Case law concerning the constitution of fatherhood as a parental relation in the European Court of Human Rights is vast if all complaints relating to paternity, right of access of fathers to their children and custody battles are taken together. In this and the following sub-chapter, I wish to concentrate on judgements that focus on how paternity as a legal relation is constituted in European human rights jurisprudence. The first set of cases dealing with a willingness and a desire to establish a relation of paternal filiation are discussed in this sub-chapter, and they offer descriptions of rather clear conflicts of biological paternity against legal paternity. The latter set of cases discussed in the following sub-chapter (5.4) deal with rejection of paternity by presumed fathers, established according to a legal assumption or following a paternity suit initiated by the mother of the child or the child herself. The historical shift in the certainty of biological fatherhood due to the emergence of genetic (DNA) testing has in many ways re-structured the field of constituting paternity. However, as the case law illustrates, paternity cannot be solely reduced to a genetic tie, as other considerations may play a part as legal authority reserves the supreme right to decide otherwise. In any case, DNA testing has in many ways “biologised” (Machado 2008) paternity, perhaps leaving less influence to other considerations which in the absence of DNA testing have led to also misattributing paternity.
The judgement ofJohnston and others v. Ireland from 198660 has been presented by Meulders-Klein (1996: 492) as a kind of a male counterpart to theMarckx case, as it establishes the right of the child born outside marriage to establish maternal and paternal ties with her parents. The applicants were a cohabiting couple and their child. Mr Johnston got married in 1952. In 1965, Mr Johnston and his wife began to live in separate parts of the family home.
Mr Johnston had been living with Ms W. for seven years when they had a child in 1978. According to the case material, Mr Johnston was named as the father of the child in the Register of Births. Mr and Mrs Johnston were unable to divorce under the Irish legislation in force at the time, but Mr Johnston had made arrangements to the benefit of Ms W. and their daughter. In front of the Commission on Human Rights, Mr Johnston, Ms W. and their child complained of the “absence of provision in Ireland for divorce and for recognition of family life of persons who, after the breakdown of marriage of one of them, are living in a family relationship outside marriage”61. The Court held “unanimously that the legal situation of the third applicant under Irish law gives rise to a violation of Article 8 (art. 8) as regards all three
60Johnston and Others v. Ireland, 18 December 1986, Series A no. 112, discussed also in Chapter 4.2. The Johnston case is also relevant to the privatisation of dyadic relationships between adults and Théry’s (1993)démariage thesis, even though it did not recognise a right to divorceper se.
61Johnston and others v. Ireland, para 38.
applicants”62. In contrast, it did not find a violation of Article 8 or Article 12 due to the absence of divorce in Irish legislation and the resultant inability of Mr Johnston and Ms W to marry.63
The inadmissibility decision ofB., R. and J. against the Federal Republic of Germany from 198464 is also closely linked to theMarckx case in relation to the status of children born outside marriage. The decision shows how the status of unmarried mothers and fathers was by no means symmetrical. In the case, R., B. and J., their child, lived together. R., the unmarried father of J., complained that there was no way for him to jointly exercise the care and custody of J. except marrying B., the mother of J. According to relevant legislation at the time (Section 1705 BGB), all other forms of recognising J., namely a declaration of legitimacy (Ehelicherklärung), adoption or appointment as guardian (Vormund) meant that the mother lost the right to care and custody of the child. When the applicants argued their case in the European Court, they referred toMarckx v. Belgium in their defence:
The applicants point out that in the Marckx judgement, the Court, on the one hand, recognised that support and encouragement of the traditional family was in itself legitimate or even praiseworthy, but, on the other hand, the court underlined that, in the achievement of this end, recourse must not be had to measures the object or result of which was to prejudice the “illegitimate” family. In their opinion the freedom of the individual to marry or not to marry is curtailed by the legal situation complained of because, in order to obtain the joint right to care and custody of his child, an unmarried father has no other choice than to marry the mother of his child.
B., R. and J. against the Federal Republic of Germany, p. 138
The Government of the then FRG argued that “non-conjugal partnerships differ so much from marriage, with its legal conditions and effects, that a different regulation of the right to care and custody is absolutely necessary”65. By this, the Government referred to the presumedly more frugal nature of
‘non-conjugal partnerships’, i.e. unmarried cohabitation or similar arrangements. Interestingly, the Government referred to demographic data from a source it left unidentified: “…the number of non-conjugal partnerships is increasing, but according to studies so far available on this subject, only about 26% of these partnerships exist for more than three years, and, in any event, their duration is very rarely longer than half a childhood”66. The
62Johnston and others v. Ireland, para 86.
63Johnston and others v. Ireland, para 86.
64B., R. and J. against the Federal Republic of Germany, no. 9639/82, Commission decision of 15 March 1984.
65B., R. and J. against the Federal Republic of Germany, p. 138.
66B., R. and J. against the Federal Republic of Germany, p. 137.
Consanguinity: Maternity and Paternity
applicants refuted the Government’s claims of demographic developments by pointing out that “the present legal situation with regard to children born out of wedlock [is not] based on extensive examinations and research… the legislator mainly considered statistics from the statistical yearbook of the Federal Republic”67. This critique from the applicants is indeed noteworthy, as in this and other instances of referring to extra-legal scientific or academic knowledge the information referred to is usually rather commonplace, even superficial68.
When declaring the application inadmissible, the Commission on Human Rights stated that it
…finds that the special situation of the child born out of wedlock is an objective and reasonable justification for the German legislator's decision to confer the right of care and custody with regard to a child born out of wedlock exclusively to the mother instead of to both parents, even if they live together. The fact that some States may have regulated the problem in a different manner does not contradict this finding, as it is in the national legislator's discretion to choose between several possible solutions to a problem, as long as the regulation chosen respects the obligations undertaken by the ratification of the Convention.
B., R. and J. against the Federal Republic of Germany, p. 142
The European Commission of Human Rights declared this complaint inadmissible, leaving it to the discretion of the Member State to decide whether the parent-child bond between an unmarried father and child needed to be recognised. In the decision, the respondent Government argues “…R. is not prevented from actually living together with his child and the child's mother. The law merely denies him the legal position of a person having the care and custody, following the applicant R.'s decision not to formalise his relations with the mother”69.The comment of the Commission resonates with the judgement ofX., Y. and Z. v. the United Kingdom from 199770, where the representative of the British Government “pointed out that the applicants were not restrained in any way from living together as a ‘family’ and they asserted that the concerns expressed by them were highly theoretical”71. The case concerned a post-transition female-to-male transgender person, his female partner and their child conceived by artificial insemination. Obviously, the
67B., R. and J. against the Federal Republic of Germany, p. 138.
68 On extra-legal knowledge applied in ECHR case law, see discussion ofJolie v. Belgium (this sub-chapter) andX, Y and Z v. the United Kingdom(chapter 6.3).
69 B., R. and J. against the Federal Republic of Germany, p. 137.
70X, Y and Z v. the United Kingdom, no. 21830/93, 22 April 1997, Reports of Judgments and Decisions 1997-II.
71X, Y and Z v. the United Kingdom, para 46, discussed in Chapter 6.3.
Governments in ECHR cases need to construct their arguments to defend their positions, but this has been a form of argument found in several cases indeed72. The decision of Jolie v. Belgium from 198673 offers similar setting of unmarried family life. A child had been born to a woman who was still officially married albeit separated from her husband. She sought a divorce and the husband brought a case disclaiming paternity of the child which went through.
However, due to Belgian legislation at the time, this left the child as anenfant adultérin, a child born of an adulterous relationship, and his biological father was unable to recognise him as he had been born within 300 days of the divorce, a time limit that the marital assumption of paternity covered. The mother and the biological father had another child as well born later, and recognising this child born out of an unmarried and not an “adulterous”
relationship, which was possible, would have left the two children in very different positions vis-à-vis their biological and social father74. The complaint was deemed admissible by the Commission, but was not heard by the European Court as a friendly settlement was reached because Belgian legislation was altered in 1987 to conform to the standards required by the case of Marckx v. Belgium, judged already in 197975. What is notable in the complaint was the applicants tried to evoke textbook-level anthropological expertise in order to argue that they form a family:
Related persons living under one roof, and specifically a father, mother and children, constitute a family in the accepted sense of the term. According to this definition, the three applicants form a family based on consanguinity and thus on a non-marital union. The term
"kinship" covers all those social relationships resulting from consanguinity or marriage.76
Jolie v. Belgium, Commission decision, p. 253
72 See alsoChavdarov v. Bulgaria, paras 49 and 56.
73Jolie v. Belgium, no. 11418/85, Commission decision 14 May 1986. See alsoJolie et Lebrun contre la Belgique, no. 11418/85, Rapport de la Commission, 8 October 1987 (friendly settlement).
74Jolie v. Belgium, Commission decision, p. 252-253.
75Jolie et Lebrun contre la Belgique, no. 11418/85, Rapport de la Commission, 8 October 1987 (friendly settlement).
76 The passage referred to is from an introductory textbook to anthropology: "La parenté est l’ensemble des relations sociales qui résultent de la consanguinité (réelle ou simplement affirmée), ou de l’alliance par mariage. On sait, depuis Morgan, que les relations de parenté et les usages qui les accompagnent obéissent à un ordre interne. C’est pourquoi les anthropologues parlent de systèmes de parenté. Ces systèmes de parenté sont de nature sociale et non biologique: sont parents dans une société donnée, ceux qui se considèrent comme tels, que cela coïncide ou non avec la réalité biologique.
Tout se passe comme si l’homme, pour résoudre les problèmes qui se posent à lui, avait mis un certain ordre dans ses relations avec ses semblables, en les classant. Parents, alliés et étrangers sont départagés" (Colleyn 1979: 63).
Consanguinity: Maternity and Paternity
Consanguinity is offered here as the basis of relatedness, together with being members of the same household. The expert knowledge offered is of a rudimentary kind, cited from an introductory textbook to social anthropology (see Colleyn 1979: 63).
Keegan v. Irelandfrom 199477 is one of the clearest examples and a key judgement among the case law of the European Court of Human Rights on how the position of unmarried fathers has been, in the recent history of some jurisdictions, much weaker than the unmarried mother such as inMarckx v.
Belgium. In Keegan, a man and a woman had been in a relationship and cohabiting for about a year, and they agreed to try to have a child together.
They got engaged, too, whilst cohabiting but separated soon after the engagement. However, later in the same year the woman gave birth to a child.
Whilst pregnant, the woman arranged to give the child up for adoption, of which the father was informed with a letter after the birth of the child.
According to the law in place in the Republic of Ireland at the time, an unmarried man could be the guardian of his child only if the court had appointed him as such. Keegan instituted proceedings to be appointed the guardian of the child and to obtain custody78. The first instance court, the Circuit Court decided in favour of him, awarding him guardianship and custody79.
The mother of the child and the prospective adoptive parents appealed against him, and the second instance, the High Court, saw no reason for denying his rights as a father. The mother and the prospective adoptive parents obtained an opinion from the Supreme Court, the highest instance, which sent the case back to the High Court. The Supreme Court judge interpreted the legislation in place to refer merely to the possibility of obtaining guardianship80. The High Court re-examined the case, and, among other considerations, heard evidence from an expert witness, “a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant’s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming "trust" relationships”81. By this time, the child was already more than a year old and had been placed with the prospective adoptive parents.82
The Supreme Court judge, Justice Barron, reflected on the significance of issues related to social class such as the socio-economic standing of the adoptive parents and presumed future scholarly achievement of the child as beneficial factors, but noted that they were not conclusive:
77Keegan v. Ireland, no. 16969/90, 26 May 1994, Series A no. 290, paras 6-8.
78Keegan v. Ireland, paras 6-8.
79Keegan v. Ireland, para 9.
80Keegan v. Ireland, paras 10-12.
81Keegan v. Ireland, para 13.
82Keegan v. Ireland, paras 6-7.
…if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, [Justice Barron] considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view "to do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law".
Keegan v. Ireland, para 14
However, reflecting on this matter highlights the possibility that the prospective adoptive parents were of a different stratum of society or otherwise in a disposition that differed from the socio-economic situation of the father. Justice Barron concluded as follows:
If the child remains where she is, she will if the adoption procedures are completed become a member of a family recognised by the Constitution and freed from the danger of psychological trauma [caused by potential separation from the foster parents]. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes.
Keegan v. Ireland, para 14
Thus, socio-economic standing and presumed scholarly achievement are reflected upon but dismissed as evoking them in the final argumentation would be arguing against the (rather theoretical, it seems) equality before the law of all Irish citizens. However, the most central argument in deciding between giving both guardianship and custody to a biological parent or foster parents, not removing the child from the circumstances and the affective family relations that she had already been able to form was preceded by the privilege of being able to live and be part of a “family recognised by the [Irish]
Constitution”83. Here we can see that the definition of family in the Constitution of the Republic Ireland, so close to the definition of family in the Universal Declaration of Human Rights (see Chapters 2.1-2.2), has indeed been put to work on the ground level and not just in theoretico-political discourse.
In his submission to the European Court, Keegan evoked, Article 8, and complained that
…to be consistent with Article 8 (art. 8) the law ought to have conferred on him a defeasible right to guardianship and, in any competition for
83 See previous quote.
Consanguinity: Maternity and Paternity
custody with strangers, there ought to have existed a rebuttable legal presumption that the child’s welfare was best served by being in his care and custody. He stressed, however, that he was not seeking to overturn the adoption order that had been made in respect of his child.
Keegan v. Ireland, para 46
So, in the European Court, Keegan wished to challenge the constitutional impossibility created by the interpretation of the Supreme Court84 of an unmarried biological father to have legal standing in the process leading to a child being adopted by third parties. The European Court wanted to distinguish the adoption process from the guardianship and custody proceedings, and argued that the crux of the matter in the case was that the child was placed for adoption after birth without the knowledge and consent of the biological father, and that he had no legal standing in how the adoption proceeded. Thus, as his only recourse was a time-consuming legal process for guardianship and custody, by the end of the process the child had already bonded with the prospective adoptive parents taking care of the child.85
The European Court ruled that Article 8 and Article 6 (para 1) had been violated: Keegan’s right to respect for family life and right to a fair trial had not been protected. As to the notion of family life, the Court noted that:
For both the applicant and the Commission86, on the other hand, his links with the child were sufficient to establish family life. They stressed that his daughter was the fruit of a planned decision taken in the context of a loving relationship. The Court recalls that the notion of the
"family" in this provision is not confined solely to marriage-based relationships and may encompass otherde facto "family" ties where the parties are living together outside of marriage… A child born out of such a relationship isipso iure part of that "family" unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habiting or if their
"family" in this provision is not confined solely to marriage-based relationships and may encompass otherde facto "family" ties where the parties are living together outside of marriage… A child born out of such a relationship isipso iure part of that "family" unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habiting or if their