CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mai 1993

.sDD6737AE { font-size:11pt } .s2EAAAA4F { margin-top:6pt; margin-bottom:6pt; text-align:justify } .sBB9EE52A { font-family:Arial }              AS TO THE ADMISSIBILITY OF              Application No. 17783/91            by S. and K.            against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 5 May 1993, the following members being present:            MM. S. TRECHSEL, President of the Second Chamber            G. JÖRUNDSSON            A. WEITZEL            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS          Mrs. G.H. THUNE          MM. F. MARTINEZ            L. LOUCAIDES            J.-C. GEUS            M.A. NOWICKI            Mr. K. ROGGE, Secretary to the Second Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;      Having regard to the application introduced on 9 August 1990 by S. and K. against the Netherlands and registered on 11 February 1991 under file No. 17783/91;      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, born in 1953 and 1948 respectively, are Dutch citizens residing at Lekkerkerk in the Netherlands. Before the Commission they are represented by Mr. J.P.R.C. de Jonge, a lawyer practising in Rotterdam.      The facts of the case, as submitted by the applicants, may be summarised as follows.      The applicants have a lasting relationship since at least twelve years. They never married but from their relationship a daughter, X, was born in 1983. The applicants raise the child together.      The first applicant, the mother, is the girl’s guardian and holds the right of care and custody. The second applicant, the biological father, is co-guardian. He has not recognised (erkenning) the child and has thus not established legal family ties with her since the applicants decided that she should keep her mother’s family name.      On 12 September 1988 the applicants requested the Single Judge of the Rotterdam District Court (Kantonrechter) to be vested together with the parental authority (ouderlijke macht) over X. On 2 February 1989 the District Court rejected the applicants’ request on the ground that they did not fulfil the requirements determined by the Supreme Court’s case-law (e.g. Hoge Raad 21 March 1986, Nederlandse Jurisprudentie 1986, No. 585), in particular not the requirement that both parents must have legal family ties with the child (in familierechtelijke betrekking staan tot). The Court observed that since the first applicant "does not wish for reasons of his own to establish a legal family relationship with [X], he cannot be vested with a right that follows from an obligation based on legal family ties."      On 6 August 1990, the Rotterdam Regional Court (Arrondissementsrechtbank) on appeal upheld the District Court’s decision. The applicants did not file a plea of nullity with the Supreme Court (Hoge Raad) in view of its well-established case-law in this field.     COMPLAINTS   1.    The applicants complain under Article 8 of the Convention that the refusal of the Dutch courts to vest them together with the parental authority over their daughter on the ground that the first applicant has no legal family ties with her amounts to an unjustified interference with their private and family life.   2.   They further complain that they have been discriminated against since, unlike unmarried couples whose child has been recognised by the father, they cannot enjoy their rights under Article 8 of the Convention with regard to parental authority. They invoke Article 14 of the Convention in conjunction with Article 8.     THE LAW   1.   The applicants complain that the refusal of the Dutch courts to vest them together with the parental authority over their daughter, on the ground that the second applicant has no legal family ties with her, amounts to an unjustified interference with their private and family life. They rely on Article 8 (Art. 8) of the Convention, which guarantees to everyone the right to respect for his private and family life, and also invoke Article 14 (Art. 14) of the Convention.   2.   As to the first applicant, the mother, the Commission observes that, according to Article 25 (Art. 25) of the Convention, it is only competent to examine an application lodged by a person claiming to be the victim of a violation by the High Contracting Parties of the rights and freedoms set forth in the Convention. The first applicant alleges a violation of the rights of her partner, the second applicant. The alleged violation does not affect her own situation. She therefore cannot claim to be a victim of the measure complained of and her application is thus incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.   The second applicant alleges a violation of Article 8 para. 1 (Art. 8-1) of the Convention which guarantees the right to respect for private and family life. The Commission considers that the complaint mainly concerns the applicant’s family life.      In this respect, the Commission observes at the outset that Article 8 (Art. 8) protects the "legitimate" as well as the "illegitimate" family, i.e. the relationship between unmarried parents and their child(ren). Its object is "essentially" that of protecting the individual against arbitrary interference by the public authorities. Nevertheless, Article 8 (Art. 8) 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. This means, among other things, that when the State determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried father and his child, it must act in a manner calculated to allow those concerned to lead a normal family life. As envisaged by Article 8 (Art. 8), respect for family life implies in particular the existence in domestic law of legal safeguards that render possible as from the moment of birth the child’s integration in its family. In this connection, the State has a choice of various means, but a law that fails to satisfy this requirement violates paragraph 1 of Article 8 (Art. 8) without there being any call to examine it under paragraph 2 (see mutatis mutandis Eur. Court H.R., Marckx judgment of 13 June 1979, Series A No. 31, pp. 14 f., para. 31).      In the present case the father claims the formal right of care and custody. According to Dutch law, this right is vested with the mother only and exclusively, unless the father fulfils certain conditions, the one at issue being recognition of his child. In practice, however, the first applicant voluntarily shares the exercise of this right with the second applicant. Therefore, Dutch law in itself does not prevent the second applicant from enjoying his family life or from maintaining a normal father-child relationship with the child born out of wedlock, as he is living with the child and the child’s mother.      Moreover, the Commission has already held in the past that it is a consequence of a couple’s free decision not to marry that an unmarried father does not enjoy all the privileges national family law attributes to a married father (No. 9639/82, Dec. 15.3.84, D.R. 36 p. 130 at pp. 139 f.). In addition, the couple’s free choice not to have the child recognised by her father entails the same consequences. Thus, if both parents wish to develop legal family relations they are free to marry or, alternatively, the father can recognise his child which would provide them with those legal advantages they require. If, however, they choose not to marry and in addition they decide that the father will not recognise his daughter in order to avoid the application of marriage and family law, they are themselves responsible for the legal consequences of their choice.      In conclusion the Commission does not find that Dutch law on this point fails to respect the second applicant’s right to respect for his family life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.      It follows that in this respect the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.   The second applicant finally complains that both applicants are discriminated against since, unlike unmarried couples whose child has been recognised by the father, they cannot jointly enjoy their rights under Article 8 (Art. 8) of the Convention with regard to parental authority. He invokes Article 14 of the Convention in conjunction with Article 8 (Art. 14+8).      The Commission considers that the difference in treatment complained of is the result of the second applicant’s free choice not to recognise his daughter and concludes 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 unanimously      DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the                President of the   Second Chamber                 Second Chamber     (K. ROGGE)                  (S. TRECHSEL)