CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 mai 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 15666/89                       by Catharina Johanna KERKHOVEN,                       Anna Maria HINKE and Stijn HINKE                       against the Netherlands           The European Commission of Human Rights sitting in private on 19 May 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ RUIZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    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 17 August 1989 by Catharina Johanna KERKHOVEN, Anna Maria HINKE and Stijn HINKE against the Netherlands and registered on 23 October 1989 under file No. 15666/89;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The applicants are Dutch nationals born in 1956, 1949 and 1986 respectively.   They reside in Nijmegen, the Netherlands.   The first and second applicant have a stable lesbian relationship since December 1983 and consider themselves to be the social parents of the third applicant, born on 20 November 1986, who biologically is the second applicant's son.   Before the Commission the applicants are represented by Mr. A.W.M. Willems, a lawyer practising in Amsterdam, the Netherlands.         The facts as submitted by the applicants may be summarised as follows.         The third applicant is born out of wedlock by means of artificial insemination.   The first and second applicant share the parental tasks between them.         On 14 January 1987 the first and second applicant requested the Nijmegen District Court (Kantonrechter) to be vested with the parental authority (ouderlijke macht) over the third applicant.   This request was rejected on 4 September 1987.         On 25 February 1988 the Arnhem Regional Court (Arrondissementsrechtbank) on appeal declared the applicants' request inadmissible.         On 24 February 1989 the Supreme Court (Hoge Raad) dismissed the applicants' plea of nullity.   It held, like the lower courts, inter alia, that unmarried parents can be vested with the parental authority over a minor if both have legal family ties with the child (in familierechtelijke betrekking staan tot).   In the present case only the biological mother (second applicant), who legally is the guardian of the third applicant, has legal family ties with her son.   The first applicant has no legal ties with the child nor can she establish those ties through recognition (erkenning) since this is impossible for a woman under Dutch law.   The Supreme Court furthermore found that the interference with the applicants' right to respect for their family life was justified under para. 2 of Article 8, without specifying on which ground.         Legal family ties can be established through recognition (erkenning) of the child but according to Article 221 Book 1 of the Civil Code (Burgerlijk Wetboek), only a man, whether the biological father or not, can recognise a child.     COMPLAINTS   1.     The applicants complain that the refusal to vest the first applicant with the parental authority over the third applicant constitutes an unjustified interference with their right to respect for their family life and their private life.   They invoke Article 8 of the Convention.   2.     The applicants further complain that they are discriminated against as, unlike heterosexual couples, they cannot enjoy their rights under Article 8 of the Convention with regard to parental authority. They also complain that the resulting difference in legal status between the third applicant and legitimate children amounts to discrimination.   They invoke Article 14 of the Convention in conjunction with Article 8.   THE LAW   1.     The applicants complain that their right to respect for their private and family life has unjustifiedly been interfered with in that the first applicant could not be vested with the parental authority over the third applicant.   They invoke Article 8 (Art. 8) of the Convention which reads, insofar as relevant, as follows:         "1.   Everyone has the right to respect for his private and       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 national security, public       safety or 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 Commission must first determine whether the factual situation at stake is such as to enjoy the protection afforded by Article 8 (Art. 8).         It is true that this provision protects the "legitimate" as well as the "illegitimate" family, i.e. the relationship between unmarried parents and their child(ren) (see Eur. Court H.R., Marckx judgment of 13 June 1979, Series A No. 31, p. 14, para. 31).   Its object is, according to the Court, "essentially" that of protecting the individual against arbitrary interference by the public authorities. Nevertheless, the Article does not merely compel the State to abstain from such interference.   In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective "respect" for family life (loc. cit.).         The Commission recalls that it has found in the past that, despite the evolution of attitudes towards homosexuality, a stable homosexual relationship between two women does not fall within the scope of the right to respect for family life ensured by Article 8 (Art. 8) of the Convention (No. 11716/85, Dec. 14.5.86, D.R. 47 p. 274).   The relationship between the first and the second applicant accordingly also falls outside the scope of Article 8 (Art. 8) insofar as it protects the right to respect for family life.         The Commission further notes that the relevant legislation in itself does not prevent the three applicants from living together as a family.   The only problem in the present case is the impossibility for the first applicant to establish legal ties with the third applicant which may become of practical importance should the natural mother die or should the relationship between the two adults end otherwise.   However, the Commission is of the opinion that the above described positive obligations of a State under Article 8 (Art. 8) do not go so far as to require that a woman such as the first applicant, living together with the mother of a child and the child itself, should be entitled to get parental rights over the child.   The Commission therefore considers that there has been no   interference with the applicants' right to respect for their family life.         It follows that the application in this respect is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         As regards private life, the Commission decided in the past (see No. 9369/81, Dec. 3.5.83, D.R. 32 p. 220, No. 11716/85, Dec. 14.5.86, D.R. 47 p. 274 and No. 14753/89, Dec. 9.10.89, unpublished) that the relationship of a homosexual couple constitutes a matter affecting their private life.   However, the Commission considers that the statutory impossibility for the first applicant to be vested with the parental authority over the third applicant does not entail any restriction in the applicants' enjoyment of their private life.   The Commission therefore finds that in the present case there has been no interference with the applicants' right to respect for their private life.         It follows that the application in this respect must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicants also claim to be the victims of discrimination in that, unlike heterosexual couples, they cannot enjoy their rights under Article 8 (Art. 8) with regard to parental authority, whereas in other fields Dutch law makes no distinction between homosexual and heterosexual couples.         They further complain that the third applicant is also discriminated against on the ground of his birth and status in comparison with legitimate children.   They invoke Article 14 of the Convention in conjunction with Article 8 (Art. 14+8).         The Commission notes that, as regards parental authority over a child, a homosexual couple cannot be equated to a man and a woman living together.         It follows that the application, in this respect also, is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission              President of the Commission             (H.C. KRÜGER)                            (C.A. NØRGAARD)