AS TO THE ADMISSIBILITY OF
Application No. 15666/89
by Catharina Johanna KERKHOVEN,
Anna Maria HINKE and Stijn HINKE
against the Netherlands
The European Commission of Human Rights sitting in private on 19
May 1992, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
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 17 August 1989 by
Catharina Johanna KERKHOVEN, Anna Maria HINKE and Stijn HINKE against
the Netherlands and registered on 23 October 1989 under file No.
15666/89;
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 nationals born in 1956, 1949 and 1986
respectively. They reside in Nijmegen, the Netherlands. The first and
second applicant have a stable lesbian relationship since December 1983
and consider themselves to be the social parents of the third
applicant, born on 20 November 1986, who biologically is the second
applicant's son. Before the Commission the applicants are represented
by Mr. A.W.M. Willems, a lawyer practising in Amsterdam, the
Netherlands.
The facts as submitted by the applicants may be summarised as
follows.
The third applicant is born out of wedlock by means of artificial
insemination. The first and second applicant share the parental tasks
between them.
On 14 January 1987 the first and second applicant requested the
Nijmegen District Court (Kantonrechter) to be vested with the parental
authority (ouderlijke macht) over the third applicant. This request
was rejected on 4 September 1987.
On 25 February 1988 the Arnhem Regional Court
(Arrondissementsrechtbank) on appeal declared the applicants' request
inadmissible.
On 24 February 1989 the Supreme Court (Hoge Raad) dismissed the
applicants' plea of nullity. It held, like the lower courts, inter
alia, that unmarried parents can be vested with the parental authority
over a minor if both have legal family ties with the child (in
familierechtelijke betrekking staan tot). In the present case only the
biological mother (second applicant), who legally is the guardian of
the third applicant, has legal family ties with her son. The first
applicant has no legal ties with the child nor can she establish those
ties through recognition (erkenning) since this is impossible for a
woman under Dutch law. The Supreme Court furthermore found that the
interference with the applicants' right to respect for their family
life was justified under para. 2 of Article 8, without specifying on
which ground.
Legal family ties can be established through recognition
(erkenning) of the child but according to Article 221 Book 1 of the
Civil Code (Burgerlijk Wetboek), only a man, whether the biological
father or not, can recognise a child.
COMPLAINTS
1. The applicants complain that the refusal to vest the first
applicant with the parental authority over the third applicant
constitutes an unjustified interference with their right to respect for
their family life and their private life. They invoke Article 8 of the
Convention.
2. The applicants further complain that they are discriminated
against as, unlike heterosexual couples, they cannot enjoy their rights
under Article 8 of the Convention with regard to parental authority.
They also complain that the resulting difference in legal status
between the third applicant and legitimate children amounts to
discrimination. They invoke Article 14 of the Convention in
conjunction with Article 8.
THE LAW
1. The applicants complain that their right to respect for their
private and family life has unjustifiedly been interfered with in that
the first applicant could not be vested with the parental authority
over the third applicant. They invoke Article 8 (Art. 8) of the
Convention which reads, insofar as relevant, as follows:
"1. Everyone has the right to respect for his private and
family life ...
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."
The Commission must first determine whether the factual situation
at stake is such as to enjoy the protection afforded by Article 8
(Art. 8).
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 Eur. Court H.R., Marckx judgment of
13 June 1979, Series A No. 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.).
The Commission recalls that it has found in the past that,
despite the evolution of attitudes towards homosexuality, a stable
homosexual relationship between two women does not fall within the
scope of the right to respect for family life ensured by Article 8
(Art. 8) of the Convention (No. 11716/85, Dec. 14.5.86, D.R. 47 p.
274). The relationship between the first and the second applicant
accordingly also falls outside the scope of Article 8 (Art. 8) insofar
as it protects the right to respect for family life.
The Commission further notes that the relevant legislation in
itself does not prevent the three applicants from living together as
a family. The only problem in the present case is the impossibility
for the first applicant to establish legal ties with the third
applicant which may become of practical importance should the natural
mother die or should the relationship between the two adults end
otherwise. However, the Commission is of the opinion that the above
described positive obligations of a State under Article 8 (Art. 8) do
not go so far as to require that a woman such as the first applicant,
living together with the mother of a child and the child itself, should
be entitled to get parental rights over the child. The Commission
therefore considers that there has been no interference with the
applicants' right to respect for their family life.
It follows that the application in this respect is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
As regards private life, the Commission decided in the past (see
No. 9369/81, Dec. 3.5.83, D.R. 32 p. 220, No. 11716/85, Dec. 14.5.86,
D.R. 47 p. 274 and No. 14753/89, Dec. 9.10.89, unpublished) that the
relationship of a homosexual couple constitutes a matter affecting
their private life. However, the Commission considers that the
statutory impossibility for the first applicant to be vested with the
parental authority over the third applicant does not entail any
restriction in the applicants' enjoyment of their private life. The
Commission therefore finds that in the present case there has been no
interference with the applicants' right to respect for their private
life.
It follows that the application in this respect must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
2. The applicants also claim to be the victims of discrimination in
that, unlike heterosexual couples, they cannot enjoy their rights under
Article 8 (Art. 8) with regard to parental authority, whereas in other
fields Dutch law makes no distinction between homosexual and
heterosexual couples.
They further complain that the third applicant is also
discriminated against on the ground of his birth and status in
comparison with legitimate children. They invoke Article 14 of the
Convention in conjunction with Article 8 (Art. 14+8).
The Commission notes that, as regards parental authority over a
child, a homosexual couple cannot be equated to a man and a woman
living together.
It follows that the application, in this respect also, is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy