DISSENTING OPINION OF MR. H.G. SCHERMERS

Article 8 para. 1.  Is the article applicable in case of adultery?

      I agree with the majority of the Commission that Article 8 of

the Convention is applicable in the present case.  In my opinion one

should accept as a matter of principle that there is always family

life between a biological father and his child.  It may be true that

this kind of family life does not always merit protection, e.g. in

the case of artificial insemination or rape, but the exceptions

should be based on para. 2 of Article 8.  There should be no

interference by public authorities with the family life of fathers

and children even if the children have been conceived by means of

artificial insemination or as a result of rape, if there are no

interests of other people involved and if both the father and the

child want to enjoy their family life.  I may illustrate this with an

example.

      Assume a child is born as a result of rape.  The mother does not

want any contact with the father of the child.  Article 8 para. 2

will then permit that public authorities interfere with the family

life between father and child for the protection of the rights of

others (the mother, perhaps also the child).  This does not, however,

exclude any possibility of family life under Article 8 para. 1.  Let

us assume that the mother dies, that the child has no other family

and that father and child both want to establish family life.  The

authorities cannot then interfere on the ground that family life of

a rapist cannot be recognised.  Human rights are for the benefits of

the bad as much as for the good.  Equally, the applicability of

Article 8 may not be denied on the ground that adultery is considered

unacceptable.  In the present case, therefore, Article 8 is

applicable and it should be considered whether interference is

permitted under Article 8 para. 2.

Article 8 para. 2

      According to the established case-law of the Court an

interference with the exercise of an Article 8 right will not be

compatible with paragraph 2 unless it is "in accordance with the

law", has an aim or aims that is or are legitimate under that

paragraph and is "necessary in a democratic society" for the

aforesaid aim or aims (see Dudgeon Case, series A no. 45, p. 19,

para. 43 and mutatis mutandis, the Young, James and Webster judgment

of 13 August 1981, Series A no. 44, p. 24, para. 59).

      It has not been contested that the first of these three

conditions was met.  The interference is "in accordance with the law"

since it results from Articles 197-199 of the Dutch Civil Code.

      It next falls to be determined whether the interference is aimed

at "the protection of morals", "the protection of the rights and

freedoms of others" or "the protection of disorder".  All three aims

are of some relevance.

      Although as the sole aim it may not be decisive, the aim of

protection of morals is relevant.  Adultery still being considered as

immoral by many people, one may accept that the law refuses to

recognise its consequences.

      "The protection of the rights and freedoms of others" is another

aim relevant in the present case.  By making it impossible to

challenge the paternity of children born in wedlock all families are

protected against legal acts casting doubts upon the paternity of

children.

      In my opinion, the main aim of the Dutch legislation is to

create legal certainty about the parental relations of children.

Such legal certainty is to the benefit of the legal order and

therefore serves for the prevention of disorder.

      As it has never been established that the aim or aims for which

measures under Article 8 para. 2 are taken must in themselves be

effective, each of the three aims mentioned above may be sufficient

to fulfil the requirement of a legitimate aim.  The three aims

together in any case meet this requirement.

      In my opinion the case hinges on the question whether or not the

Dutch legislation can be seen as "necessary in a democratic society"

for one or more of these aims.

      A number of principles relevant to the assessment of the

necessity in a democratic society, of a measure taken in furtherance

of an, under the Convention, legitimate aim, have been stated by the

Court in its case-law.

      Firstly, "necessary" in this context does not have the

flexibility of such expression as "useful", "reasonable", or

"desirable", but implies the existence of a "pressing social need"

for the interference in question (see the Handyside judgment,

Series A no. 24, p. 22, para. 48).

      In the second place, it is for the national authorities to make

the initial assessment of the pressing social need in each case;

accordingly, a margin of appreciation is left to them (ibid).

However, their decision remains subject to review by the Court

(ibid., p. 23, para. 49).

      As was illustrated by the European Court in the Sunday Times

judgment, the scope of the margin of appreciation is not identical in

respect of each of the aims justifying restrictions on a right

(Series A no. 30, p. 36, para. 59).  The margin of appreciation will

be more extensive where the protection of morals is concerned.  It is

an indisputable fact, as the Court stated in the Handyside judgment,

that "the view taken ... of the requirements of morals varies from

time to time and from place to place, especially in our era", and

that "by reason of their direct and continuous contact with the vital

forces of their countries, state authorities are in principle in a

better position than the international judge to give an opinion on

the exact content of those requirements" (ibid. p. 22, para. 48).

      In determining whether a State remains within the margin of

appreciation granted to it a balance must be found between the

general interest for which the interference was made and the interest

of the individual.

      In the present case the interest of the biological father and

his child for recognition of their relationship should be weighed

against the interest of society in legal certainty with respect to

the parentage of children born in wedlock.  The presumption that

children born in wedlock are children of the husband of their mother

prevents litigation about paternity in many cases.  For many

different reasons people may claim paternity of children of others.

This may lead to insecurity and social tensions.  A law providing

that a child is always the child of the husband of the mother is to

prevent such litigation.  In my opinion such provision may be

considered necessary in a democratic society for the prevention of

disorder and for the protection of morals.  The impossibility to

challenge the paternity of children born in wedlock is an important

part of the security of married life and should not be discarded

lightly.  Also the majority of the Commission accepts that the

generally recognised rule, according to which a married man is

presumed to be the father of his wife's children ("pater est quem

nuptiae demonstrant"), creates a reasonable presumption and that

there are good reasons why this presumption should not easily be

overturned (para. 39 of the report).

      One could submit that the Netherlands' legislation should be

refined to the effect, that the presumption is maintained, but that

legal paternity could be challenged, if undisputable proof is

available.  Perhaps this could be further restricted, e.g. by strict

time limits.  However, the security of families may still then be

endangered since modern medical means are now available to indeed

prove that the child of a family is not the child of its legal

father, whilst another man with whom the wife had a relation many

years ago can almost certainly be identified as the father.  The

permanent threat that the other man might claim "his" child could

seriously endanger family life.  The growing possibilities of proof

might encourage natural fathers of adulterine children to claim their

paternity if the law permitted them to do so.

      Taking account of the margin of appreciation which should be

left to the national authorities and of the existing alternative for

the natural father (stepfather's adoption), my conclusion in the

present case is that Article 8 of the Convention is applicable, but

that the interference is justified under para. 2 of that provision.