BOECKEL AND GESSNER-BOECKEL v. GERMANY
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
1. The applicants, Ms Sabine Boeckel and Ms Anja Gessner-Boeckel, are German nationals, who were born in 1965 and 1969 respectively and live in Hamburg. They were represented before the Court by Ms I. Quirling, a lawyer practising in Hamburg. 3. Since 2001, the applicants live together in a registered civil partnership (eingetragene Lebenspartnerschaft). On 22 December 2008 the second applicant gave birth to a son, L. 4. On 19 January 2009 the Hamburg-Eimsbüttel Civil Registry Office issued a birth certificate naming the second applicant as L.’s mother. The space provided in the form for the father’s name was left blank. 5. On 25 February 2009 the first applicant and the second applicant concluded an agreement whereby the child L. would be adopted by the first applicant. On 27 January 2010 the Hamburg-Altona District Court granted the adoption order under section 9 § 7 of the Act on Registered Civil Partnerships (see paragraph 19, below) and declared that the child L. obtained the legal position of a child of both applicants. 6. In the meantime, on 17 March 2009 the applicants requested the Hamburg District Court to rectify the birth certificate by inserting the first applicant as L.’s second parent. They submitted that section 1592 § 1 of the Civil Code (see paragraph 18, below), stipulating that the father was the man who was married to the mother of the child at the time of birth, should be applied mutatis mutandis in case the mother lived in a registered civil partnership with another woman. They argued that it was irrelevant under section 1592 § 1 of the Civil Code whether the mother’s husband was indeed the biological father of the child born into the union. There was thus no reason to treat children born into a civil partnership any differently from children born in wedlock. 7. On 24 June 2009 the Hamburg District Court rejected the applicants’ request as being unfounded. The District Court considered that there was no reason to rectify the birth certificate, because the birth certificate was neither incorrect nor incomplete. The birth certificate documented the child’s descent. It contained the names of the parents the child descended from. It was irrelevant in this context whether the parents were married or not. The prerequisites of section 1592 of the Civil Code were clearly not met in the instant case. 8. The District Court further considered that there was no legal ground for inserting the first applicant as “second” mother into the birth certificate, as it was impossible that the child had descended from her. The mere fact that the child’s mother lived in a registered civil partnership when giving birth did not justify inserting a second parent. This was not called into question by the fact that section 1592 of the Civil Code contained the rebuttable presumption that the mother’s husband was the child’s father. In the instant case, there was no room for the presumption of the child’s descent from his mother’s partner; on the contrary, such descent could be ruled out. 9. The District Court finally observed that the possibility of adoption of the partner’s child under section 9 § 7 of the Law on Registered Civil Partnerships demonstrated that the legislator had been aware of the civil partner’s rights in respect of the other partner’s children. Under these circumstances, there was no room for an analogous application of section 1592 of the Civil Code in the instant case. 10. On 4 November 2009 the Hamburg Regional Court rejected the applicants’ appeal. 11. On 26 January 2010 the Hanseatic Court of Appeal rejected the applicants’ appeal on points of law. The Court of Appeal confirmed the lower courts’ reasoning. It further considered that the applicants had not been discriminated against in their capacity as women living in a registered civil partnerships vis-à-vis persons living in wedlock. It could not be said that persons living in a civil partnership were discriminated against or that they were deprived of certain rights enjoyed by married couples, as a child could only descend from a specific mother and father. This was excluded on biological grounds in the case of two women living in a registered civil partnership. 12. The Court of Appeal further considered that it followed from the above considerations that there had been no violation of the applicants’ rights under Article 14 in conjunction with Article 8 of the European Convention on Human Rights. 13. On 2 July 2010 the Federal Constitutional Court (case-file no. 1 BvR 666/10) refused to accept the applicants’ constitutional complaint for adjudication. The Constitutional Court observed, at the outset, that there was no indication that the lower courts had failed to take into account the requirements of the European Convention on Human Rights. It further considered that the refusal to insert the first applicant into the birth certificate prior to adoption did not violate the applicants’ right to the enjoyment of their family life. Article 6 of the Basic Law protected the family as a union of parents and children. It did not matter in this respect whether the children descended from their parents and whether they were born in or out of wedlock. However, the entry of the name of a civil partner into the birth certificate did not concern the family life between the civil partners and the child. The birth certificate had the sole purpose of giving evidence of the child’s descent. It did not interfere in any way with the child’s living together with his or her parents within the family. 14. The Constitutional Court further considered that the applicant had not been discriminated against. Civil partners did not have a right to be treated equally to legal or biological fathers with respect to their entry into the birth certificate. In this respect, the two groups were not comparable, as biological or legal paternity established a legal relationship comprising mutual rights and duties. Such a legal relationship did not exist between the civil partner and the child, as long as the child was not adopted. 15. The fact that there was no legal presumption that the mother’s civil partner was the child’s second parent did not amount to discrimination visà-vis married couples, as the legal presumption was based on biological descent and did not have a basis in the case of civil partners. 16. Article 6 of the Basic Law provides “(1) Marriage and the family shall enjoy the special protection of the State. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.” 17. Section 54 of the Act on Civil Status (Personenstandsgesetz) provides: “(1) The entry into the civil status register gives evidence of the fact...of birth and of the further information given in this context and the further information on the civil status of the persons the entry refers to. (2) Certificates on personal status have the same evidentiary value as the entry into the civil status register. (3) The incorrectness of the documented facts may be proofed...” 18. The relevant provisions of the German Civil Code provide: Section 1591 Maternity “The mother of a child is the woman who gave birth to it.” Section 1592 Paternity “The father of a child is the man 1. who is married to the mother of the child at the date of the birth, 2. who has acknowledged paternity or 3. whose paternity has been judicially established...” Section 1754 Effect of Adoption “(1) If a married couple adopt a child or if a spouse adopts a child of the other spouse, the child attains the legal position of a child of both the spouses. (2)... (3) The parental custody is held in the cases of subsection (1) by the spouses jointly...” 19. Section 9 of the Act on Registered Civil Partnerships (Lebenspartnerschaftsgesetz) provides insofar as relevant: Parental responsibility of the civil partner “(1) If one civil partner has the sole custody over his or her child, he or she can arrange with his or her civil partner a right of co-decision concerning matters of the child’s daily life... (2) In case of clear and present danger to the child, the civil partner has the right to take all relevant legal decisions that are necessary for the child’s well-being; the civil partner who has the sole custody of the child is to be informed without delay. ... (7) A civil partner may adopt a child of his or her civil partner. In this case sections...1754 §§ 1 and 3 ... of the German Civil Code shall apply accordingly.”