Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13557/88

by B.N.

against Denmark

The European Commission of Human Rights sitting in private

on 9 October 1989, the following members being present:

MM. S. TRECHSEL, Acting President

C.A. NØRGAARD

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

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 2 December 1987

by B.N. against Denmark and registered on 27 January 1988 under file

No. 13557/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Danish citizen, born in 1949. He is a

journalist and resides at T..

The applicant's then common-law wife gave birth to a son in

1982. However, the parents' relationship broke down in 1985 and, as

they were not married, only the mother had parental custody rights

over the child according to the Custody and Guardianship of Children

Act (Myndighedsloven). Sections 8 and 9 of this Act read as follows:

(translation)

Section 8. Where the parents are married to each other when

the child is born, or where they subsequently marry each

other, they share the parental custody rights. Where the

parents have separated when the child is born, however, the

mother has the parental custody rights alone, unless the

matrimonial cohabitation between the spouses is resumed.

(2) Where the parents are not married to each other the

mother has the parental custody rights alone.

Section 9. Parents who are not married or who have separated

may, subject to the county's approval, agree on joint parental

custody. The agreement will be approved unless this is

contrary to the interests of the child.

Until 1987 the applicant's access to his son was effected on a

"gentleman's agreement" basis but subsequently it was arranged that

the applicant saw his son every other week-end.

The applicant was apparently not satisfied with this

arrangement and he therefore contacted the Ã…rhus County Authorities

(Ã…rhus Statsamt) in order to obtain custody rights over his son on an

equal footing with the mother. On 1 December 1987 he was informed,

however, that according to Section 8 subsection 2 of the Custody and

Guardianship of Children Act only the mother had parental custody

rights over the child as the parents were never married. Accordingly,

since the mother refused to accept joint custody as envisaged under

Section 9 of the Act, such an arrangement would not be possible.

COMPLAINTS

The applicant complains that Section 8 subsection 2, whereby he

is prevented from obtaining joint parental custody rights over his

son, born out of wedlock, violates Article 3 of the Convention.

He furthermore complains that he has no possibility of

obtaining in court a determination of the issue of joint parental

custody and he invokes in this respect Article 6 of the Convention.

Under Article 8 of the Convention the applicant also maintains

that the legal situation in Denmark, preventing him from obtaining

joint parental custody, shows disrespect for his family life.

Finally, the applicant invokes Article 14 of the Convention

maintaining that the principle of equality has been violated by the

application of Section 8 subsection 2 of the Custody and Guardianship

of Children Act.

THE LAW

1. The applicant has complained of the fact that he cannot obtain

joint parental custody which in his opinion amounts to a violation of

Article 3 (Art. 3) of the Convention which reads:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

According to the case-law of the European Court of Human

Rights and that of the Commission, treatment will be considered

inhuman only if it reaches a certain degree of severity, causing

considerable mental or physical suffering. Furthermore, as for the

criterion "degrading treatment", the treatment itself will not be

degrading unless the person concerned has undergone humiliation or

debasement attaining a minimum level of severity. That level has to

be assessed with regard to the circumstances of the concrete case (cf.

for example, Eur. Court H.R., Ireland v. United Kingdom judgment of

18.1.78, Series A no. 25).

Having regard to the above and to the applicant's submissions

the Commission does not consider that the present application

discloses any appearance of a violation of Article 3 (Art. 3)

of the Convention and it follows that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant has also complained that he has no possibility

of obtaining in court a determination of the issue of joint parental

custody and he refers in this respect to Article 6 (Art. 6) of the

Convention.

Article 6 para. 1 (Art. 6-1) reads, insofar as relevant for

the present case, as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by an independent and impartial tribunal established by

law."

When considering this particular complaint the Commission has

first to determine whether Article 6 (Art. 6) is applicable to the

case, i.e. whether it concerns the determination of a civil right

or obligation.

Article 6 para. 1 (Art. 6-1) of the Convention does not in itself

guarantee any particular content for "civil rights and obligations" in

the substantive law of the Contracting States and according to the

established case-law of the European Court of Human Rights Article 6

para. 1 (Art. 6-1) extends only to disputes on "civil rights and

obligations" which can be said, at least on arguable grounds, to be

recognised under domestic law (cf. Eur. Court H.R., W, B and R

judgments of 8 July 1987, Series A no. 121, pp. 32, 77 and 122,

paras. 73 and 78).

In the present case it is undisputed that the applicant has

access to his son who stays with him every other week-end and the

Commission has previously established that the possibility exists in

Denmark for a father to obtain from a court, in accordance with the

relevant provisions of the Guardianship and Custody of Children Act, a

determination on the merits covering the question of transfer of

custody from the mother to him (cf. Nielsen v. Denmark, Comm. Report

12.3.87, paras. 16 and 49). It is clear, however, that the applicant

could not, under Danish law, claim a right to obtain custody, either

alone or together with the mother, over his son. Accordingly the

applicant seeks a determination of a "right" which he does not have

under domestic law.

It follows, however, from the case-law mentioned above that

Article 6 para. 1 (Art. 6-1) does not extend to such disputes for

which reason this part of the application is incompatible ratione

materiae with the provisions of the Convention and must be rejected

in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

3. Under Article 8 (Art. 8) of the Convention the applicant has

complained that the legal situation in Denmark, whereby he is

prevented from obtaining joint parental custody, shows disrespect

for his family life.

Article 8 para. 1 (Art. 8-1) of the Convention reads as follows:

"Everyone has the right to respect for his private

and family life, his home and his correspondence."

It is true that this provision protects the relationship

between married parents and their children as well as the relationship

between unmarried parents and their children (see Eur. Court H.R.,

Marckx judgment of 13 June 1979, Series A No. 31, p. 14, para. 31).

Furthermore the Commission recalls that it has on several occasions

been confronted with the question whether a legal situation, whereby

the unmarried father cannot obtain joint parental custody, complies

with Article 8 (Art. 8) of the Convention (cf. No. 9519/81, Dec. 15.3.84,

unpublished, No. 9530/81, Dec. 14.5.84, unpublished, No. 9558/81, Dec.

15.3.84, unpublished, No. 9639/82, Dec. 15.3.84, D.R. 36 p. 130, and

No. 13776/88, Dec. 14.3.89, unpublished).

Like in its previous case-law the Commission finds that the

situation of children born out of wedlock necessitates a distinct

legislative regulation which has to take into account the problems

involved. The Danish legislator has opted for a regulation which is

considered to be in the best interests of the child born out of

wedlock. Such a premise is neither wrong nor arbitrary. Indeed the

present case shows that when the parents do not live together and

cannot agree on matters concerning the child it is indispensable in

the interest of the child that it is kept away from situations which

could be detrimental to its development owing to the existence of a

loyalty conflict vis à vis one or both of the parents and the

inevitable parental pressure causing feelings of insecurity and

distress.

Thus, the Commission maintains its view expressed in the

above-mentioned case-law that a regulation giving the right to care

and custody to the mother as regards children born out of wedlock does

not in general disclose any appearance of a violation of the right to

respect for the applicant's family life as guaranteed by Article 8

para. 1 (Art. 8-1) of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

4. Under Article 14 (Art. 14) of the Convention the applicant has

finally complained that the principle of equality secured under this

provision has been violated by the application of Section 8

subsection 2 of the Custody and Guardianship of Children Act.

The Commission recalls that the question of discrimination was

also examined in the case-law mentioned above. The Commission found,

and finds likewise in the present case, that the special situation of

the child born out of wedlock is an objective and reasonable

justification for the legislator's decision to confer the right of

care and custody exclusively to the mother instead of to both parents.

The disadvantages of the unmarried father, which may emerge

in the case of dissension with the child's mother, are proportionate

to the aim the regulation in question is seeking to realise, namely,

the safeguarding of the child's well-being. Hardships can be avoided,

as in the present case, by granting the father access to his child

even against the mother's will.

Therefore the Commission concludes that the examination of the

applicant's complaint on this point does not reveal any appearance of

discrimination at variance with Article 14 (Art. 14) of the Convention.

This part of the application is consequently also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H. C. KRÜGER) (S. TRECHSEL)

Menu

B.N. v. DENMARK

B.N. v. DENMARK

LEXI