THE father who is not married to his child's legal mother is increasingly recognised in English law, although his legal position has not been equated with that of either the mother herself or a married father (as regards parental responsibility etc.: compare, e.g., Children Act 1989, ss. 2(1) and 4)). The same improving, but still ambivalent, approach is present in relation to the unmarried father's right to respect for family life under Article 8 of the European Convention on Human Rights. Anayo v. Germany (Application No. 20578/07) is a significant judgment on the scope of that right.

Mr. Anayo (a Nigerian national living in Germany) had a two-year relationship with Mrs. Baro, a German woman married to someone else. Mr. Anayo never lived with her, and although Mrs. Baro contemplated a divorce she returned to the husband with whom she had three children. Mrs. Baro then gave birth to twins whose biological father was Mr. Anayo. The Baros brought up the twins and refused to allow any contact between them and Mr. Anayo. The couple were entitled to do so under §1632 II of the German Civil Code, since (as the mother's husband) Mr. Baro is the twins' legal father (Civil Code, §1592) and a biological father like Mr. Anayo could challenge that position only where there was no social and family relationship between the children and the legal father (Civil Code, §1600 II). While German law thus gives insufficient recognition to biological parents (cf. Bainham, [2007] C.L.J 278), Mr. Anayo's complaint under the Convention focused primarily on contact.

Mr. Anayo's application to the local District Court for contact succeeded notwithstanding that he was not a legal parent, but that decision was overturned by the Karlsruhe Court of Appeal. That Court held that while Mr. Anayo had “close ties” with the children, he had not borne any responsibility for them and had no “social and family relationship” with them as required by §1685 II of the German Civil Code at the relevant time. Whether contact was in the twins' best interests was considered immaterial, as were the reasons why no responsibility or “social and family relationship” existed. The Court considered Article 8 but held that the case was distinguishable from the European Court case of Görgülü v. Germany (Application No. 74969/01, [2004] 1 F.L.R 894) because Mr. Anayo was not a legal parent. The Federal Constitutional Court declined to consider his complaint, and Mr. Anayo applied to the European Court claiming that the refusal to grant him contact violated his right to respect for family life under Article 8 of the Convention.

The first issue for decision was whether any “family life” existed between Mr. Anayo and the twins, such that he had even a prima facie right to have it respected. The Court confirmed that a biological tie alone was insufficient to demonstrate “family life” between an unmarried father and a child (see, e.g., Lebbink v. Netherlands Application No. 45582/99, [2004] 2 F.L.R 463). However, it also confirmed that “intended family life may, exceptionally, fall within the ambit of Article 8, notably in cases in which the fact that family life has not yet fully been established was not attributable to the applicant”, with relevant factors including “the nature of the relationship between the natural parents and a demonstrable interest in and commitment by the father to the child both before and after the birth” ([57]).

In the instant case, Mr. Anayo could not demonstrate existing “family life” since he had neither lived with Mrs. Baro nor had contact with the twins. However, the Court felt unable to hold against him either his lack of contact or the lack of – what could only have been a futile – attempt to challenge paternity. It found that he had shown commitment to the twins by both before and after birth expressing a desire to have contact with them, and by applying to the domestic court for contact when the Baros refused this, despite an allegation that his primary motive was to strengthen his asylum application. The Court also noted that although Mr. Anayo and Mrs. Baro had never cohabited, their relationship was “not merely haphazard” ([61]). As a result, the Court did “not exclude” the possibility that “family life” had been established ([62]). In any case, it was content that the case fell within the “private life” element of Article 8, as “close relationships short of family life” generally would ([58]), and that an interference had occurred.

In considering whether the interference was justified under Article 8(2), the Court asserted both that “[c]onsideration of what lies in the best interest of the child concerned is of paramount importance in every case of this kind” (citing Yousef v. Netherlands Application No. 33711/96, [2003] 1 F.L.R 210) and that “depending on their nature and seriousness, the child's best interests may override those of the parents” ([65]) (see Johansen v. Norway Application No. 17383/90, (1997) 23 E.H.R.R 33, and Harris-Short, [2005] C.F.L.Q 329 on the relationship between these propositions). At the same time, it was willing to undertake the strict scrutiny (subject to the margin of appreciation) usually applied to the termination of parental contact. It criticised the Court of Appeal (and indirectly the legislative framework) for failing adequately to balance the interests of the parties, and in particular to consider whether contact was in the twins' best interests. The reasons for refusing contact were not sufficient to make the interference “necessary in a democratic society” for the purposes of Article 8(2). The Court therefore unanimously upheld Mr. Anayo's complaint.

Even though the Court was unwilling to draw a firm conclusion on “family life”, Anayo indicates an admirably flexible approach to the question and a recognition of the considerable power that would otherwise be held by a mother not married to the father as a result of Article 8. However, that approach may still fail to accommodate an unmarried father who had only a fleeting relationship with his biological child's mother and is unable to demonstrate any commitment to the child because (through no fault of his) he does not know that the child exists ((see Re C (A Child) (Adoption: Duty of Local Authority) [2007] EWCA Civ 1206, noted [2008] C.L.J 33), even if such a father could be accommodated within the broad conception of “private life”. Unmarried fathers therefore remain subject to differential treatment under both the Convention and domestic law.