11
MARCKX v. BELGIUM JUDGMENT
By guaranteeing the right to respect for family life, Article 8 (art. 8)
presupposes the existence of a family. The Court concurs entirely with the
Commission’s established case-law on a crucial point, namely that Article 8
(art. 8) makes no distinction between the "legitimate" and the "illegitimate"
family. Such a distinction would not be consonant with the word
"everyone", and this is confirmed by Article 14 (art. 14) with its prohibition,
in the enjoyment of the rights and freedoms enshrined in the Convention, of
discrimination grounded on "birth". In addition, the Court notes that the
Committee of Ministers of the Council of Europe regards the single woman
and her child as one form of family no less than others (Resolution (70) 15
of 15 May 1970 on the social protection of unmarried mothers and their
children, para. I-10, para. II-5, etc.).
Article 8 (art. 8) thus applies to the "family life" of the "illegitimate"
family as it does to that of the "legitimate" family. Besides, it is not disputed
that Paula Marckx assumed responsibility for her daughter Alexandra from
the moment of her birth and has continuously cared for her, with the result
that a real family life existed and still exists between them.
It remains to be ascertained what the "respect" for this family life
required of the Belgian legislature in each of the areas covered by the
application.
By proclaiming in paragraph 1 the right to respect for family life, Article
8 (art. 8-1) signifies firstly that the State cannot interfere with the exercise
of that right otherwise than in accordance with the strict conditions set out
in paragraph 2 (art. 8-2). As the Court stated in the "Belgian Linguistic"
case, the object of the Article is "essentially" that of protecting the
individual against arbitrary interference by the public authorities (judgment
of 23 July 1968, Series A no. 6, p. 33, para. 7). Nevertheless it does not
merely compel the State to abstain from such interference: in addition to this
primarily negative undertaking, there may be positive obligations inherent
in an effective "respect" for family life.
This means, amongst other things, that when the State determines in its
domestic legal system the regime applicable to certain family ties such as
those between an unmarried mother and her child, it must act in a manner
calculated to allow those concerned to lead a normal family life. As
envisaged by Article 8 (art. 8), respect for family life implies in particular,
in the Court’s view, the existence in domestic law of legal safeguards that
render possible as from the moment of birth the child’s integration in his
family. In this connection, the State has a choice of various means, but a law
that fails to satisfy this requirement violates paragraph 1 of Article 8 (art. 81) without there being any call to examine it under paragraph 2 (art. 8-2).
Article 8 (art. 8) being therefore relevant to the present case, the Court
has to review in detail each of the applicants’ complaints in the light of this
provision.
32. Article 14 (art. 14) provides: