CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 septembre 2000

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Ferrari Bravo, President,   Mrs   W. Thomassen,   Mr   Gaukur Jörundsson,   Mr   R. Türmen,   Mr   C. Bîrsan,   Mr   J. Casadevall,   Mr   R. Maruste, judges, and   Mr   M. O’Boyle, Section Registrar ,     Having regard to the above application introduced with the European Commission of Human Rights on 5 June 1996 and registered on 8 November 1996,     Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,     Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,     Having deliberated, decides as follows: THE FACTS   The applicant is an Egyptian national, born in 1959 and, as far as the Court is aware, at present living in Deventer (Netherlands).   He is represented before the Court by Mr J.H.F. Schultz van Haegen, a lawyer practising in The Hague (Netherlands).     A.   Particular circumstances of the case     The facts of the case, as submitted by the parties, may be summarised as follows.     Factual background     The applicant first arrived in the Netherlands in 1985. In that year he met Ms R., a Netherlands national.   On 16 January 1987 a daughter, S., was born out of the ensuing relationship between the applicant and Ms R., who were not married and were not living together.   By a decision of 12 February 1987 the District Court Judge ( Kantonrechter ) of Deventer appointed the applicant as co-guardian ( toeziend voogd ) of S., Ms R. as her mother ipso iure being her guardian ( voogdes ).     At some time in or around August 1987, the applicant moved in with Ms R. and their daughter in the house of Ms R.'s mother.   They lived together for about one year     The applicant went to the Middle East in July 1988 and stayed there for some two and a half years.   During this time contact between the applicant on the one hand and Ms R. and S. on the other was limited to the exchange of some letters.     The applicant returned to the Netherlands in early 1991.   The applicant states that he saw S. every two weeks until 1993.   Despite the applicant's repeated requests, Ms R. refused to give him permission to recognise ( erkennen ) S.     Ms R. contracted a terminal illness.   On 9 June 1993 she made a will in which she expressed the wish that after her death her brother Mr H.R. should have guardianship of her daughter S.   In January 1994 the applicant instigated summary injunction proceedings ( kort geding ) before the President of the Regional Court ( Arrondissementsrechtbank ) of Zwolle, seeking an order that Ms R. give him permission to recognise S.   On 25 January 1994 the President gave a judgment refusing to grant the injunction sought.   The President considered that Ms R. had not abused her power to withhold permission to the applicant's recognition of S., since the change of family name which such recognition would entail for S. could not be deemed to be in her best interests.   However, the President added by way of obiter dictum that it was important for both the applicant and his daughter that contacts between them be continued.   The President therefore thought it desirable that S. spend every other weekend with her father.     In a further, supplementary, will dated 7 February 1994 Ms R. stated that she had agreed with another of her brothers, Mr J.R., that after her death S. would be placed with his family.   Ms R. further stated that it was her express wish that the applicant should not visit her daughter as this would seriously disrupt the life of the family in which S. was to be raised.   Ms   R. also expressed the opinion that it would be contrary to the best interests of her daughter if the applicant were to obtain access to S.   According to Ms R., the applicant had no fixed abode, no residence permit, no employment and no financial means; he would only use the care for his daughter as a pretext to obtain a residence permit in the Netherlands and thus be entitled to social-security benefits.   Prior to her illness, the applicant had not shown much interest in S., nor had he contributed financially to S.’s upbringing.     Ms R. died on 15 February 1994.   In conformity with her wishes, her brother Mr H.R. was granted guardianship of S. and S. was placed in the family of Mr J.R. The applicant saw S. once every three weeks.     Following Ms R.'s death the applicant requested the Registrar of births, deaths and marriages ( ambtenaar van de burgerlijke stand , hereinafter "the Registrar") of Deventer to draw up a deed of recognition and to enter this into the registry of births.   By a letter of 18   February 1994 the Registrar notified the applicant of his refusal to do so, being of the opinion that Egyptian law, which did not provide for the recognition of children, applied.     Proceedings in the Regional Court of Zwolle     On 28 February 1994 the applicant lodged a request pursuant to Article 1:29 of the Civil Code ( Burgerlijk Wetboek ) with the Regional Court of Zwolle asking that the Registrar be ordered to draw up the deed of recognition and enter it into the appropriate registers.   Although the Regional Court agreed with the applicant that Netherlands law applied, it nevertheless refused to grant the request on 19 October 1994.   It considered that, when alive, Ms R. had always withheld her permission to the applicant's recognition of S.; it had not been established that there was family life within the meaning of Article 8 of the Convention; following Ms R.'s death somebody other than the applicant had been granted guardianship of S.; and S. was, moreover, not living with the applicant.     Proceedings in the Regional Court of Maastricht     Meanwhile, in June 1994, the applicant requested the Regional Court of Maastricht to grant him access to S. every other weekend, as had been recommended by the President of the Regional Court of Zwolle.   He submitted that Mr H.R. frustrated his right to regular and undisturbed access to his daughter.   At the hearing in these proceedings on 3 October 1994 Mr   H.R. and Mr J.R. stated that there was not and never had been family life between the applicant and S.; that the applicant only wanted regular access to S. in order to obtain a residence permit; that S. was settling into her new family; that S. called Mr J.R. her father; that S. did not enjoy the applicant's visits; and that she did not trust him.   In reply, the applicant stated that S. was very important to him; that the late Ms R. had been heavily influenced by her dominant mother; that unbeknownst to Ms R.'s mother the applicant had continued the relationship with Ms R. after they had stopped living together; and that it was Ms R.'s mother who had told S. not to call the applicant "father".     At the conclusion of the hearing the Regional Court decided that the contacts between the applicant and S. were to continue at the offices of the Child Welfare Board ( Raad voor de Kinderbescherming ) and that it would take a decision based on a report to be drawn up by this organisation.         Proceedings in the Court of Appeal     The applicant lodged an appeal with the Court of Appeal ( Gerechtshof ) of Arnhem against the decision of the Regional Court of Zwolle not to order the Registrar to draw up a deed of recognition.   He argued that Ms R.'s refusal to consent to his recognition of S. no longer had effect after her death. This being so, there was no call for the courts to go into the question whether or not there existed family life between the applicant and S. Should the Court of Appeal nevertheless be of the opinion that it ought to examine this question and that a balancing exercise as required by Article 8 of the Convention was called for, the applicant submitted that he was the natural father of S.; that not only had there been a meaningful relationship between Ms R. and himself, they had also lived together as a family for some time and they had contributed equally to the care and upbringing of S.   The applicant also referred to his request lodged with the Regional Court of Maastricht to have his rights of access to S. increased.   While he conceded that during the mother's lifetime an unwanted recognition might constitute a disproportionate interference with her private and family life, after her death only the interests of the applicant and the child remained to be balanced against each other and there were no weighty interests on the side of the child which militated against recognition.     The applicant finally submitted that it had been his desire from the outset to obtain guardianship ( voogdij ) of S. after her mother's death and that S. should live with him.   In order for a request for a change of guardianship to stand any chance of success the applicant ought first to have recognised his daughter.   The applicant urged the Court of Appeal to deal with his request speedily as he was being threatened with expulsion, the Deputy Secretary for Justice ( Staatssecretaris voor Justitie ) not accepting that there was family life between the applicant and S.   Recognition would serve to confirm officially the natural ties between father and daughter.     At the hearing before the Court of Appeal on 8 December 1994 the applicant submitted, inter alia , that he had always done everything possible to ensure S.’s happiness but that Ms R.'s family had never accepted him. However, the relationship between S. and himself was very strong.     By decision of 17 January 1995 the Court of Appeal rejected the applicant's appeal. It held that the explicit refusal of Ms R. to consent to the applicant's recognition of S. had not ceased to have effect after her death as she had stated in her will that she maintained this refusal which she had considered to be in the best interests of S.     The Court of Appeal further found that even assuming that family life had at one time existed between the applicant and S., that tie had been broken by subsequent events.   The contacts which had taken place between the applicant on the one hand and Ms R. and S. on the other had been so sparse and irregular, and so devoid of mutual commitment, that they could no longer be regarded as constituting family life.   The Court of Appeal went on to hold, however, that even if it had to be assumed that family life still existed, the interests of the child should be its foremost consideration.   These interests would be best served by allowing S. to grow up in the family where she had been placed after the death of her mother and in accordance with her mother's explicit last wishes, and where she received the care she needed.   The recognition intended by the applicant was aimed at bringing about a change in this situation and could, for that reason, not be held to be in the best interests of S.    The Court of Appeal found that this was all the less so as the applicant had never had the care of S., had not previously indicated that he actually wished to care for her and in addition had not substantiated his claim that he would be able to discharge his duty of care in a responsible manner.   Moreover, recognition would mean that S. would automatically take the applicant's family name, whereas she now had the same family name as the other members of the family in which she was growing up.     Proceedings in the Supreme Court     The applicant lodged an appeal on points of law with the Supreme Court ( Hoge Raad ), arguing, inter alia , that the Court of Appeal had been wrong to hold that the refusal of Ms R. to consent to the applicant's recognition of S. could still have effect after her death.   Moreover, the relevant legal provisions did not require that in order for the natural father to recognise a child following the death of the mother there should be family life between them.   In any event, contrary to what the Court of Appeal had found, there was family life between the applicant and S., so that the Court of Appeal’s finding on this point was incomprehensible.     According to the applicant, the Court of Appeal had also been wrong to hold that it would be in the best interests of S. to be raised in the family of J.R.   The legislator had, on the contrary, deemed that recognition by the natural father would serve a child's interests in a case as the present one where the mother had died.   Moreover, recognition as such would not entail any changes in the child's living arrangements.   Such changes could only be brought about if the applicant were to file a request for a change in the guardianship arrangements, in which event the interests of the child could be assessed at that time.   Finally, the applicant submitted that the Court of Appeal could not have properly assessed what was in the best interests of S. without having sought the opinion of the Child Welfare Board.     By decision of 8 December 1995 the Supreme Court rejected the appeal in cassation.   It agreed with the applicant that Ms R.'s refusal to consent to his recognition of S. was no longer valid after her death.   It further found the Court of Appeal's opinion that there no longer was family life between the applicant and S. not to be incomprehensible.   However, the Court of Appeal had in addition given reasons for its decision not to order the Registrar to draw up a deed of recognition even assuming that family life did exist; this reasoning, in the view of   the Supreme Court, was sufficient in itself to support the Court of Appeal’s decision.   In this regard the Supreme Court recalled that as a result of a valid recognition legally recognised family ties ( familierechtelijke betrekkingen ) would be created between the child and the person who had recognised the child.   This far-reaching consequence meant that recognition could affect interests of the child which were protected by Article 8 of the Convention.   Although recognition could serve these interests, it could similarly harm them.   Article 8 had thus required the Court of Appeal to balance the applicant's interest in having the relation between himself and S. confirmed as a legally recognised family tie, assuming that this relation constituted family life, against the interest of the child not to be recognised by him.   The Supreme Court found that the Court of Appeal had adequately acquitted itself of this task.     Given that the applicant had never made a secret of the fact that he intended to obtain guardianship of S. and to have her live with him, the Court of Appeal had been correct to take into account S.’s interest in not having her residence with the family of Mr J.R. threatened by the outcome of further legal proceedings.   Finally, the legal provisions in force had not required the Court of Appeal to seek advice from the Child Welfare Board and it had been up to the Court of Appeal itself to determine whether or not it needed such advice.     During and following the proceedings before the Supreme Court a change in the living arrangements of S. occurred; the Supreme Court was unable to take these new circumstances into account as, pursuant to Article 419 § 2 of the Code of Civil Procedure ( Wetboek van Burgerlijke Rechtsvordering ), it was bound by the facts as established by the Court of Appeal and contained in the case-file.     Subsequent developments     In September 1995 S. returned to live with her maternal grandmother.   According to the Child Welfare Board, one of the reasons for this was the distress caused to the family of her uncle Mr J.R. by the applicant's seeking access to S.   On 31 January 1996 the Child Welfare Board requested the Juvenile Judge ( kinderrechter ) of the Regional Court of Amsterdam to issue a supervision order ( ondertoezichtstelling ) in respect of S.   During a hearing on 21   February 1996 the Juvenile Judge stated that for the time being it would be best if S. stayed with her grandmother, but that there should be contact between the applicant and S. and that the applicant's future role in the life of S. should be further examined.   On 6 March 1996 the Juvenile Judge issued a supervision order and appointed a family guardian ( gezinsvoogd ).     On 6 November 1996 the Registrar refused to comply with a new request from the applicant to draw up a deed of recognition and enter it into the registry of births.   The applicant again turned to the Regional Court of Zwolle, submitting that the circumstances leading to the rejection of his first request had changed as S. was no longer living with her uncle.   He further stated that he was concerned about his daughter's well-being in view of the advanced age of the grandmother and the latter's dominant character.   Moreover, the applicant submitted that he was capable of looking after S. himself.     The Regional Court rejected the applicant's request on 26   May   1997. It considered that the change in living arrangements of S. had been brought about by the Juvenile Judge and could not be held to be to the detriment of S.   Moreover, the persons responsible for the care and upbringing of S. were in receipt of assistance as a result of the supervision order.   The change in the living arrangements could therefore not as such lead to a different result of the balancing exercise as had been carried out by the Court of Appeal of Arnhem.   Noting that the applicant was still attempting to obtain guardianship of S., the Regional Court finally considered that the recognition of S. by the applicant would not be in her best interests.     The applicant did not file an appeal against the decision of the Regional Court of 26   May 1997.     As of the entry into force of the Act of 6 April 1995, which abolished the institution of co-guardianship, the applicant is no longer co-guardian of S.   B.   Relevant domestic law     Family law     At the relevant time, the position in domestic law was the following.     A child born out of wedlock had the status of natural child of its mother.     Recognition entailed the creation of a legally recognised family tie between the child and the father, as well as between the child and the relatives of the father (Article 1:222 of the Civil Code).   At the relevant time the family name of an illegitimate child was the family name of its father if the latter had recognised the child (Article 1:5 § 2 of the Civil Code).     Recognition of a child could be effected on the birth certificate itself or by a separate deed of recognition drawn up for that purpose by the Registrar of Births, Deaths and Marriages or a notary (Article 1:223 of the Civil Code).   A deed of recognition drawn up by the Registrar was entered into the register of births (Article 1:21 § 3 of the Civil Code).   At the request of an interested party the Regional Court might order that a deed be entered into the appropriate registers (Article 1:29 §   1 of the Civil Code).       A recognition was invalid if it was made during the mother's lifetime without her prior consent in writing (Article 1:224 § 1 (d) of the Civil Code).   However, the Supreme Court construed this provision in such a way that the effective right of veto which this provision gave the mother could be overridden if she abused it (see inter alia the Supreme Court’s judgment of 8 April 1988, Rechtspraak van de Week – Weekly Law Reports – 1988, no. 73).     The man who had recognised the child (see above) – could apply to the District Court for the guardianship of the child.   If a person other than the mother had guardianship, such an application could only be refused if there was reason to fear that the child’s interests would be neglected.   On the other hand, if the mother had guardianship, the application would only be allowed if the District Court considered that the child’s interests would thus be best served (Article 1:288 of the Civil Code).     In proceedings concerning, inter alia , parental authority, guardianship and access, the court could obtain advice from the Child Welfare Board if it considered such advice necessary in order to make a proper assessment of the best interests of the child (Article 902a Code of Civil Procedure).     On 1 April 1998 a new Article 1:204 of the Civil Code entered into force. Although it is still provided that, for a man to recognise a child who is not yet sixteen years old as his, the prior written permission of the mother is required (Article 1:204 §   1   (c)), the mother’s permission can be replaced by the permission of the Regional Court (Article 1:204 §   3).   However, the man who seeks such permission must be the child’s biological father; in addition, recognition must not be detrimental to the mother’s relationship with the child or to the child’s own interests (ibid.).     Status of the Convention in Netherlands domestic law     The status of the Convention in Netherlands domestic law is regulated by the following provisions of the Netherlands constitution:   Article 93   Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.     Article 94   Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of treaties that are binding on all persons or of resolutions by international institutions.     COMPLAINTS   1.   The applicant complains under Article 8 of the Convention of an unjustified interference with his right to respect for his private and family life in that he was not allowed to recognise his daughter.   2.   He submits in the first place that this interference was not in accordance with the law, since after the death of Ms R. there was no legal provision on the basis of which he could have been prevented from recognising his daughter.   3.   Furthermore, he complains that no account was taken of the child's interest in having a legal parent, which interest was all the greater after the death of her mother, nor of the applicant's interest in obtaining a legally recognised family tie with the child of whom he is the natural father.   4.   Finally, since the recognition by the applicant of his daughter would not have entailed any change in the child's living arrangements, her interest in not having her stay with her uncle's family threatened should not have featured in the balancing exercise carried out by the domestic courts.     PROCEDURE     The application was introduced on 5 June 1996 and registered on 8 November 1996.     On 1 July 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.     The Government’s written observations were submitted on 5 October 1998. The applicant replied on 15 January 1999.     On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.     THE LAW   Article 8 of the Convention provides as follows:   “1.     Everyone has the right to respect for his private and family life, his home and his correspondence.   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 Government denied that there was “family life” between the applicant and S. at any relevant time.     In their view the relationship between the applicant and Ms R. was not stable enough to be equated with marriage.   They argued that the applicant and Ms R. had only begun cohabiting after S. was born, so that S.’s birth itself had not created “family life”; moreover, cohabitation had not led the applicant to assume any responsibility for the care of Ms R. and S.     In so far as “family life” had at any time existed, subsequent events for which the applicant himself bore responsibility had obliterated it.   The most important such event was the termination of cohabitation between the applicant and Ms R., after which the applicant had moved to the Middle East for two and a half years.   During this time the applicant had had no contact with S. and only sporadic contact with Ms R.   After his return to the Netherlands contact had been “intermittent and spasmodic”.     In response to this argument the applicant confined himself to noting that the Government had not denied the existence of an interference with his right to respect for his “private life”.     Having regard to the parties’ submissions and to its case-law, the Court considers that the applicant’s complaints raise complex questions of fact and law which require an examination on the merits.   They cannot, therefore, be declared inadmissible as manifestly ill ‑ founded within the meaning of Article 35 § 1 of the Convention.     For these reasons, the Court, unanimously,   DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.         Michael O’Boyle   Luigi Ferrari Bravo   Registrar   President