MARCKX v. BELGIUM JUDGMENT
PARTLY DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON
34
example, when she takes steps to have her child adopted by other people.
Whether the law does or does not establish legal ties between a child and his
unmarried mother on the basis of the birth alone is not without significance
under Article 8 (art. 8). However, when this point is considered in the light
of the above-mentioned possibilities for the mother to prevent the
establishment and continuation of a family life between her and her child,
the situation under Belgian law seems rather irrelevant. A certain degree of
relevance or severity is a prerequisite for the finding of a violation of the
Convention in this area. In my opinion, this leads to the conclusion that a
violation of Article 8 (art. 8), taken alone, is also not established with
respect to the second applicant.
3. The application of Article 8 of the Convention, taken in conjunction
with Article 14 (art. 14+8), to the manner of establishing Alexandra
Marckx’s maternal affiliation
This question is dealt with under items 3 and 5 of the operative
provisions of the judgment. The majority of the Court has found a breach of
Articles 8 and 14 (art. 14+8) taken together. I do not share this view as far
as Paula Marckx is concerned. As stated above, the recognition procedure
was very simple indeed. This procedure, and not the financial implications
of recognition, is the only relevant point. In my view, the procedure was so
simple that the disadvantage at which Paula Marckx was placed, as
compared with married mothers, does not suffice to establish a breach of the
Articles now under consideration.
On the other hand, I have joined the majority of the Court in finding a
violation of Article 14, taken in conjunction with Article 8 (art. 14+8), with
respect to Alexandra Marckx. As indicated above, I find Article 8 (art. 8)
relevant in this case, although I think that, taken alone, it has not been
violated. According to the case-law of this Court, this means that a violation
of Article 14, taken in conjunction with Article 8 (art. 14+8), can be found.
Clearly, the child Alexandra is in an inferior position in the eyes of the law
as compared with children of married mothers. This difference lacks a
justification that is sufficient under the Convention. I find the disadvantage
serious enough to constitute a violation.
4. On the extent in law of Alexandra Marckx’s family relationships
This question is dealt with under items 6 and 7 of the operative
provisions of the judgment. On both of the points dealt with therein I
disagree with the majority of the Court.
Admittedly, in Belgium, an unmarried mother’s child does not become,
in law, a member of his mother’s family. But it goes without saying that the
child may in fact enjoy a family life with that family.
I cannot read into the Convention any obligation to the effect that the
legal relationship referred to above must be established by the Contracting
States. As stated in paragraph 31 of the judgment, Article 8 (art. 8)
presupposes the existence of a family. In this case, it has not been shown