The Right at the Heart of the Family Court

Parent and child in each other's company is "a fundamental element of family life". Article 8 says the state may step in only when it is lawful, necessary and proportionate, and must help families.

Edition 6, first published 24 October 2026.

Yesterday, in Edition 5, I wrote about a fair hearing: seeing the evidence, answering it, and a decision in time. Today’s right is what so many of those hearings are about.

Most Family Court cases come down to a few plain questions. Who does a child live with? How often do they see their other parent? Should the state step in at all?

Behind every one of those questions sits Article 8. It is the right most often argued in the Family Court, and the one that reaches furthest into ordinary family life.

What the right says

Article 8 of the European Convention on Human Rights has two parts. The first sets out the right:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

The second sets the limits:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

What it means in plain English

Article 8 doesn’t say the state can never step into family life. Sometimes it must, to keep a child safe. What it says is that any step has to pass three tests:

• It must be lawful. There has to be a clear legal basis for it.

• It must have a legitimate aim. Protecting a child’s health, or their “rights and freedoms”, is one.

• It must be necessary and proportionate. No more than the situation really needs.

The European Court of Human Rights has said what sits at the centre of the right. In Johansen v Norway (1996):

“...the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life...”

The Court has made clear that this holds “even if the relationship between the parents has broken down” (Elsholz v Germany, 2000). A separation ends a couple. It doesn’t end a child’s family life with either parent.

And Article 8 belongs to the child as much as to either parent. When their interests pull in different directions, the Court gives particular importance to the child’s best interests, which “may override those of the parent”.

How it applies in the Family Court

The strict test for separating a family. In Johansen, a mother’s daughter was taken into care soon after birth. The Court accepted that the care order itself was justified. But the authorities then removed the mother’s parental rights and contact altogether, with a view to the girl being adopted by her foster parents. That was a breach of Article 8.

Care, the Court said, “should normally be regarded as a temporary measure to be discontinued as soon as circumstances permit”, consistent with “the ultimate aim of reuniting the natural parent and the child”. Cutting a family off completely “should only be applied in exceptional circumstances”, and only where “motivated by an overriding requirement pertaining to the child’s best interests”.

Our own Supreme Court said the same in Re B [2013] UKSC 33, a case about a care order made with a view to adoption. Every justice agreed that such an order is a last resort. In Baroness Hale’s words:

“...the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”

“Nothing else will do” is now one of the best-known phrases in English family law. It means the court must look properly at every realistic option before choosing the most drastic one.

Orders that are made, then not followed. Article 8 doesn’t only stop the state doing too much. It can also be breached when the state does too little.

In Hokkanen v Finland (1994), a father’s young daughter was being looked after by her grandparents. The Finnish courts gave him access, and at one stage custody. The grandparents refused to comply. Fines and enforcement orders came to nothing, and the meetings planned by social services never took place.

The European Court found a breach of Article 8. The inaction of the authorities, it said, “placed the burden on the applicant to have constant recourse to a succession of time-consuming and ultimately ineffectual remedies to enforce his rights”. A parent’s Article 8 right includes having measures taken to reunite them with their child, and the authorities have a duty to take them.

That duty has limits, and Hokkanen shows them. Once the Finnish appeal court found that the girl was mature enough for her own views to count, and she didn’t want contact, the European Court found no breach for the period after that. The obligation is to take every step that can reasonably be expected, with the child’s welfare and wishes always in the balance. It is not to force contact at any cost.

Hearing from the right people. Edition 5 described Elsholz v Germany, where an unmarried father was refused contact without an independent expert report and without a hearing on appeal. The Grand Chamber found a breach of Article 8 as well as Article 6. When a parent’s place in a child’s life is at stake, the decision-making process itself has to respect family life.

Why it matters for equality, children and policing

Article 8 is written for “everyone”. The Strasbourg cases above involve a mother, a father and an unmarried father. The same test applied to each of them: was the interference lawful, was its aim legitimate, and was it truly necessary?

That is what equality looks like in practice. Not a default in favour of mothers or fathers, but the same strict questions asked of every decision that separates a child from a parent, whichever parent it is.

It also works the other way. Article 8 never requires contact that would put a child or a parent in danger. The state’s duty to protect life and to protect people from serious ill-treatment, covered in Editions 2 and 3, applies alongside it. The police, Cafcass, councils and the courts are all public authorities under section 6 of the Human Rights Act. Each must respect family life and keep people safe at the same time.

Domestic abuse can happen to anyone, of any gender, and children pay the price. The law recognises them as victims in their own right, and in England a parent or carer being a victim of domestic abuse is a factor in around a third of children-in-need assessments where factors were recorded (Domestic Abuse Act 2021, s3; DfE, Children in need 2025).

What you can do

• If a plan would limit your time with your child, ask what the reason is, and whether something less drastic would meet it. Necessity and proportionality are the questions Article 8 asks.

• If a court order isn’t being followed, keep a calm, dated record. Where a child arrangements order isn’t complied with, the court has powers to enforce it under section 11J of the Children Act 1989, unless there was a reasonable excuse.

• Keep the child at the centre. Article 8 is their right too. Under section 1(3)(a) of the Children Act 1989, the court must have regard to their “ascertainable wishes and feelings”, in the light of their age and understanding.

• Ask your MP one question. When a family court makes an order about a child’s time with a parent, what is being done to make sure it works in practice?

This series is general information, not legal advice.

Sources

• ECHR, Article 8 (official text): https://www.echr.coe.int/documents/d/echr/convention_ENG

• Human Rights Act 1998, s.6 and Sch 1, Article 8: https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/7

• Johansen v Norway (1996), app. no. 17383/90, judgment of 7 August 1996, Reports 1996-III, paras 52 and 78: https://hudoc.echr.coe.int/eng?i=001-58059

• Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33, para 198 (Baroness Hale): https://www.bailii.org/uk/cases/UKSC/2013/33.html

• Hokkanen v Finland (1994), app. no. 19823/92, judgment of 23 September 1994, Series A no. 299-A, paras 55 and 58–62: https://hudoc.echr.coe.int/eng?i=001-57911

• Elsholz v Germany [GC] (2000), app. no. 25735/94, judgment of 13 July 2000, para 43: https://hudoc.echr.coe.int/eng?i=001-58763

• Children Act 1989, s.1(3)(a): https://www.legislation.gov.uk/ukpga/1989/41/section/1

• Children Act 1989, s.11J (enforcement orders): https://www.legislation.gov.uk/ukpga/1989/41/section/11J

• Domestic Abuse Act 2021, s.3 (children as victims): https://www.legislation.gov.uk/ukpga/2021/17/section/3

• Department for Education, Children in need 2025 (England, year to 31 March 2025; parent/carer the victim of domestic abuse in around one third of episodes with factors recorded): https://explore-education-statistics.service.gov.uk/find-statistics/children-in-need/2025

Charley Bickers, Founder of UN For Men - The United Global Alliance For Men & Boys

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