The notion of family [..]is not confined solely to families based on marriage and may encompass other de
facto ties where the parties are living together out of wedlock. A child born of such a relationship is ipso
jure part of that “family” unit from the moment and by the very fact of his birth. Thus there exists
between the child and his parents a bond amounting to family life. The Court further recalls that the
mutual enjoyment by parent and child of each other's company constitutes a fundamental element of
family life, even if the relationship between the parents has broken down, and domestic measures
hindering such enjoyment amount to an interference with the right protected by Article 8 of the
Convention193.
173. In the Case of X, Y and Z v. United Kingdom, the European Court of Human Rights,
following an ample concept of family, acknowledged that a transsexual, their female partner
and a child may comprise a family, stating that:
When deciding whether a relationship can be said to amount to “family life”, a number of factors may be
relevant, including whether the couple live together, the length of their relationship and whether they
have demonstrated their commitment to each other by having children together or by any other means194.
174.
In the first place, and with respect to the conventional protection of same-sex
couples in the Case Schalk and Kopf v. Austria, the European Court revised its case law in
force at that time, which only accepted that the emotional and sexual relationship of a
same-sex couple constitutes “private life,” but had not considered what constituted “family
life,” despite the applicants having lived together in a long-term relationship195. Applying a
broader concept of family, the European Court established that “a cohabiting same-sex
couple living in a stable de facto partnerships, falls within the notion of ‘family life’, just as
the relationship of a different-sex couple in the same situation would196,” considering it
19 (39th period of sessions, 1990). The family (Article 23), HRI/GEN/1/Rev.9 (Vol.I), para. 2 (“The Committee
notes that the concept of family may differ in some respects from State to State, and even between regions within
a State, and that it is therefore not possible to give the concept a standard definition”), and United Nations, C
Human Rights Committee, General Comment No. 16 (32nd period of sessions, 1988). Right to Privacy (Article 17),
HRI/GEN/1/Rev.9 (Vol.I), para. 5 (“Regarding the term "family", the objectives of the Covenant require that for the
purposes of Article 17, this term be given a broad interpretation that includes all those comprising the family, as
understood in the society of the State Party concerned.”)
193
ECHR, Case of Schalk and Kopf, supra note 158, para. 91 (“the notion of family […] is not confined to
marriage-based relationships and may encompass other of facto “family” ties where the parties are living together
out of wedlock. A child born out of such a relationship is ipso jure part of that “family” unit from the moment and
by the very fact of his birth. Thus there exists between the child and his parents a bond amounting to family life.
The Court further recalls that the mutual enjoyment by parent and child of each other's company constitutes a
fundamental element of family life, even if the relationship between the parents has broken down, and domestic
measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the
Convention”), citing ECHR, Case Elsholz, supra note ¡Error! Marcador no definido., para. 43; Case Keegan,
supra note 166, para. 44, and Case of Johnston et al. v. Ireland, (No. 9697/82), Judgment of December 18, 1986,
para. 56; see also ECHR, Case of Alim V. Russia (No. 39417/07), Judgment of September 27, 2011, para. 70; Case
of Berrehab v. The Netherlands, (No. 10730/84), Judgment of June 21, 1988, para. 21, and Case of L. v.
Netherlands, (No. 45582/99), Judgment of June 1, 2004. Final, September 1, 2004, para. 36.
194
Cf. ECHR, Case of X, Y and Z v. United Kingdom, (No. 21830/93), Judgment of April 22, 1997, para. 36
(“When deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant,
including whether the couple live together, the length of their relationship and whether they have demonstrated
their commitment to each other by having children together or by any other means”); ECHR, Case of Marckx V.
Belgium, (No. 6833/74), Judgment of June 13, 1979, para. 31; Case of Keegan, supra note 166, para. 44, and
Case of Kroon et al., supra note 166, para. 30.
195
ECHR, Case Schalk and Kopf, supra note 158, para. 92 (“the Court's case-law has only accepted that the
emotional and sexual relationship of a same-sex couple constitutes ‘private life’ but has not found that it
constitutes ‘family life’, even where a long-term relationship of cohabiting partners was at stake”).
196
ECHR, Case Schalk and Kopf, supra note 158, para. 94 (“a cohabiting same-sex couple living in a stable of
facto partnership, falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same
situation would”) and Case P.B. and J.S. v. Austria, (No. 18984/02), Judgment of July 22, 2010. Final, October
22, 2010, para. 30.
55