Lexploria

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)

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KERKHOVEN AND HINKE v. THE NETHERLANDS

KERKHOVEN AND HINKE v. THE NETHERLANDS

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