European Convention on the Legal Status of Children born out of Wedlock

The European Convention on the Legal Status of Children born out of Wedlock is a treaty (E.T.S. No. 85) adopted in 1975 under the auspices of the Council of Europe to harmonise the legal status of children born out of wedlock, and promote their equality with children born in wedlock, in the relevant legislation of the Contracting Parties. Accession is open to CoE Member States. As of 2024, it has been signed by 26 countries, and ratified by 23 countries. The Convention imposes an obligation on the Member States to eliminate discriminatory treatment of children born out of wedlock. The Council purposefully uses the term children born out of wedlock instead of illegitimate children. Historically, it is the first adopted multilateral treaty of this type.

Background
The status of children born outside of wedlock is, indirectly, or directly, also treated in provisions of the European Convention on Human Rights (Articles 8, 12 and 14), the European Social Charter (Articles 16, 17), the and the European Convention on Nationality (Articles 5, 6).

The convention is one of the early, significant instruments in family law, especially on matters involving children, of the Council of Europe. The convention is a part of a set of other Council Treaties on matters involving children: the European Convention on the Adoption of Children, the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, the European Convention on the Exercise of Children's Rights, the Convention on Contact concerning Children, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. The Parliamentary Assembly of the Council of Europe, and the Committee of Ministers of the Council of Europe, have also adopted a slew of recommendations. Three committees deal with the legal protection of children, in part or in full: Committee of Experts on Family Law (CJ-FA) – the most relevant – Convention Committee on the Custody Convention (T-CC), and the Committee of Experts on Nationality (CJ-NA) Other bodies of the Council concerned with this area of the law are the Conference of European Ministers of Justice, and the European Conference on Family Law. Additionally, some of the council's Colloquies on European law have been devoted to family law.

History
European jurisdictions had recognised the concept of legitimate and illegitimate children, who had different legal status, and rights. This started to change through the rulings of the European Court of Human Rights (ECHR), and the legislative work of the council. This occurred concurrently with national reforms intended to reduce or eliminate inequalities between children born out of wedlock and children born in wedlock, and to abolish the distinction between legitimate and illegitimate children.

Germany adopted the Law on the Legal Status of Children Born out of Wedlock/Children Born outside Marriage (Legal Status) in 1969, or Non-marriage Law, for short. The Law on Family Matters of 16 December 1997 further enhanced the legal protections, but a disadvantage remained with regard to illegitimate children born before 1949. Even if recognized, those children could not be their statutory heirs. This led to the case Brauer v. Germany in 2009, which overturned this inequality.

Less expansive measures were also introduced by the Law of January 3, 1972 on Filiation in France, which allows mothers to recognise children born out of wedlock, although it required a legal formality. Only in the 21st century was the principle of equality fully upheld (through Act no. 2002-305 of 4 March 2002, removing mention of illegitimacy – filiation légitime and filiation naturell; and through Law no. 2009-61 of 16 January 2009). In 2001, France was forced in Mazurek v. France by the ECHR to change several laws that were deemed discriminatory, and in 2013 the Court ruled in Fabris v. France that these changes must also be applied to children born before 2001.

In the United Kingdom, discriminating treatment regarding illegitimate children by the common law progressed for a long time. Under English law, the child was considered filius nullius, that is, noone's child, and a bastard. As a result, the United States, Canada and Australia followed suit. In time, the traditional rule concerning these children was discarded, but an unmarried father could only acquire parental rights through specific means enumerated by Children Act 1989. These means were, basically, marriage or a court order.6 Eventually, with the Children Act 2004, parental responsibility was given to all those unmarried fathers who registered the birth of their children on the basis of a formal agreement with the mother.

Originally, because of the stigma related to birth outside of wedlock, the EConvHR was not interpreted in such a way to protect the rights of children born outside of wedlock, but this changed through landmark decisions of the Court, beginning in 1979 with the case Marckx v. Belgium. The illegitimate child was Alexandra Marckx, daughter of Paula Marckx. The Belgian Civil Code recognised no legal bond between an unmarried woman and her child from the mere fact of the birth. Article 8 of the EConvHR makes no distinction between legitimate and illegitimate children. This confirmed that that the protection of family life out of marriage had to be extended so as to give children born out of wedlock the same inheritance rights, between parents and child, involving other relatives, and between grandparents and grandchildren.

In 1970, the question of legal status was discussed by the Committee of Ministers in the Intergovernmental Work Programme of the Council of Europe. This was recommended by the European Committee on Legal Co-operation (CCJ), and noted improvements in legislation. The Committee adopted Resolution (70) 15 on 15 May 1970, on the social protection of unmarried mothers and their children, which touched upon some legal aspects of the protection of children born out of wedlock. The Committee opened the convention to signature at their 249th meeting, of October 1975.

Core normative provisions
The Convention seeks to assimilate the status of children, and to contribute to the harmonisation of the laws. However, Article 14 provides for a system of reservations enabling gradual implementation. The convention's main provisions relate to paternal and maternal affiliation, recognition, denial and contesting of paternity, the assignment of parental responsibilities, and children's succession rights. Under this convention, both parents have the same obligation to maintain their children as if these children were born in wedlock. Children have the same right of succession in the estate of their parents and a member of their parent's family as if they had been born in wedlock.

However, Article 14 provides for a system of reservations similar to the European Convention on Adoption, requiring reservations to be re-examined every five years, for States who cannot immediately implement certain provisions. The convention also does not cover all questions, such as whether retrospective effect should be applied after the establishment of parental affiliation, or the child's legitimation by marriage.

The Convention sets off some basic principles dealing with the establishment of children's status, as follows:

Article 2
The maternal affiliation of every child born out of wedlock shall be based solely on the fact of the birth of the child. Where the mother is unknown, the maternal affiliation would only come into full effect when the identity becomes known. In some States, maternal affiliation is established when further information is included about the mother in the relevant documents, and they may make reservations. The International Commission of Civil Status (ICCS) relating to the establishment of maternal affiliation of natural children of 12 September 1962 can only be an intermediate stage in relation to the convention. This holds the principle of mater semper certa est to be absolute.

Article 3
The paternal affiliation of every child born out of wedlock may be evidenced or established by voluntary recognition or by judicial decision. The internal law shall determine the form of voluntary recognition. This can be a declaration on the birth certificate or other official document.

Article 4
The voluntary recognition of paternity may not be opposed or contested, unless the person seeking to recognise or having recognised the child is not the biological father.

Article 5
Scientific evidence which may help to establish or disprove paternity shall be admissible.

Article 6
The parents of a child born out of wedlock shall have the same obligation to maintain the child. The content, the extent, the duration, of this obligation are left to the internal law establishing the rules likewise for children born in wedlock.

Article 7
Where the affiliation to both parents has been established, parental authority may not be attributed automatically only to the father. This provision does not prevent the parental authority from being attributed jointly, or to a third party, or to take away parental authority from one of the parents.

Article 8
Where a parent does not have parental authority over or the custody of the child, that parent may obtain a right of access to the child in appropriate cases. The exercise of this right to access would be granted or refused by a judicial or administrative authority.

Article 9
A child born out of wedlock shall have the same right of succession, as if it had been born in wedlock.

Article 10
The marriage between the father and mother of a child born out of wedlock shall confer on the child the legal status of a child born in wedlock. It was agreed that this assimilation need not be automatic but could be subject to a judicial or administrative authority establishing that the conditions have been fulfilled. It was understood that the Convention does not forbid a Contracting Party from providing, by its internal law, a single legal status for all children and also does not forbid this party from taking special measures of protection for those children who do not live with their parents.

Status
As of 2024, these are the Parties to the convention within the CoE:

Rulings of the European Court of Human Rights
The court determined in the case of Inze v. Austria, in 1987, that the applicant, who is a child born out of wedlock, must be legally heir to his mother's farm, on which he had worked until the age of 23. A violation of Article 14 of the EconvHR, and Article 1 of the Additional Protocols was found. Austria's reservation was determined to not be relevant to the case, as it only applied to the estate of the father and the father's family.

Further developments
The 6th Conference on Family Law took place in Strasbourg on 14 and 15 October 2002 on the theme of “The legal protection of the family in matters of succession”. The legal protection is important due to various reservations made by States to Article 9.

In 2011, a Draft Recommendation on the rights and legal status of children and parental responsibilities was written.