Yousef v Netherlands
| Judgment Date | 05 November 2002 |
Human rights – Private and family life – Biological father – Mother refusing consent for legal recognition of child by applicant biological father – Mother’s will requesting that her brother have guardianship of child – Whether failure by national court to register deed of recognition amounting to violation of father’s right to respect for privacy and family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant, a Netherlands national, was an Egyptian national at the time of the events complained of. In 1985, he met R, a Netherlands national. In 1987, a child was born to the couple, who were not then married or living together. A district court judge appointed the applicant the childs auxiliary guardian but this status was later removed after a change in the relevant national law in 1995. Meanwhile the applicant moved in with R and their child and lived with them for approximately a year. The applicant then moved to the Middle East in 1988 and stayed for two and a half years. During that time, contact between the applicant on the one hand and R and the child on the other was limited to the exchange of letters. On his return to the Netherlands in 1991 the applicant saw the child fortnightly until 1993. He wished to recognise the child as his under national law, which would create a legally recognised tie between them and would result in the childs taking his surname. Such recognition was invalid if done during the mothers lifetime without her prior written consent, although the national court might override an unreasonable refusal. However, R repeatedly refused to give her consent. R contracted a terminal illness and made a will in 1993 in which she expressed her wish that, after her death, her brother should have guardianship of her daughter. In 1994, the applicant instigated summary injunction proceedings seeking an order for R to give him permission to recognise their child. The court refused to grant the injunction, but contact was permitted to continue. Following R’s death, the applicant sought a deed of recognition on the ground that Rs refusal to consent no longer had any effect after her death. The Court of Appeal upheld R’s refusal on the ground that the child’s best interests would be served by allowing her to grow up in the family where she had been placed after her mother’s death in accordance with her mother’s last wishes and sharing that family’s surname. The Supreme Court, after balancing the interests of the applicant with those of the child, dismissed the applicant’s appeal. A further request by the applicant for a deed of recognition was refused, as was the subsequent appeal. The applicant applied to the European Court of Human Rights alleging a violation by the Netherlands of his right to respect for private and family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
Held – The right vouchsafed under the national law to a father to recognise a child born out of wedlock as his was a reflection of the Convention principle that where the existence of a family tie with a child had been established, the state was required to act in a manner calculated to enable that tie to be developed and legal safeguards had to be created that would render the child’s integration into his or her family possible from the moment of birth. In the instant case, there was family life between the applicant and the child because he was her biological father and had contact with her; thus denial of the right to recognition constituted an interference with the right to respect for family life and would constitute a violation of that right unless the interference was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society. The Supreme Court had interpreted the national law in light of the Convention by balancing the interests of the father in having his paternity recognised against the rights of the child under art 8, and as it was primarily for the national authorities to interpret and apply the national law, the interference complained of was in accordance with that law. Furthermore, in judicial decisions where the rights under art 8 of the parents and the child were at stake, the child’s rights were the paramount consideration and would prevail in any necessary balancing of interests. In the instant case, there was no indication that the domestic courts, in striking the balance, had failed to take the father’s rights sufficiently into account or had reached their decision in an arbitrary manner. Moreover, he was not totally deprived of family life with his child since he continued to have access to her. There had, accordingly, been no violation of art 8.
Cases referred to in judgmentElsholz v Germany[2000] 3 FCR 385, [2000] 2 FLR 486, ECt HR.
Keegan v Ireland (1994) 18 EHRR 342, [1994] ECHR 16969/90, ECt HR.
Kroon v Netherlands (1995) 19 EHRR 263, [1994] ECHR 18535/91, ECt HR.
Nederlandse Jurisprudentie [1989] Netherlands Law Reports, no 170, Netherlands SC.
TP and KM v UK[2001] 2 FCR 289, ECt HR.
ApplicationThe applicant, Ramzi Samir Yousef, a Netherlands national, by a case originated in an application (App No 33711/96) against the Kingdom of the Netherlands, lodged with the European Commission of Human Rights under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, alleged a violation of art 8 of the Convention, as he was prevented from legally recognising a child of whom he was the biological father. The application was declared admissible on 5 September 2000. The facts are set out in the judgment of the court.
Procedure1. The case originated in an application (no 33711/96) against the Kingdom of the Netherlands lodged with the European Commission of Human Rights (the commission) under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention) by Ramzi Samir Yousef (the applicant), then an Egyptian national, on 5 June 1996.
2. The applicant was initially represented before the court by Mr JHF Schultz van Haegen and later by Mr OC van Angeren, both lawyers practising in The Hague (Netherlands). The Netherlands Government (the government) were represented by their agents, Mr RAA Böcker and Ms J Schukking, of the Netherlands Ministry of Foreign Affairs.
3. The applicant alleged that he was a victim of a violation of art 8 of the Convention in that he was prevented from recognising a child of whom he was the biological father.
4. The application was transmitted to the court on 1 November 1998, when Protocol No 11 to the Convention came into force (art 5(2) of Protocol No 11).
5. The application was allocated to the First Section of the court (r 52(1) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1) of the Rules of Court.
6. On 5 September 2000 the chamber declared the application admissible.
7. Neither the applicant nor the government filed observations on the merits.
8. On 1 November 2001 the court changed the composition of its sections (r 25(1)). This case was assigned to the newly composed Second Section (r 52(1)).
The facts I. The circumstances of the case9. The applicant, who was born in 1959, was an Egyptian national at the time of the events complained of. He has since obtained Netherlands nationality and, as far as the court is aware, is at present living in the Netherlands.
A. Factual background10. The applicant first arrived in the Netherlands in 1985. That year he met Ms R, a Netherlands national. On 16 January 1987 a daughter, S, was born to the couple, who were not married and were not living together. By a decision of 12 February 1987, the Deventer District Court Judge appointed the applicant as the auxiliary guardian of S, Ms R as her mother ipso jure being her guardian.
11. At some time in or around August 1987, the applicant moved in with Ms R and their daughter in the house of Ms R’s mother. They lived together for about a year.
12. The applicant went to the Middle East in July 1988 and stayed there for some two and a half years. During this time, contact between the applicant on the one hand and Ms R and S on the other was limited to the exchange of some letters.
13. The applicant returned to the Netherlands in early 1991. The applicant states that he saw S every two weeks until 1993. Despite the applicant’s repeated requests, Ms R refused to...
To continue reading
Request your trial
-
Re H (Care and Adoption: Assessment of wider family)
...a case in which the child possessed an art 8 right which served to prevail over the rights of the parents, see Yousef v The Netherlands[2002] 3 FCR 577 (see [39], [42], [46], (3) While recent appellate case law offered clear guidance on the route by which a court or adoption agency should r......
-
R (Axon) v Secretary of State for Health
...[2001] 2 WLR 1038, [2001] 1 FLR 791. Vo v France[2004] 2 FCR 577, ECt HR. X v Netherlands (1974) 2 DR 118, E Com HR. Yousef v Netherlands[2002] 3 FCR 577, ECt Z v Finland (1997) 25 EHRR 371, [1997] ECHR 22009/93, ECt HR. ApplicationThe claimant, Sue Axon, applied for judicial review of a 20......
-
SL v Pembrokeshire County Council
...London BC, E (a minor) v Dorset CC[1995] 3 FCR 337, [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3 WLR 152, HL Yousef v Netherlands[2002] 3 FCR 577, ECt Z v UK[2001] 2 FCR 246, ECt HR. ClaimThe defendants, Pembrokeshire County Council, applied to strike out the claimant’s claim in negligenc......
-
Re O (children) (representation: McKenzie friend); Re W-R (A Child) (representation: McKenzie friend); Re W (children) (representation: McKenzie friend)
...2 FLR 1126, CA. R v Leicester City Justices, ex p Barrow [1991] 3 All ER 935, [1991] 2 QB 260, [1991] 3 WLR 368, CA. Yousef v Netherlands[2002] 3 FCR 577, ECt HR. AppealsThree appeals by Mr O’Connell, Mr Whelan and Mr Watson raised important issues of practice in relation to unrepresented l......