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RESIDENCE: Zaunegger v Germany (Application No 22028/04)

Date:3 DEC 2009

(European Court of Human Rights; 3 December 2009)

Following the separation of the unmarried parents the father requested joint custody of the child, who had for some years lived with him; the mother opposed it. The court gave the mother sole custody, with regular contact to the father, on the basis that under German law joint custody was possible in respect of the children of unmarried parents only on the basis of (a) a joint declaration; (b) marriage or (c) a court order, which required the consent of the other parent. The father complained that this decision amounted to unjustified discrimination against unmarried fathers.

By dismissing the father's request for joint custody without enquiring into the child's interests, the German court had treated the father differently to the mother and in comparison with married fathers. Although German law had been pursuing the legitimate aim of protecting the child from confusion over the legal status of the parents, joint custody against the mother's will could not automatically be assumed to be contrary to the child's interest. The lack of any judicial review of the initial attribution to the mother of joint custody was not proportionate to the aim pursued. There had been a violation of European Convention on Human Rights, Art 14 taken with Art 8.