AS TO THE ADMISSIBILITY OF
Application No. 18535/91
by C.K., A.Z.
and S.M.
against the Netherlands
The European Commission of Human Rights sitting in private on
31 August 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 15 May 1991 by
C.K., A.Z. and S.M. against the Netherlands and registered on 17 July
1991 under file No. 18535/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Dutch citizens living in Amsterdam. The first
applicant was born in 1954, the second applicant in 1961 and the third
applicant in 1987. They are represented before the Commission by
Mr. Arnoud Willems, a lawyer practising in Amsterdam.
The facts are as follows.
The first applicant, C.K., and the second applicant, A.Z., have
had since 1983 a permanent relationship, but without being married and
without living together. The third applicant, S.M., is their son, born
on 18 October 1987. Their second child was born in 1989.
When S. was born, C.K. was still married to O.M., although they
had not been living together for a long time. Their divorce was
pronounced on 6 April 1988. O.M. was registered 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 many years ago.
C.K. and A.Z. first asked the civil registration authority to
make it possible for C.K. to declare that O.M. was not the father of
S. and for A.Z. to recognise the paternity. However, this was rejected
by a letter from the authority of 21 October 1988.
C.K. and A.Z. then brought proceedings for the same purpose
before the Regional Court (Arrondissementsrechtbank) of Amsterdam. By
judgment of 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 O.M. paternity and that, although the plaintiffs had a
justified wish to see the biological reality recognised, the law in
force could not be considered to be in conflict with Articles 8 and 14
of the Convention.
Their appeal was rejected by the Court of Appeal (Gerechtshof)
of Amsterdam on 5 February 1990. A further appeal on points of 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 were in conflict with the
Convention, since, 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.
The relevant provisions of the Civil Code read as follows:
Book 1, Section 198
"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 recognition 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
"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 the case by a
special curator who will be appointed by the District Court
judge."
COMPLAINTS
The applicants complain that Book 1, Section 198 gives the
married woman a too limited right to challenge the paternity of her
child and that in any case this right is more limited than that of the
married man. The result in the present case is that a child remains
legally bound to a father who is not the real father and from whom the
child can expect nothing, whereas the child is denied a legal
relationship with the real father who feels responsible for the child.
The applicants allege violations of Article 8 taken alone and in
conjunction with Article 14 of the Convention. They also consider that
the Supreme Court, by not establishing these violations, has failed to
respect Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 May 1991 and registered on
17 July 1991.
On 2 December 1991 the Commission decided to communicate the
application to the Netherlands Government and to ask for their
observations on its admissibility and merits.
The Government's observations were submitted on 26 March 1992.
The applicants submitted their observations in reply on 29 May 1992.
THE LAW
1. The applicants allege violations of Article 8 taken alone and in
conjunction with Article 14 (Art. 8+14) of the Convention in 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 in that a
married woman's right to challenge the paternity of her child differs
from that of a married man.
Article 8 (Art. 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 the
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."
Article 14 (Art. 14) of the Convention 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, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Government consider that a plausible case has not been
established for the existence of family life within the meaning of
Article 8 (Art. 8) between the second applicant and the third
applicant. They point out that the second applicant does not live with
the first applicant, that he makes no contribution to the costs of the
child's care and upbringing and that there is no evidence that he acts
as a social parent in relation to the child. Consequently, there is
no question of real family life, and the Government find Article 8
(Art. 8) not to be applicable in this case.
However, if family life should be considered to exist, the
Government would take the view that there has been no interference in
the applicants' right. An important point in this regard is that the
legal consequence desired by the parties, namely the establishment of
family law relations between the second applicant and the third
applicant, could have been achieved by adoption. They refer to Book
I, Articles 227 and 228 of the Civil Code, under which a child may be
adopted by its step-parent and natural parent, provided that they are
married to each other and the other natural parent does not object.
The Government further observe that any democratic society must
lay down statutory regulations concerning parentage and that
considerations as to legal certainty and protection of the interests
of the child play an important role in this regard. One fundamental
principle is therefore that, where a child is born in wedlock, the
mother's husband must be regarded as its father. Even if family life
could be said to exist in the present case and an interference with the
exercise of the right dealt with in Article 8 para. 1 (Art. 8-1) were
deemed to have taken place, the interference would have to be viewed
as having been necessary in order to protect the rights and freedoms
of others.
As regards the alleged discrimination, the Government note that
the purpose of Book I, Articles 198 and 199 of the Civil Code has been
to provide the child with a maximum of legal certainty and to avoid as
far as possible situations in which a child had to be regarded as
illegitimate. However, the mother's husband was provided with legal
safeguards to prevent ties being created between him and a child of
whom he was not the biological father. With reference to the judgment
of the European Court of Human Rights in the Rasmussen case (Series A
no. 87), the Government are of the opinion that the difference which
Dutch law makes between the treatment of the mother and that of her
husband cannot be regarded as discrimination within the meaning of
Article 14 (Art. 14) of the Convention.
The applicants state that the Dutch courts themselves have
admitted that family life existed between the second and the third
applicant. The latter had been born out of a stable relationship
between the first applicant and the second applicant. As a matter
fact, the second applicant contributes, mainly in nature, to the costs
for the child's care and upbringing.
As regards the Government's remarks regarding adoption, the
applicants note that a condition for adoption would be that the first
applicant and the second applicant got married, which they did not wish
to do, and that objections by the first applicant's former husband
would be an obstacle to adoption.
As regards discrimination, the applicants point out that in Dutch
law there is a much more important restriction than in the Rasmussen
case of the right to contest paternity in that the first applicant as
a married woman at the time of the birth never had the right to contest
her husband's paternity.
The Commission considers that the present complaints raise
important questions of fact and law which cannot be resolved at the
stage of the admissibility. These complaints are therefore not
manifestly ill-founded, and no other grounds of inadmissibility have
been established.
2. The applicants complain of a violation of Article 13 (Art. 13)
of the Convention in that the Supreme Court, by not establishing
violations of Articles 8 and 14 (Art. 8, 14), failed to provide the
applicants with an effective remedy.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission notes that the applicants' complaints under
Articles 8 and 14 (Art. 8, 14) concern in essence the contents of Dutch
legislation. However, Article 13 (Art. 13) does not guarantee a remedy
allowing a Contracting State's laws to be challenged before a national
authority on the ground of being contrary to the Convention (Eur. Court
H.R., Lithgow and others judgment of 8 July 1986, Series A No. 102,
para. 206).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
- DECLARES ADMISSIBLE THE APPLICANTS' COMPLAINTS RELATING TO
ARTICLES 8 AND 14 OF THE CONVENTION,
without prejudging the merits of the case, and
- DECLARES INADMISSIBLE THE APPLICANTS' COMPLAINT RELATING TO
ARTICLE 13 OF THE CONVENTION.
Secretary to the Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy