AS TO THE ADMISSIBILITY OF
Application No. 13557/88
by B.N.
against Denmark
The European Commission of Human Rights sitting in private
on 9 October 1989, the following members being present:
MM. S. TRECHSEL, Acting President
C.A. NØRGAARD
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. C.L. ROZAKIS
L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 December 1987
by B.N. against Denmark and registered on 27 January 1988 under file
No. 13557/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Danish citizen, born in 1949. He is a
journalist and resides at T..
The applicant's then common-law wife gave birth to a son in
1982. However, the parents' relationship broke down in 1985 and, as
they were not married, only the mother had parental custody rights
over the child according to the Custody and Guardianship of Children
Act (Myndighedsloven). Sections 8 and 9 of this Act read as follows:
(translation)
Section 8. Where the parents are married to each other when
the child is born, or where they subsequently marry each
other, they share the parental custody rights. Where the
parents have separated when the child is born, however, the
mother has the parental custody rights alone, unless the
matrimonial cohabitation between the spouses is resumed.
(2) Where the parents are not married to each other the
mother has the parental custody rights alone.
Section 9. Parents who are not married or who have separated
may, subject to the county's approval, agree on joint parental
custody. The agreement will be approved unless this is
contrary to the interests of the child.
Until 1987 the applicant's access to his son was effected on a
"gentleman's agreement" basis but subsequently it was arranged that
the applicant saw his son every other week-end.
The applicant was apparently not satisfied with this
arrangement and he therefore contacted the Århus County Authorities
(Århus Statsamt) in order to obtain custody rights over his son on an
equal footing with the mother. On 1 December 1987 he was informed,
however, that according to Section 8 subsection 2 of the Custody and
Guardianship of Children Act only the mother had parental custody
rights over the child as the parents were never married. Accordingly,
since the mother refused to accept joint custody as envisaged under
Section 9 of the Act, such an arrangement would not be possible.
COMPLAINTS
The applicant complains that Section 8 subsection 2, whereby he
is prevented from obtaining joint parental custody rights over his
son, born out of wedlock, violates Article 3 of the Convention.
He furthermore complains that he has no possibility of
obtaining in court a determination of the issue of joint parental
custody and he invokes in this respect Article 6 of the Convention.
Under Article 8 of the Convention the applicant also maintains
that the legal situation in Denmark, preventing him from obtaining
joint parental custody, shows disrespect for his family life.
Finally, the applicant invokes Article 14 of the Convention
maintaining that the principle of equality has been violated by the
application of Section 8 subsection 2 of the Custody and Guardianship
of Children Act.
THE LAW
1. The applicant has complained of the fact that he cannot obtain
joint parental custody which in his opinion amounts to a violation of
Article 3 (Art. 3) of the Convention which reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
According to the case-law of the European Court of Human
Rights and that of the Commission, treatment will be considered
inhuman only if it reaches a certain degree of severity, causing
considerable mental or physical suffering. Furthermore, as for the
criterion "degrading treatment", the treatment itself will not be
degrading unless the person concerned has undergone humiliation or
debasement attaining a minimum level of severity. That level has to
be assessed with regard to the circumstances of the concrete case (cf.
for example, Eur. Court H.R., Ireland v. United Kingdom judgment of
18.1.78, Series A no. 25).
Having regard to the above and to the applicant's submissions
the Commission does not consider that the present application
discloses any appearance of a violation of Article 3 (Art. 3)
of the Convention and it follows that this part of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant has also complained that he has no possibility
of obtaining in court a determination of the issue of joint parental
custody and he refers in this respect to Article 6 (Art. 6) of the
Convention.
Article 6 para. 1 (Art. 6-1) reads, insofar as relevant for
the present case, as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by an independent and impartial tribunal established by
law."
When considering this particular complaint the Commission has
first to determine whether Article 6 (Art. 6) is applicable to the
case, i.e. whether it concerns the determination of a civil right
or obligation.
Article 6 para. 1 (Art. 6-1) of the Convention does not in itself
guarantee any particular content for "civil rights and obligations" in
the substantive law of the Contracting States and according to the
established case-law of the European Court of Human Rights Article 6
para. 1 (Art. 6-1) extends only to disputes on "civil rights and
obligations" which can be said, at least on arguable grounds, to be
recognised under domestic law (cf. Eur. Court H.R., W, B and R
judgments of 8 July 1987, Series A no. 121, pp. 32, 77 and 122,
paras. 73 and 78).
In the present case it is undisputed that the applicant has
access to his son who stays with him every other week-end and the
Commission has previously established that the possibility exists in
Denmark for a father to obtain from a court, in accordance with the
relevant provisions of the Guardianship and Custody of Children Act, a
determination on the merits covering the question of transfer of
custody from the mother to him (cf. Nielsen v. Denmark, Comm. Report
12.3.87, paras. 16 and 49). It is clear, however, that the applicant
could not, under Danish law, claim a right to obtain custody, either
alone or together with the mother, over his son. Accordingly the
applicant seeks a determination of a "right" which he does not have
under domestic law.
It follows, however, from the case-law mentioned above that
Article 6 para. 1 (Art. 6-1) does not extend to such disputes for
which reason this part of the application is incompatible ratione
materiae with the provisions of the Convention and must be rejected
in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
3. Under Article 8 (Art. 8) of the Convention the applicant has
complained that the legal situation in Denmark, whereby he is
prevented from obtaining joint parental custody, shows disrespect
for his family life.
Article 8 para. 1 (Art. 8-1) of the Convention reads as follows:
"Everyone has the right to respect for his private
and family life, his home and his correspondence."
It is true that this provision protects the relationship
between married parents and their children as well as the relationship
between unmarried parents and their children (see Eur. Court H.R.,
Marckx judgment of 13 June 1979, Series A No. 31, p. 14, para. 31).
Furthermore the Commission recalls that it has on several occasions
been confronted with the question whether a legal situation, whereby
the unmarried father cannot obtain joint parental custody, complies
with Article 8 (Art. 8) of the Convention (cf. No. 9519/81, Dec. 15.3.84,
unpublished, No. 9530/81, Dec. 14.5.84, unpublished, No. 9558/81, Dec.
15.3.84, unpublished, No. 9639/82, Dec. 15.3.84, D.R. 36 p. 130, and
No. 13776/88, Dec. 14.3.89, unpublished).
Like in its previous case-law the Commission finds that the
situation of children born out of wedlock necessitates a distinct
legislative regulation which has to take into account the problems
involved. The Danish legislator has opted for a regulation which is
considered to be in the best interests of the child born out of
wedlock. Such a premise is neither wrong nor arbitrary. Indeed the
present case shows that when the parents do not live together and
cannot agree on matters concerning the child it is indispensable in
the interest of the child that it is kept away from situations which
could be detrimental to its development owing to the existence of a
loyalty conflict vis à vis one or both of the parents and the
inevitable parental pressure causing feelings of insecurity and
distress.
Thus, the Commission maintains its view expressed in the
above-mentioned case-law that a regulation giving the right to care
and custody to the mother as regards children born out of wedlock does
not in general disclose any appearance of a violation of the right to
respect for the applicant's family life as guaranteed by Article 8
para. 1 (Art. 8-1) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
4. Under Article 14 (Art. 14) of the Convention the applicant has
finally complained that the principle of equality secured under this
provision has been violated by the application of Section 8
subsection 2 of the Custody and Guardianship of Children Act.
The Commission recalls that the question of discrimination was
also examined in the case-law mentioned above. The Commission found,
and finds likewise in the present case, that the special situation of
the child born out of wedlock is an objective and reasonable
justification for the legislator's decision to confer the right of
care and custody exclusively to the mother instead of to both parents.
The disadvantages of the unmarried father, which may 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,
as in the present case, by granting the father access to his child
even against the mother's will.
Therefore the Commission concludes that the examination of the
applicant's complaint on this point does not reveal any appearance of
discrimination at variance with Article 14 (Art. 14) of the Convention.
This part of the application is consequently also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H. C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy