How Does English Law Give Effect to the Right to Marry and Found a Family as Guaranteed by Article 12 of the European Convention on Human Rights?
How Does English Law Give Effect to the Right to Marry and Found a Family as Guaranteed by Article 12 of the European Convention on Human Rights?
Article 12 states 'Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the existence of this right'. The European Court held that there is no one European-wide view of what marriage is and so each country is given a margin of 'appreciation' to decide how it understands marriage.1 Therefore, if taken literally, this article seems to give English law the power to determine and limit marriage. However, the decisions made by English courts have been challenged on many occasions, successfully and unsuccessfully. The scope of this qualification is unclear. It is evident that the exercise of the rights guaranteed cannot be wholly governed by English law.2 In that case the protection of Article 12 would extend only to cases where there was a breach of English law. But the primary purpose of the convention is 'to guarantee certain human rights irrespective of the provisions of national law'.3 In the past the UK has had quite poor record before the European Court of Human Rights, largely because the Convention was not part of UK law until the passing of the Human Rights Act 1998.
By applying article 12 the European court has to balance the rights of the individual against the public interest. For example the right to marry cannot be considered simply as a form of religious practice because it is regulated by article 12 of the convention, which leaves the national requirements to be stipulated by domestic law. Thus, the refusal of permission under English law for a Muslim man to marry a 14-year old Muslim girl, as permitted by the man's religion (Islamic Law), could not be said to have violated his right to marry.4 Article 12 also protects couples from interference with their right to found a family. As with marriage, Article 12 does not create a right for couples of the same sex to adopt children, if national law prohibits this. In addition, it does not give entitlement for a male to female transsexual to be registered as the father of a child conceived by artificial insemination and this is illustrated in the case of X, Y and Z v United Kingdom.5
English law has not always been successful in giving effect to the right guaranteed under article 12. An example of UK violating article 12 can be illustrated in two particular cases6 which involved the restriction on prisoners to be married in prison.7 In these cases the term of imprisonment was such that the exercise of the right to marry would be delayed a considerable time.8 'Personal liberty was not a precondition to the exercise of the right and no particular difficulties were envisaged in allowing prisoners to marry'.9 In its Report the commission said: "In the Commission's opinion national law may not otherwise deprive a person or category of persons of full legal capacity. Nor may it substantially interfere with their exercise of the right."10 The commission's report in Hamer11 was accepted by the committee of ministers, who found that the provisions were infringed by denying prisoners the facilities to contract marriage.12 With regard to the right to found a family, the refusal of the UK authorities to allow conjugal visits between prisoners and their spouses has been held to be justified for the prevention of disorder or crime.13
Up until now, Article 12 has always been limited to 'men and women' in the UK. A purported marriage is void ab initio in the event that the parties are not respectively a man and a woman.14 This limitation has been strongly challenged by transsexuals and homosexuals. In the case of transsexuals, the European court in Rees v UK15 accepted the UK government's arguments against allowing a female to male transsexual to change the record of his sex on his birth certificate. According to English law, a marriage can only take place between a male and a female ...
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Up until now, Article 12 has always been limited to 'men and women' in the UK. A purported marriage is void ab initio in the event that the parties are not respectively a man and a woman.14 This limitation has been strongly challenged by transsexuals and homosexuals. In the case of transsexuals, the European court in Rees v UK15 accepted the UK government's arguments against allowing a female to male transsexual to change the record of his sex on his birth certificate. According to English law, a marriage can only take place between a male and a female and will be void if this is not the case.16 Birth status remains irrespective of gender reassignment surgery with the result that the applicant in Rees was effectively denied the right to marry. In examining the complaint, the European court was anxious to uphold traditional values and to protect the traditional concept of marriage, stating: "the right to marry under Article 12 refers to traditional marriage between persons of the opposite biological sex .... Article 12 is mainly concerned to protect marriage as the basis of the family."17 It was further held that the UK was clearly afforded a margin of appreciation inherent in the wording of Article 12 in governing the exercise of the right to marry through domestic law. The court found that, in the United Kingdom, the legal impediment to the marriage of persons who are of the same biological sex did not impair the "essence" of the right to marry.18
In the case of Cossey v UK19 the decision of the European court was the same in very similar circumstances.20 The case involved a male to female transsexual who wished to marry a male in the UK. It was held that there was "no evidence of any general abandonment of the traditional concept of marriage", although the European court was more ready to accept that there may be different situations in a changing world and that such marriages may in fact now be more readily recognised. However, the acceptance of such marriage by some contracting states did not constitute a general abandonment of the traditional concept of marriage. In its decision, the European court said: "...attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person's sex for the purposes of marriage". In considering UK legislation, the European court took a different approach from that taken in Rees21, and held that the impediment to marriage was biological not legal.22
More recently, in the case of Sheffield and Horsham v UK23, the court held by a majority that the UK government was entitled to a margin of appreciation in refusing to give legal recognition to post-operative transsexuals.24 The detriment to the applicants was not considered sufficiently serious to override that margin. Therefore the judgements laid down in Rees25 and Cossey26 were adopted. Although the European court did not find any breaches of article 12, there was still some severe criticism of the UK government in not "keeping the need for appropriate legal measures in this area under review". The court said "it would appear that the UK has not taken any steps to do so ... it is nevertheless the case that there is an increased social acceptance of transsexualism and an increased recognition of the problems which post-operative transsexuals encounter ... the court reiterates that this area needs to be kept under review by contracting states."27 Therefore the court found that medical science had not advanced significantly since Rees and Cossey, and that there was still no common legal approach among the contracting states.
In a judgement delivered at Strasburg on 11 July 200228 the European Court of Human Rights held unanimously that the UK violated the rights of transsexual people under article 12. The case of Goodwin & I v UK29 marked a historic breakthrough for transsexual rights. This was a crucial landmark decision after almost 50 years of case judgements in the UK and the ECHR which failed to protect transsexual people's rights under article 12. While it was true that article 12 referred in express terms to the right of a man and woman to marry, the court was not persuaded that at the date of this case these terms restricted the determination of gender to purely biological criteria.30 . In its defence the UK Government argued that there was no generally accepted approach among states contracted to the convention in respect of transsexuality. The Government submitted that the failure to legally recognise Miss Goodwin's new gender identity fell within the margin of appreciation permitted to states under the convention. The ECHR upheld Miss Goodwin's complaint and declared that the UK Government was in breach of article 12. The ECHR said that the allocation of sex in UK law to that registered at birth, which prevented transsexuals marrying a person of the sex opposite to their reassigned gender, infringed the very essence of Miss Goodwin's rights under article 12. Furthermore, the ECHR declared that the current UK law, which forced those who had surgery, to live in an intermediate zone between genders was both unsatisfactory and unsustainable.31 There had been major social changes in the institution of marriage since the adoption of the convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. Due to this judgement parliament will inevitably change the law to allow transsexuals, who have had a gender reassignment treatment, to marry someone of the same biological sex. Currently, in the media spotlight there are some important up and coming decisions which may have a significant effect on English family law.
On the whole English law is not totally successful in giving full effect to the rights guaranteed under article 12 of the convention. Although English law has given effect to the article 12 rights for the great majority of the British public, it still clearly lags behind the rest of Europe32 in particular in its treatment of transsexuals. Nevertheless, after a lot of trial and error, and as a direct result of Goodwin & I v UK33, the rights guaranteed by article 12 will soon be available for transsexuals in the UK.
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21 See footnote 15
22 Baker, C (1998), Human Rights Act 1998, page 110, Para 3
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24 The Times, September 4, 1998
25 See footnote 15
26 See footnote 19
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28 www.guardian.co.uk July 12, 2002
29 Application No. 28957/95 - www..echr.coe.int/hudoc/
30 www.liberty-human-rights.org.uk/press/pressreleases2002/transsexuals-win-historic-ruling-in-e.shtml
31 www..echr.coe.int/hudoc/
32 With the exceptions of Ireland, Andorra and Albania - www.liberty-human-rights.org.uk
33 See footnote 29
