19 Nov The automatic imposition of the father’s surname in the order of the child’s surname is discriminatory

In the case of León Madrid v. Spain (application no. 30306/13, 26.10.2021) the European Court of Human Rights held, unanimously, that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case concerned the applicant’s request to reverse the order of the surnames under which her minor daughter (born in 2005) was registered. At the relevant time Spanish law (Article 194 of the Regulation implementing the Law on the registration of births, marriages and deaths) provided that in the event of disagreement between the parents, the child would bear the father’s surname followed by that of the mother. The applicant argued that this regulation was discriminatory.

The Court noted that Article 194 of the Regulation 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, J.S.T.S.’s initial insistence 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, not having been recognised immediately by the father. The Court noted that two individuals in a similar situation – the applicant and the child’s father – had been treated differently and that the distinction was based exclusively on grounds of sex. 

This automatic nature of the application of the law at the relevant time – which had prevented the domestic courts from taking account of the particular circumstances of the case at hand – could not, in the Court’s view, be validly justified under the Convention. While the rule that the paternal surname should come first, in cases where the parents disagreed, could prove necessary in practice and was not necessarily incompatible with the Convention, the inability to obtain a derogation had been excessively stringent and discriminatory against women. In addition, 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.

References from the official website of the European Court of Human Rights