case of Patel 16 deals with an Indian man who lived together with his blind mother
and his fiancée in the United Kingdom and was deported after a high prison sentence. The
commission approved an intervention of article 8 without reasoning relationships in
engagement. 17
In the case of Wakefield 18 the commission left the decision about relationships in
engagement open even if there is no “family life” due to circumstances like
imprisonment.
The principles of the cases Adulaziz, Cabales and Balkandali which were established
for marital-relationships might be seen controversially, because a “family” was formed by
marriage, but the common household was not really established.
In cases of engagement, where the formal act of a marital-relationship does not exist
yet, the criteria of a non-marital relationship (duration, children in common or other
circumstances for a constant relationship) should be taken. The commission followed this
view in the decision Wakefield and left open more distinct implications about the
relationship.
In cases of a homosexual and non-marital relationship article 8 ECHR does not even
open the scope of application even if the couple raises a child together. However, the
relationship between a homosexual father and a homosexual mother toward a common
child constitutes a “family” in the sense of article 8 based on the biological relation. 19
But as a result of modern evolution and change in society, commission and the
European Court of Human Rights should open the scope for new “family”- constellations.
By the way however measures of a member state which discriminates homosexual
relationships in the field of residence might open the scope of application of article 14
ECHR and have to be justified.
Nevertheless the question arises if the traditional belief in a heterosexual marriage still
reflects the spirit of the 21 century.
The third constellation of “family concepts” is the relationships between parents and
children.
In cases of minor children usually the parent-child relationship demonstrates a “family
life” in the sense of the convention.
Even if the parents do not life together anymore at the date of the child’s birth, the
presence of children constitutes a “family life” ipso iure that means without an inquiry of
the real fact of living together. But the constituted “family life” could be dispensed ex
post (retrospectively). This view will be just advanced in extraordinary, which usually
means that the parents have only rare or no contact at all. 20
16 European Commission of Human Rights, date of judgment 6.9.1991, no. 16009/90.
17 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 62 et seq..
18 European Commission of Human Rights, date of judgment 1.10.1990, no. 15817/89.
19 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 63 et seqq., et seqq..
20 Sander (2008), Der Schutz des Aufenthalts durch Artikel 8 der Europäischen
Menschenrechtskonvention, Duncker& Humblot, p. 67 et seq..