Today, the European Court of Justice made history. The court ruled that automatic sole custody for unmarried mothers violates the prohibition of discrimination. The previous practice in Germany, Austria, and especially Switzerland is now essentially obsolete. From now on, unmarried fathers are free to assert their rights in court.
Until now, unmarried fathers in Switzerland have had no chance of obtaining custody of a child they share with their mother if the mother does not consent. A ruling by the European Court of Human Rights has now overturned this legal situation: the preferential treatment of unmarried mothers over fathers is a violation of the prohibition against discrimination.
The Strasbourg judges thus ruled in favor of a 45-year-old plaintiff from Cologne who has been unsuccessfully fighting for custody of his 14-year-old daughter for eight years. The father has been separated from the mother since 1998, when the girl was three years old. Although the couple agreed on many issues and the mother was also amenable to generous visitation rights, she refused to sign a joint custody agreement.
The man had already taken legal action in 2003. The Higher Regional Court of Cologne rejected his request for joint custody. Before the European Court of Human Rights in Strasbourg, he invoked the prohibition of discrimination (Article 14) and a violation of the right to respect for family life (Article 8) of the European Convention on Human Rights (ECHR). Among other things, he wants to be able to participate in decisions about where the child lives and goes to school. The German Federal Government, on the other hand, had stated that the mother's consent was necessary for granting joint custody in order to guarantee the child's protection.
In Switzerland, Article 298.1 of the Swiss Civil Code ("If the parents are not married, parental custody rests with the mother.") has thus become obsolete. However, Swiss politics is struggling to eliminate the obvious violations of the European Convention on Human Rights (ECHR) in law and practice. The draft law on joint parental custody as a rule, which was revised by the Federal Office of Justice after the consultation process, has been sitting in Eveline Widmer-Schlumpf's drawer for months. We hope that judgments like this one will finally lead to progress in upholding human rights in Switzerland as well.
Full text of the ECHR judgment (English)
German summary of the judgment:
Chamber ruling
Zaunegger v. Germany (Application No. 22028/04)
Exclusion of individual judicial review of custody arrangements discriminates against the father of an illegitimate child
Violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for family life) of the European Convention on Human Rights
Summary of the facts
The complainant, Horst Zaunegger, is a German citizen, born in 1964, and lives in Pulheim. He has an illegitimate daughter, born in 1995, who grew up with both parents until their separation in 1998. Afterwards, the child lived with her father until January 2001. Following the child's move to her mother's apartment, the parents, with the mediation of the youth welfare office, reached a visitation agreement stipulating regular contact between the father and the child.
Pursuant to Section 1626a, Paragraph 2 of the German Civil Code (BGB), the mother had sole custody of the child. Since she was unwilling to agree to a joint custody declaration, the appellant applied for a court order granting joint custody. The Cologne Local Court rejected the application, reasoning that under German law, parents of children born out of wedlock can only obtain joint custody through a joint declaration, marriage, or a court order with the mother's consent pursuant to Section 1672, Paragraph 1. The Cologne Higher Regional Court upheld this decision in October 2003.
Both courts referred to a landmark ruling by the Federal Constitutional Court of January 29, 2003, which had essentially declared Section 1626a of the German Civil Code (BGB) constitutional. The provision applies to couples with children born out of wedlock who separated after the Child Custody Reform Act came into force on July 1, 1998.
On December 15, 2003, the Federal Constitutional Court rejected the complainant's constitutional complaint.
The complainant argued, in particular by invoking Article 14 in conjunction with Article 8, that the application of Section 1626a paragraph 2 of the German Civil Code (BGB) discriminated against unmarried fathers because of their sex and in relation to divorced fathers.
The complaint was lodged with the European Court of Human Rights on 15 June 2004.
The verdict was delivered by a panel of seven judges, composed as follows:
Peer Lorenzen (Denmark), President;
Karel Jungwiert (Czech Republic);
Rait Maruste (Estonia);
Mark Villiger (Liechtenstein);
Isabelle Berro-Lefèvre (Monaco);
Mirjana Lazarova Trajkovska (“former Yugoslav Republic of Macedonia”), Judge;
Bertram Schmitt (Germany), Ad Hoc Judge
; and Stephen Phillips, Deputy Section Registrar.
Decision of the Court
The Court found that the applicant had been treated differently from the mother and married fathers by having his application for a court order granting him joint custody rejected without further examination of whether this would endanger the child's interests. In order to determine whether this constituted discrimination within the meaning of Article 14, the Court first considered that Section 1626a of the German Civil Code (BGB), on which the German courts had based their decisions, aims to protect the child's welfare. This provision is intended to ensure that the child has a person who can clearly act as its legal representative from birth and to prevent conflicts between the parents over custody issues that are detrimental to the child. The court decisions had therefore pursued a legitimate aim.
The Court further noted that there may be valid reasons to deny the father of a child born out of wedlock the right to participate in parental custody, for example, if a lack of communication between the parents threatens to harm the child's welfare. However, these considerations could not be applied to the present case, as the applicant continues to regularly care for his child.
The Court did not share the Federal Constitutional Court's assessment that joint custody against the mother's will is fundamentally contrary to the child's best interests. While court proceedings concerning parental custody can be upsetting for a child, German law provides for judicial review of custody arrangements in cases of separation where the parents are or were married, or have submitted a joint declaration of custody. The Court found no sufficient grounds why the situation in the present case should allow for fewer opportunities for judicial review.
Consequently, the general exclusion of judicial review of the mother's sole custody rights was disproportionate to the objective pursued, namely the protection of the interests of the child born out of wedlock. The Court therefore concluded by a vote of six to one that there had been a violation of Article 14 in conjunction with Article 8.
Judge Schmitt expressed a dissenting opinion, which is appended to the judgment.
The Court also unanimously held that a finding of a violation of the Convention constitutes sufficient and just compensation for the non-material damage suffered.