Last Updated on October 27, 2021 by LawEuro
The present request concerns the applicant’s request to reverse the order of surnames carried by his minor daughter. At the time of the facts, the Spanish legislation provided that in case of disagreement between the parents, the child would bear the family name of the Father followed by that of the mother. The applicant considers that this regulation is discriminatory and that the granting of the order in last names should take into account the particular circumstances of each case. Are involved in Articles 8 and 14 of Convention and 1 of Protocol No. 12 to the Convention.
Information Note on the Court’s case-law 255
October 2021
León Madrid v. Spain – 30306/13
Judgment 26.10.2021 [Section III]
Article 14
Discrimination
Paternal surname automatically preceding maternal surname in naming of child, where parents disagree, without consideration of specific circumstances: violation
Facts – On 9 November 2005 the applicant gave birth to a daughter who was registered under the mother’s two surnames (paternal and maternal).
In a judgment of 14 February 2007 the competent court acknowledged the biological paternity of the mother’s former partner. It further decided that the child would use, in accordance with the applicable law in cases where the parents disagreed, her father’s surname followed by that of her mother.
The applicant’s request for the inversion of the surnames borne by her minor daughter was rejected.
Law – Article 14 in conjunction with Article 8:
(1) Whether there was a difference in treatment between individuals in similar situations:
The rule in force at the relevant time provided that, where the parents disagreed on the matter, the order of the surnames given to a child would be imposed automatically: the father’s surname would come first and the mother’s second.
Article 194 of the Regulation implementing the Law on the registration of births, marriages and deaths had been amended by Law no. 20/2011, which provided that in the event of disagreement between the parents it would be for the “civil status judge” to decide on the order of the child’s surnames, taking account of the child’s best interests as the primary consideration. However, those new provisions were not applicable to the applicant’s daughter, who was now 16 years old. The automatic application of the previous legislation had not allowed the judge to take into consideration the applicant’s complaints based on the concrete circumstances of the case; for example, the initial insistence by the biological father that she terminate the pregnancy, or the fact that the child had borne the mother’s two surnames from the time of her birth and for more than a year thereafter, not having been recognised immediately by the father.
In the light of the foregoing, two individuals in a similar situation – the applicant and the child’s father – had been treated differently and the distinction had been based exclusively on grounds of sex.
(2) Whether there was an objective and reasonable justification:
The current social context in Spain did not correspond to that which had prevailed at the time of the enactment of the legislation which governed the case in question. A number of social changes had taken place in the country since the 1950s with the effect of bringing domestic law into line with international instruments and abandoning the patriarchal concept of the family that had been predominant in the past. Spain had adopted numerous measures aimed at gender equality in Spanish society, in accordance with the resolutions and recommendations of the Council of Europe. The amendment introduced by Law 20/2011 reflected significant progress, being seen by the legislature as a way of bringing the law into line with the new social reality in the country, ensuring that equality took precedence over incompatible traditions. The Court took note of the recent development, but observed that it was the old law that had been applicable in the present case, and reiterated that references to presumed general traditions or majority social attitudes prevailing in a given country were not sufficient to justify a difference in treatment on grounds of sex.
The Government denied the existence of discrimination, arguing that the applicant’s daughter would be able, if she so wished, to change the order of her surnames once she reached the age of 18. Apart from the unquestionable impact that a measure of such duration could have on the personality rights and identity of a minor, who would be obliged to give precedence to the surname of a father with whom she was only biologically related, the Court could not overlook the repercussions on the applicant’s life either: as her legal representative who had shared her daughter’s life since her birth, the applicant suffered on a daily basis from the consequences of the discrimination caused by the inability to change her child’s name. A distinction had to be made between the effects of determining a name at birth and the possibility of changing one’s name later.
The automatic nature of the application of the law in question, which had prevented the courts from taking account of the particular circumstances of the case, had not been justified under the Convention. While the rule that the father’s name should be placed first in the event of disagreement between parents might be called for in practice and was not necessarily incompatible with the Convention, the inability to derogate from it was excessively stringent and discriminated against women.
Lastly, while placing the paternal surname first could serve the purpose of legal certainty, the same purpose could be served by having the maternal surname in that position.
The reasons given by the Government had not therefore been sufficiently objective and reasonable in order to justify the difference in treatment imposed on the applicant.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 for non-pecuniary damage.
(See also Ünal Tekeli v. Turkey, 29865/96, 16 November 2004, Legal summary; Losonci Rose and Rose v. Switzerland, 664/06, 9 November 2010, Legal summary; Cusan and Fazzo v. Italia, 77/07, 7 January 2014, Legal summary)
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