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Reply to Written question | Doc. 12574 | 12 April 2011
The protection of the family
1. In reply to the question from the Honourable
Parliamentarian, the Committee of Ministers would like first to
recall its long-standing standard-setting activities aiming at protecting
the family and its members. Furthermore, Article 8 of the European
Convention on Human Rights guarantees the right to respect for private and
family life, while Part 1 of the European Social Charter recognises
the right of the family to social, legal and economic protection.
2. Standard-setting work concerning the legal protection of the
family in the field of private law is carried out by the Committee
of Experts on Family Law (CJ-FA), under the authority of the European
Committee on Legal Co-operation (CDCJ). In the preparation of legal
instruments, the CJ-FA has always sought to protect the family and
in particular the interests of the child. Recent Council of Europe
achievements in this respect include the European Convention on
the Adoption of Children (Revised) (CETS No. 202), opened for signature on
27 November 2008, and Recommendation CM/Rec(2009)13 of the Committee
of Ministers to member states on the nationality of children, adopted
on 9 December 2009. The CJ-FA is currently drafting a recommendation
on the rights and legal status of children and parental responsibilities.
The Committee also refers to its reply to Parliamentary Assembly Recommendation 1723 (2005) on “Forced marriages and child marriages”, adopted on
5 April 2006 at the 961st meeting of the Ministers’ Deputies.
3. In February 2009, the Committee of Ministers also requested
a group of specialists to prepare European guidelines on child-friendly
justice which, building on existing standards, would aim to ensure
effective access to justice for children. These guidelines were
adopted by the Committee of Ministers on 17 November 2010.
4. Other relevant ongoing intergovernmental work includes the
activities of the Ad hoc Committee on preventing and combating violence
against women and domestic violence (CAHVIO), which has prepared
a Convention on preventing and combating violence against women
and domestic violence, just adopted by the Committee of Ministers,
as well as the activities of the European Committee for Social Cohesion
(CDCS), which has recently developed a European database on family
policy in 40 countries.
5. The Committee of Ministers would also like to recall its Recommendation
CM/Rec(2007)8 to member states on legal solutions to debt problems,
adopted on 20 June 2007, which provides for a set of measures aiming
at preventing and controlling over-indebtedness, which itself runs
the risk of social exclusion of families.
6. In its action to protect the family, the Committee of Ministers
takes due account, in its intergovernmental standard-setting activities,
of the various existing marital and non-marital forms of family
recognised by member states through legislation and practice.
7. The Committee of Ministers recalls that, in its most recent
judgment to date on the subject, the European Court of Human Rights
noted that there is no European consensus regarding same-sex marriage.
At present, no more than six out of 47 States Party to the Convention
allow same-sex marriage. 
In this judgment, the Court held
that with regard to Article 9 of the Charter of Fundamental Rights
of the European Union, it “would no longer consider that the right
to marry enshrined in Article 12 must in all circumstances be limited
to marriage between two persons of the opposite sex”.
The Court further held that, as matters stand, the question whether or
not to allow same-sex marriage is left to regulation by the national
law of the member state and that the Convention does not impose
an obligation on Contracting States to grant same‑sex couples access
to marriage, neither in the context of Article 12 (Right to marry)
nor Articles 14 (Prohibition of discrimination) and Article 8 (Right
to respect for private and family life) of the Convention. In this
connection, the Court observed that “marriage has deep-rooted social
and cultural connotations which may differ largely from one society
to another” and reiterated that “it must not rush to substitute
its own judgment in place of that of the national authorities, who
are best placed to assess and respond to the needs of society”.
In the same judgment, the Court also considered it artificial to
maintain the view that, in contrast to a different-sex couple, a
same-sex couple cannot enjoy “family life” for the purposes of Article
8. Consequently, in the opinion of the Court, “a cohabiting same-sex
couple living in stable de facto partnership falls within the notion
of “family life”, just as the relationship of a different-sex couple
in the same situation would”.
In this judgment, the Court held
that with regard to Article 9 of the Charter of Fundamental Rights
of the European Union, it “would no longer consider that the right
to marry enshrined in Article 12 must in all circumstances be limited
to marriage between two persons of the opposite sex”.
The Court further held that, as matters stand, the question whether or
not to allow same-sex marriage is left to regulation by the national
law of the member state and that the Convention does not impose
an obligation on Contracting States to grant same‑sex couples access
to marriage, neither in the context of Article 12 (Right to marry)
nor Articles 14 (Prohibition of discrimination) and Article 8 (Right
to respect for private and family life) of the Convention. In this
connection, the Court observed that “marriage has deep-rooted social
and cultural connotations which may differ largely from one society
to another” and reiterated that “it must not rush to substitute
its own judgment in place of that of the national authorities, who
are best placed to assess and respond to the needs of society”.
In the same judgment, the Court also considered it artificial to
maintain the view that, in contrast to a different-sex couple, a
same-sex couple cannot enjoy “family life” for the purposes of Article
8. Consequently, in the opinion of the Court, “a cohabiting same-sex
couple living in stable de facto partnership falls within the notion
of “family life”, just as the relationship of a different-sex couple
in the same situation would”. 8. The Committee of Ministers also recalls its Recommendation
CM/Rec(2010)5 on measures to combat discrimination on grounds of
sexual orientation or gender identity.
9. The Committee of Ministers notes that concepts of “family”
and “marriage” differ in Council of Europe member states. It notes
also that divorce, single-parent households, step-families, unmarried
households have become more and more frequent in European societies
and families of LGBT persons have become a reality in a number of
member states. Finally, it notes that, according to the practice
of the ECHR, the fixing of conditions surrounding the exercise of
the right to marry, including the setting of a minimum marriageable
age or the possibility to extend marriage to same-sex couples, falls
within the competence of the member states but “the limitations
thereby introduced must not restrict or reduce the right in such
a way or to such an extent that the very essence of the right is
impaired”.