Lexploria

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)

Menu

STEENS AND KOOI v. THE NETHERLANDS

STEENS AND KOOI v. THE NETHERLANDS

LEXI