Welfare rights of families with children in the case law of the ECtHR

ABSTRACT

This article sets out to apply a human rights perspective on welfare rights of families with children. It explores how such rights emerge in the case law of the ECtHR by focusing on traces of substantive welfare rights in the Court’s reasoning when determining the personal and material scope of ECHR rights at different stages of the proceedings. The rights under investigation are the right to non-discrimination, the right to respect for family life and the right to property. The findings show that the right to non-discrimination has in many instances managed to question gender stereotypes by taking important steps away from the biologically defined conception of motherhood towards viewing caring roles and tasks more as social functions that both social and biological parents are fulfilling. Vulnerable groups of mothers and children have had more difficulties in getting their rights protected under the present non-discrimination framework. Developments under Article 8, indicating that the right to family life includes a core element of social rights at least in the context of destitute families are therefore promising.

KEYWORDS:

• Welfare rights
• non-discrimination
• right to respect for family life
• right to property
• ECHR
• ECtHR

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Katarina Frostell is a PhD candidate in public law at Åbo Akademi University and a project manager at the Institute for Human Rights.

Notes

1 Gøsta Esping-Andersen, The Three Worlds of Welfare Capitalism (Cambridge: Polity Press, 1990).

2 See, e.g. the European Pillar of Social Rights proclaimed by the European Parliament, the Council and the European Commission on 17 November 2017.

3 See Stéphanie Lagoutte and Ágúst Thór Arnason, ‘Article 16’, in The Universal Declaration of Human Rights. A Common Standard of Achievement, ed. Gudmundur Alfredsson and Asbjørn Eide (The Hague: Martinus Nijhoff Publishers, 1999), 292–306.

4 Article 16 of the revised European Social Charter talks of the family as ‘a fundamental unit of society’. For a discussion on the term ‘natural’ in the UDHR, see Linda Hart, ‘Relational Subjects: Family Relations, Law and Gender in the European Court of Human Rights’ (PhD diss., Helsinki: University of Helsinki, 2016), 53–72.

5 Article 16 of the RESC.

6 Article 12 of the ECHR.

7 Article 8 of the ECHR.

8 U.A. and M.K. v. Sweden, appl. no. 11776/85, ECmHR decision, 4 March 1986.

9 Ibid.

10 Markin v. Russia, appl. no. 30078/06, ECtHR Grand Chamber judgment, 22 March 2012, where Judge Pinto de Albuquerque in his partly dissenting opinion argues that

Parental leave does not only come within the scope of Article 8 of the Convention, by promoting family life and affecting the way in which it is organized. It derives directly from Article 8. Parental leave is protected by Article 8 of the Convention in as much as it is an essential guarantee of the bond between a parent and his or her child at a time of particular vulnerability and special need for the child.

11 R.M.S. v. Spain, appl. no. 28775/12, ECtHR judgment, 18 June 2013. See Laurens Lavrysen, ‘Strengthening the Protection of Human Rights of Persons Living in Poverty under the ECHR’, Netherlands Quarterly of Human Rights 33, no. 3 (2015): 293–325.

12 See, e.g. Martin Scheinin, ‘Economic and Social Rights as Legal Rights’, in Economic, Social and Cultural Rights. A Textbook, ed. Asbjørn Eide, Catarina Krause, and Allan Rosas (Dordrecht: Martinus Nijhoff Publishers, 2001), 29–54; Ida Koch, ‘Economic, Social and Cultural Rights as Components in Civil and Political Rights: A Hermeneutic Perspective’, International Journal of Human Rights 10, no. 4 (2006): 405–30; Eva Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’, in Exploring Social Rights. Between Theory and Practice, ed. Daphne Barak-Erez and Aeyal M Gross (Oxford: Hart Publishing, 2007), 135–67; Ellie Palmer, ‘Protecting Socio-economic Rights Through the European Convention on Human Rights: Trends and Developments in the European Court of Human Rights’, Erasmus Law Review 2, no. 4 (2009): 397–425; Luke Clemens and Alan Simmons, ‘European Court of Human Rights. Sympathetic Unease’, in Social Rights Jurisprudence. Emerging Trends in International and Comparative Law, ed. Malcom Langford (Cambridge: Cambridge University Press, 2008), 409–27; Ingrid Leijten, Core Socio-economic Rights and the European Court of Human Rights (Cambridge: Cambridge University Press, 2018).

13 Martin Scheinin, ‘European Human Rights as Universal Rights. In Defence of a Holistic Understanding of Human Rights’, in Shaping Rights in the ECHR. The Role of the Court of Human Rights in Determining the Scope of Human Rights, ed. Eva Brems and Janneke Gerards (Cambridge: Cambridge University Press, 2013), 265.

14 On the legitimacy of the ECtHR to incorporate social rights in its interpretations, see, e.g. Maija Dahlberg, ‘Should Social Rights Be Included in Interpretations of the Convention by the European Court of Human Rights’, European Journal of Social Security 16, no. 3 (2014): 252–76.

15 Carol Smart, Personal Life. New Directions in Sociological Thinking (Cambridge: Polity Press, 2007), 6–7.

16 European Union Agency for Fundamental Rights, Fundamental Rights Report (Luxembourg: Publications of the European Union, 2018), 57.

17 Carmen Draghici, The Legitimacy of Family Rights in Strasbourg Case Law (Oxford: Hart Publishing, 2017), 27. See also David Harris et al., Law of the European Convention on Human Rights, 3rd ed. (Oxford: Oxford University Press, 2014), 526–8.

18 See, e.g. Section 19 (3) of the Constitution of Finland (Act No. 731/1999) stipulating that ‘the public authorities shall support families and others responsible for providing for children so that they have the ability to ensure the wellbeing and personal development of the children’.

19 See, e.g. Section 1 of the Finnish Early Childhood Education Act (Act No. 36/1973) providing that the Act regulates the right of the child to early childhood education, including day care.

20 See, e.g. the collective agreement covering Finnish university staff which includes a separate chapter on salary payments during different forms of parental leave.

21 The terms welfare rights and social rights are closely interlinked and, in many instances, interchangeable. Here a distinction has, however, been made to underline the difference between rights protected as human rights (social rights) and other welfare-related rights protected in national legislation without necessarily direct support in human rights instruments (welfare rights). For a recent discussion on social rights in both understandings, see Toomas Kotkas and Kenneth Veitch, eds., Social Rights in the Welfare State. Origins and Transformations (London: Routledge, 2018).

22 The search terms used are: maternity leave, parental leave, paternity leave, maternity benefit, paternity benefit, parental benefit, maternity allowance, paternity allowance, parental allowance, family benefit, family allowance, family credit, child benefit.

23 As of 25 January 2019, 106 cases were identified, 36 times Article 6 was addressed, 31 times Article 8 and 27 times Article 1 of Protocol 1.

24 For this study 23 cases were considered relevant, Article 14 was addressed in conjunction with a substantive right 19 and 9 times a substantive right was considered on its own.

25 See, e.g. Strasbourg Observers at https://strasbourgsobservers.com.

26 Eva Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’, 157–8.

27 For a discussion of the concept of ambit, see Oddný Mjøll Arnadottir, ‘Discrimination as a Magnifying Lens. Scope and Ambit under Article 14 and Protocol No. 12’, in Shaping Rights in the ECHR. The Role of the European Court of Human Rights in Determining the Scope of Human Rights, ed. Eva Brems and Janneke Gerards (Cambridge: Cambridge University Press, 2013), 330–49.

28 Petrovic v. Austria, appl. no. 20458/92, ECtHR judgment, 27 March 1998, para. 24. The Court is here using the concept of scope, whereas the concept of ambit would have been more appropriate.

29 Ibid., para. 27. See also Markin v. Russia, appl. no.30078/06, ECtHR Grand Chamber judgment, 22 March 2012, para. 130.

30 Markin v. Russia (see note 29).

31 Niedzwiecki v. Germany, appl. no.58453/00, ECtHR judgment, 25 October 2005, para. 31.

32 Dhahbi v. Italy, appl. no.17120/09, ECtHR judgment, 8 April 2014, para. 41.

33 Stec and Others v. UK, appl. nos. 65731/01 and 65900/01, ECtHR Grand Chamber decision, 6 July 2005, para. 40.

34 See Arnadottir, ‘Discrimination as a Magnifying Lens’ (see note 27), 348, who argues that ‘the further into the realm of economic and social policy the Convention advances through the non-discrimination obligation under Article 14, the less will its protective scope differ from that of Protocol 12’.

35 Stec and Others v. United Kingdom (see note 33), para. 53–5.

36 See Santos Hansen v. Denmark, appl. no. 17949/07, ECtHR decision, 9 March 2010, which reads

[h]aving regard to the predominantly pecuniary aspect of the case the Court considers that the applicant’s complaint falls to be examined solely under Article 14 … in conjunction with Article 1 of Protocol No. 1 … and that no separate issue arises under Article 14 … in conjunction with Article 8.

37 Dhahbi v. Italy (see note 32), para. 41. See also De Trizio v. Switzerland, appl. no. 7186/09, ECtHR judgment, 2 February 2016, para. 62, where the Court considered disability benefits under Article 8 after recognising their impact on the organisation of professional and family life.

38 Belgium Linguistics Case v. Belgium, appl. nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, ECtHR judgment, 23 July 1968.

39 Pieter Van Dijk et al., eds., Theory and Practice of the European Convention on Human Rights (Antwerpen: Intersentia, 2006), 1035.

40 Thlimennos v. Greece, appl. no.34369/97, ECtHR judgment, 6 April 2000. In some instances, the Court avoids comparisons by applying a disadvantage test instead, see Janneke Gerards, Judicial Review in Equal Treatment Cases (Leiden: Martinus Nijhoff Publishers, 2005), 76–9 and 135–7.

41 Sandra Fredman, ‘Emerging from the Shadows: Substantive Equality of Article 14 of the European Convention on Human Rights’, Human Rights Law Review 16 (2016): 273–301; Rory O’Connell, ‘Cinderella Comes to the Ball: Art 14 and the Right to Non-discrimination in the ECHR’, Legal Studies 29, no. 2 (2009): 211–29; Oddný Mjøll Arnadottir, ‘Non-discrimination in International and European Law: Towards Substantive Models’, Nordic Journal of Human Rights 25, no. 2 (2007): 140–57; Charilaos Nikolaidis, The Right to Equality in European Human Rights Law. The Quest for Substance in the Jurisprudence of the European Courts (London: Routledge, 2015), 50–85.

42 Irregular migrants, asylum seekers and refugees are not considered here. See Marie-Bénédicte Dembour, ‘The Migrant Case Law of the European Court of Human Rights: Critique and Way Forward, Social Science Research Network, SSRN’ (2019), https://ssrn.com/abstract=3303294.

43 Petrovic v. Austria (see note 28).

44 The European Commission of Human Rights came to the opposite conclusion, see, A.P. v. Austria, appl. no. 20458/92, ECmHR report, 15 October 1996.

45 Petrovic v. Austria (see note 28), paras. 39, 42. For a description of family policies in various countries, see OECD Family Database at http://www.oecd.org/els/family/database.htm (3 February 2019).

46 Markin v. Russia (see note 29), para. 132.

47 Ibid.

48 Ibid., para. 127.

49 Ibid., para. 34.

50 A violation of Article 14 in conjunction with Article 8 was found.

51 Markin v. Russia (see note 29), para. 143.

52 Ibid., para. 141. The reasoning here is strongly influenced by the third party comment submitted by the Human Rights Centre of the University of Ghent, paras. 119–23.

53 Weller v. Hungary, appl. no. 44399/05, ECtHR judgment, 31 March 2009.

54 The Court did not address the foreign nationality of the mother as a potential ground for discrimination, see Concurring Opinion by judge Tulkens, who argued that the case should have been analysed also in light of Article 12 (4) of the European Social Charter.

55 Weller v. Hungary (see note 53), para. 17.

56 Ibid., para. 31.

57 Enache v. Romania, appl. no.16986/12, ECtHR judgment, 3 October 2017.

58 Ibid., para. 77.

59 Willis v. the United Kingdom, appl. no. 36042/97, ECtHR judgment, 11 June 2002, para. 37.

60 Ibid., para. 40.

61 See, e.g. Diane Sainsbury, ed., Gender and Welfare State Regimes (Oxford: Oxford University Press, 1999).

62 B. v. the United Kingdom, appl. no. 36571/06, ECtHR judgment, 14 February 2012.

63 Ibid., para. 55.

64 Ibid., para. 56.

65 Ibid., para. 61. On procedural review in the case law of the ECtHR, see Janneke Gerards, ‘Procedural Review by the ECtHR: A Typology’, in Procedural Review in European Fundamental Rights Cases, ed. Janneke Gerards and Eva Brems (Cambridge: Cambridge University Press, 2017), 127–60.

66 Topčić-Rosenberg v. Croatia, appl. no. 19391/11, ECtHR judgement, 14 November 2013.

67 Ibid., para. 42.

68 Ibid., paras. 46, 48. The national legislation referenced here is the Maternity Leave Act (24/1996, 109/1997, 82/2001, 30/2004) and Labour Act (137/2004) in force at the time.

69 Santos Hansen v. Denmark (see note 36).

70 Ibid.

71 Ibid.

72 Gaygusuz v. Austria, appl. no. 17371/90, ECtHR judgment, 16 September 1996. See further Gerards, Judicial Review in Equal Treatment Cases (see note 40), 205. For a critical account of the impact of the Gaygusuz case, see Marie-Bénédicte Dembour, ‘Gaygusuz Revisited: The Limits of the European Court of Human Rights’ Equality Agenda’, Human Rights Law Review 12 (2012): 689–721.

73 The appendix to the RESC stipulates that it covers ‘foreigners only in so far as they are nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned. Under EU law, the prohibition of discrimination on grounds of nationality in Articles 18 and 45 of the TFEU covers only EU citizens. For a discussion on the scope of these provisions, see George Katrougalos, ‘Social Security in the “Case Law” of the Social Rights Committee’, and Frans Pennings, ‘The Approaches of the EU Court of Justice and the European Court of Human Rights vis-à-vis Discrimination on the Ground of Nationality in Social Security’, in Research Handbook on European Social Security Law, ed. Frans Pennings and Gijsbert Vonk (Cheltenham: Edward Elgar Publishing, 2015), 93–4 and 121–45.

74 Niedzwiecki v. Germany (see note 31). See also Okpisz v. Germany, appl. no. 59140/00, ECtHR judgment, 25 October 2005.

75 Niedzwiecki v. Germany, para. 33.

76 Bundesverfassungsgericht, 1 BvL 4/97, 1 BvL 5/97, 1 BvL 6/97, judgment 6 July 2004.

77 Niedzwiecki v. Germany, para. 24.

78 Lieneke Slingenberg, ‘Social Security in the Case Law of the European Court of Human Rights’, in Research Handbook on European Social Security Law (see note 73), 65.

79 Dhahbi v. Italy (see note 32).

80 Ibid., para. 46.

81 Ibid.

82 Ibid., para. 47.

83 Ibid., para. 52.

84 Ibid., para. 53.

85 Leijten, Core Socio-economic Rights and the European Court of Human Rights (see note 12).

86 Aoife Nolan, ed., Economic and Social Rights after the Global Financial Crisis (Cambridge: Cambridge University Press, 2014).

87 Vesna Hasani v. Croatia, appl. no. 20844/09, ECtHR decision, 30 September 2010.

88 Kjartan Ásmundsson v. Iceland, appl. no. 60669/00, ECtHR judgment, 12 October 2004, para. 45; and Hoogendijk v. the Netherlands, appl. no. 58641/00, ECtHR decision, 6 January 2005.

89 Vesna Hasani v. Croatia (see note 87).

90 Sulcs and others v. Latvia, appl. no. 42923/10, ECtHR decision, 6 December 2011.

91 Ibid., para. 25.

92 On positive obligations under the ECHR, see Laurens Lavrysen, Human Rights in a Positive State. Rethinking the Relationship between Positive and Negative Obligations under the European Convention on Human Rights (Cambridge: Intersentia, 2016).

93 R.M.S. v. Spain (see note 11).

94 See also Wallová and Walla v. the Czech Republic, appl. no. 23848/04, ECtHR judgment, 26 October 2006.

95 R.M.S. v. Spain, para. 8.

96 Ibid., para. 9.

97 Ibid., para. 82.

98 Ibid., para. 85.

99 Ibid., para. 86.

100 Soares de Melos v. Portugal, appl. no. 72850/14, ECtHR judgment, 16 February 2016.

101 Ibid., para. 106.

102 Ibid., para. 108.

103 C-104/09 Roca Álvarez v. Sesa Start España ETT SA, ECJ judgment, 30 September 2010.

104 See B. v. the United Kingdom and Hansen v. Denmark in section 3.2.2.

105 See Judy Fudge and Rosemary Owens, eds., Precarious Work, Women, and the New Economy. The Challenge to Legal Norms (Oxford: Hart Publishing, 2006).

106 De Trizio v. Switzerland (see note 37), para. 100.

107 See Topčić-Rosenberg v. Croatia and Santos Hansen v. Denmark in section 3.2.2.

108 See R.M.S. v. Spain in section 4.2.

109 See Leijten, Core Socio-economic Rights and the European Court of Human Rights (see note 12).