The construction of fatherhood under the jurisprudence of the European Court of Human Rights
Defence date: 18 December 2015 Examining Board: Prof. Ruth Rubio-Marin, European University Institute (Supervisor); Prof. Bruno de Witte, European University Institute; Prof. Oddný Mjöll Arnardóttir, University of Iceland; Ms. Shazia Choudhry, Queen Mary University of London. Over the last fifty yea...
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Format: | Doctoral or Postdoctoral Thesis |
Language: | English |
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2015
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Online Access: | http://hdl.handle.net/1814/38272 https://doi.org/10.2870/153414 |
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fteuinstitute:oai:cadmus.eui.eu:1814/38272 |
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European University Institute, Italy: Cadmus (EUI Research Repository) |
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English |
topic |
Fathers Legal status laws etc European Union countries Children's rights |
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Fathers Legal status laws etc European Union countries Children's rights MARGARIA, Alice The construction of fatherhood under the jurisprudence of the European Court of Human Rights |
topic_facet |
Fathers Legal status laws etc European Union countries Children's rights |
description |
Defence date: 18 December 2015 Examining Board: Prof. Ruth Rubio-Marin, European University Institute (Supervisor); Prof. Bruno de Witte, European University Institute; Prof. Oddný Mjöll Arnardóttir, University of Iceland; Ms. Shazia Choudhry, Queen Mary University of London. Over the last fifty years, a series of demographic and sociological shifts have resulted in an increasing split of biological families into different households, marriages and cohabitations. This process of disaggregation has proved to be a profoundly gendered phenomenon: it signified and continues to signify, to a great extent, a fragmentation of fatherhood. Vis-à-vis current family realities, this thesis attempts to establish to what extent the European Court of Human Rights deviates from or replicates the model of 'conventional fatherhood' when determining whether the refusal to grant the status of legal father or parental rights to the applicant amounts to a violation of his right to respect for family life (Article 8 ECHR), taken alone or in conjunction with Article 14 ECHR. For present purposes, 'conventional fatherhood' presupposes the coexistence of the following features within the same individual: a biological link between the father and his child, a marital relationship with the child’s mother, economic provision, heterosexuality and, more generally, compliance with heteronormative standards. The jurisprudential analysis points to, at least, four main findings. Firstly, rather than abandoning a conventional understanding of fatherhood, the Court tends to simply add a new layer to it: the father's interest and commitment to the child. However, this combination of change and continuity and, more specifically, the increased importance attached to nurturing bear a partial exception: the definition of fatherhood and, more generally, of parenthood endorsed in the jurisprudence pertaining to homo-parenthood. Secondly, the reaction of the Court to the realities of fragmented fatherhood is changeable. In decisions concerning the award of parental rights, the Court overcomes the assumption of exclusivity more easily, provided that the coexistence of more than one paternal figure serves the child's best interests. Differently, when it is the full legal status of fatherhood that is under scrutiny, the Court attempts to maintain the paternal figure as compact as possible, in line with the conventional ideology of fatherhood. Thirdly, the Court has proved generally cautious to impose new legal conditions at the national level; therefore, it seems to understand the role of the Convention as being that of reflecting – more than transforming – national legal realities. At the same time, although to a limited extent, the Court has begun to adopt an anti-stereotyping approach, thus employing the Convention as a tool for asserting a new definition of fatherhood, untied from general assumptions. Fourthly, and finally, the Court tends to focus almost exclusively on the interests of the applicants, thus ignoring the implications of its own decisions on other potentially affected parties, in particular mothers. The position of children is largely disregarded and, when considered, is subject to variable interpretations. While in the domain of homo-parenthood, the child's interests are interpreted according to conventional and, therefore, subjective understandings of 'good' parenting, when dealing with the claims of unmarried fathers, the Court appears to ground its assessment on the specific circumstances of the case. |
format |
Doctoral or Postdoctoral Thesis |
author |
MARGARIA, Alice |
author_facet |
MARGARIA, Alice |
author_sort |
MARGARIA, Alice |
title |
The construction of fatherhood under the jurisprudence of the European Court of Human Rights |
title_short |
The construction of fatherhood under the jurisprudence of the European Court of Human Rights |
title_full |
The construction of fatherhood under the jurisprudence of the European Court of Human Rights |
title_fullStr |
The construction of fatherhood under the jurisprudence of the European Court of Human Rights |
title_full_unstemmed |
The construction of fatherhood under the jurisprudence of the European Court of Human Rights |
title_sort |
construction of fatherhood under the jurisprudence of the european court of human rights |
publishDate |
2015 |
url |
http://hdl.handle.net/1814/38272 https://doi.org/10.2870/153414 |
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ENVELOPE(-65.767,-65.767,-65.933,-65.933) |
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Rubio |
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Rubio |
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Iceland |
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Iceland |
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EUI PhD theses Department of Law http://hdl.handle.net/1814/65167 Florence : European University Institute, 2015 http://hdl.handle.net/1814/38272 doi:10.2870/153414 |
op_rights |
info:eu-repo/semantics/openAccess |
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https://doi.org/10.2870/153414 |
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1766043798073245696 |
spelling |
fteuinstitute:oai:cadmus.eui.eu:1814/38272 2023-05-15T16:53:17+02:00 The construction of fatherhood under the jurisprudence of the European Court of Human Rights MARGARIA, Alice 2015 application/pdf http://hdl.handle.net/1814/38272 https://doi.org/10.2870/153414 en eng EUI PhD theses Department of Law http://hdl.handle.net/1814/65167 Florence : European University Institute, 2015 http://hdl.handle.net/1814/38272 doi:10.2870/153414 info:eu-repo/semantics/openAccess Fathers Legal status laws etc European Union countries Children's rights info:eu-repo/semantics/doctoralThesis 2015 fteuinstitute https://doi.org/10.2870/153414 2022-02-19T14:16:10Z Defence date: 18 December 2015 Examining Board: Prof. Ruth Rubio-Marin, European University Institute (Supervisor); Prof. Bruno de Witte, European University Institute; Prof. Oddný Mjöll Arnardóttir, University of Iceland; Ms. Shazia Choudhry, Queen Mary University of London. Over the last fifty years, a series of demographic and sociological shifts have resulted in an increasing split of biological families into different households, marriages and cohabitations. This process of disaggregation has proved to be a profoundly gendered phenomenon: it signified and continues to signify, to a great extent, a fragmentation of fatherhood. Vis-à-vis current family realities, this thesis attempts to establish to what extent the European Court of Human Rights deviates from or replicates the model of 'conventional fatherhood' when determining whether the refusal to grant the status of legal father or parental rights to the applicant amounts to a violation of his right to respect for family life (Article 8 ECHR), taken alone or in conjunction with Article 14 ECHR. For present purposes, 'conventional fatherhood' presupposes the coexistence of the following features within the same individual: a biological link between the father and his child, a marital relationship with the child’s mother, economic provision, heterosexuality and, more generally, compliance with heteronormative standards. The jurisprudential analysis points to, at least, four main findings. Firstly, rather than abandoning a conventional understanding of fatherhood, the Court tends to simply add a new layer to it: the father's interest and commitment to the child. However, this combination of change and continuity and, more specifically, the increased importance attached to nurturing bear a partial exception: the definition of fatherhood and, more generally, of parenthood endorsed in the jurisprudence pertaining to homo-parenthood. Secondly, the reaction of the Court to the realities of fragmented fatherhood is changeable. In decisions concerning the award of parental rights, the Court overcomes the assumption of exclusivity more easily, provided that the coexistence of more than one paternal figure serves the child's best interests. Differently, when it is the full legal status of fatherhood that is under scrutiny, the Court attempts to maintain the paternal figure as compact as possible, in line with the conventional ideology of fatherhood. Thirdly, the Court has proved generally cautious to impose new legal conditions at the national level; therefore, it seems to understand the role of the Convention as being that of reflecting – more than transforming – national legal realities. At the same time, although to a limited extent, the Court has begun to adopt an anti-stereotyping approach, thus employing the Convention as a tool for asserting a new definition of fatherhood, untied from general assumptions. Fourthly, and finally, the Court tends to focus almost exclusively on the interests of the applicants, thus ignoring the implications of its own decisions on other potentially affected parties, in particular mothers. The position of children is largely disregarded and, when considered, is subject to variable interpretations. While in the domain of homo-parenthood, the child's interests are interpreted according to conventional and, therefore, subjective understandings of 'good' parenting, when dealing with the claims of unmarried fathers, the Court appears to ground its assessment on the specific circumstances of the case. Doctoral or Postdoctoral Thesis Iceland European University Institute, Italy: Cadmus (EUI Research Repository) Rubio ENVELOPE(-65.767,-65.767,-65.933,-65.933) |