Rights of Custody – Art. 3
The father complained that under Article 14 taken in conjunction with Article 8 of the European Convention that, because he was not married to the mother of his child, he was not able to obtain an ex parte declaration that his child had been unlawfully removed from England and Wales while a married father would have been. Article 8 of the Convention provides as follows: ‘1. Everyone has the right for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.’ Article 14 of the Convention provides as follows: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ The Court noted that under the relevant English legislation, the Children Act 1989, that married fathers had parental responsibility automatically, whilst unmarried ones needed to acquire it in accordance with the provisions of the Act. However, referring to its judgment in McMichael v UK the Court noted that the relationship between unmarried fathers and their children varied from ignorance and indifference to a close stable relationship indistinguishable from the conventional family-based unit. For this reason it had held that there exists an objective and reasonable justification for the difference in treatment between married and unmarried fathers with regard to the automatic acquisition of parental rights. Consequently the Court considered that the applicant’s complaint of discrimination between married and unmarried fathers did not disclose an appearance of a violation of Art 14 in conjunction with Art 8 of the Convention. The Court held that refusing to treat persons, such as the applicant, who simply had contact with their child on an equal footing with persons who had the child in their care, such as those with custody, had an objective and reasonable justification. It lay in the different responsibilities involved in the two types of situation. For this reason the application is manifestly ill-founded within the meaning of Art 35(3) of the Convention and must be declared inadmissible in accordance with Art 35(4) thereof. For this reason the application was manifestly ill-founded within the meaning of Art 35(3) of the Convention and must be declared inadmissible in accordance with Art 35(4) thereof.
