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Article 8: Right to Respect for Private and Family Life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.


Article 8 protects your rights in four areas: your private life, your family life, your home and correspondence. It is a qualified right, which means that your right to respect in these areas can be infringed in certain circumstances (see paragraph headed ‘A qualified right’ below).

Article 8 refers to the right to respect and so in addition to protecting your rights from interference by a public authority, it imposes a positive obligation on public authorities to actively protect your rights in certain circumstances. This can include taking action to secure respect for your rights even where the interference is being caused by a private individual (see paragraph headed ‘Positive obligations’ below)

Private life

Many issues have been held to fall within the meaning of ‘private life’ and the ECHR has stressed that it is not possible to limit or define what will fall within its scope,. Things which clearly do form part of your private life are:
  • Bodily integrity – Article 8 will come into play if someone is forced to have medical treatment or if he or she is forcibly restrained.
  • Personal autonomy – this means the right to make decisions about how you lead your life. People have tried to argue that the right to smoke cannabis is an issue of personal autonomy and should therefore be protected by Article 8 but the courts have not been prepared to accept this.
  • Sexuality – there have been a number of cases in which the ECHR has made it clear that laws which prohibit gay men having sex breach Article 8.
  • Personal identity – the ECHR decided in 2002 that British law’s failure to fully recognise the new gender of transgendered people breached Article 8.
  • Personal information – the holding, use or disclosure of personal information about someone is covered by Article 8. The article may also give someone the right to access personal information held about them.
Family life

This element of Article 8 protects your right to respect for your close family relationships and matters relating to those relationships, for example how parents choose to discipline their children. The question of whether a relationship will fall within the ambit of ‘family life’ for the purposes of Article 8 will depend on the nature of the relationship and the existence of close personal ties. In addition to the relationship between a mother and father and between children and their parents, ‘family life’ will include unmarried couples and the relationship between an illegitimate child and either parent as well as other family relationships, for example relationships between siblings and between adopted children and adoptive parents.

The ECHR has so far been reluctant to recognise same-sex couples as families, holding that these relationships fall within the ambit of private life - not family life

Separation of family members will normally constitute an interference with the right to respect for family life, although such interference may be justified, for example where a child is taken into care for his or her own protection or where a parent is sentenced to imprisonment.

Family life can be engaged in deportation cases if the person to be deported has an established personal and family life in the UK (for example, if the person has children living and settled in the UK). However, the courts have been reluctant to find that deportation is a violation of Article 8. Where there is an alternative country in which the husband and wife or family can reside and there are no ‘insurmountable obstacles’ to moving there, or where a person could return to their country of origin and obtain entry clearance as a family member in the ordinary way without risk or excessive delay it is unlikely that the court will find that there has been a violation of Article 8.

Home

Your home is where you currently live. The right to respect for your home does not mean that you have the right to be given a home if you do not have one, or to be given a better one than you already have.

Environmental issues (noise or other pollution) may come within the scope of Article 8, because they affect both a person’s private life and a person’s enjoyment of their home. The right to respect for your home will also cover the right to enjoy your home without interference or intrusion by others and the right of access to and occupation of your home.

Correspondence

This element of Article 8 protects your right to communicate with others and the confidentiality of those communications.
All forms of communication are covered by Article 8 and include communication by way of phone calls and letters, as well as e-mails. Article 8 has been successfully used to challenge the bugging of phones by police or secret services.

A qualified right

Article 8 is qualified right. This means that an interference with the right can be justified in certain circumstances. Where the interference is justified, there will be no breach of Article 8.
The circumstances where an interference with the right can be justified are set out in the second part of the article (Article 8(2)).

For an interference to be justified it must:
  • Be ‘in accordance with the law’ - this means that there has to be clear legal basis for the interference and that the law should be readily accessible.
  • Pursue a legitimate aim - there are six legitimate aims set out in Article 8(2), including ‘the prevention of disorder or crime’ and ‘the protection of the rights and freedoms of others’. A public authority which intends to interfere with a person’s rights under Article 8 must be able to show that what they are doing pursues one of these six legitimate aims. This is rarely a problem, as the legitimate aims are so widely drawn.
  • Be ‘necessary in a democratic society’ - This is usually the crucial issue. There must be a good reason for the interference with the right and the interference must be proportionate which means that it should be no more than is necessary. If there is an alternative, less intrusive, way of achieving the same aim then the alternative measure should be used.
Positive obligations

Article 8 and the other qualified articles are largely concerned with preventing the Government, the police or other state bodies interfering with people’s rights. They are negative obligations in that they require the State to refrain from taking certain action. However, there may be circumstances where State is under a positive obligation - a duty to do something in order to protect or promote your rights.

In order to determine whether such a positive obligation exists, consideration must be given to the fair balance that has to be struck between the general community interest and the interests of the individual. Because a positive obligation will require the State to take active measures or steps, it will always be much harder to argue that the State is under a positive obligation than under a negative one. Examples of where courts found that a positive duty exists include:
  • R (Bernard) v Enfield London Borough Council [2003] where the court held that the Borough Council had a duty to provide assistance to a disabled woman so that she could maintain basic physical and psychological integrity.
  • X and Y v Netherlands (1985) where the ECHR held that the Netherlands should have taken steps to protect the applicants from sexual assault by their parents, as this assault was a grave breach of their right to respect for their private life.
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