Right to Respect for Family Life and Equal Treatment: Fathers’ Right to Custody of a Child Born out of Wedlock

Zaunegger v Germany [2009] ECHR 22028/04 (3 December 2009) In this case, the European Court of Human Rights held by six votes to one that the denial of a fathers’ right to custody of a child born out of wedlock violated his right to respect for family life under art 8, in conjunction with discriminatory treatment under art 14 of the European Convention.  The Court examined the tension between the right of fathers to have their family life respected and art 1626a § 2 of the German Civil Code and determined it amounted to unjustified discrimination against unmarried fathers on the grounds of sex in comparison with divorced fathers.


The appellant had a child out of wedlock in 1995 that was raised by both parents until their separation in August 1998.  Pursuant to art1626a § 2 of the German Civil Code, the mother held sole custody for the child upon their separation.  Article 1626a § 2 of the Civil Code only grants joint custody to parents of children born out of wedlock by consent of both parents.  In the absence of mutual agreement between the parents, custody is automatically granted to the mother in the child’s best interest.  The applicant was given visitation of the child that amounted to four months per year following the separation but a minimum agreement for a declaration of custody was not reached by the parties.

The applicant made a complaint on the grounds that he had no possibility of obtaining joint custody against the will of the mother and that he was excluded by force of law from seeking judicial review.  His application for joint custody was dismissed by the Cologne District Court and this decision was upheld by the Cologne Court of Appeal in October 2003.  The Federal Constitutional Court declined to hear the appellants’ constitutional complaint.  In a previous challenge, the Constitutional Court upheld the constitutionality of art 1626a § 2 of the Civil Code on the basis that, in the event of a serious dispute between parents, Courts could not be expected to consider joint custody to be in a child’s best interests.  Accordingly, the Constitutional Court did not consider art 1626a § 2 to be incompatible with the right to respect for the family life of fathers.


Article 8 of the European Convention provides the right to respect for private and family life and art 14 protects against discrimination.

For the purpose of art 8, the Court reiterated that ‘the notion of family…is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock’.  The Court further noted that ‘the mutual enjoyment by a parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by art 8’.

Having determined that the facts of the case engaged art 8 of the Convention, the Court then turned to consider whether there was a violation of art 14, which ‘affords protection against different treatment, without an objective and reasonable justification of persons in similar situations’.

The Government argued that art 1626a § 2 of the Civil Code and the vesting of custody in the mother is designed to ensure that, from birth, there is certainty as to the legal custodian of the child.  The Government further argued that the presumption against joint custody without consent is ‘based on the notion that parents who could not agree to make a custody declaration were highly likely to come into conflict when specific questions relating to the exercise of parental custody were at stake, which could cause painful disputes which would be detrimental to the child’s interests’.

The European Court explained that while it is hesitant to scrutinise domestic legislation in the abstract, an examination of the application of the legislation to this case revealed an unjustified and different treatment of the applicant in comparison with the mother and divorced fathers.  The Court reasoned that dismissing the fathers’ application without evaluating the child’s best interests was discriminatory.  This was especially so in the present case given that the father had been a consistent presence in the child’s life from birth until the child reached the age of three and a half.  Further, even after the separation, the father continued to have close contact and involvement with the child, ‘providing for his daily needs’.

In finding a violation of art 14 when read in conjunction with art 8, the Court stated that it could not share the Government’s assumption that joint custody against the will of the mother is prima facia not to be in the child’s interests.  The Court determined that there was no reasonable relationship of proportionality between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock.  The Court found the Government’s arguments insufficient to allow for less judicial scrutiny or for the appellant, who had been acknowledged as a farther and acted in that capacity, to be treated differently from a father who originally held parental authority and later separated from the mother or divorced.

Relevance to the Victorian Charter

This case has direct relevance for the interpretation of s 8 (right to equality) and s 13 (right to privacy) of the Victorian Charter which largely mirror arts 14 and 8 of the European Convention.  In addition, s 17 of the Charter provides protection of families and children.  Under s 17(2) every child has the right, without discrimination, to such protection as is in his or her best interests.

This case may provide useful guidance in appraising whether violations of the right to privacy and family life are inconsistent with the Victorian Charter, particularly the Court’s consideration of the child’s best interest.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2009/1982.html.

Loren Days is a volunteer with the Human Rights Law Resource Centre