Information Note on the Court’s case-law No. 125
December 2009
Zaunegger v. Germany - 22028/04
Judgment 3.12.2009 [Section V]
Article 14
Discrimination
Inability of father of a child born out of wedlock to obtain joint custody without the mother’s consent: violation
Facts – Article 1626a of the German Civil Code provides that a minor born out of wedlock shall be in the sole custody of the mother unless the parents marry or make a declaration that they will exercise joint custody. The applicant and his partner, who were not married, had a daughter in 1995. They did not make a joint-custody declaration. Three years later the couple separated and, after spending two years with the applicant, the child moved in with the mother. The applicant had regular contact and continued to provide for his daughter’s needs. He applied for a court order granting him joint custody, as the mother was unwilling to make a declaration to that effect, but this was refused on the basis of the legislation and a leading judgment of the Federal Constitutional Court dated 29 January 2003. In that judgment, the Federal Constitutional Court had ruled that Article 1626a did not breach the right to respect for the family life of fathers whose children were born out of wedlock as, firstly, there was insufficient evidence that a father of a child born out of wedlock would want to bear joint responsibility and, secondly, the legislature could legitimately assume that joint custody exercised against the will of one parent would have more disadvantages than advantages for a child born out of wedlock.
Law – Article 14 in conjunction with Article 8: In view of the participatory role the applicant had played in the child’s upbringing, the decisions dismissing his request for joint custody and joint parental authority had amounted to interference with his right to respect for his family life. The facts therefore fell within the scope of Article 8 and Article 14 was applicable. Further, in the light of the domestic courts’ decisions and the underlying legislation, the applicant had been treated differently from mothers or from married or divorced fathers in that he had required his former partner’s consent to joint custody. Very weighty reasons would be required to justify a difference in treatment between married and unmarried fathers.
The Court accepted that the domestic courts’ decisions had pursued a legitimate aim as they were based on Article 1626a of the Civil Code, which sought to protect the best interests of a child born out of wedlock by determining its legal representative and by avoiding disputes over questions relating to custody. Moreover, by allowing parents of children born out of wedlock to agree on joint custody the legislature had sought to put them to a certain extent on the same footing as married parents, who had assumed responsibility for each other and their children. The Court also noted that it was legitimate, in the absence of a joint declaration, for parental authority of a child born out of wedlock initially to be given to the mother, in order to ensure that there was a person at birth who could act for the child in a legally binding way, and that there could also be cases in which there were valid reasons for denying a father parental authority if it risked jeopardising the child’s welfare. However, these considerations had not applied in the applicant’s case: his paternity had been certified from the beginning, he had lived with the child for more than five years and thereafter had enjoyed extensive contact and provided for her daily needs. Despite this, he had been prevented by law from seeking a judicial ruling on the issue whether joint parental authority would serve the child’s best interests. In this connection, the Court did not agree that joint custody against the will of the mother could be assumed not to be in the child’s interest. While there was no European consensus on the question whether unmarried fathers had a right to request joint custody even without the mother’s consent, the common point of departure in the majority of the member States appeared to be that decisions on custody were to be based on the child’s best interests and subject to court scrutiny in the event of a conflict between the parents. Nor was it relevant here to argue that legal proceedings might unsettle a young child as that risk also existed in cases involving married parents or those who had opted for joint parental authority and the Government had not shown why fathers in the applicant’s situation should be entitled to any less judicial scrutiny of the custody issue. Accordingly, there had not been a reasonable relationship of proportionality between the exclusion of judicial scrutiny of the mother’s sole custody and the aim of protecting the child’s best interests.
Conclusion: violation (six votes to one).
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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