CASE OF KROON AND OTHERS v. THE NETHERLANDS
Violation of Art. 8;No separate issue under Art. 14+8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Luzius Wildhaber;Paul Mahoney
7. The first applicant, Catharina Kroon, is a Netherlands national born in 1954. The second applicant, Ali Zerrouk, born in 1961, was a Moroccan national at the time of the events complained of; he subsequently obtained Netherlands nationality. Although they were not living together at the time, they had a stable relationship from which the third applicant, Samir M’Hallem-Driss, was born in 1987; he has both Moroccan and Netherlands nationality. All three applicants live in Amsterdam. 8. In 1979, Mrs Kroon had married Mr Omar M’Hallem-Driss, a Moroccan national. The marriage broke down towards the end of 1980. Thereafter, Mrs Kroon lived apart from her husband and lost contact with him. It appears from official records that he left Amsterdam in January 1986 and his whereabouts have remained unknown ever since. 9. Samir was born on 18 October 1987. He was entered in the register of births as the son of Mrs Kroon and Mr M’Hallem-Driss. Mrs Kroon instituted divorce proceedings in the Amsterdam Regional Court (arrondissementsrechtbank) one month after Samir’s birth. The action was not defended and the divorce became final when the Regional Court’s judgment was entered in the register of marriages on 4 July 1988. 10. On 13 October 1988, relying on section 1:198 (1) of the Civil Code (Burgerlijk Wetboek - "CC" - see paragraph 19 below), Mrs Kroon and Mr Zerrouk requested the Amsterdam registrar of births, deaths and marriages (ambtenaar van de burgerlijke stand) to allow Mrs Kroon to make a statement before him to the effect that Mr M’Hallem-Driss was not Samir’s father and thus make it possible for Mr Zerrouk to recognise the child as his. The registrar refused this request on 21 October 1988. While expressing sympathy, he noted that Samir had been born while Mrs Kroon was still married to Mr M’Hallem-Driss, so that unless the latter brought proceedings to deny paternity (see paragraphs 18 and 21 below) recognition by another man was impossible under Netherlands law as it stood. 11. On 9 January 1989 Mrs Kroon and Mr Zerrouk applied to the Amsterdam Regional Court for an order directing the registrar to add to the register of births Mrs Kroon’s statement that Mr M’Hallem-Driss was not Samir’s father and with Mr Zerrouk’s recognition of Samir. They relied on Article 8 (art. 8) of the Convention, taken both alone and together with Article 14 (art. 14+8), pointing out that while it would have been possible for Mrs Kroon’s former husband to deny the paternity of Samir, it was not possible for her to deny her former husband’s paternity of the child. The Regional Court refused this request on 13 June 1989. It held that in spite of the justified wish of Mrs Kroon and Mr Zerrouk to have biological realities officially recognised, their request had to be refused since, under the law as it stood, Samir was the legitimate child of Mr M’Hallem-Driss. There were only limited exceptions to the rule that the husband of the mother was presumed to be the father of a child born in wedlock. This was justified in the interests of legal certainty, which were of great importance in this field, and by the need to protect the rights and freedoms of others. The law as it stood was therefore not incompatible with Articles 8 and 14 (art. 8, art. 14) of the Convention. 12. Relying again on Articles 8 and 14 (art. 8, art. 14), Mrs Kroon and Mr Zerrouk appealed to the Amsterdam Court of Appeal (gerechtshof). The Court of Appeal rejected the appeal on 8 November 1989. It held that Article 8 (art. 8) was applicable but had not been violated. The restrictions imposed on the mother’s right to deny the paternity of her husband satisfied the requirements of Article 8 para. 2 (art. 8-2). There had, however, been a violation of Article 14 taken together with Article 8 (art. 14+8), since there was no sound reason for the difference of treatment which the law established between husband and wife by not granting the latter the possibility, available to the former, of denying the husband’s paternity. Nevertheless the appeal could not be allowed; it was not open to the court to grant the applicants’ request, as that would require the creation of new Netherlands law, including administrative procedure, and would therefore go beyond the limits of the judiciary’s powers to develop the law. Only the legislature could decide how best to comply with Article 14 (art. 14) of the Convention as regards the possibility of denying paternity of a child born in wedlock. 13. Mrs Kroon and Mr Zerrouk then lodged an appeal on points of law with the Supreme Court (Hoge Raad). They argued, firstly, that the Court of Appeal had violated Article 8 (art. 8) of the Convention by holding that the limitations imposed by section 1:198 CC on the mother’s possibility of denying her husband’s paternity - more particularly the fact that she might do so only in respect of a child born after the dissolution of the marriage - satisfied the requirements of Article 8 para. 2 (art. 8-2). The Court of Appeal had not properly weighed up the interests involved. It ought to have considered the relative weight of, on the one hand, the interests of the biological father and his child and, on the other, the interests protected by the legislation. The Court of Appeal should have given priority to the former interests, which in the case before it were best served by severing the legal ties between Samir and Mr M’Hallem-Driss and establishing such ties between Samir and Mr Zerrouk, who were entitled, under Article 8 (art. 8) of the Convention, to have their family relationship recognised. In addition, they suggested that it followed from the Court of Appeal’s finding of a violation of Article 14 (art. 14) that the interference concerned could not under any circumstances be covered by Article 8 para. 2 (art. 8-2). Secondly, they argued that, by holding that it was not empowered to grant the applicants’ request as that would require the creation of new Netherlands law, the Court of Appeal had violated Articles 14 and 8 (art. 14+8) taken together. In the applicants’ submission, there was no reason to consider that only the legislature was able to remove the discrimination which the Court of Appeal had rightly found to exist; it was sufficient to disregard the requirement that the child must have been born after the dissolution of the mother’s marriage. 14. Following the advisory opinion of the Advocate General, the Supreme Court rejected the appeal on 16 November 1990. The Supreme Court did not rule on the question whether section 1:198 CC violated Article 8 (art. 8), or Article 14 taken together with Article 8 (art. 14+8). It considered that it was not necessary to do so, because it agreed with the Court of Appeal that, even if there had been such a violation, solving the problem of what should replace section 1:198 CC went beyond the limits of the judiciary’s powers to develop the law. This finding was based on the following reasoning: "In this connection, it should not be overlooked that if a possibility were to be created for the mother to deny [her husband’s] paternity [of a child born] during marriage, the question would immediately arise as to what other limitations should apply in order not to jeopardise the child’s interest in certainty regarding its descent from its legitimate parents, which interest the child generally has and which is part of the basis for the present system. Such limitations have therefore also been written into the Bill to Reform the Law of Descent (Wetsvoorstel Herziening Afstammingsrecht; Bijlage bij de Handelingen van de Tweede Kamer der Staten-Generaal - Annex to the Records of the Lower House of Parliament -, 1987-88, 20626, sections 201 et seq.), which is now before Parliament ... [I]t is not certain whether [these limitations] will be retained, added to or withdrawn in the course of the further parliamentary discussion, many variations being conceivable, regard also being had to the need to ensure equal treatment of the father and the mother, in so far, at any rate, that unequal treatment is not justified." The judgment of the Supreme Court was reported in Nederlandse Jurisprudentie (Netherlands Law Reports - "NJ"), 1991, 475. 15. Three more children were born to Mrs Kroon and Mr Zerrouk after the birth of Samir: a daughter, Nadia, in 1989 and twins, Jamal and Jamila, in 1992. They were all recognised by Mr Zerrouk. Mrs Kroon and Mr Zerrouk do not cohabit. The applicants claim, however, that Mr Zerrouk contributes to the care and upbringing of their children. 16. Every municipality has a separate register for births (section 1:16 (1) CC); this is kept by one or more registrars of births, deaths and marriages (section 1:16 (2)). An entry in the register of births, or birth certificate, mentions the mother’s husband as the father if the mother was married at the time of the birth or within a period of 306 days immediately preceding the birth; in all other cases, the name of the father is mentioned only if he recognises the child before or at the time the entry is made (section 1:17 (1) (c) CC). 17. An interested party or the public prosecutor (officier van justitie) can apply to the Regional Court within the jurisdiction of which the register in question is located for an order to correct or add to the register of births. The Regional Court’s decision is forwarded to the registrar of births, deaths and marriages; the correction or addition is made in the form of a note in the margin or at the foot of the certificate (section 1:29 (1)-(3) CC). 18. Section 1:197 CC reads as follows: "The husband shall be the father of a child born in wedlock. Where a child is born before the 307th day following dissolution of the marriage, the former husband shall be its father, unless the mother has remarried." Section 1:197 CC thus creates two legal presumptions. Firstly, a child born during marriage is presumed to be the issue of the mother’s husband; secondly, a child born before the 307th day following the dissolution of the mother’s marriage is presumed to be the progeny of the mother’s former husband. The first presumption may be rebutted only by the mother’s husband, who to that end must provide proof to the contrary (sections 1:199-200 CC - see paragraph 21 below). The second presumption may be rebutted by either the mother or her former husband; the mother’s former husband will, however, have to adduce proof, whereas for the mother a statement is sufficient (section 1:198 CC - see following paragraph). 19. Section 1:198 CC reads as follows: "1. The mother may deny that a child born to her within 306 days following the dissolution of the marriage is the child of her former husband by making a statement to that effect before the registrar of births, deaths and marriages, provided that another man recognises the child by the instrument in which that statement is recorded ... 2. The mother’s statement and the recognition must take place within one year of the child’s birth. 3. The [mother’s] statement and the recognition shall take effect only if the mother and the man who recognises the child marry each other within one year of the birth of the child ... 4. If a judgment annulling the recognition in an action brought by the former husband becomes final, the mother’s statement shall also lose its force. 5. ..." 20. In its judgment of 17 September 1993 (NJ 1994, 373), the Supreme Court deprived section 1:198 (3) CC of its effect. In the case in question - in which a child had been born within 306 days of the dissolution of its mother’s marriage - it was established, firstly, that there was a relationship between the child and its biological father which qualified as "family life" for the purposes of Article 8 (art. 8) of the Convention and, secondly, that the mother and the biological father, who did not wish to marry, wanted the paternity of the mother’s former husband to be denied and the child to be recognised by its biological father. The Supreme Court found that section 1:198 (3) CC constituted an "interference" within the meaning of Article 8 (art. 8), since it obstructed the formation of legally recognised family ties unless the mother and the biological father got married. In deciding whether such interference was permissible under the terms of Article 8 para. 2 (art. 8-2), the Supreme Court noted that when section 1:198 (3) CC had been enacted it was considered more important to protect a child from being deprived of its "legitimate" status than to enable it to establish ties with its biological father. Since then, however, the relative importance of these two opposing interests had changed; in particular, following the judgment of the European Court in the Marckx v. Belgium case (13 June 1979, Series A no. 31), legal differences between "legitimate" and "illegitimate" children had to a large extent disappeared. In view of these developments, it could no longer be said that in cases where, for the purposes of Article 8 (art. 8) of the Convention, there was a relationship between the child and its biological father amounting to "family life", the importance of maintaining a child’s "legitimate" status overrode the interest protected by section 1:198 (3) CC. 21. Section 1:199 CC reads as follows: "The husband can only deny paternity of the child by bringing an action to this end against the mother as well as against the child, which, unless it has come of age, shall be represented in the proceedings by a guardian ad litem appointed for that purpose by the District Court (kantonrechter)." Section 1:200 CC reads: "1. The court shall allow the action to deny paternity if the husband cannot be the father of the child. 2. If during the period in which the child was conceived the husband did not have intercourse with the mother, or if they lived apart during that time, the court shall also declare the action to deny paternity well-founded, unless facts are established which make it appear possible that the husband is the father of the child." Such proceedings must be brought within six months from the day on which the father became aware of the fact that the child had been born; however, if the mother has made a statement of the kind provided for in section 1:198 CC (see paragraph 19 above), this time-limit does not expire until eighteen months after the birth of the child (section 1:203 CC). 22. According to section 1:205 CC, legitimacy is proved by a person’s parentage (afstamming) and the marriage of his or her parents. If there is no birth certificate, the parentage of a "legitimate" child is proved by the undisturbed possession of the status of "legitimate" child. 23. Section 1:221 (1) CC reads as follows: "An illegitimate child has the status of natural child (natuurlijk kind) of its mother. Upon recognition it acquires the status of natural child of its father." Section 1:222 CC reads as follows: "An illegitimate child and its descendants have legally recognised family ties (familierechtelijke betrekkingen) with the child’s mother and her blood relations and, after the child has been recognised, also with the father and his blood relations." Section 1:223 CC reads as follows: "Recognition may be effected: (a) on the child’s birth certificate; (b) by an instrument of recognition drawn up by a registrar of births, deaths and marriages; (c) by any notarial deed (notariële akte)." There is no requirement that the man recognising an "illegitimate" child should be the biological father. Moreover, it is not possible for a man to recognise a "legitimate" child, even if he is the biological father. Recognition under section 1:198 CC (see paragraph 19 above) may be annulled on application by the mother’s former husband if the man who has recognised the child is not the child’s biological father (section 1:225 para. 3 CC). 24. Section 1:227 CC reads as follows: "1. Adoption is effected by a decision of the Regional Court at the request of a married couple who wish to adopt a child. 2. The request can only be granted if the adoption is in the apparent best interests of the child, as regards both breaking the ties with the [natural] parents and reinforcing the ties with the adoptive parents, or - in the case of adoption of a legitimate or natural child of one of the adoptive parents - as regards both breaking the ties with the other parent and reinforcing the ties with the stepparent, and provided that the conditions laid down in the following section are satisfied. 3. ... 4. ..." Section 1:228 CC reads as follows: "1. Adoption shall be subject to the following conditions: (a) ... (b) that the child is not the legitimate or natural child of a legitimate or natural child of one of its adoptive parents; (c) that neither adoptive parent is less than eighteen or more than fifty years older than the child; (d) that the request is not opposed by a parent or the parents with legally recognised family ties with the child. Nevertheless the court shall not be obliged to refuse a request opposed by a parent who was summoned more than two years previously to be heard on the occasion of a similar request by the same couple that was refused, although the conditions laid down in paragraphs (e) to (g) below were satisfied; (e) ... (f) ... (g) that the adoptive parents were married at least five years before the day the request was filed. 2. In the case of adoption of a legitimate or natural child of one of the adoptive parents, the conditions set forth in paragraphs (c) and (g) of the preceding subsection shall not apply. In the case of adoption of a legitimate child of one of the adoptive parents, the condition specified in paragraph (d) shall be replaced by the condition that the former spouse, whose marriage with the spouse of the stepparent has been terminated [by divorce or dissolution of the marriage after judicial separation], if he or she has legally recognised family ties with the child, does not oppose the request. 3. ..." Section 1:229 (1) CC reads as follows: "By adoption the adopted person acquires the status of legitimate child of the adoptive parents. However, if the adopted person already had the status of legitimate child of one of the spouses who adopted him or her, he or she shall retain it and by adoption acquire the status of legitimate child of the other spouse."