The Establishment of Parenthood: A Story of Successful Convergence?
78 Pages Posted: 9 Mar 2007
Date Written: February 2007
The law on legal affiliation or parentage determines who the legal parents of a child are and/or how legal parenthood is established and annulled. Together with the law on marriage, the law on legal affiliation is at the heart of family law in European legal systems, since broadly speaking, marriage and affiliation define the legal family.
Since the national rules on legal affiliation influence the family life of the individuals involved, they have to withstand the scrutiny of Article 8 European Convention of Human Rights (hereafter: ECHR) which guarantees the respect for private and family life. In the field of legal affiliation, landmark cases of the European Court of Human Rights (hereafter: the European Court) on Article 8 ECHR, like Marckx and Keegan, are generally understood to have had a converging effect on the law on legal affiliation in Europe.
In this paper we will explore exactly in which matters the European Court has been active and to what extent the European Court's case law leaves room for divergent national laws on legal affiliation.
Our starting-point is the assumption that in order to determine the harmonizing effect of the case law of the European Court, one has to analyze to what extent the supranational legal order, in this case Article 8 ECHR as interpreted by the European Court, allows for differences among the national legal systems. The degree of convergence of national laws on legal affiliation is determined by the leeway for which the legal order of the ECHR allows. In order to examine this leeway we will first analyze the differences between national laws regarding legal affiliation. This will involve setting out the whole scope of the law of affiliation. After that, it will be examined which parts of the national laws on legal affiliation are affected by the European Court's case law and which parts are not. In the third part, a conclusion will be drawn regarding the tendency in the law on legal affiliation towards harmonization or divergence.
Keywords: parentage, affiliation, filliation, parenthood, human rights, ECHR, comparative law, harmonisation, harmonization, Europe, Netherlands, France, Germany, England, Sweden
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