Information Note on the Court’s case-law 34

September 2001

G.M.B. and K.M. v. Switzerland (dec.) - 36797/97

Decision 27.9.2001 [Section II]

Article 8

Article 8-1

Respect for family life

Refusal of authorities to give mother’s surname to child when family name of spouses is the father’s: inadmissible

The applicants married in 1989 and had a daughter in 1995. They wanted their daughter to have her mother’s surnam e but the Registry Office refused, considering that, pursuant to the Civil Code, she would be given the family name which, in the applicants’ case, was the father’s surname. The Canton Directorate for the Interior rejected the applicants’ appeal against th e decision. It held that when parents are married, their child will be given the name which they have chosen as family name, which can be either the father’s or the mother’s. It found that since the applicants had chosen the husband’s surname as their fami ly name, their child would therefore bear this surname. The Federal Court rejected the applicants’ further appeal. It found that the case concerned not only the interests of the parents but also the child’s own interests to have a family name and to be att ached to a family.

Inadmissible under Article 8:  As a means of personal identification and a link to a family, a person’s name concerns his or her private and family life within the meaning of Article 8. The fact that society and the State have an interes t in regulating the use of names does not exclude it, since these public-law aspects are compatible with private life conceived as including to a certain degree, the right to establish and develop relationships with other human beings. The refusal of the S wiss authorities to allow the applicants to adopt a particular surname for their child could not necessarily be considered as an interference with the exercise of their right to respect for their private and family life. There may nonetheless be positive o bligations under Article 8 for States inherent in an effective respect for private and family life. Since the issues in the present case concerned areas where different solutions prevail among Convention States and the law appears to be in a transitional s tage, the respondent State benefited from a wide margin of appreciation. No particular inconvenience was shown as regards the fact that the applicants’ daughter had to be given their family name, which was the father’s, rather than the mother’s surname. Th e domestic courts held that, according to the Civil Code, the applicants were able, upon their marriage, to choose the wife’s name as their family name, as a consequence of which their daughter would have been given it as her surname. Moreover, the Governm ent and the Federal Court emphasised the importance for a child to be united, by means of its name, to the family, and that the system chosen in Switzerland served the purpose of preserving the unity of the family. The community as whole has an interest in maintaining a coherent system of family law which places the best interest of the child at the forefront. In conclusion, in view of the flexibility which Swiss law affords to couples in the choice of their family name and the fact that the applicants did not maintain any particular inconvenience concerning their concrete situation, given the margin of appreciation left to domestic authorities in such matters there was no failure to respect the applicants’ private and family life: manifestly ill-founded.

In admissible under Article 14 combined with Article 8: Swiss legislation places importance on the child being united, through its name, with the family, with a view to preserving the unity of the family. Furthermore, in such cases States enjoy a wide margin of appreciation. The applicants chose the husband’s name as family name when, according to domestic law, they could have chosen the wife’s surname. Therefore, it could not be considered there was a difference in treatment amounting to discrimination: manif estly ill-founded.

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

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