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Logical Extension of the Children’s Right to Family Life from the Perspective of International Human Rights Covenants
May 25,2020   By:CSHRS
Logical Extension of the Children’s Right to Family Life from the Perspective of International Human Rights Covenants
 
LIN Jianjun*

Abstract: From the perspective of international human rights covenants, the family is the group unit for human life and the fundamental unit of society. Family life is the basic lifestyle of human beings. It is the right, by birth, of the individual to enjoy a normal life within the family. The survival and healthy development of children are inseparable from the family, and living with their parents or other family members is fundamental to guaranteeing the survival and growth of the children and realizing their value of life. Children’s right to family life is an important human right that has connotations fundamental to their lives, and should be safeguarded by both the law and Constitution.

Keywords: international human rights covenants ( children ( family ( familylife ( right to family life
 
The family is the most normal and natural social unit in human society. Living a normal family life is the most basic way of life for people, and it is also a human right that involves the most basic level of human existence. For children, the family is the most suitable habitat for their growth and development, and a nurturing family environment is irreplaceable for the healthy development of children. The right of children to live with their families is the prerequisite and guarantee for them to obtain daily care as well as economic and emotional support. After the end of World War II, international human rights covenants, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the constitutions of some countries clearly affirmed the independent value of the family as a natural community and the basic unit of society, and the role of the family as a pillar of the individual and society. They also standardized and formalized the protection of the family and the guarantee of the right to a normal life for family members, and declared the right to family life as a human right to provide legal protection for children’s vulnerable right to family life. At present, China, as a developing country, exhibits unbalanced development, and the imbalance in the development of children’s rights is also very severe. For example, the current situation of realizing the right to family life of “left-behind” children is worrying; ignominies such as the trafficking of children and hiding and scrambling for children during divorce have emerged despite repeated prohibitions, which violate children’s right to family life; the issue of reunification of foreigners coming to China and their families urgently needs to be solved, etc. The current law in China has not clearly established the right to family life, and the studies on it are rare. Based on the international human rights covenants, this paper conducts a comprehensive analysis of the concept of the right to family life that is relevant to the survival of children, with a view to providing corresponding theoretical support for China’s legislation.

I. The Concept and Scope of the Family

The right to a family life is an individual’s right to live normally in a family, and the concept of “family life” is closely related to “family”. Whether the concept of “family life” stands depends, in the first place, on whether the concept of “family” stands. To clarify the concept of the right to family life, we should first clarify the concept of the family.

A. The connotation of the family

After the end of World War II, the family was widely regulated in the ICCPR and the ICESCR (hereinafter referred to as the “two human rights covenants”), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), the African Charter on Human and People’s Rights (ACHPR) and many other universal and regional human rights covenants. As soon as the family as included in the scope of the international human rights covenants, specific international standards on the family should be established and protected by these covenants accordingly. Although the concept of the “family” is not clearly defined in the universal international human rights covenants, the “two human rights covenants” and some universal human rights documents covering refugees, immigrants and asylums state the nature, status and related rights of the family. In particular, the term “family” exists in the “two human rights covenants” — Articles 17 and 23 of the ICCPR and Article 10 of the ICESCR provide a coordinated understanding and interpretation of “family”, which has become the best legal source and useful guide to explain the definition of “family” and the important international standard for regulating family.

The family is a broad and flexible concept. The forms of the family are diverse and complex, and the concept of the family has corresponding flexibility. United Nations Human Rights Committee General Comment No. 16 affirms that different States parties can have different understandings of the family based on different cultural backgrounds, and that the term “family” should be given a broad interpretation. “With regard to the term ‘family’, the objective of the ICCPR is that for the purposes of Article 17, the term should be interpreted broadly to include all members of the families which are interpreted in all the societies of the States parties”. Moreover, the concept of the family is constantly changing as social customs and ideas change, and a certain form of family cannot be consolidated at the expense of other forms of family. The scope of the family should be determined based on an examination of the legal and cultural traditions of the relevant country. “In some cases, differences in family compositions and definitions are determined by cultural factors, while in other cases, they are the result of refugee experience. A broad definition of the family unit is necessary.”

The family is the “natural and fundamental group unit of society”. Article 17 of the ICCPR states: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” Article 23 affirms that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Article 10 of the ICESCR states: “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.” Obviously, the two human rights covenants emphasize that the family is the natural and basic group unit of society and is protected by society and the state. On the one hand, they affirm that the family is the home of family members, such as children, for their natural life, and plays the role of natural protector of children and other family members; on the other hand, they affirm the role of the family in social order, which is the backbone of economic, social and cultural life and is significant for society and the state as a whole.

B. The scope of family members

1. Marital relationship

Marriage, the union of man and woman as spouses, is the basic form of a family. In a traditional sense, a family is based on marriage. The man and woman who marry each other form the initial traditional family, and the family is the result of the marriage. For this reason, most countries have laws that regard marriage-based family as the standard family model. “The original draft of Article 10 of the ICESCR also limits the family to ‘marriage-based’ family”. Of course, in addition to the ties of marriage, there are other ties of blood and common life, etc. The family is not limited to marriage. The final text of the ICESCR does not include restrictive wording, in part to align its Article 10 with Article 23 of the ICCPR. Some countries were concerned as previous drafts would exclude family units that are not based on marriage. For example, Sweden maintains that unmarried mothers and their children and divorced people or people bereft of their spouses and their children should also be considered as family units.
 
2. Parent-child and other close kinships

The parent-child relationship occurs due to birth or legal fiction, which is the closest lineal relative, and the core member and important part of the family. The parent-child relationship includes consanguineous parent-child relationship and legal parent-child relationship. The consanguineous parent-child relationship is the biological parent-child relationship, regardless of whether the children are born in wedlock, illegitimately or artificially; the parent-child relationship formulated by law includes adoptive parents and children as well as step-parents and children who form a foster relationship. The United Nations High Commissioner for Refugees (UNHCR) handbook states: “As to which family members may benefit from the principle of family unity, the minimum requirement is the inclusion of the spouse and minor children. In practice, other dependants, such as aged parents of refugees, are normally considered if they are living in the same household.” Obviously, parent-child relationships are included in the family as core. Article 4 of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states: “the term ‘members of the family’ refers to persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognized as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned.”

Grandparents and grandchildren are the closest lineal relative other than parents and children, while siblings are the closest collateral relatives. Close relatives between grandparents and grandchildren and between siblings should be included in the scope of the family. In applying Article 8 of the ECHR, the European Court of Human Rights states that “family life in the sense of Article 8 includes at least relationships between close relatives, such as those between grandparents and grandchildren, as these relatives may play a significant role in the family life“.
 
3. Kinship other than closer elatives

International human rights documents treat nuclear family members/near relatives as the main body of the family. From the perspective of development trends, the concept of family has been extended beyond formal relationships and legal order, and has continued to expand from nuclear family to “informal” or “natural” family. Whether relatives other than close relatives, such as uncles, aunts, nephews, nieces, etc., especially in the absence of biological parents, are considered part of the family mainly depends on whether there is a living, emotional, or economic dependency. In international humanitarian law, the commentary to the additional protocol to the 1949 Geneva Conventions states that “in the narrow sense, family members include people who are related by blood and who live together in a family”. Obviously, relatives other than close relatives living together can also be accepted as family members. Family members are people who live together as a unit under the same roof. From the perspective of development trends, the “dependence principle” has been gradually accepted as a useful tool for determining if other individuals can also be considered as family members in some cases. In terms of international refugee law, UNHCR which works in different parts of the world with different historical and cultural concepts, recognizes that the “displacement of refugees in some countries may mean that over time, as family members continue to separate, default, reunite, die or be killed, the family may be separated, changed or reorganized in different combinations”. UNHCR has called on asylum countries to adopt more lenient standards to determine which family members can be accepted, and to gradually adopt the “dependency principle” over the “nuclear family principle” to ensure that family members who are not close relatives but still dependents can also enjoy the right to family life and family reunification. The so-called “dependence principle requires flexible and extensive standards for family reunification, which are culturally sensitive and specific to the situation. Given the destructive and traumatic factors experienced by refugees, the effects of persecution, and the pressures associated with fleeing to safe places, refugee families are often reorganized from interdependent and surviving families. These families may not fully fit the preconceived concepts of the nuclear family (husband, wife, and minor children).”

II. The Concept of Children’s Family Life and Its Definition

A. The concept of family life

The family is an individual’s natural life community and an important field of personal daily life. Family life is an individual’s daily life in the family, which is a way of life relative to personal life and social life. Compared with personal life, family life is a group activity. Compared with social life, although family life also possesses a group nature, it belongs to the “private” field and is relatively hidden, exclusive, and private, while group activities in social life have the characteristics of “being public” such as openness, universal participation and visibility.

Among the many forms of community in human society, the family, for the purpose of permanent common living, is “the common living organization among relatives arising from marriage, blood, or adoption”, which is the long-term and stable basic unit of life. Family members have strong and stable ties of life, economy, and emotions, and live together at the physical, mental, sexual, and economic levels, including living in the same room, dining at the same table, sleeping in the same bed, sharing wealth, and helping each other to live. The core is the bond of life. In terms of the common life of marriage, “marriage life is generally common in spiritual life (mutual dearness and spiritual bonding), sexual life (physical bonding) and economic life (economic bonding)”. This is an important characteristic of marriage that is different from other extramarital sexual relationships. In terms of parent-child relationships, family life includes the contents of parental rights/obligations for minor children, and the right of the party who does not get to exercise parental rights/obligations to contact the children. Although the function of the family is weakening in modern society, and schools, companies, etc. have partially replaced the functions of family education and livelihood, there is still no doubt that no other organization can replace the family. The objective laws of human life reproduction and nurture and the psychological needs of maintaining close relationships determine that the maintenance of the family’s common life is still the core goal of the family. Family life is the most basic guarantee for individuals to obtain the care and the emotional, economic and material supports they need to survive. Different subjects of family members are entitled to different contents of common life. The common life of marriage, parent-child and other relatives are not the same. Among them, the common life of marriage has a unique sexual life content.

A “family member” is the subject of family life. Determining family life is, in a sense, determining whether one has a family relationship with another. “As family life involves particularly sensitive aspects of personal life, many subjective factors play a role in this area: family affection, love, tenderness, dependence, values, morality, tradition and culture. Therefore, to define the concept of family life raises various problems inherent in the concept itself.” To this end, standards and principles applicable to the concept of family life need to be formulated and developed. In order to apply the provisions of Article 8 of the ECHR on “respect for the right to family life”, the European Court of Human Rights tries to introduce some principles for judging family life, so as to determine the objective and subjective factors that should be considered in the determination of family life, with a view to “establishing a coherent framework and enhancing protection of this right”. Three factors are mainly considered: biological factors, legal factors, and life/emotional factors.

First of all, for legal marriages, concluding a marriage in accordance with the law legalizes couples’ family relationships. This legal marriage relationship certainly belongs to the category of “family”, and its family life of course stands. Recognition by law, that is, having the legal elements, is the standard for determining family life. As to whether the life of couple is actually established and whether they live together are not regarded. The relationship between spouses is automatically incorporated into the concept of family life. Even if there is no cohabitation, it is not illegal as long as the marriage is not fictitious. According to Article 1353 of the people born of marriage”. Therefore, the legal bonds of marriage are sufficient to generate family life. Secondly, the concept of “family” is “not limited to marriage-based relationships, but may also include other de facto family relationships, where both parties live together outside of marriage”. To determine whether their family life relationship constitutes, it is necessary to prove whether there is “a cohabitation, economic connection or other forms of close and fixed relationship”, that is, to mainly examine the effectiveness of family life. As cohabitation is a major consideration, the effectiveness of family life should be assessed by examining the duration of the relationship and cohabitation and whether there are common projects or children.

B. Determination of children’s family life

The determination of family life between children and parents is mainly based on consideration of ties of blood. The relationship between parents and children is the core of family life, and certainly belongs to the scope of family life. For parents and children, from the moment the child is born, based on the fact of birth and blood relationship, there is certainly a bond of family life between parents and children. The same principle applies to the relationship between parents and children born out of wedlock, if their relationship is formally confirmed. Voluntary recognition of fatherhood is sufficient proof of family life between the fathers and their biological children. As far as mothers are concerned, childbirth results naturally in family life between mothers and children. The principle applies non-discriminatorily to all parent-child relationships, with a focus on “personal relationships between parents and their children, and has nothing to do with other situations, such as geographical separation, adultery or polygamy. In the latter case, it has been determined that, even if polygamy marriages are illegal in a member state of the European Commission, the relationship between the father and the children born to his different wives is protected by Articles 8 and 19”.

The determination of family life between children and their siblings and grandparents is also mainly based on ties of blood and legal elements. Family relationships between close relatives constitute family life, including relationships between siblings, grandparents and grandchildren. “Affinity outside of family life usually falls within the scope of private life.” The European Court of Human Rights, when applying Article 8 of the ECHR to explain family life, points out that “current case law deals primarily with situations in which grandparents wish to reach grandchildren for whom the public authorities act as guardians. If the public authorities do not question the existence of family life, the court considers that grandparents may play an important role in the grandchildren’s family life and decides that family life exists between them without examining the effectiveness of family life.” The blood and legal relationships between children and their siblings and grandparents constitute effective family life.

The determination of the family life of kinship other than close relatives mainly considers other factors such as life, economic, and emotional connections. For other family members, the determination of the relationship is more complicated. The interdependence and effectiveness of the relationship are the main considerations when judging whether family life constitutes. Specifically, living with one another or having other forms of close and regular connections is an important criterion for determining relationships. The farther the kinship is, the stronger the need to emphasize the factual connection of life, economy, and emotion. If there is no close and effective connection between one another, this kind of kinship cannot be deemed to constitute family life.
 
Of course, international human rights covenants are “living” rather than static documents. The principles of judging family life should also change according to social conditions and development, and must be interpreted according to the current situation. “The court cannot ignore the evolving process in the States parties. It should consider the evolution of family structures (downsizing, restructuring), expectations of so-called ‘quality of life’ (such as a clean environment), the choice of parenting and the family’s traditional lifestyle”.

III. The Concept and Content of Children’s Right to Family Life

Family life is the essence of the family legal system, and family relationship is basically a solid and stable life relationship. The core goal of starting a family is to live with family members. Individuals are born with the right to live together with family members, maintain basic survival and create value for life. The right to family life is a legal expression of human nature. People’s daily family life behaviors and basic lifestyles should be protected.

A. Concept of the right to family life

The right to family life is the right of individuals to carry out various family activities as family members within the family. The basic element is living together so that family relationships can develop normally and family members can enjoy the company from one another. The family is a structure in which members live together “to promote growth and create meaning in life. As people are given with various natural endowments by nature, they can only develop in the presence of others”. The Human Rights Committee stresses that “the right to starting a family usually means being able to have children and cohabit...To enable couples’ cohabitation, it is necessary to work within each country and, when necessary, with other countries to take appropriate measures to ensure family reunion, especially when family members are separated for political, economic or similar reasons”. The right to family life summarizes the unique and indispensable rights of human existence, which is vital to human beings and constitutes the core and foundation of human dignity. “Anyone’s right to family life should be respected. For internally displaced persons to truly enjoy this right, families willing to be reunited should not be separated.”

Children’s right to family life is the right of children to maintain normal family life with family members such as parents. Its main purpose is to ensure that children and their parents living together, maintain physical and spiritual life, and develop a healthy personality without interference from public power. It is an important human right that touches the most basic level of the survival of children and has fundamental life meaning. The CRC further recognizes and protects children’s right to family life on the basis of universal and regional human rights conventions.

B. The content of children’s right to family life

1. The content of the right to family life between children and parents

The right to family life between children and parents is inherent. Children have the right to live with their parents, and even if the parents are separated, the children have the right to keep in touch with each of their parents. The CRC specifically states in the preamble: “childhood is entitled to special care and assistance; convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community; recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.” The content of children and parents’ right to family life mainly includes the following points. The first point is the right to living together. This is clearly recognized in Article 9 of the CRC. The article states: “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” The second is parental rights/obligations. The family is the most suitable habitat for children to grow up and is the most common form of raising children. In order to achieve the purpose of rearing and protecting minor children, blood-related parents have the rights and obligations to discipline and protect the minor children in terms of their physical and property rights. That is, modern society downplays the paternity color embedded in “parental rights”, highlights the children’s best interests and parental obligations, and “goes from the paternity-based concept of ‘parental rights’ to the children-based concept of ‘parental obligations”. “Parental obligations” cover all the rights and duties of parents to minor children, including the right to physical and property care. The third is the right of access. To maintain the family relationship between children and parents and to protect the family’s common life, it is necessary to safeguard the right of children to contact with parents (including the case of divorce of parents). Family relations can only be severed unless the parents are found to be seriously unfit in exceptional circumstances, but the family must be rebuilt where appropriate. Article 9 (3) of the CRC states: “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” Faced with situations where children may be forcibly separated from their parents (for example, because of extreme neglect of fostering obligations) or one of their parents after divorce, “the Human Rights Committee derives such rights from the right to privacy under Article 17 and the protection of family life under Article 23 of the ICCPR — the rights of parents who are not guardians to maintain personal relationships, direct contact and communication with their children”.

2. The content of the right to family life between children and their siblings and grandparents

Family life also exists between children and their siblings and grandparents. The court recognizes that the relationship between an adult and his parents and siblings constitutes a family life protected by Article 8 of the ICCPR, even if the adult does not live with his parents or siblings and has formed an independent family. The right to family life between children and their siblings and grandparents mainly includes the right to live together, accompany each other, and maintain normal relationships through daily contact. However, contact between grandparents and grandchildren is usually made with the consent of someone with parental obligations, which means that such contact is usually determined by the children’s parents. “Under normal circumstances, the relationship between children and their siblings and grandparents differs in nature and degree from the relationship between parents and children, and therefore, generally requires a lesser degree of protection.”

IV. Conclusion

Children’s survival and growth require a good family and social environment. The family is the base for children to grow up. Effective protection of children’s right to family life is one of the indispensable conditions for children to grow up healthily. The children’s right to family life is a basic right of the children widely recognized in international human rights covenants. Protecting this right is also a basic condition for children’s many rights to be guaranteed. Understanding children’s right to family life requires research on issues such as family, family members, family life relationships, and children’s status in the family.

Since the founding of the People’s Republic of China, our country has always attached great importance to the care and protection of children. However, due to the imbalance and inadequacy of economic, social and cultural development, the protection of the rights of children in all regions and of all types is still quite uneven. There are still many situations in which children are not treated well in their family life and are even physically and mentally abused. Therefore, in accordance with the national conditions of China’s economic and social development and the overall status of human rights development, we should effectively protect children’s various rights, including the right to family life, through institutional construction in politics, law, society, culture, etc. China’s relevant laws have already covered the content of guaranteeing children’s family life. However, the children’s right to family life has not been clearly identified. This right should be clarified in the legislation on the protection of minors, and practical protection of this right should be emphasized in the implementation of the law.
(Translated by FU Yiming)
 
* LIN Jianjun(林建军),Ph.Dcandidate of Institute for Human Rights, China University of Political Science and Law, Professor of School o fLaw, China Women’s University.
1. Human Rights Committee General Comment No.16, paragraph 5.
2. Frances Nicholson, “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied”, Legal and Protection Policy Research Series 35 (2018): 34. UNHCR, the UN Refugee Agency, accessed Janurary 31, 2018, https//www.unhcr.org/protection/globalconsult/ 5a8c40bal/35-right-fami-ly-life-family-unity-refugees-others-need-international-protection.html.
3. Ben Saul et. al. , The International Covenant on Economic, Social and Cultural Rights: Commentaries, Cases, and Materials vol. 1, trans. Sun Shiyan (Beijing: Law Press China, 2019), 627.
4. Ibid.
5. Ibid.
6. Frances Nicholson, “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied”, 19.
7. Stephanie Lagoutte, “Surrounding and Extending Family Life: The Notion of Family Life in the Case-Law of the European Court of Human Rights”, 21 Mennesker OG Rettigheter 292 (2003): 300. Provided by: Institut suisse de droit com-pare.
8. Vasile Tudor, “Legal Aspects of the Right to Respect Private and Family Life”, 21 Nephron Clinical Practice 2 (2015): 525.
9. Frances Nicholson, “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied”, 18.
10. Frances Nicholson, “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied”, 32.
11. Frances Nicholson, “The Right to Family Life and Family Unity of Refugees and Others in Need of International Protection and the Family Definition Applied”, 34.
12. Shiga Shuzo, Principles of Chinese Family Law (Beijing: Law Press China, 2003), 42.
13. Shi Shangkuan, The Law of Relatives (Beijing: China University of Political Science and Law Press, 2000), 98.
14. Stephanie Lagoutte, “Surrounding and Extending Family Life: The Notion of Family Life in the Case-Law of the European Court of Human Rights”, 292.
15. Dieter Schwab, German Family Law, tran. Wang Baoshi (Beijing: Law Press China, 2010), 60.
16. Manfred Nowak, Commentary on the International Covenant on Civil and Political Rights (Revised Second Edition), trans. Sun Shiyan and Bi Xiaoqing (Beijing: SDX Joint Publishing Company, 2008), 539.
17. Stephanie Lagoutte, “Surrounding and Extending Family Life: The Notion of Family Life in the Case-Law of the European Court of Human Rights”, 300.
18. Stephanie Lagoutte, “Surrounding and Extending Family Life: The Notion of Family Life in the Case-Law of the European Court of Human Rights”, 297.
19. European Court of Human Rights, “Guide on Article 8 of the European Convention on Human Rights: Right to Respect for Private and Family Life, Home and Correspondence”, 64, accessed April 30,2019, https:// www.echr.coe.int/Documents/GuideArt8ENG.pdf.
20. Stephanie Lagoutte, “Surrounding and Extending Family Life: The Notion of Family Life in the Case-Law of the European Court of Human Rights”, 300.
21. Stephanie Lagoutte, “Surrounding and Extending Family Life: The Notion of Family Life in the Case-Law of the European Court of Human Rights”, 293.
22. Zhan Shiyou, “A Common Good Life: The Essence of Kant’s Political Ethics” in Ethics and Civilization 5 (2018): 26.
23. Human Rights Committee General Comment No.19, paragraph 5.
24. Guiding Principles on Internal Displacement, adopted by the Economic and Social Council on February 11, 1998, Principle 17.
25. Lin Jianjun, “On the Formation Mechanism and Conditions of National Intervention in Child Guardianship”, China Law Review 3 (2019): 198.
26. Manfred Nowak, Commentary on the International Covenant on Civil and Political Rights, 416.
27. European Court of Human Rights, “Guide on Article 8 of the European Convention on Human Rights: Right to Respect for Private and Family Life, Home and Correspondence”, 64.
28. Ibid.

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