Author: Sanya Gupta
IV Year | Lovely Professional University, Punjab

Introduction:

Right to family is not new, especially in the context of child rights.

Every person has the right to be reunited with his family members as well as maintain family relations. Families are a group of people who are related by genetics, marriage, or choice, and who share material, emotional and economic resources [1]. A family isn’t a government entity or a church where one forms associations; it is instead a dynamic social institution changing throughout life. Right to family raises the question whether bonds created outside ‘conventional’ familial understanding count as family?

Recognition of Right to Family:

The Right to family is recognized in a variety of Human Rights instruments including Article 16 of the Universal Declaration of Human Rights (UDHR), Article 23 of the International Covenant on Civil and Political Rights (ICCPR) [2], and Article 8 of the European Convention on Human Rights (ECHR).

Article 8 of the ECHR covers the right to private life, family life, home, and correspondence, which has quite a wide range and deals with the well-being, autonomy, choice, and control over decisions, care, and support as well as the right to private communications. For a child’s development and welfare, Article 8 plays a significant role.

Marriage and Right to Family:

For centuries, families have been tying knots between two people of the same social category for economic security. Marriage is a relationship that is legal and provides for social, emotional, economic, and sexual attachments.

The right to marry [3] is closely related to the right to family life, however, the two rights are not identical. The right to marry explicitly deals with the right to choose and marry the person to begin a family whereas the right to family life predominantly relates to the individual’s right to create and maintain family relationships. keeping in mind the changing situations and scenarios where one does not necessarily need to be married to start a family. The changing concept of a family requires a subjective understanding and definition of what family entails.

Right of Family of Refugees and Migrants:

The family has a right to live as an integral whole, fully protected as understood under both International Human Rights and International Humanitarian Law. The families separated due to political, economic, or similar reasons suffer from severe stress. Social isolation and economic difficulties restrict them from leading a normal life. Therefore, the right to have, nurture, maintain and safeguard family is enshrined in international instruments dealing in Human rights.

Migrants and refugees who cannot depend on their home countries to secure their basic human rights are often left to rot between State borders. Neither can they go back to their families, nor can they seek refuge in the latter country. The obligation of the States arises from this point of protecting people who can’t look back to their homes and families left behind. One such example is the European Union, which still does not have laws preventing family reunification of asylum seekers.

State’s Power of Regulation:

On the other hand, the States do have a right to interfere and breach the enjoyment of private and family life in the case of regulating their immigration and refugee laws [4]. This implies that Article 8 of ECHR is not an absolute right but is a qualified right. Undoubtedly, a sovereign State has the power to regulate entry and residence within its territory. However, the restriction should be proportionate for the State to breach Article 8 rights.

For instance, Denmark has strict refugee laws as they don’t want to have migrants coming to Denmark. For that, they are preparing for alternate methods of family reunification. According to Danish MP Ulla Sandbank, the Council of Europe member States is looking for applying selective policies to limit family reunification and discourage the arrival of refugees. The call for humanitarian visas for safeguarding refugee families is the solution she provides for the people who have now become nomads.

Children’s Right to Family:

Articles 16 and 22 of the Convention on the Rights of the Child guarantees a child the right to family. It also talks about community life that focuses on the overall growth and development of the child. It is necessary to have somebody to look after the child that the child could call a family. The international community has drawn up ways of reuniting children with their families. Yet, children who do not find a family are taken under state protection and sent to childcare facilities.

UNICEF also pays attention to the de facto ties and not only the blood relations by doing a case study approach. The essence of this method is to safeguard the best interest of the child along with fulfilling the material needs. It emphasizes on creating bonds and relations with the family members as well as the extended family or relatives. It also promotes relationships with people next to the family.

Conclusion:

The stereotypes of a mother as nurturer and a father as breadwinners shape how people think about themselves and create good or bad families. Not everyone is born with the privilege of enjoying family life. But that does not mean they cannot have one, there is always room for new beginnings. Similarly, international instruments are also trying to relay the message that it’s impossible to replace the impact that families have on our lives. It not only helps in moulding us as an individual but as a society at large.

There is a need to strike a balance between state laws and humanitarian obligations. It becomes an implied duty of the State to protect the families from struggling and going through the pain of separation. With the changing times, society has integrated diverse cultural ideologies. Consequently, evolving into something bigger and better for the future.

[1] Theories about family and marriage (Dec 12, 2021) https://nerdfighteria.info/v/yaeiCEro0iU/

[2] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 (Dec 15, 2021) https://www.refworld.org/docid/3ae6b3aa0.html 

[3] Ananthakrishnan G, Right to marry person of one’s choice is integral to right to life & liberty: SC on Hadiya case, THE INDIAN EXPRESS (Dec 1, 2021) https://indianexpress.com/article/india/right-to-marry-supreme-court-hadiya-case-5131055/

[4] UN High Commissioner for Refugees (UNHCR), A guide to international refugee protection and building state asylum systems, 2017, Handbook for Parliamentarians N° 27 (Dec 1, 2021) https://www.refworld.org/docid/5a9d57554.html 

Editor: Yashi Tripathi