Information Note on the Court’s case-law 36

November 2001

R.W. and C. T.G.-W. v. Austria (dec.) - 36222/97

Decision 22.11.2001 [Section III]

Article 5 of Protocol No. 7

Relations with children

In the event of dissolution of marriage

Legal impossibility for parents to obtain joint custody over child after divorce: inadmissible

In 1990, the applicants, who were married at the time, had a child. In 1993, they made a petition for divorce by consent which was granted. In the settlement regulating the legal consequences of their divorce they agreed, contrary to section 177 of the Civil Code, to continue exercising joint custody over their son. This settlement was subject to approval in separate custody proceedings. In these proceedings, the District Court refused to approve the applicants’ settlement on the ground that domestic law did not provide for joint custody after divorce except where the former spouses cont inued living in a common household, which was not their case. The applicants appealed against this decision to the Regional Court, which requested the Constitutional Court to review the constitutionality of section 177 of the Civil Code. The latter court f ound the provision to be in conformity with the Constitution. Accordingly the Regional Court rejected the applicants’ appeal. The Supreme Court dismissed their subsequent appeal on points of law.

Inadmissible under Article 5 of Protocol No. 7: The Court ha s previously held (Cernecki v. Austria) that the necessity clause in Article 5 of Protocol No. 7 should be interpreted in the same way as the necessity clauses of other provisions of the Convention and that the exclusion of the possibility of awarding join t custody after divorce fell within the margin of appreciation left to the Contracting State when assessing what is necessary in the interests of the children. There is nothing to distinguish the present case: manifestly ill-founded.

© Council of Europe/E uropean Court of Human Rights This summary by the Registry does not bind the Court.

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