Facts:

The applicant Horst Zaunegger, a German national, has a daughter born out of wedlock (1995), who grew up with both parents until their separation in August 1998. From that time until January 2001 the daughter lived with the applicant. After the child had moved to live with her mother, the parents reached an agreement with the help of the Youth Welfare Office, according to which the applicant would be in contact with his child on a regular basis.

Pursuant to Article 1626a § 2 of the German Civil Code, the mother held sole custody of the child. As she was not willing to agree on a joint custody declaration, the applicant applied for a joint custody order. The Cologne District Court dismissed the application, holding that under German law joint custody for parents of children born out of wedlock could only be obtained through a joint declaration, marriage or a court order which requires the consent of the other parent. In 2003, the Cologne Court of Appeal upheld the decision by the District Court.

Both courts relied on a judgment of the Federal Constitutional Court of 29 January 2003, which had found that the relevant provision of the Civil Code was constitutional with regard to the situation of parents of children born out of wedlock who had separated after 1 July 1998 (on this date an amended Law on Family Matters entered into force).

On 15 December 2003 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint.

Claim:

The applicant complained under Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for family life) that the German Federal Court’s application of Article 1626a § 2 of the German Civil Code amounted to an unjustified discrimination against unmarried fathers on sexual grounds and in comparison with divorced fathers.

Held:

The Court noted that by dismissing the applicant’s request for joint custody without examining whether it would be in the child’s interest, the German courts had treated Zaunegger differently in comparison with the mother and in comparison with married fathers. In order to assess whether this treatment was discriminatory for the purposes of Article 14, the Court first considered whether the German legal provisions pursued a legitimate aim. It found that they did, because the provisions were aimed at protecting the welfare of a child born out of wedlock by determining its legal representative. This should avoid disputes between parents over custody issues.

The court considered further that there could be valid reasons to deny the father of a child born out of wedlock participation in parental authority if there was no communication between the parents. However, these considerations did not apply in the instant case, because Zaunegger continued to take care of the child on a regular basis.

The Court did not share the Federal Constitutional Court’s assessment that joint custody against the mother’s will could be assumed to be contrary to the child’s interest. While it was true that legal proceedings concerning custody matters could unsettle a child, German law provided for judicial review of the attribution of parental authority in cases where the parents were or had been married or had opted for joint parental authority. The Court did not see sufficient reasons why the situation of the instant case, where there was no marriage, should be exempt from judicial scrutiny.

Accordingly, there was no proportional relationship 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 therefore held by 6 votes to 1 that there had been a violation of Article 14 taken together with Article 8.

The Court further held unanimously that the finding of a violation constituted sufficient satisfaction for any non-pecuniary damage suffered by the applicant.