Instantie

Europees hof voor de rechten van de mens

Samenvatting

Sinds 1986 is de (ex-)echtgenoot van de vrouw spoorloos. In 1987 krijgt de vrouw samen met haar nieuwe
partner een kind. Dit kind is het wettig kind van de (ex-)echtgenoot, aangezien het huwelijk nog niet is ontbonden. De
Nederlandse wet biedt de vrouw geen mogelijkheid het vaderschap van de (ex-)echtgenoot te ontkennen.
Voor het bestaan van ‘family life’ is samenleven niet altijd vereist, ook niet als het gaat om een buitenhuwelijkse
relatie. Als er sprake is van ‘family life’ tussen de verwekker en het kind is de staat verplicht ervoor te zorgen
dat familierechtelijke betrekkingen tot stand kunnen komen.
Voorzover de Nederlandse regeling met betrekking tot ontkenning van het vaderschap van de ex-echtgenoot van de
moeder hieraan in de weg staat, is er sprake van strijd met artikel 8 EVRM.
Zie ook: HR 16 november 1990, m.nt. Nora Holtrust en Ineke de Hondt, RN 1991, 170 en ECRM 7 april 1993, RN 1994, 406.

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(…)
As to the law

I. Alleged violation of Article 8 of the Convention

28. The applicants complained that under Netherlands law it
was not possible for Mrs Kroon to have entered in the register
of births any statement that Mr M’Hallem-Driss was not Samir’s
father, with the result that Mr Zerrouk was not able to
recognise Samir as his child. They relied on Article 8 of the
Convention, which reads: ‘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 any violation had taken place,
whereas the Commission agreed with the applicants.

A. Applicability of Article 8
29. The Government argued that the relationship between Mr
Zerrouk on the one hand and Mrs Kroon and Samir on the other
did not amount to ‘family life’. Since Samir had been born of
an extramarital relationship, there was no family tie ipso
jure between him and Mr Zerrouk. Moreover, Mrs Kroon and Mr
Zerrouk had chosen not to marry and it was from choice that
the latter did not reside with Mrs Kroon and Samir. In
addition, the Government alleged that Mr Zerrouk did not
contribute to Samir’s care and upbringing in any way and that
there was nothing to show that he fulfilled the role of
Samir’s ‘social father’. The Commission noted the long-
standing relationship between Mrs Kroon and Mr Zerrouk and the
fact that it was not disputed that not only was the latter the
biological father of Samir but also three other children had
been born of that relationship. The applicants noted that
Netherlands law did not require a man to live with a child and
its mother in order to have the right to recognise the child
as his and thereby create legally recognised family ties. They
also claimed that Mr Zerrouk did in fact spend half his time
on Samir’s care and upbringing and made financial
contributions from his modest income.
30. Throughout the domestic proceedings it was assumed by all
concerned, including the registrar of births, deaths and
marriages, that the relationship in question constituted
‘family life’ and that Article 8 was applicable; this was also
accepted by the Netherlands courts. In any case, the Court
recalls that the notion of ‘family life’ in Article 8 is not
confined solely to marriage-based relationships and may
encompass other de facto ‘family ties’ where parties are
living together outside marriage (see as the most recent
authority, the Keegan v. Ireland judgment of 26 May 1994,
Series A no. 290, p. 17-18, 44). Although, as a rule, living
together may be a requirement for such a relationship,
exceptionally other factors may also serve to demonstrate that
a relationship has sufficient constancy to create de facto
‘family ties’; such is the case here, as since 1987 four
children have been born to Mrs Kroon and Mr Zerrouk. A child
born of such a relationship is ipso jure part of that ‘family
unit’ from the moment of its birth and by the very fact of it
(see the Keegan judgment, ibid.). There thus exists between
Samir and Mr Zerrouk a bond amounting to ‘family life’,
whatever the contribution of the latter to his son’s care and
upbringing. Article 8 is therefore applicable.

B. General principles
31. The Court reiterates that the essential object of Article
8 is to protect the individual against arbitrary action by the
public authorities. There may in addition be positive
obligations inherent in effective ‘respect’ for ‘family life’.
However, the boundaries between the State’s positive and
negative obligations under this provision do not lend
themselves to precise definition. The applicable principles
are nonetheless similar. In both contexts regard must be had
to the fair balance that has to be struck between the
competing interests of the individual and of the community as
a whole; and in both contexts the State enjoys a certain
margin of appreciation (see, as the most recent authority, the
above-mentioned Keegan judgment, p. 19, 49).
32. According to the principles set out by the Court in its
case-law, where the existence of a family tie with a child has
been established, the State must act in a manner calculated to
enable that tie to be developed and legal safeguards must be
established that render possible as from the moment of birth
or as soon as practicable thereafter the child’s integration
in his family (see, mutatis mutandis, the above-mentioned
Keegan judgement, p. 19, 50).

C. Compliance with Article 8
33. The applicants argued that Article 8, 1 place the
Netherlands under a positive obligation to enable Mr Zerrouk
to recognise family ties between the two. In de alternative,
the applicants suggested that the existence of legislation
which made impossible such recognition constituted an
‘interference’ with their right to ‘respect’ for their ‘family
life’ and that such interference was not necessary in a
democratic society.
34. The Government argued that, even assuming ‘family life’ to
exist, the Netherlands had complied fully with any positive
obligations it might have as regards the applicants. They
pointed, firstly, to the possibility of ‘step-parent adoption’
(see paragraph 24 above), i.e. adoption of Samir by Mrs Kroon
and Mr Zerrouk. It was true that this possibility was
contingent on there being no opposition from Mr Omar M’Hallem-
Driss and on Mrs Kroon and Mr Zerrouk marrying each other.
However, the possibility of any objection on the part of Mr
M’Hallem-Driss could be discounted; if, for reasons of their
own, Mrs Kroon and Mr Zerrouk did not wish to marry, that was
not a state of affairs for which the State could be held
responsible, since it placed no obstacles in the way of their
marriage. Further, under legislation in the course of
preparation, an unmarried parent who had previously exercised
sole parental authority over his or her child would be allowed
joint custody with his or her partner; this would give the
partner complete legal authority, on an equal footing with the
parent. In the alternative, the Government argued that if
there was an ‘interference’ with the applicants’ right to
respect for their ‘family life’ then this was ‘necessary in a
democratic society’ in the interests of legal certainty.
35. In the Commission’s view the fact that it was impossible
under Netherlands law for anyone but Mr Omar M’Hallem-Driss to
deny his paternity and for Mr Zerrouk to recognise Samir as
his child constituted a lack of respect for the applicants’
private and family life, in breach of a positive obligation
imposed by Article 8.
36. The Court recalls that in the instant case it has been
established that the relationship between the applicants
qualifies as ‘family life’ (see paragraph 30 above). There is
thus a positive obligation on the part of the competent
authorities to allow complete legal family ties to be formed
between Mr Zerrouk and his son Samir as expeditiously as
possible.
37. Under Netherlands law the ordinary instrument for creating
family ties between Mr Zerrouk and Samir was recognition (see
paragraph 23 above). However, since Samir was the ‘legitimate’
child of Mr Omar M’Hallem-Driss, Mr Zerrouk would only be in a
position to recognise Samir after Mr M’Hallem-Driss’s
paternity had been successfully denied. Except for Mr
M’Hallem-Driss himself, who was untraceable, only Mrs Kroon
could deny Mr Omar M’Hallem-Driss’s paternity. However, under
section 1:198 CC the possibility for the mother of a
‘legitimate’ child to deny the paternity of her husband was,
and is, only open in respect of a child born within 306 days
of dissolution of the marriage (see paragraph 19 above). Mrs
Kroon could not avail herself of that possibility since Samir
was born when she was still married. Indeed, this was not
contested by the Government.
38. The Government, however, suggested that there were other
ways of achieving an equivalent result. The first such
alternative suggested by the Government, step-parent adoption,
would make Samir the ‘legitimate’ child of Mr Zerrouk and Mrs
Kroon. However, it would require Mrs Kroon and Mr Zerrouk to
marry each other. For whatever reason, they do not wish to do
so. A solution which only allows a father to create a legal
tie with a child with whom he has a bond amounting to ‘family
life’ if he marries the child’s mother cannot be regarded as
compatible with the notion of ‘respect’ for ‘family life’.
39. The second alternative suggested by the Government, namely
that of joint custody, is not an acceptable solution either.
Even if the legislation being prepared comes into force as the
Government anticipate, joint custody will leave the legal ties
between Samir and Mr. Omar M’Hallem-Driss intact and will
continue to preclude the formation of such ties between Samir
and mr Zerrouk.
40. In the Court’s opinion, ‘respect’ for ‘family life’
requires that biological and social reality prevail over a
legal presumption which, as in the present case, flies in the
face of both established fact and the wishes of those
concerned without actually benefiting anyone. Accordingly, the
Court concludes that, even having regard to the margin of
appreciation left to the State, the Netherlands has failes to
secure to the applicants the ‘respect’ for their ‘family life’
to which they are entitled under the Convention. There has
accordingly been a violation of Article 8.

II Alleged violation of article 14 of the Convention in
conjunction with Article 8

41. The applicants also complained that, while Netherlands law
made it possible for the husband of a child’s mother to deny
being the father of the child, the mother’s right to challenge
her husband’s paternity was much more limited. They relied on
Article 14 of the Convention, which reads: ‘The enjoyment of
the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion,
national or social origin, association with a national
minority, birth or other status.’
42. The Court finds that this complaint is essentially the
same as the one under Article 8. Having found a violation of
that provision taken alone, the Court does not consider that
any separate issue arises under that Article in conjunction
with Article 14.
(…)

Rechters

Mrs. Ryssdal, Golcuklu, Martens, Foighel, Loizou,Morenilla, Baka, Mifsud Bonnici, Gotchev