A/HRC/31/37
life also applies to persons deprived of their liberty, who should be allowed to communicate
with their families, subject only to reasonable restrictions established by law.40
35.
The right to family life is reflected in the general preference for preserving the
family unit and not separating its members, particularly dependent members. The
Convention on the Rights of the Child affirms the right of children not to be separated from
their parents against their will, except where necessary for the best interest of the child,
such as in cases of abuse or neglect (art. 9 (1)), following a judicial determination to that
effect. Children deprived of their family environment should be provided with alternative
care (art. 20) and, whenever possible, have contact with their parents (art. 9 (3)). According
to the Convention on the Rights of Persons with Disabilities (art. 23 (4)), in no case shall a
child be separated from parents on the basis of a disability of either the child or one or both
of the parents.
36.
The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families requires States to ensure the protection of the
unity of the families of migrant workers, including by facilitating the reunification of
documented migrants with their spouses and dependent children (art. 44). The Convention
on the Rights of the Child urges States parties to deal with such requests in a positive,
humane and expeditious manner (art. 10).
D.
Right to equality in the family
1.
Equality between men and women
37.
Equality between men and women is an essential component of the international
protection of the family. This principle is codified in the Universal Declaration of Human
Rights (art. 16 (1)) and in the International Covenant on Civil and Political Rights (art. 23
(4)), which affirm the equal rights of both men and women as to marriage, during marriage
and at its dissolution, and is also mentioned in the International Covenant on Economic,
Social and Cultural Rights.41
38.
Achieving equality between men and women in the family is one of the objectives of
the Convention on the Elimination of All Forms of Discrimination against Women. The
Convention requires States to take measures to modify practices based on stereotyped roles
of men and women, including those based on social and cultural patterns of conduct, and to
recognize the common responsibility of both men and women in the upbringing and
development of their children (art. 5). Moreover, article 16 of the Convention recognizes
the equality of men and women in all matters relating to marriage and family relations,
including entering into marriage, during marriage and at its dissolution, including the right
as parents to decide on the number and spacing of their children, guardianship of their
children, choice of family name, profession and occupation, and ownership, administration,
40
41
comment No. 2 (2013) on the rights of migrant workers in an irregular situation and members of their
families, para. 50.
See Convention on the Rights of the Child, art. 37 (c); International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families, art. 17 (5); International
Convention for the Protection of All Persons from Enforced Disappearance, art. 17 (2) (d).
Committee on Economic, Social, and Cultural Rights, general comment No. 16 (2005) on the equal
right of men and women to the enjoyment of all economic, social and cultural rights, para. 27.
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