Lexploria

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)

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C.K., A.Z. AND S.M. v. THE NETHERLANDS

C.K., A.Z. AND S.M. v. THE NETHERLANDS

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