AS TO THE ADMISSIBILITY OF
Application No. 17783/91
by Eleonora Eline Louise STEENS and
Johannes KOOI
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 5 May 1993, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 9 August 1990 by
Eleonora Eline Louise STEENS and Johannes KOOI against the Netherlands
and registered on 11 February 1991 under file No. 17783/91;
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, born in 1953 and 1948 respectively, are Dutch
citizens residing at Lekkerkerk in the Netherlands. Before the
Commission they are represented by Mr. J.P.R.C. de Jonge, a lawyer
practising in Rotterdam.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The applicants have a lasting relationship since at least twelve
years. They never married but from their relationship a daughter,
Kirsti, was born on 24 August 1983. The applicants raise the child
together.
The first applicant, the mother, is the girl's guardian and holds
the right of care and custody. The second applicant, the biological
father, is co-guardian. He has not recognised (erkenning) the child
and has thus not established legal family ties with her since the
applicants decided that she should keep her mother's family name.
On 12 September 1988 the applicants requested the Single Judge
of the Rotterdam District Court (Kantonrechter) to be vested together
with the parental authority (ouderlijke macht) over Kirsti. On 2
February 1989 the District Court rejected the applicants' request on
the ground that they did not fulfil the requirements determined by the
Supreme Court's case-law (e.g. Hoge Raad 21 March 1986, Nederlandse
Jurisprudentie 1986, No. 585), in particular not the requirement that
both parents must have legal family ties with the child (in
familierechtelijke betrekking staan tot). The Court observed that
since the first applicant "does not wish for reasons of his own to
establish a legal family relationship with Kirsti, he cannot be vested
with a right that follows from an obligation based on legal family
ties."
On 6 August 1990, the Rotterdam Regional Court
(Arrondissementsrechtbank) on appeal upheld the District Court's
decision. The applicants did not file a plea of nullity with the
Supreme Court (Hoge Raad) in view of its well-established case-law in
this field.
COMPLAINTS
1. The applicants complain under Article 8 of the Convention that
the refusal of the Dutch courts to vest them together with the parental
authority over their daughter on the ground that the first applicant
has no legal family ties with her amounts to an unjustified
interference with their private and family life.
2. They further complain that they have been discriminated against
since, unlike unmarried couples whose child has been recognised by the
father, they cannot enjoy their rights under Article 8 of the
Convention with regard to parental authority. They invoke Article 14
of the Convention in conjunction with Article 8.
THE LAW
1. The applicants complain that the refusal of the Dutch courts to
vest them together with the parental authority over their daughter, on
the ground that the second applicant has no legal family ties with her,
amounts to an unjustified interference with their private and family
life. They rely on Article 8 (Art. 8) of the Convention, which
guarantees to everyone the right to respect for his private and family
life, and also invoke Article 14 (Art. 14) of the Convention.
2. As to the first applicant, the mother, the Commission observes
that, according to Article 25 (Art. 25) of the Convention, it is only
competent to examine an application lodged by a person claiming to be
the victim of a violation by the High Contracting Parties of the rights
and freedoms set forth in the Convention. The first applicant alleges
a violation of the rights of her partner, the second applicant. The
alleged violation does not affect her own situation. She therefore
cannot claim to be a victim of the measure complained of and her
application is thus incompatible ratione personae with the provisions
of the Convention within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
3. The second applicant alleges a violation of Article 8 para. 1
(Art. 8-1) of the Convention which guarantees the right to respect for
private and family life. The Commission considers that the complaint
mainly concerns the applicant's family life.
In this respect, the Commission observes at the outset that
Article 8 (Art. 8) protects the "legitimate" as well as the
"illegitimate" family, i.e. the relationship between unmarried parents
and their child(ren). Its object is "essentially" that of protecting
the individual against arbitrary interference by the public
authorities. Nevertheless, Article 8 (Art. 8) 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. This means, among
other things, that when the State determines in its domestic legal
system the regime applicable to certain family ties such as those
between an unmarried father and his child, it must act in a manner
calculated to allow those concerned to lead a normal family life. As
envisaged by Article 8 (Art. 8), respect for family life implies in
particular the existence in domestic law of legal safeguards that
render possible as from the moment of birth the child's integration in
its family. In this connection, the State has a choice of various
means, but a law that fails to satisfy this requirement violates
paragraph 1 of Article 8 (Art. 8) without there being any call to
examine it under paragraph 2 (see mutatis mutandis Eur. Court H.R.,
Marckx judgment of 13 June 1979, Series A No. 31, pp. 14 f., para. 31).
In the present case the father claims the formal right of care
and custody. According to Dutch law, this right is vested with the
mother only and exclusively, unless the father fulfils certain
conditions, the one at issue being recognition of his child. In
practice, however, the first applicant voluntarily shares the exercise
of this right with the second applicant. Therefore, Dutch law in
itself does not prevent the second 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.
Moreover, the Commission has already held in the past that it is
a consequence of a couple's free decision not to marry that an
unmarried father does not enjoy all the privileges national family law
attributes to a married father (No. 9639/82, Dec. 15.3.84, D.R. 36 p.
130 at pp. 139 f.). In addition, the couple's free choice not to have
the child recognised by her father entails the same consequences.
Thus, if both parents wish to develop legal family relations they are
free to marry or, alternatively, the father can recognise his child
which would provide them with those legal advantages they require. If,
however, they choose not to marry and in addition they decide that the
father will not recognise his daughter in order to avoid the
application of marriage and family law, they are themselves responsible
for the legal consequences of their choice.
In conclusion the Commission does not find that Dutch law on this
point fails to respect the second applicant's right to respect for his
family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the
Convention.
It follows that in this respect the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The second applicant finally complains that both applicants are
discriminated against since, unlike unmarried couples whose child has
been recognised by the father, they cannot jointly enjoy their rights
under Article 8 (Art. 8) of the Convention with regard to parental
authority. He invokes Article 14 of the Convention in conjunction with
Article 8 (Art. 14+8).
The Commission considers that the difference in treatment
complained of is the result of the second applicant's free choice not
to recognise his daughter and concludes 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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the President of the
Second Chamber Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy