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Family Law

Human Rights Violations in Family Proceedings

Cross Border Family Proceedings

The Right to Marrry

Human Rights Violations in Family Proceedings

Osman v Denmark (38058/09):The AIRE Centre is representing a Somali national who had been living in Denmark from the age of seven and who was expelled from various schools.  At the age of fifteen, she was taken by her father to Kenya for what she (and her mother) thought would be a short stay with her paternal grandmother.  Instead, her father left her in the Hagadera refugee camp for over two years, where she provided round-the-clock care to her very ill grandmother.  She then left the camp and tried to apply for a new entry visa to return to her mother and siblings in Denmark, but was refused: under Danish law, her residence permit had lapsed, and in the meantime Danish immigration law had changed and she was now too old to be eligible for a new entry visa.  On 14 June 2011, the European Court delivered its judgment in which it found that the refusal to re-instate the applicant's residence rights in Denmark violated Article 8 of the Convention.  The AIRE Centre had identified the applicant as a victim of human trafficking, although the Court found that the Danish authorities did not have to take this into consideration (because it had not been raised in the domestic proceedings).  The Court, however, considered that the fact that the applicant was forced to stay in the refugee camp and look after her grandmother for over two years was crucial, and found that the Danish authorities should have taken this into account, instead of simply treating this as a matter of her father's exercise of parental responsibility.

Salguiero de Mouta v Portugal (33290/96):  The AIRE Centre drafted the application and subsequent observations in this case which concerned a man who was originally granted custody of his daughter after the parents divorced but the Portuguese Court of Appeal reversed this ruling and refused all contact . The mother was cohabiting with her new (male) partner and the father cohabiting with his new (male) partner. The Court  found a violation of Article 8 taken together with Article 14 (see also discrimination section).

P, C and S  v UK (56547/00): The AIRE Centre represented the applicants in a case regarding the removal of a child at birth and the placing for adoption in circumstances where only one of her parents was even alleged to present a risk. The Court found a violation of Articles 6(1) and 8 of the Convention. The Court stated that the lack of legal representation of the applicant mother  during the adoption  proceedings  proceedings,  deprived the applicants of a fair and effective hearing. The Court declined to rule on the disproportionality of the impossibility for conditions to be attached to adoption in the UK. The AIRE centre worked with Leigh Day solicitors, and Barbara Hewson and  Dermot Casey as Counsel.

S and others v UK  - (34407/02): The AIRE centre represented the applicants in this case which was declared inadmissible after a lengthy exchange of observations with the Government.  A final care order had been made in respect of the applicants which envisaged rehabilitation of the children to their mother within 6-9 months following the local authority's implementation of various measures which had formed  key aspects of the care plan.  The local authority failed to carry out the care plan.  English law prohibited the courts from monitoring the implementation of the care plan.  The applicants alleged violations of the procedural aspects of Article 8 and a violation of Article 6 as a consequence of the impossibility of enforcing even key elements of the care plan on which the making of the judicial order had been predicated. The Court rejected the applicant's claims.  The AIRE Centre acted with the late Alan Levy QC on this case.

(see also Accountability of State Authorities)

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Cross Border Family Proceedings

Carlsson v Switzerland (49492/06): The AIRE Centre, assisted by Henry Setright QC and Edward Devereux as Counsel represented the Applicant whose child had been wrongfully retained in Switzerland. The Swiss authorities had failed to give proper effect to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. The Court found a violation of 8.

Ignaccolo-Zenide v Romania (31679/96): The AIRE Centre together with Reunite submitted a third-party intervention in this case.  The applicant, who lived in France, won custody and control over her children following divorce proceedings.  Her husband refused to return the children from the United States.  After eluding the American authorities, he returned to Romania where he has lived since. The Bucharest Court issued an injunction requiring the children to be returned to the applicant. However, the applicant was unable to have the injunction successfully enforced. The Court found that that the failure by the Romanian authorities to enforce the judgment disclosed a lack of respect for her private and family life contrary to Article 8.

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Right to Marry

O’Donoghue v the United Kingdom (34848/07): - Initially working with Law Centre Northern Ireland, the AIRE Centre is representing a couple with children who were prevented from marrying due to the operation of the UK Certificate of Approval scheme which restricted the rights of foreigners to marry unless they married in the Church of England. The scheme was amended as a result of UK litigation and was eventually declared unlawful in the case of R (on the application of Baiai & others) v Secretary of State in 2008 in which the AIRE Centre intervened before the House of Lords. The case has been selected for the ECtHR’s “pilot judgment”  procedure due to the significant number of people affected by the scheme. This case is currently awaiting judgment.