Instantie

Europese Commissie voor de rechten van de mens

Samenvatting

Het verzoek van de moeder en de biologische vader om de moeder in
de gelegenheid te stellen te verklaren dat de wettige vader niet de vader
van het kind is en vervolgens de biologische vader in de gelegenheid te
stellen het kind ter erkennen, is in alle instanties afgewezen. Hof en
Hoge Raad zijn van oordeel dat deze kwestie de rechtsvormende taak van
de rechter te boven gaat. De Commissie acht de zaak ontvankelijk en vindt
dat onder deze omstandigheden de onmogelijkheid het vaderschap te
ontkennen en vervolgens het kind door de biologische vader te laten
erkennen een inbreuk vormt op het prive- en gezinsleven van appellanten.
Strijd met artikel 8 EVRM. De zaak is voorgelegd aan het Europese hof
rechten van de mens. Zie ook: Hoge Raad 16 november 1990, m.nt. Nora
Holtrust en Ineke de Hondt, RN 1991, 170.

Volledige tekst

(…) II. Establishment of the facts

a. Particular circumstances of the case

16. The first applicant, K, and the second applicant, Z, have since 1983
had a permanent relationship, but without being married and without
living together. The first applicant is the mother, the second applicant
the biological father, of the third applicant, S, who was born in October
1987. A second child of K and Z was born in 1989.

17. When S was born, K was still married to M, although they had not been
living together for a long time. Their divorce was pronounced on 6 April
1988. M was registrered as being S’s father, but he does not even know
of S’s existence and has never seen him. In fact, he disappeared to an
unknown destination a long time ago. His present whereabouts are unknown.

18. K en Z first asked the civil registration authority to make it
possible for K to declare that M was not the father of S and for Z to
recognize the paternity. However, this was rejected by a letter from the
authority of 21 October 1988.

19. K and Z then brought proceedings for the same purpose before the
Regional Court (Arrondissementsrechtbank) of Amsterdam. By judgment if
13 June 1989 their claim was rejected by the Regional Court which
considered that Dutch law did not make it possible for them to challenge
M’s paternity and that, although the plaintiffs had a justified wish to
see the biological reality recognized, the law in force could not be
considered to be in conflict with Articles 8 and 14 of the Convention.

20. Their appeal was rejected by the Court of Appeal (Gerechtshof) of
Amsterdam on 5 February 1990. A further appeal in point is law was
rejected by the Supreme Court (Hoge Raad) on 16 November 1990. The
Supreme Court left it open whether the applicable rules in Book 1,
Section 198 of the Dutch Civil Code (Burgerlijke Wetboek) were in
conflict with the Convention, considering that, if there was such a
conflict, it must be the task of the legislator to adopt the new rules
which should replace Book 1, Section 198 of the Civil Code.

b. Relevant domestic law

21. The relevant provisions of the Civil Code read as follows: Book 1,
Section 197

(Dutch) “Het kind dat staande huwelijk is geboren, heeft de echtgenoot
tot vader. Het kind dat voor de 307de dag na de ontbinding van het
huwelijk is geboren, heeft de voregere echtgenoot tot vader, tenzij de
moeder was hertrouwd.”

(Translation) “The child born in wedlock has the husband as father. The
child born before the 307th day after the dissolution of the marriage has
the former husband as a father, unless the mother has remarried.”

Book 1, Section 198

(Dutch) “1. De moeder kan door een verklaring, afgelegd ten overstaan van
een ambtenaar van de burgerlijke stand, ontkennen dat een kind dat binnen
306 dagen na de ontbinding van het huwelijk uit haar is geboren, het kind
van haar vroegere echtgenoot is, mits een anere man het kind erkent bij
de akte die van die verklaring wordt opgemaakt. (…)

2. De verklaring van de moeder en de erkenning moeten geschieden binnen
een jaar na de geboorte van het kind.

3. De verklaring en de erkenning hebben slechts gevolg, indien de moeder
en de man die het kind erkent, binnen een jaar na de geboorte van het
kind met elkander in het huwelijk treden of (…)

4. (…)

5. (…).”

(Translation)

“1. The mother can, by making a declaration before an officer of the
civil registration authority, contest that a child whom she has borne
within 306 days after the dissolution of the marriage, is the child of
her former husband, provided that another man recognises the child in
connection with the document in which the declaration is recorded (…).

2. The mother’s declaration and the recogation must be made within one
year from the birth of the child.

3. The declaration and the recognition only have effect, if the mother
and the man who recognises the child marry each other within a year from
the birth of the child or (…).

4. (…).

5. (…).”

Book 1, Section 199

(Dutch)

“De man kan slecht ontkennen de vader van het kind te zijn door een
rechtsvordering tot ontkenning van het vaderschap in te stellen tegen de
moeder en tevens tegen het kind, dat terzake, terzij het meerderjarig is,
vertegenwoordigd wordt door een bijzondere curator, daartoe benoemd door
de kantonrechter.”

(Translation)

“The man can only contest the paternity to the child by instituting
proceedings regarding challenge of paternity against the mother and also
against the child who, unless it has come of age, will be represented in
het case by a special curator who will be appointed by the District Court
Judge.”

22. As a result of changes in society and generally held views on issues
as marriage and the legitimacy of children, a Bill (no. 20.626) amending
the law of parentage is at present pending before the Dutch Parliament.
This Bill maintains restrictions of the possibility to contest paternity,
but on the basis of equality between husband and wife.

III. Opinion of the Commission

a. Complaints declared admissible

23. The Commission has declared admissible the applicants’ complaints
that they are unable under Dutch law to obtain a legal recognition of the
second applicant’s paternity in respect of the third applicant and that
under Dutch law a married women’s right to challenge the paternity of her
child differs from that of a married man.

b. Points at issue

24. Accordingly, the issues to be determined are: * whether there had
been a violation of Article 8 of the Convention taken alone; and *
whether there has been a violation of Article 14 in conjunction with
Article 8 of the Convention.

c. As regards Article 8 of the convention

25. Article 8 of the Convention provides as follows:

“1. Everyone has the right to respect for his private and family life,
his home and his correspondence.

2. There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national security,
public safety or economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”

26. The applicants submit that, although the second applicant does not
live with the first and third applicants, he has a permanent relationship
with the first applicant since 1983 and contributes to the best of his
abilities to raising the third applicant. The applicants, therefore,
consider that this complaint falls within the scope of Article 8 of the
Convention.

27. The Government submit that it has not been argued convincingly that
the relationship of the second applicant to the third applicant is one
of a social father and that, therefore, it cannot be concluded there is
a family life between them in the sense of Article 8 of the Convention.
The Government further argue that the fact that Dutch law makes no
provision for a mother contesting the paternity of her husband whilst
remaining married to him does not constitute any interference with
`family life’ within the meaning of Article 8 of the Convention.

28. The Government further argue that, even if family life exists in the
present case, the legal consequence desired by the parties, namely the
establishment of relations under family law between the second and third
applicants, could have been achieved by other means. They point out that,
under Book 1, Section 227 of the Civil Code, the first and second
applicants could jointly have adopted the third applicant, a condition
being that the adopters had first married each other. An alternative
would be to make an application under Book 1, Section 7 of the Civil Code
to have the third applicant’s surname changed to the second applicant’s
surname, which would have the effect of socially reinforcing the
relationship between the second and third applicants.

29. Finally the Government submit that, if there is in the present case
an interference with the applicants’ rights under Article 8 para. 1 of
the Convention, that interference is justified under para. 2 of that
Article as being necessary in a democratic society for the protection of
the rights and freedoms of others. The Government point out in this
respect that it is a fundamental principle, precisely with a view to
protecting the child’s legal security, that where a child is born in
wedlock, the mother’s husband must be regarded as the child’s father.

30. The applicants contest that adoption would be a valid alternative
solution, since for other reasons the first and second applicants do not
wish to get married.

31. The Commission recalls that the right to respect for family life is
not confined to `legitimate’ families and that, in order to ascertain
whether in a given case it is appropriate to speak of `family life’
within the meaning of Article 8 of the Convention, it has considered not
only whether the persons concerned were related but also whether it was
in fact possible to point to such a link as can be considered to
establish `family life’ referred to in Article 8 of the Convention (cf.
11418/85, Dec. 14.5.86, D.R. 47 p. 243).

32. The Commission notes that, although they do not live together, there
is a longstanding relationship between K, the first applicant, and Z, the
second applicant, and it is not disputed that Z is the biological father
of K’s son S and of K’s second child born in 1989.

33. The Commission is of the opinion that the links between the
applicants involve several aspects of private and family life within the
meaning of Article 8 of the Convention.

34. The Commission, therefore, concludes that Article 8 of the Convention
is applicable to the present case.

35. The Commission notes that the Netherlands authorities have not
actively `interfered’ with the applicants’ private life. However, the
Commission recalls that although the object of Article 8 is essentially
that of protecting the individual against arbitrary interference, it does
not merely compel a Contracting State to abstain from such interference.
In addition to this primarily negative undertaking, there may be positive
obligations inherent in an effective respect for private of family life
(see eg. Eur. Court H.R., X and Y v. the Netherlands judgment of 26 March
1985, Series A no. 91, p. 11, para. 23).

36. The Commission observes that Z assumes the responsibility of being
S’s father and that all applicants wish to see the biological reality of
his paternity legally recognized.

37. However, Dutch law does not make this possible. The question is
whether this constitutes a lack of respect for the applicants’ private
and family life.

38. The rules in the Dutch Civil Code are in this respect characterised
by their lack of flexibility. They do not at all make it possible for the
mother of a child or for the child itself to contest the mother’s former
husband’s paternity where, as in the present case, the child was born
before the marriage had been formally dissolved.

39. The Commission accepts that the generally recognized rule, according
to which a married man is presumed to be the father of his wife’s
children (`pater est quem nuptiae demonstrant’), creates a reasonable
presumption and that there are good reasons why this presumption should
not easily be overturned.

40. Nevertheless, there are cases where it is clear that the presumption
does not correspond to the real situation, and at least in some such
situations the right to respect for private ans family life in Article
8 of the Convention may require that the real paternity is also legally
recognized.

41. In the present case, it seems clear that M cannot be S’s father and
it appears that he is not even aware of S’s existence. Moreover, the
divorce between K and M was pronounced in April 1988, i.e. about half a
year after S’s birth. On the other hand, K and Z had a stable
relationship already a long time before S was born. They agree that Z is
S’s father, and Z is prepared to take the responsibility for S.
Furthermore K and Z also have another child together. In view of the fact
that in the specific circumstances of this case M cannot be considered
to have any real interests which should be taken into account, the
situation is somewhat similar to that of a child born out of wedlock, in
respect of whom an agreement between the mother and a man about the
latter’s paternity would normally constitute a sufficient basis for
having that paternity legally recognized.

42. It is true, as the Government have pointed out, that Z and K could
jointly adopt S but only if they first got married. Apparently, they do
not wish to get married. The Commission cannot find, in such
circumstances, that the possibility of an adoption is sufficient to
eliminate the effects on their private and family life created by the
impossibility to contest the legal paternity.

43. Nor can the possibility of changing S’s family name be considered a
valid alternative to the establishment of Z’s paternity.

44. In these circumstances, the Commission considers that the
impossibility under Dutch law to contest M’s paternity and to have Z
recognized as S’s father implies a lack of respect for the applicants’
private and family life contrary to Article 8 of the Convention.

Conclusion

45. The Commission concludes by twelve votes to six that there has been
a violation of Article 8 of the Convention.

d. As regards Article 14 of the Convention

46. Article 14 of the Convention, insofar as relevant, provides as
follows: `The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground such as
sex (…) or other status.’

47. The applicants allege a violation of this provision in that under
Dutch law a married woman’s right to challenge the paternity if her child
is more limited than that of a married man.

48. The Government submit that the fundamental principle underlying the
introduction in 1969 of Sections 198 and 199 of the Civil Code concerning
the repudiation of a child’s legitimacy, was to maximise a child’s legal
security. This implies avoiding situations in which a child has to be
regarded as illegitimate and creating exceptions only for those
situations where the greatest need might arise for either the mother or
the husband, considered separately.

49. With reference to the position of the mother the Government point out
that the legislator endeavoured to ensure that a child born shortly after
the dissolution of a marriage could as far as possible be granted the
status of legitimacy. As regards children born in wedlock, the father was
provided with legal safeguards to prevent legal ties being created with
a child of whom he was not the biological father.

50. The Commission recalls that whether or not a difference in treatment
constitutes discrimination in the sense or Article 14 depends on whether
there exists an objective and reasonable justification. The difference
in treatment must pursue a legitimate aim and there must be a reasonable
relationship of proportionality between the means employed and the aim
sought to be realised (see eg. Eur. Court H.R., Inze judgment of 28
October 1987, Series A no. 126, p. 18, para. 41).

51. The Commission further recalls that Contracting States enjoy a
certain margin of appreciation in assessing whether and to what extent
differences in otherwise similar situations justify a different treatment
in law and that the scope of the margin of appreciation will vary
according to the circumstances, the subjectmatter and its background
(Eur. Court H.R., Rasmussen judgment of 28 November 1984, Series A no.
87, p. 15, para. 40).

52. It is not the task of the Commission to examine issues in the
abstract, but to determine whether in the present case the way in which
Dutch law was applied to the applicants disclosed a discrimination
contrary to Article 14 of the Convention.

53. The Commission observes that when S was born in 1987, K was still
married to M, who had disappeared a long time ago, whereas she and Z had
a relationship since 1983. The Commission further notes that the marriage
between K and M was dissolved in April 1988.

54. The Commission notes that in the Rasmussen case the European Court
of Human Rights pointed out that in the Contracting States’ legislation
regarding paternity proceedings there is no common ground and that in
most of these States the position of the mother and that of her husband
are regulated in different ways. On this basis the Court found that a
difference in time-limits applicable to the institution of paternity
proceedings was not discriminatory (Rasmussen judgment, loc. cit., para.
41).

55. Similar considerations apply in the present case. The Commission also
notes that the difference existing in Dutch law in regard to the right
to contest paternity could hardly be considered to have affected the
first applicant since her former husband, M, was not even aware of the
birth of S and his legal right to contest his paternity was therefore
only theoretical.

56. For these reasons, the Commission considers that the applicants are
not victims of discrimination contrary to Article 14 in conjunction with
Article 8 of the Convention.

Conclusion

57. The Commission concludes unanimously that there has been no violation
of Article 14 in conjunction with Article 8 of the Convention.

E. Recapitulaion

58. The Commission concludes, by 12 votes to 6, that there has been a
violation of Article 8 of the Convention (para. 45).

59. The Commission concludes, unanimously, that there has been no
violation of Article 14 in conjuction with Article 8 of the convention
(para. 57).

Rechters

Mrs. Norgaard, Frowein, Trechsel, Sperduti, Busuttil, Gozubuyuk,Weitzel, Soyer, Schermers, Danelius, Thune, Hall, Martinez, Rozakis,Liddy, Geus, Pellonpaa, Marxer