Conference for LGBT families in EuropeConference for LGBT families in Europe

Overview of the work of the Overview of the work of the Council of Council of Europe Europe in the field of family lawin the field of family law

Sabrina Cajoly - Council of EuropeSabrina Cajoly - Council of EuropeDirectorate General of Human Rights and Legal Affairs/ Directorate of Standard-Setting Directorate General of Human Rights and Legal Affairs/ Directorate of Standard-Setting

www.coe.intwww.coe.int

INTRODUCTIONINTRODUCTION

THE COUNCIL OF EUROPE THE COUNCIL OF EUROPE IN BRIEFIN BRIEF

General dataGeneral data

International Organisation International Organisation distinct from the EUdistinct from the EU

47 Member States47 Member States

Observers = Canada, Observers = Canada, Mexico, Holy See,Japan, Mexico, Holy See,Japan, USAUSA

Applicant State = Applicant State = BelarusBelarus

ObjectivesObjectives

Protection and promotion of common valuesProtection and promotion of common valuesDemocracy, Human rights, Rule of lawDemocracy, Human rights, Rule of lawAwareness and development of Europe's cultural identity Awareness and development of Europe's cultural identity and diversity and diversity Solutions to the challenges facing European society (e.g Solutions to the challenges facing European society (e.g discrimination against minorities, xenophobia, discrimination against minorities, xenophobia, intolerance, bioethics and cloning, terrorism, trafficking in intolerance, bioethics and cloning, terrorism, trafficking in human beings, organised crime and corruption, human beings, organised crime and corruption, cybercrime, violence against children)cybercrime, violence against children)Consolidation of democratic stability in Europe by Consolidation of democratic stability in Europe by backing political, legislative and constitutional reformbacking political, legislative and constitutional reform

InstitutionsInstitutions

Parliamentary Assembly(PACE)

Commissioner for Human Rights

European Court of Human Rights

(ECtHR)

Conference of INGOs

Congress of Local and Regional

Authorities

Committee of Ministers

(CM)

Secretariat

The European Court of Human RightsThe European Court of Human Rights

Obligatory jurisdictionObligatory jurisdiction

Binding decisions (condition for Binding decisions (condition for accession)accession)

Individual petition against Individual petition against alledged violationsalledged violations

ECHR = concrete regional reflection of the 1948 Universal Declaration of Human Rights at the European level

PART 1PART 1

General work of the Council of Europe General work of the Council of Europe on discrimination based on sexual on discrimination based on sexual

orientationorientation

ECHRECHR

ECtHR case-law: from ECtHR case-law: from Dudgeon v UKDudgeon v UK (1981) to (1981) to EB v FranceEB v France (2008) (2008)

Protocol n°12: general prohibition of Protocol n°12: general prohibition of discriminationdiscrimination

PACEPACE

- Adoption of Recommendations:Adoption of Recommendations:

Recommendation Recommendation 924 (1981) 924 (1981) on discrimination on discrimination against homosexualsagainst homosexuals

Recommendation 1470 (2000) on Recommendation 1470 (2000) on ssituation of gays ituation of gays and lesbians and their partners in respect to asylum and lesbians and their partners in respect to asylum and immigration in the member states of the Council and immigration in the member states of the Council of Europe of Europe

Recommendation 1635 (2003) Lesbians and gays in Recommendation 1635 (2003) Lesbians and gays in sportsport

Draft recommendation on the legal recognition of Draft recommendation on the legal recognition of same-sex couples (in progress)same-sex couples (in progress)

Draft recommendation on freedom of assembly and Draft recommendation on freedom of assembly and expression of LGBTexpression of LGBT

Congress of Local and Regional AuthoritiesCongress of Local and Regional Authorities- Recommendation 211 (2007) on freedom of Recommendation 211 (2007) on freedom of

expressionexpression

Secretary GeneralSecretary General- public declarationspublic declarations

Commissioner for Human RightsCommissioner for Human Rights- public declarations and annual reportpublic declarations and annual report

Other:Other: campaigns, training, publications campaigns, training, publications

Other institutionsOther institutions

Committee of MinistersCommittee of Ministers

StatementsStatements

Standards ?Standards ?

PART 2PART 2

CoE’S INTERGOVERNMENTAL CoE’S INTERGOVERNMENTAL WORK IN FAMILY LAWWORK IN FAMILY LAW

Directorate General of Human Rights and Directorate General of Human Rights and Legal Affairs (DG-HL)Legal Affairs (DG-HL)

DG-HL

STANDARD-SETTING COOPERATION MONITORING VENICE COMMISSION

LAW REFORM

HR DEVELOPMENT

CRIMINAL LAW (CDPC)

PUBLIC AND PRIVATE LAW(CDCJ)

FAMILY LAW (CJ-FA)

CJ-FACJ-FAObjectiveObjective: harmonise policies and adopt common standards and : harmonise policies and adopt common standards and practices in member States in the field of family law. practices in member States in the field of family law.

Priority areasPriority areas: family law and protection of children: family law and protection of children (Third (Third Summit of Heads of State and Government held in Warsaw in May Summit of Heads of State and Government held in Warsaw in May 2005 and the Programme “Building Europe with and for the Children)2005 and the Programme “Building Europe with and for the Children)

Main adopted texts:Main adopted texts: 1975 European Convention on the Legal Status of Children Born Out 1975 European Convention on the Legal Status of Children Born Out

of Wedlock, Recommendation (84)4 on parental responsibilities and of Wedlock, Recommendation (84)4 on parental responsibilities and the White Paper on principles concerning the establishment and legal the White Paper on principles concerning the establishment and legal consequences of parentageconsequences of parentage

1980 European Convention on Recognition and Enforcement of 1980 European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and a Restoration of Decisions Concerning Custody of Children and a Restoration of Custody of ChildrenCustody of Children

1996 European Convention on the Exercise of Children’s Rights 1996 European Convention on the Exercise of Children’s Rights (2000)(2000)

2003 European Convention on Contact Concerning Children (2005)2003 European Convention on Contact Concerning Children (2005)

Draft European Convention on Adoption Draft European Convention on Adoption (revised) 1/2(revised) 1/2

ObjectiveObjective:: harmonise the law of the member states by setting harmonise the law of the member states by setting

minimum rules on adoptionminimum rules on adoption set core principles: best interest of the child, child’s set core principles: best interest of the child, child’s

consent to an adoption, the right of the adopted consent to an adoption, the right of the adopted child to know his or her originchild to know his or her origin

Takes into account:Takes into account: the provisions of the United Nations Convention on the provisions of the United Nations Convention on

the Rights of the Child of 1989 the Rights of the Child of 1989 the European Convention on the exercise of the European Convention on the exercise of

children’s’ rights (ETS No.160)children’s’ rights (ETS No.160) the case-law of the European Court of Human Rightsthe case-law of the European Court of Human Rights

Draft European Convention on Adoption Draft European Convention on Adoption (revised) 2/2(revised) 2/2

Added value:Added value: updates the 1967 Convention on the adoption of updates the 1967 Convention on the adoption of

children children takes into account social changes over the last 40 takes into account social changes over the last 40

yearsyears deals with national adoptiondeals with national adoption complements the Hague Convention of 1993 on the complements the Hague Convention of 1993 on the

Protection of Children and Co-operation in Respect Protection of Children and Co-operation in Respect of Inter-country Adoptionof Inter-country Adoption

offers the possibility to the States which wish to do offers the possibility to the States which wish to do so to extend the scope of the revised Convention to so to extend the scope of the revised Convention to adoptions by same-sex couplesadoptions by same-sex couples

StatusStatus: adoption expected in the near future: adoption expected in the near future

Feasibility study (1/2)Feasibility study (1/2)

Scope:Scope: Rights and legal status of children being brought up Rights and legal status of children being brought up

in various forms of marital or non‑marital in various forms of marital or non‑marital partnership and co‑habitationpartnership and co‑habitation

Feasibility study on the appropriateness of Feasibility study on the appropriateness of preparing a standard on this issuepreparing a standard on this issue

Methodology:Methodology: independent expertindependent expert proposals concerning the possible follow‑up to be proposals concerning the possible follow‑up to be

givengiven

Feasibility study (2/2)Feasibility study (2/2)

European Conference on Family Law 2009European Conference on Family Law 2009

Possible outcomes:Possible outcomes: Types of standards: conventions / recommendationsTypes of standards: conventions / recommendations Standard-setting processStandard-setting process Revision of the Convention for children born out of Revision of the Convention for children born out of

wedlock?wedlock?

Monitoring mechanismMonitoring mechanism

ConclusionConclusion

Discrimination based on sexual orientation Discrimination based on sexual orientation and LGBT families: becoming a CoE’s and LGBT families: becoming a CoE’s priority?priority?

Possible contributions of NGOs and Possible contributions of NGOs and activists to the work of the CoE activists to the work of the CoE

Thank you for your Thank you for your attention!attention!

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