Instantie

European Commission of Human Rights

Samenvatting

De verzoeker en zijn partner wonen ongetrouwd samen sinds 1974, en hebben
samen een zoon. Op 19 juni 1979, 1 maand na de geboorte van hun zoon,
legde de verzoeker bij de `Youth Office’ een verklaring af waarin hij
erkende de vader van het kind te zijn en beloofde het levensonderhoud van
het kind te betalen. Op 3 juli 1979 besliste de rechtbank dat de moeder
het recht op verzorging en ouderlijke macht kreeg over het kind. Hun
verzoek tot gezamenlijke ouderlijke macht werd afgewezen (ook later in
hoger beroep) Later is nogmaals een verzoek om gezamenlijk ouderlijk gezag
afgewezen.

Volgens de Duitse wet heeft de moeder van een buitenechtelijk kind het
recht op verzorging en ouderlijke macht zo lang het kind minderjarig is.
De vader kan dit recht verkrijgen door de moeder te huwen, door het kind
te erkennen, door het kind te adopteren of door als voogd te worden
aangesteld over het kind. In al deze gevallen behalve de eerste verliest
de moeder het recht op verzorging en ouderlijke macht. De persoon die dit
recht heeft beslist over de relatie tussen vader en kind. Als een
persoonlijke relatie tussen de vader en het kind in het belang van het
kind is dan kan de ‘Guardianship Court’ de vader omgangsrecht toekennen.
De ouder die door echtscheiding het recht op verzorging en ouderlijke
macht verliest behoudt wel het recht op omgang met zijn/haar kind.

Gescheiden ouders kan gezamenlijke ouderlijke macht toegewezen worden. De
verzoeker klaagt erover dat hij samen met zijn partner niet gezamenlijk
gezag is toegewezen ondanks dat zij ongehuwd samenwonen. Hij doet daarbij
een beroep op art. 8 EVRM. Volgens de Europese Commissie is het gevolg van
de uit vrije wil genomen beslissing van het paar om niet te trouwen, dat
de verzoeker niet alle voordelen heeft die het familierecht biedt. De
onderhavige zaak roept alleen de vraag op of er een verplichting voor de
Staat voortvloeit uit art. 8 EVRM om beide ouders gezamenlijk ouderlijk
gezag toe te kennen. Dit is niet het geval. De Duitse regeling is niet in
strijd met art. 8 EVRM. De Commissie meent, dat de speciale positie van
een kind van ongehuwde ouders een objectieve en redelijke rechtvaardiging
vormt voor de Duitse wetgever het ouderlijk gezag exclusief aan de moeder
toe te wijzen, zelfs als zij samenwonen.

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De Commissie THE FACTS The applicant, a male nurse, is a German citizen
born in 19?? and living in H. He is represented by Mrs J. Wagner, lawyer
in Berlin.

The applicant and his partner, Mrs L., are living together since 1974
without being married. On 15 May 1979 the couple had a son. At the time
they were living in B and on 19 June 1979 the applicant made a declaration
to the competent Youth Office recognising that he was the father and
agreeing to pay maintenance. On 3 July 1979 the competent district Court
in B. decided that the mother had the right to care and custody
(elterliche Sorge) over the child. The couple’s request to grant this
rigth jointly to both parents was rejectes by the competent B. court and
an appeal to the Regional Court was rejected on 27 November 1979.

In 1980 the family moved to H. where the applicant requested the H.
District Court on 16 September 1980 to grant the rigth to care and custody
of his son both to him and to the mother. The request was supported by the
mother. On 31 October 1980 the District Court rejected the request on the
ground that according to Section 1705 of the Civil Code (BGB) only the
mother of a child born out of wedlock is entitled to this right. (…)

The law 1. The applicant complains as an unmarried father of the refusal
by the competent German court to grant him jointly with the mother the
right of care and custody of his child born out of wedlock despite the
fact that he is living with his child and the child’s mother and that the
mother supported his request.

2. It is not contested that the requirements of art. 26 of the Convention
are fulfilled.

3. The applicant has invoked Art. 8 (1) of the Convention which guarantees
the right to respect for family life. It is true that this provision
protects the ‘legitimate’ as well as the ‘illegitimate’ family, i.e. the
relationship between unmarried parents and their child(ren) (see E.C.H.R.,
judgment of 13 June 1979, Marckx case, Vol. 31, p. 14, para. 31). Its
object is, according to the Court, ‘essentially’ that of protecting the
individual against arbitrary interference by the public authorities.
Nevertheless, the Article does not merely compel the State to abstain from
such interference. In addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective ‘respect’ for
family life (loc. cit.). This means, so the Court stated in the cited
Marckx judgment, amongst other things, that when a State determines in its
domestic legal system the regime applicable to certain family ties such
as those between an unmarried mother and her child, it must act in a
manner calculated to allow those concerned to lead a normal family life.

In the Marckx case, the regime of the Belgian Civil Code in question
thwarted and impeded, according to the findings of the Court, the normal
development of such life, because the maternal affiliation of a child born
out of wedlock was not established simply by his birth but necessitated
either a voluntary declaration or a court declaration as to maternity.
Recognition entailed, however, unfavourable consequences in the area of
patrimonial rights and maternal affiliation created legal bonds only with
the mother while the child did not become a member of the mother’s family.

The present case does not concern questions of establishment either of the
maternal or paternal affiliation. Both the maternal and the paternal
affiliation were normally established and are recognised by the German
law. The measure here in question only concerns the formal right of care
and custody. According to Section 1705 BGB this right is vested with the
mother only and exclusively. In practice however, the mother voluntarily
shares its exercise with the applicant or at least she has the possibility
to do so. Therefore the regulation in question does not in itself prevent
the applicant from enjoying his family life or from maintaining a normal
father-child relationship with the child born out of wedlock, as he is
living with the child and the child’s mother. It may be, as the applicant
submitted, that under certain conditions he will have to prove to third
persons or authorities the existence of the mother’s consent with regard
to the exercise by him of parental power as covered by the right of care
and custody.

But from a formal point of view the existence of such consent would also
have to be proven if both parents were given, as was requested by the
applicant, jointly the right of care and custody. Consequently the
practical effect of a joint right of care and custody as requested by the
applicant would not so much be a strengthening of his legal position vis-
a-vis the mother of the child who could no longer unilaterally revoke her
willingness to let him share the exercise of parental power. Consequently
the regulation here in question will in many cases mainly gain practical
importance where a rupture of the relations between the unmarried father
and the mother takes place. The claim of the applicant rather is that he
should have absolutely the same rights as has a married father living with
his spouse and children in respect of the latter.

The relations between man and woman forming a couple as well as their
legal relationship towards their children are governed by family law. The
full protection of this family unit requires that the couple be lawfully
married. Marriage is in all Convention States the recognised institution
which leads to the foundation of a family and enjoys the protection of
Art. 12 of the Convention.

Article 12 shows that the institution of marriage is protected by the
Convention as it is by many constitutions, e.g. Art. 6 of the German Basic
Law (GG). As the Court has recognised in the Marckx case, Art. 12 does nog
apply to situations which are in certain respects comparable to marriage
(loc. cit., p. 29, para. 67).

It is a consequence of the couples’s free decision not to marry that the
applicant does nog enjoy all the privileges the national family law
attributes to a married father. On the other hand, as was already pointed
out, his paternal affiliation is not, contrary to the situation in the
Marcx case, as such in question. German law recognises both maternal
affiliation between the unmarried mother and her child as well as paternal
affiliation if it is established. Unlike the Marckx case, the present case
only raises the question whether an obligation for the State can be
derived from Art. 8(1) to confer on both parents of a child born out of
wedlock the right to care and custody.

However, the situation of children born out of wedlock necessitates a
distinct legislative regulation which has to take into account the general
aspects of the problems involved. The German legislator has opted for a
regulation which is considered to be in the best interest of the child
born out of wedlock. There is nothing to show that this premis is wrong
or arbitrary. Between a child and his mother a first and strong family
relation is already established by the very event of the birth itself and
usually also the unmarried mother maintains this family tie while the
father of a child born out of wedlock may often not be willing to assume
any family obligations. Thus, a general regulation conveying the right to
care and custody to the mother in general responds to the circumtances
which prevail in cases of children born out of wedlock. If, as in the
present case, both parents wish to maintain family relations they are free
to marry and thus to obtain those legal advantages they require. If,
however, they choose not to marry in order to avoid the application of
marriage and family law, they are themselves responsible for the legal
consequences of their choice.

For these reasons, the Commission considers that the regulation in
question strikes a reasonable balance between conflicting interests and
does not disclose any appearance of a violation of the right to protection
of family life as guaranteed by Art. 8 (1) of the Convention. It follows
that this part of the application is manifestly ill-founded and must be
rejected in accordance with Art. 27 (2) of the Convention.

4. The applicant also complains that he is a victim of discrimination
because the German law provides that ‘legitimate’ parents exercise
commonly the right of care and custody and this regulation may, according
to a recent decision of the Federal Constitutional Court, even be upheld
in case of a divorce, while in the case of ‘unmarried’ parents, only the
mother is entitled to this right. The Commission refers here to the
judgment of the European Court of Human Rights dated 23 July 1968 (Case
relating to certain aspects of the laws on the use of language and
education in Belgium, Series A, Vol. 6, p. 34), according to which a
difference of treatment in respect of the enjoyment of a Convention right
constitutes discrmination contrary to Art. 14 of the Convention only if
it has no objective and reasonable justification or if there is no
reasonable relationship of proportionality between the means employed and
the aim it is sought to realise. As was mentioned before, fathers of
children born out of wedlock often may not have any interest in personal
relations with their children. Therefore the differential treatment here
in question only concerns the cases where couples remain unmarried
although they have a child and thus form an ‘illegitimate’ family. But
even in these cases the differential treatment will, as was already
pointed out, in many cases only have little practical implications as long
as the unmarried parents live together in harmony and bring up their
child(ren) together.

It is true that the unmarried father has legally a weaker position than
the married father as the former does not have the right to care and
custody. However, this is mainly a consequence of a choice of the
unmarried parents who prefer not to get married in accordance with the
national laws governing marriage. The Commission notes again that Art. 12
of the Convention, which guarantees the right to marry and to found a
family, expressly refers to these laws and thus only protects marriage as
an official institution. As was stated by the Federal Constitutional
Court, children of married couples are better protected because the German
divorce law contains provisions aiming at maintaining a marriage at least
provisionally if this is in the interest of a child or children born of
that marriage, while an unmarried father may at any moment abandon his
‘illegitimate’ family without having to ask for a divorce and without
having to face the same consequences as a married father. It is therefore
in fact normally in the child’s interests , as was stated bij the Federal
Constitutional Court, to be attributed to the care and custody of the
mother.

In view of these considerations, the Commission finds that the special
situation of the child born out of wedlock is an objective and reasonable
justification for the German legislator’s decision to confer the right of
care and custody with regard to a child born out of wedlock exclusively
to the mother instead of both parents, even if they live together. The
fact that some States may have regulated the problem in a different manner
does not contradict this finding, as it is in the national legislator’s
discretion to choose between several possible solutions to a problem, as
long as the regulation chosen respects the obligations undertaken by the
ratification of the Convention.

The disadvantages of the unmarried father which mainly emerge in the case
of dissension with the child’s mother are proportionate to the aim the
regulation in question is seeking to realise, namely the safeguarding of
the child’s well-being. Hardships can be avoided by application of Section
1711 (2) BGB according to which the guardianship court may grant the
father access to his child even against the mother’s will. The Commission
concludes that the examination of the applicant’s complaint on this point
does not reveal any appearance of discrimination at variance with Art. 14
of the Convention. This part of the application is consequently also
manifestly ill-founded within the meaning of Art. 27 (2) of the
Convention. For these reasons, the Commission declares the application

Rechters

C.A. Norgaard, President, G. Sperduti, J.A. Frowein, J.E.S. Fawcett,E. Busuttil, G. Jorundsson, G. Tenekides, S. Trechsel, M. Melchior, J.Sampaio, A.S. Gozubuyuk, A. Weitzel, J.C. Soyer, H.G. Schermer, H.Danelius, G. Batliner en Mr. HJ.C. Kruger, Secretar