The applicant, Ginger Lebbink, is a Dutch national, born in 1975 and living in Breda. The applicant alleged that the rejection of his request for access to his daughter, born out of wedlock, amounted to a breach of Articles 8 (right to respect for family life) and Article 14 (prohibition of discrimination) of the Convention. The Court held, by six votes to one, that there had been a violation of Article 8 and, unanimously, that it was not necessary to examine the complaint under Article 14. The Court awarded the applicant EUR 5,000 for non-pecuniary damage and EUR 2,500 for costs and expenses.
(The judgment is available only in English.)
SECOND SECTION
CASE OF LEBBINK v. THE
(Application no. 45582/99)
JUDGMENT
FINAL
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr C. Bîrsan,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs W. Thomassen,
Mrs A. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 45582/99) against the Kingdom of the
2. The applicant was represented by Ms E.J. Moree, a lawyer practising in
3. The applicant alleged that the rejection of his request for access to his daughter, born out of wedlock, amounted to a breach of his right to respect for his family life within the meaning of Article 8 of the Convention and that in this respect he was a victim of discriminatory treatment in violation of Article 14 of the Convention.
4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of
6. The applicant, but not the Government, filed observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1975 and lives in
8. Pursuant to Article 1:287 § 1 of the Civil Code (Burgerlijk Wetboek), as then in force, Ms B. obtained the guardianship (voogdij) of Amber. The applicant was appointed on
9. The applicant and Ms B. did not formally cohabit, but the applicant would visit her and Amber on a regular basis. He also baby-sat and cared for Amber a few times. Ms B. sometimes consulted the applicant about Amber’s hearing problems. The applicant did not formally recognise (erkenning) Amber, as Ms B. refused to give her permission for this and her family also opposed such recognition. Although the applicant could have sought judicial consent for recognising Amber (see § 17 below), he did not avail himself of this possibility, considering that it would stand little chance of success. Moreover, the applicant preferred to respect the position adopted by Ms B. and her relatives, and to maintain the factual family ties he had with his daughter rather than establish formal legal ties with her.
10. In August 1996, the applicant’s relationship with Ms B. broke down. On
11. In its decision of
12. Ms B. filed an appeal against this decision with the Arnhem Court of Appeal (gerechtshof). In its decision of
“3.1 Out of the parties’ relationship (lasting from mid 1993 to August 1996) Amber was born. The father is the biological father of Amber. He has not recognised the child. The mother holds the parental authority over Amber by law. ...
4.5 In addition to what is stated under 3.1, the following, as contended by one side, and not, or insufficiently, disputed by the other, has been established or become plausible.
The father was present at Amber’s birth. He has never been formally registered at the mother’s address, but (up to August 1996) has regularly visited the mother. He has also changed Amber’s nappy a few times (enkele malen) and has baby-sat her once or twice (een enkele keer), but not since August 1996. Further, the mother has on several occasions (verschillende keren) had contacts by telephone with the father about (the hearing problems of) Amber.
4.6 In the light of the above facts and circumstances, it has been insufficiently established that the father has a close personal relationship with the child – who at the time of the break-down of the parties’ relationship was one year old – or that there is a link between him and the child that can be regarded as “family life” within the meaning of Article 8 of the Convention. The further circumstances relied on by the father, from which it would appear that he has a close personal relation with the child, have – in contrast to the substantiated denial thereof by the mother – not been established. The terminology used by the mother in the proceedings (she spoke about “a relationship until October 1996” and “my ex-partner”) cannot, either in itself or in connection with the above circumstances, lead to a different conclusion.
5.1 Based on the above considerations, the impugned decision is quashed, and the father’s request is declared inadmissible.”
13. The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Recognition of paternity at the material time
14. A child born out of wedlock had the status of the natural child of its mother. It became the natural child of its father after having been recognised by the latter – the “father”, for the purposes of this provision, being the man who recognised the child, whether or not he was the biological father (Article 1:221 of the Civil Code).
15. A child born out of wedlock automatically had legally recognised family ties (familierechtelijke betrekkingen) with its mother and her relatives. Recognition by the father entailed the creation of a legally recognised family tie between him and the child, as well as between the child and the father’s relatives (Article 1:222 of the Civil Code). At the relevant time the surname of such a child was the surname of its father if the latter had recognised the child, and the mother’s surname if not (Article 1:5 § 2 of the Civil Code).
16. 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 public (Article 1:223 of the Civil Code). A deed of recognition drawn up by the registrar was entered in the register of births (Article
17. A recognition without the mother’s prior written consent was void (Article 1:224 § 1 (d) of the Civil Code). However, in view of the right of the father and the child to respect for their “family life”, as guaranteed by Article 8 of the Convention, the Supreme Court construed this provision in such a way that the mother’s effective right of veto could be overridden, if she abused it, by alternative judicial consent. However, such judicial consent could only be sought by a biological father whose relationship with his child was such that it should be considered as amounting to “family life” within the meaning of Article 8 of the Convention (see Hoge Raad,
2. Recognition of paternity after
18. On
19. According to the Supreme Court’s case-law under Article 1:204 § 3 of the Civil Code, the procedure for obtaining judicial consent requires balancing the interests of the persons concerned, the point of departure being that both the child and its biological father are entitled to have their relationship acknowledged in law as a legally recognised family relationship (familierechtelijke betrekking). The judge must balance the father’s interests in obtaining recognition against the interests of the mother and the child in non-recognition. The mother’s interest is defined in Article 1:204 § 3 as having an undisturbed relationship with the child (see, Hoge Raad,
20. Also on 1 April 1998, Article 1:207 was introduced into the Civil Code, pursuant to which a child may request the regional court to issue a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap) in order to have a legal tie established between him or her and the biological father. No time-limit applies for lodging such a request.
3. Maintenance obligations
21. Pursuant to Article 1:392 of the Civil Code, parents – i.e. the persons who have become a legal parent of a child either ipso iure, through recognition, through a judicial declaration of paternity, or through adoption – are obliged to provide for the maintenance of their minor children. The absence of recognition of a child does not absolve the biological father of his maintenance obligations towards this child. Pursuant to Article 1:394 of the Civil Code, the biological father of a unrecognised child remains liable to pay maintenance until the child has come of age. Until 1 April 1998, when this provision was amended as a consequence of the introduction of the possibility to seek a judicial declaration of paternity, Article 1:394 § 3 stipulated that the supposed biological father of an illegitimate, unrecognised child was the man who had had intercourse with the mother between the 307th and 179th day before the birth of the child.
4. Access rights
22. Access rights are regulated by Articles 1:337a-h of the Civil Code.
23. Article 1:377a of the Civil Code, in so far as relevant, provides as follows:
“1. The child and the parent who does not have custody are entitled to have access to each other (omgang met elkaar).
2. The judge shall, at the request of the parents or of one of them, establish an arrangement, for a definite or indefinite period, for the exercise of the right of access or shall deny, for a definite or indefinite period, the right of access.
3. The judge shall only deny the right of access if:
a. access would seriously impair the mental or physical development of the child; or
b. the parent must be deemed to be manifestly unfit for or manifestly incapable of access; or
c. the child, being at least twelve years old, when being heard has manifested serious objections against allowing the parent access; or
d. access would for another reason be contrary to the weighty interests (zwaarwegende belangen) of the child.”
24. Article 1:377f of the Civil Code, in so far as relevant, reads as follows:
“1. Without prejudice to the provisions of Article <1:>377a
25. According to the case-law of the Supreme Court, a request by a biological father for access to a child whose paternity he has not recognised is to be examined under Article 1:337f, and not under Article 1:337a of the Civil Code, in that he is not a “parent” within the meaning of Article 1:337a. Where the father of a child born out of wedlock has recognised the child, a request for access is to be examined under Article 1:377a of the Civil Code (see, Hoge Raad,
26. In several cases in which a biological father claimed a right under Article 8 of the Convention of access to his child, the Supreme Court held that mere biological fatherhood in itself is insufficient to establish the existence of “family life”. According to the Supreme Court, such a relationship can only be regarded as involving “family life” where there are additional circumstances, such as regular contacts with the child, from which it ensues that the tie with the father can be regarded as constituting “family life” (see, Hoge Raad, 26 January 1990, NJ 1990, no. 630; Hoge Raad, 19 May 2000, NJ 2000, no. 545; and Hoge Raad, 29 September 2000, NJ 2000, no. 654).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
27. The applicant complained that the rejection of his request for access to his daughter, born out of wedlock, was in violation of his rights under Article 8 of the Convention, the relevant part of which reads:
“1. Everyone has the right to respect for his ... family life ....
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 ... for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The parties’ submissions
1. The applicant
28. The applicant submitted, relying on the Court’s findings as to the existence of family life for the purposes of Article 8 in the cases of Boughanemi v. France (judgment of 24 April 1996, Reports of Judgments and Decisions 1996-II, p. 607, § 35) and C. v Belgium (judgment of 7 August 1996, Reports 1996-III, p. 922, § 25), that the only important factor in determining the existence of “family life” is the tie between the applicant and Amber already created by the mere fact that he is her biological father, without the need to rely on additional circumstances to demonstrate the existence of other bonds between them. According to the applicant, family life within the meaning of Article 8 of the Convention existed ipso iure between him and Amber on grounds of his biological fatherhood.
29. The applicant further pointed out that he was Amber’s auxiliary guardian until the abolition of that institution on
30. As to the question whether the family life between the applicant and Amber would have been broken by subsequent events, the applicant considered that the period of five months which elapsed between the termination of his relationship with Amber’s mother and his request for access was insufficient to conclude that his bond with Amber would have ceased to exist. In the applicant’s opinion, the domestic decision declaring inadmissible his request for access to Amber was therefore in violation of his right guaranteed by Article 8 to respect for his family life with her.
2. The Government
31. The Government submitted that, under Dutch law, access arrangements may be made under Article 1:377a of the Civil Code between the child and a legal parent, and under Article 1:377f of the Civil Code between the child and a third person who has a close personal relationship with the child. The biological father is considered a legal parent if he is married to the child’s mother or if he has recognised the child. In such a situation, the legal tie between the father and the child constitutes ipso iure family life within the meaning of Article 8 of the Convention.
32. A biological father having no legal tie with his child may nevertheless seek access but, in order to succeed, must have a close personal relationship with the child. The notion of “close personal relationship” is interpreted in the domestic case-law – as on appeal in the present case – as a tie between the biological father and his child which, on the basis of various and sufficiently established circumstances, can be deemed to constitute “family life” within the meaning of Article 8 of the Convention.
33. According to the Government, this approach is in full conformity with the Court’s established case-law under Article 8, from which it cannot be deduced that a mere biological tie would in itself already create a bond amounting to family life for the purposes of Article 8. In this respect, the Government referred to the Court’s judgment in the case of K. and T. v. Finland, in which it reiterated that the existence or non-existence of family life within the meaning of Article 8 of the Convention is essentially a question of fact depending on the real existence in practice of close personal ties (no. 25702/94, § 150, ECHR 2001-VII). The crucial question was therefore whether the applicant had adduced and satisfactorily established sufficient additional circumstances to render plausible his claim that the tie between him and Amber constituted family life within the meaning of Article 8 of the Convention.
34. On basis of the findings of the Court of Appeal in its decision of
B. The Court’s assessment
35. The Court recalls that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock. A child born out of such a relationship is ipso iure part of that “family” unit from the moment and by the very fact of its birth. Thus there exists between the child and the parents a relationship amounting to family life (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 17, § 44, Elsholz v. Germany [GC], no. 25735/94, ECHR 2000-VIII, § 43, and Yousef v. the Netherlands, no. 33711/96, § 51, ECHR 2002-VIII).
36. Although, as a rule, cohabitation 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” (see Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, p. 55, § 30). The existence or non‑existence of “family life” for the purposes of Article 8 is essentially a question of fact depending upon the real existence in practice of close personal ties (see K. and T. v. Finland, cited above, § 150). Where it concerns a potential relationship which could develop between a child born out of wedlock and its natural father, relevant factors include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the father to the child both before and after its birth (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999-VI).
37. In the present case, the Court notes that, unlike the situation in the cases of Sahin v. Germany ([GC], no. 30943/96, § 12, ECHR 2003-VIII) and Sommerfeld v. Germany ([GC], no. 31871/96, §§ 11-12, ECHR 2003‑VIII), the applicant has not sought to recognise Amber, and he has never formed a “family unit” with Amber and her mother as they have never cohabited. Consequently, the question arises whether there are other factors demonstrating that the applicant’s relationship with Amber has sufficient constancy and substance to create de facto “family ties”. The Court does not agree with the applicant that a mere biological kinship, without any further legal or factual elements indicating the existence of a close personal relationship, should be regarded as sufficient to attract the protection of Article 8.
38. However, in the instant case the Court notes that Amber was born out of a genuine relationship between the applicant and Ms B. that lasted for about three years and that, until this institution was abolished when Amber was about seven months old, the applicant was Amber’s auxiliary guardian. It observes that the applicant’s relation with Ms B. ended in August 1996 when Amber was about sixteen months old.
39. The Court further notes that, although the applicant never cohabited with Ms B. and Amber, he had been present when Amber was born, that – as from Amber’s birth until August 1996 when his relation with Amber’s mother ended – he visited Ms B. and Amber at unspecified regular intervals, that he changed Amber’s nappy a few times and baby-sat her once or twice, and that he had several contacts with Ms B. about Amber’s impaired hearing.
40. In these circumstances the Court concludes that, when the applicant’s relationship with Ms B. ended, there existed – in addition to biological kinship – certain ties between the applicant and Amber which were sufficient to attract the protection of Article 8 of the Convention.
41. Consequently, the decision of the Court of Appeal, as upheld by the Supreme Court, not to examine the merits of the applicant’s request for access to Amber but to declare it inadmissible on the basis of a finding that there was no family life between them, was in breach of the applicant’s rights under Article 8 of the Convention.
42. It follows that there has been a violation of this provision.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
43. The applicant complained under Article 14 in conjunction with Article 8 of the Convention that he has been discriminated against in that, for the purposes of an access arrangement, his biological tie with Amber was not accepted as constituting “family life”, whereas the existence of “family life” is automatically assumed by the Netherlands judicial authorities in the case of an unmarried biological father who has recognised the child.
Article 14 of the Convention provides as follows:
“The enjoyment of the rights and freedoms set forth in [the] 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, property, birth or other status.”
44. The Court notes that it has already examined the arguments now raised by the applicant under Article 14 in its considerations under Article 8 of the Convention. Having regard to its findings with respect to Article 8 (see paragraph 37 above), it does not find it necessary to examine the same issue under Article 14 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
46. The applicant sought 10,000 euros (EUR) in compensation for non‑pecuniary damage, attributable to the anxiety and distress he has felt as a result of the denial of contact with Amber since 1996 and the consequential alienation from his daughter.
47. The Government considered a global sum of EUR 5,000 appropriate.
48. The Court finds, in the circumstances, that the applicant must have suffered feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the finding of a violation. Making an assessment on an equitable basis, as required by Article 41, the Court awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage.
B. Costs and expenses
49. The applicant claimed EUR 415.41 for legal costs and expenses incurred before the domestic courts which were not covered by his legal aid award under the domestic legal aid scheme. He further claimed EUR 4,903 for the costs and expenses incurred in the proceedings before the Court, corresponding to 119 hours of legal work. He explained that he had also been granted legal aid under the domestic legal aid scheme for the proceedings before the Court, but only on a provisional basis. This meant that the Netherlands Legal Aid Board (Raad voor de Rechtsbijstand) would only take a definite decision once the proceedings before the Court had ended. As his income has increased in the meantime, it was unlikely that the Netherlands Legal Aid Board would grant him legal aid for the proceedings under the Convention.
50. The Government submitted that the applicant had not demonstrated that he would no longer be eligible for subsidised legal assistance under the domestic legal aid scheme and that, therefore, it was uncertain that the applicant would not be eligible, either fully or partly, for legal aid under the domestic legal aid scheme in respect of the Convention proceedings. The Government further considered the applicant’s claim for legal costs in respect of the proceedings under the Convention excessive, as the issues raised in these proceedings significantly overlapped those that had already been brought before the domestic courts.
51. According to the Court’s consistent case-law, to be awarded costs and expenses the injured party must have incurred them in order to seek prevention or rectification of a violation of the Convention, to have the same established by the Court and to obtain redress therefor. It must also be shown that the costs were actually and necessarily incurred and that they are reasonable as to quantum (see, among other authorities, Wettstein v. Switzerland, no. 33958/96, § 56, ECHR 2000-XII).
52. The Court finds the applicant’s claim for costs and expenses excessive. According to the bill for fees submitted, the applicant’s lawyer would have worked a total of 119 hours on the applicant’s case before the Court. Having regard to the nature of the case and making an assessment on an equitable basis, the Court awards EUR 2,500 for costs and expenses, from which may be deducted any amount for legal aid awarded to the applicant under the domestic legal aid scheme in respect of the present Convention proceedings.
C. Default interest
53. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Holds by six votes to one that there has been a violation of Article 8 of the Convention;
2. Holds unanimously that it is not necessary to examine the complaint under Article 14 of the Convention;
3. Holds by six votes to one
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:
(i) EUR 5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros) in respect of costs and expenses, less any amount awarded to the applicant under the domestic legal aid scheme in respect of the present Convention proceedings;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on
S. Dollé J.-P. Costa
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Mrs Mularoni is annexed to this judgment.
I disagree with the majority that there has been a violation of Article 8 of the Convention.
The Court held that, as the applicant has never sought to recognise the child and has never formed a “family unit” with Amber and her mother as they have never cohabited, the question arises whether there are other factors demonstrating that the applicant’s relationship with Amber has sufficient constancy and substance to create de facto “family ties”, as mere kinship without any further legal or factual elements indicating the existence of a close personal relationship cannot be regarded as sufficient to attract the protection of Article 8 (see paragraph 37).
On this point, I have noted that in the course of the domestic proceedings it was established that the applicant had been present when Amber was born on 14 April 1995 and that – as from Amber’s birth until August 1996 when his relation with Amber’s mother ended – the applicant’s involvement with Amber consisted of visits at unspecified regular intervals, of having changed Amber’s nappy a few times, of having baby-sat her once or twice and of having had some contacts with Amber’s mother about the child’s impaired hearing.
I consider that, given the nature and degree of the applicant’s contacts with Amber, the impugned decision to declare inadmissible the applicant’s request for access to Amber on basis of a finding that there was no family life between them does not disclose any appearance of a violation of Article 8 of the Convention.
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