Irreconcilable Differences? Article 8 ECHR and Irish Law on Non-Traditional Families

Abstract

While the concept of de facto family life has been a feature of the jurisprudence of the European Court of Human Rights for over three decades, Irish law has always had a somewhat uneasy relationship with the concept. At a constitutional level, Irish law clearly places the marital family on a pedestal and excludes non-marital families from recognition. However, case law in the 1990s showed a willingness by the courts to indirectly recognise de facto families when applying legislation on guardianship, custody, and access. Two recent High Court decisions, concerning international child abduction and the rights of a lesbian couple as against a sperm donor, saw a more radical approach adopted, but an appeal from one of these saw the Supreme Court decisively reject the concept of the de facto family. This article will examine the boundaries of the definition of family life under Article 8 of the European Convention on Human Rights and assess whether Irish law, which provides limited recognition to non-traditional families, can be reconciled with Convention obligations.

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