Article 8 ECHR: The Utter Limits of ‘Family Life’ and the Law of Parenthood
| Author | Caroline Forder |
| Published date | 01 June 1997 |
| Date | 01 June 1997 |
| DOI | http://doi.org/10.1177/1023263X9700400203 |
| Subject Matter | Article |
C aro lin e Fo rd er
A rtic le 8 ECH R: Th e Utter L imit s of ‘Fam ily L ife ’ an d
the L aw o f Pare nthood
The question who is my father? o r who is my son or daughter? is one of th e most
important questions which an individual can ask. In private law the asker will receive
a restricted reply; it does no t follow from the fact that someone is biologically a parent
of a child that the person is also legally a parent. But the answer to this question does
not come exclusively from private law. Where private law provisio ns deny parenthood
the relationship may nevertheless fall under the constitutional protection o f Article 8
European C onvention for the Protection of Human Rights and Fundamental Freedoms
place, upon the answer to the question whether the relationship between the pers ons
concerned is ‘family life’ w ithin the meaning of Article 8 ECHR. After the decisions
of the Eur opean Court for the Protec tion of Human Rights (hereafter: the European
Court) in Keegan v Ire lan d 1 and K roon v T he Ne the rla nds 2 the oute r limits of the
concept ‘family li fe’ are unclear. In this contributio n the Eu ropean Court and Commis
sion case law is analyzed in the context of recent developments in the law of parenthood
in Dut ch law and a new interpreta tion of the concept of ‘family l ife’ is proposed.
A couple of years ago, in Maastricht, o r somewhere not very far away, a man and a
woman had a ‘one night stand’. They were two people who had no p rior relationship
with one another, and no intention o f having one in the fu ture. They made no agree
ments. But they did have sexual intercourse. After about nin e months the woman gave
birth to a child. The man came to know o f this, and he wanted to establish that he was
the father of th e child. Perhaps his motive was curiosity, perhaps he wanted the righ t
to visit th e child, he must also have reckoned with establishing financial liability to
contribute towards the ch ild’s maintenance. The mother did not want any of this. She
denied that the man was the child’s fathe r. The man commenced proceedings in the *
* Lecturer in Private Law, Maastricht University (NL).
1. Eur. Court H .R., 26 May 1994, Series A no. 291.
2. Eu r. Co urt H.R ., Judgm ent 27 October 1994, Series A no. 297-C.
MJ 4 (1997) 125
Article 8 ECHR: The Utter Limits of ‘Family Life’ and the Law of Parenthood
Maastricht Di strict Court, asking the court to ord er the woman and the baby to undergo
blood tests in or der to establish whether he was the biological father. The m an’s
advocate argued that Article 8 o f the European Convention fo r the Protectio n of Human
Rights oblig ed the state to respect his family life. He claimed that he had a relation ship
of ‘family life’ with the b aby, and that it was necessary to o rder the blood tests to
establish and protect his righ ts. The Maastricht Regional Cou rt ordered the blood tests.
The court consider ed that t he imposition upon the mother was minimal, an d that the
man’s right to family life was at stake. The mother appealed. The ‘s-Hertogenbosch
Appeal Court confirmed that the tests should take pl ace.3 There was, for a rather
special reas on, no further appeal to the Dutch Supreme Court. The bailiff refused to
execute the judgmen t. However, it is regrettable that th e Supreme Court was not given
the chance to rule on the question. In a new case with rather simila r facts pres ently
pending in the ‘s-Hertogenbosch District Court, the decision by the ‘s-Hertogenbosch
Appeal Cou rt has been re lied upon to support a claim by a man to submit a mother and
baby to blood tests. It is to be hoped that the matter will n ot be allowed to be resolved
by a bailiff (quite understandably) shirking his duty. It will be the burd en of this essay
to s earch for the right answer to the questions raised by these facts, and a number of
other cases concerning parenthood.
§ 1. Th e La w o f P aren tho od
Legal pa rentage is established when the law prescribes that a legal filiation link has
arisen. The law of parentage accordingly regulates the followin g questions:
a) When does parenthood (a legal filiation link) arise automatically by dint of law?
This happens for example, in most legal systems, in favo ur of the woman who
bears a child, and in favou r of the man who is mar ried to the mother.
b) If parenthood does not arise automatically, the law must specify the circumstances
in which a legal filiation link can be established, and by whom, and what effects
such legal filiation link should have?
c) In what circumstances can a legal filiation link brought into effect by the mechan
ism unde r (a) or (b) be challenged?
Before examining Article 8 EC HR it is necessary to assimilate a few basic facts about
the Dutch law o f parentage. In the nature o f things, most problems revolve around
establishing th e link between father and child. Althou gh there are some diffic ult prob
lems concerned with establishing who is the mother when surrogacy or egg donation has
taken place (that is to say when the gametes o f one woman have been placed inside the
body o f another), these issues will no t be considered in this essay. In Dutch law there
3. ’s-Hertoge nbosch Appeal Court, 28 July 1994, Nederlandse Jurisp rudentie 1995, 203.
126 MJ 4 (1997)
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