Professor Susan Nash provides an update on recent human rights cases
The applicant in Zaunegger v Germany (App no 22028/04) complained that the German Civil Code discriminated against unmarried fathers in comparison with divorced fathers. Following the birth of his daughter, the applicant had co-habited with the child’s mother for several years. Before separating, they reached an agreement with the help of the Youth Welfare Office which provided for regular contact with the child.
However, under the German Civil Code, joint custody could only be obtained through a joint declaration, marriage, or a court order which required the consent of each parent. As the mother was not willing to agree on a joint custody declaration, the applicant applied unsuccessfully to the domestic court for a joint custody order.
The European Court of Human Rights (ECtHR) found that by dismissing the applicant’s request for joint custody without examining whether it would be in the child’s interest, the national court had treated him differently from the mother, and from married fathers. In assessing whether this treatment was discriminatory, the ECtHR noted that the provisions
