The European Court of Human Rights (ECHR) ruled Tuesday October 26 "
discriminatory
" the automatic attribution to a child, in the event of disagreement of the parents, of the name of the father followed by that of the mother, considering that "
l 'impossibility of derogating from it
' was '
excessively rigid
'.
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The court had been seized for discrimination by a Spanish woman who had separated from her partner during her pregnancy. When her child was born in 2005, Spanish law provided that in the event of a disagreement between the parents, the child would bear the father's surname followed by that of the mother. The judges of the ECHR considered that the rule of attribution to the child of the name of the father, followed by that of the mother, in the event of disagreement of the parents, “
may prove necessary in practice and is not necessarily in contradiction
”with the European Convention on Human Rights.
Nevertheless, they ruled that “
the impossibility of derogating from it is excessively rigid and discriminatory against women
”, and that the “
difference in treatment
” suffered by the complainant was not justified and therefore constituted a violation of the Convention.
The European magistrates justified their decision by the particular circumstances of the situation: the complainant's child was not immediately recognized by his father and therefore had only carried his mother's surname "
for more than a year.
», Until the recognition of paternity.
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Spain was ordered to pay 10,000 euros to the complainant for “non-
pecuniary damage
”.
In the meantime, the situation has evolved in Spain where, since a law dated 2011 and in the event of disagreement between the parents, it is up to the judge in charge of civil status to decide the order of attribution of surnames, taking as the main criterion “
the best interests of the child
”.
The ECHR, which sits in Strasbourg, is the body responsible for providing a judicial response to violations of the European Convention on Human Rights, ratified by the 47 member states of the Council of Europe.