Human Rights and Civil Liberties

In February 1992, X enquired to the Registrar General if he could be registered as the father of Y's child. In June, X received a reply saying that under legal advice, the Registrar General, informed X that only a biological male could be considered a father for registration. However, Z could bear X's surname and X could get extra personal tax allowance if he could show that he financially supported the child.

In 1995, X applied for a job and received an offer from a university in Botswana. X decided not to accept the offer because as he was not the registered father of Z, then his dependants would not benefit from the accommodation service and free education, which would normally be provided. English law only identifies gender by reference to biological criteria at birth. It does not recognise that the sex of an individual can be changed through gender reassignment surgery7.

The Human Fertility and Embryology Act (1990)8 provides, inter alia, that where an unmarried woman gives birth to a child as a result of AID with the support and involvement of her male partner, then he should be treated as the father for legal purposes, as opposed to the donor. The Births and Deaths Registration Act (1953)9 requires that certain details are entered in a register at birth. The Registrar General is the person ultimately responsible for the administration of this scheme.

A child's father, if not married to the mother, can, with the support of the mother, have his name added to the register under s10 of the 1953 Act10. Also, the unmarried father of a child can apply for a court order granting him "parental responsibility" under the Children Act (1989)11. "Parental responsibility" cannot be vested in any other person; however, a "residential order" can be granted. This order settles the "arrangements to be made as to the person with whom the child is to live"12.

Whoever is granted a residence order automatically becomes vested with parental responsibility for as long as the residency continues13. In this case the applicants complained that, contrary to Article 8 of the ECHR, they were denied respect for their family and that the position they were put in was discriminatory. The applicants submitted that they shared a "family life" within the meaning of Article 8. They emphasised that according to the jurisprudence of the Commission and the Court, that social reality, rather than formal legal status, was decisive.

The Government argued that as a complete change of sex was not medically possible, then X and Y should be regarded as two women living together. Also the Government pointed out that a "family life" could not be based on two unrelated persons of the same sex, including a lesbian couple14. They also claimed that X could not claim to enjoy "family life" with Z since they were not related through blood, marriage or adoption. But the Government did acknowledge that if X and Y were granted a joint residence order in respect to Z then it would be difficult to claim that there was no family life.

In this case the Commission considered the relationship between X and Y could not be seen as the same as a lesbian relationship because X lives his daily life as a man. The Court pointed out that the notion of "family life" does not depend on marriage and may include other de facto relationships15. The Court said that a number of factors must be taken into consideration when deciding what is a "family". Whether the couple live together, length of relationship and demonstration of commitment to the child are all relevant factors according to the Court.

On answering these questions the Court found that there was a de facto "family between all three. In the case of Rees v the United Kingdom (1986)16, the Court guaranteed to continue to review the issue of transsexuality in particular to scientific and societal developments. The Court highlighted that there had been a number of developments, including new scientific research, which suggested that transsexuality is not merely a psychological disorder, but had a physiological basis in the structure of the brain17. The Court gave their opinion that States should now recognise post-operative transsexuals for legal purposes.

The Court did point out that it was important for positive action to be taken in this case as it was important for Z to have her social father recognised by the law. However, the Court highlighted that there was not a uniform approach to transsexuality across the Contracting Parties of the Council of Europe and that many states were still not convinced of the modern evidence. The Court explained that it wished to strike a balance between the wishes of the community as a whole and the interests of the individual.

The Court realised that none of the High Contracting Parties have a common approach to children born as a result of AID, nor do they have a common approach in relation to transsexuality. The Court stated that the law in relation to both areas is in a transitional stage and so believes that the respondent state should be afforded a 'wide margin of appreciation'. But the Court also pointed out that the legal recognition, which was being sought, in this case would not interfere with others nor involve a major reorganisation of UK law.

The Court understood that the community as a whole must maintain a coherent system of family law and that the State must be cautious in changing the law since a change in the law in this area may have many unseen ramifications for children in Z's position. The Court suggests that X should make a will so as to guarantee security for Z and that X can gain parental responsibility by getting a residence order. The Court held that there was no violation of Article 8. It was held 14 judges to 6 that there was no violation.

In conclusion, the importance of the Court is obvious and the increases in democracy since the Eleventh Protocol has given it more authority amongst the states and human rights organisations throughout Europe. It is seen as a Court of the future in its outlook on some issues, such as transsexualism, making it liberal, but its speed at developing certain aspects of the law is considered to slow by groups such as Statewatch, which wants to see the Court push the boundaries of society in securing basic rights for minorities, etc.

BIBLIOGRAPHY

Human Rights and Civil Liberties, by Helen Fenwick, 3rd Edition. Cavendish Publishing. www. echr. coe. int/Convention/webConvenENG. pdf – for a copy of the Rules of the European Court of Human Rights. www. hudoc. echr. coe. int/hudoc – for cases of the European Court of Human Rights 1 Article 30 of the European Convention of Human Rights 2 Article 45 (1) and (2) of the European Convention of Human Rights 3 X, Y and Z v the United Kingdom (1999) 24 EHRR 143, Case No. 21830/93