SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50435/99 by Solange RODRIGUES DA SILVA and Rachael HOOGKAMER against the Netherlands

The European Court of Human Rights (Second Section) , sitting on 25 March 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 9 July 1999,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Solange Rodrigues da Silva, is a Brazilian national, who was born in 1972 and lives in Amsterdam. The second applicant, Rachael Hoogkamer, born in 1996, is her daughter. Rachael is represented by her father, Mr Daniël Hoogkamer, who exercises parental authority ( ouderlijk gezag ) over her. Both applicants are represented before the Court by Ms G. van Atten, a lawyer practising in Amsterdam.

A. The circumstances of the case

The facts of the case, as submitted by the applicants , may be summarised as follows.

The first applicant came to the Netherlands in June 1994, leaving her two sons from a previous relationship, Jean (born in 1990) and Carlos (born in 1992), with her parents. In the Netherlands she lived together with her partner Mr Hoogkamer. As he was in paid employment at that time, the first applicant was eligible for a residence permit allowing her to reside in the Netherlands with her partner. She did apply for such a permit but, due to the unavailability of documents concerning Mr Hoogkamer’s income, this application was not pursued.

In April 1995 the first applicant’s son Carlos joined his mother and Mr Hoogkamer. Her other son Jean remained in Brazil with his grandparents.

On 3 February 1996 Rachael, the second applicant, was born to the first applicant and Mr Hoogkamer. The first applicant was ipso jure invested with parental authority over Rachael. Rachael was recognised ( erkenning ) by Mr Hoogkamer on 28 March 1996, as a result of which she obtained Netherlands nationality.

The first applicant and Mr Hoogkamer split up in January 1997. Rachael stayed with her father, who subsequently applied to the District Court ( kantonrechter ) of Amsterdam in order to be awarded parental authority over Rachael. The District Court complied with this request on 20 February 1997, against which decision the first applicant appealed to the Regional Court ( arrondissementsrechtbank ) of Amsterdam. The Regional Court requested the Child Care and Protection Board ( Raad voor de Kinderbescherming ) to examine which attribution of parental authority would be in Rachael’s best interests.

On 12 August 1997 the first applicant applied, also on behalf of her son Carlos, for a residence permit which would allow her to reside in the Netherlands, either – depending on the outcome of the proceedings concerning the parental authority – with her daughter Rachael or in order to have access to her.

The Child Care and Protection Board stated, in its report of 26 August 1997, that parental authority ought to remain with Mr Hoogkamer. In view of the likelihood of the first applicant having to return to Brazil, her having parental authority over Rachael could lead to a rupture of the contacts between Rachael and her father, as well as between Rachael and her paternal grandparents, who were very important to Rachael. It was considered that this would be a traumatic experience for Rachael who had her roots in the Netherlands and whose bonding with all the persons concerned had taken place in that country.

In a decision of 26 November 1997, the Regional Court nevertheless quashed the decision of the District Court and awarded the first applicant parental authority over Rachael. Mr Hoogkamer filed an appeal on points of law to the Supreme Court ( Hoge Raad ).

On 12 January 1998 the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the first applicant’s request for a residence permit. The first applicant lodged an objection ( bezwaar ) against this decision. At the hearing on the objection before an official committee ( ambtelijke commissie ) on 27 May 1998, it was stated on behalf of the first applicant that she worked (illegally, as she was not in possession of a residence permit allowing her to work) from Monday to Thursday and that on those days Rachael stayed either with her father or with her grandparents. On 12 June 1998 the Deputy Minister rejected the objection, holding that, even if account was taken of Rachael’s right to reside in the Netherlands and to be brought up and educated there, the interests of the economic well-being of the country outweighed the interests of the first applicant. Although the first applicant did not claim welfare benefits, she did not pay taxes or social security contributions either, and there was a sufficient number of nationals of European Union member States or aliens residing lawfully in the Netherlands available to fill the post she was occupying. The general interest also prevailed over Mr Hoogkamer’s interest in being able to exercise his family life with Rachael in the Netherlands. In this context it was noted that at the time Mr Hoogkamer started the relationship with the first applicant, she had not been entitled to reside in the Netherlands. He had thus accepted that family life with Rachael might have to be enjoyed elsewhere or in a different manner. It was further noted that Mr Hoogkamer did not make a substantial financial contribution to Rachael’s care and upbringing since he only took care of those expenses on the days Rachael stayed with him and, as he was in receipt of welfare benefits, those costs were borne by public funds.

The first applicant filed an appeal against the Deputy Minister’s decision to the Regional Court of The Hague sitting in Haarlem.

On 30 October 1998 the Supreme Court quashed the Regional Court’s decision of 26 November 1997 in the proceedings concerning parental authority and referred the case to the Court of Appeal ( gerechtshof ) of Amsterdam.

The Regional Court of Haarlem rejected the appeal against the refusal to grant the first applicant a residence permit. In its decision of 12 February 1999, the Regional Court held that Article 8 of the Convention did not oblige the national authorities to ensure that Rachael’s parents would not have to choose between leaving Rachael with her father in the Netherlands or letting her go to Brazil with her mother. Both these options were considered to be realistically feasible. According to the Regional Court, the fact that Rachael would have to miss either her father or her mother was, strictly speaking, the result of the parent’s choice to conceive a child at a time when the first applicant was not allowed to reside in the Netherlands.

On 15 July 1999 the Court of Appeal of Amsterdam confirmed the decision of the District Court of 20 February 1997; the parental authority over Rachael thus remained with Mr Hoogkamer. The first applicant filed an appeal on points of law, which was rejected by the Supreme Court on 27 October 2000.

In spite of having received a letter dated 8 July 1999 from the local police informing her that she had to leave the Netherlands within two weeks, the first applicant remains in the Netherlands. She works from Monday to Friday. Rachael stays with her at the weekend and with her grandparents during the week.

B. Relevant domestic law

Parental authority comprises the duty and the right of a parent to care for and bring up his or her child (Article 247 § 1 of the Civil Code ( Burgerlijk Wetboek – “CC”)). The parent invested with parental authority is the child’s statutory representative ( wettelijk vertegenwoordiger ) and administers the child’s possessions (Article 245 § 4 CC).

COMPLAINTS

1. The applicants complain that the decision not to allow the first applicant to reside in the Netherlands constitutes inhuman treatment within the meaning of Article 3 of the Convention.

2. They also allege a violation of Article 8, arguing that this provision protects Rachael’s right to respect for her family life with both her parents.

THE LAW

1. The applicants complain that as a result of the refusal to allow the first applicant to reside in the Netherlands, Rachael will have to live without either her mother or her father. In their view this amounts to treatment contrary to Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court reiterates that treatment has to reach a certain level of severity before it can be considered to be contrary to Article 3 of the Convention. The assessment of this level depends on all circumstances of the case (see Cruz Varas v. Sweden , judgment of 20 March 1991, Series A no. 201, p. 31, § 83). The Court finds that the facts of the present case do not demonstrate that this level was attained. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicants further submit that the refusal to grant the first applicant a residence permit constitutes an interference with their right to respect for their family life. They contend that in view of the close ties between mother and daughter, the first applicant would have been entitled to stay in the Netherlands if she had been residing there lawfully at the time Rachael was conceived and/or born. Rachael should not be blamed for the fact that her mother was not in possession of a residence permit at that time.

The applicants invoke Article 8 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone has the right to respect for his ... 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 ... 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 Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint concerning the interference with the right to respect for their family life;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President