Parental Leave in UK Law

There was some interesting discussion about the way in which parents restrict the movements of their children from time to time, by, for example, putting young children into bed when they would rather be up, or "grounding" teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements.

That, as it seems to me, is the point of the unequivocal statutory language. The purpose is to restrict liberty, and there would be no point in such a restriction or the need for it to be authorised by the court, if it were not anticipated that much more was involved than ordinary parental control.

If the State has brought into existence a positive measure which, even though not required by Article 8, is a modality of the exercise of the rights guaranteed by Article 8, the State will be in breach of Article 14 if the measure has more than a tenuous connection with the core values protected by Article 8 and is discriminatory and not justified.

It is not difficult, when considering any provision of the Convention, including article 8 and article 1 of the First Protocol ("IFP"), to identify the core values which the provision is intended to protect. But the further a situation is removed from one infringing those core values, the weaker the connection becomes, until a point is reached when there is no meaningful connection at all.

Article 14 is engaged whenever the subject matter of the disadvantage comprises one of the ways a state gives effect to a Convention right ('one of the modalities of the exercise of a right guaranteed'). For instance, article 8 does not require a state to grant a parental leave allowance. Accordingly the allowance comes within the scope of article 8, and article 14 read with article 8 is engaged: Petrovic v Austria (2001) 33 EHRR 14, paras 27-30.

Banning a former KGB officer from all public sector posts, and from a wide range of responsible private-sector posts, is so draconian as to threaten his leading a normal personal life (Sidabras and Dziautas). Less serious interference would not merely have been a breach of article 8; it would not have fallen within the ambit of the article at all.

Similarly the cases in which article 14 has been considered in conjunction with the family life limb of article 8 were all (whichever way they were ultimately decided) concerned with measures very closely connected with family life: Petrovic (parental leave); Estevez (social security benefit for surviving spouse); Frette (adoption). By contrast Logan (the CSA case) is an example of unsuccessful reliance on a much more remote link (financial resources to visit absent children).