CEDH · CASELAW;CLIN;ENG — 30 juin 2022

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Greece - 61657/16 Judgment 30.6.2022 [Section I] Article 14 Discrimination Father of child born out of wedlock unable to exercise parental responsibility without mother’s consent, in spite of parentage established by DNA test: violation Facts – In 2007 E.K. instituted paternity proceedings, alleging that the applicant was the father of her daughter, A.K., who had been born in 2002. In 2008 a DNA test ordered by the Court of First Instance established the applicant’s parentage of A.K. By a formal written notice the applicant requested E.K.’s attendance before a notary to execute an acknowledgment of paternity of A.K, but E.K. did not attend. The national courts rejected the applicant’s request to make a voluntary acknowledgment of paternity of his daughter before a notary. In 2016 the Court of Cassation held that as long as the child’s mother was alive and had legal capacity, the father’s only recourse if she withheld consent was to apply for a judicial determination of paternity. Law – Article 14 in conjunction with Article 8: Domestic law subjected the unmarried father of a child born out of wedlock to a difference in treatment in relation to the child’s mother or a married or divorced father. In particular, Article 1515 of the Civil Code provided that in the case of a judicial determination of paternity an agreement between the parents was required in order for an unmarried father to exercise parental responsibility. The court could decide otherwise at the father’s instance where the interests of the child so required, but only if the mother no longer had parental responsibility or was unable to exercise it for legal or practical reasons, or if an agreement had been reached between the parents. In the present case, once a DNA test had established his parentage of A.K., the applicant had sought to have his paternity acknowledged. Domestic law, however, would not have allowed him to exercise parental responsibility even where doing so would have been in the child’s best interests. Nor had it been possible for him to obtain a court order to overcome the mother’s withholding of consent to shared parental responsibility, even though she had not denied his parentage of A.K. The Court was not persuaded by the Government’s submission that the mother-child relationship was different to the father-child relationship. Although obviously that might be true in some cases, the argument could not be used here to deprive the applicant automatically of the exercise of parental responsibility. In that connection, Article 1515 of the Civil Code had been amended in 2021 and now provided that the courts could also allow the exercise of parental responsibility by the father of a child born out of wedlock, upon an application by him, where the child’s interests so required. Thus, parental responsibility was no longer conferred automatically on the mother alone. While having regard to the authorities’ wide margin of appreciation in matters of parental responsibility, the Court reiterated its previous finding that the point of departure in the majority of member States seemed to be that decisions as to parental responsibility were to be based on the child’s best interests and had to be subject to scrutiny by the domestic courts in the event of a conflict between the parents. The Government had not adequately explained why it had been necessary, at the material time, for domestic law to prescribe such a difference in treatment between the fathers and mothers of children born out of wedlock and of children born in wedlock. As regards the discrimination alleged, there was no reasonable relationship of proportionality between the preclusion of the applicant’s exercise of parental responsibility and the aim pursued, which had been to protect the best interests of children born out of wedlock. Conclusion: violation (unanimously). The Court also held, unanimously, that there had been a violation of Article 8, as the positive obligation to exercise exceptional diligence in such cases meant that the time elapsed – nine years and four months, at three levels of jurisdiction – could not be regarded as reasonable. Article 41: EUR 9,800 in respect of non-pecuniary damage. (See also Zaunegger v. Germany , 22028/04, 3 December 2009, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes