1. As to the preliminary objection, the government points out that the applicants have not suffered concrete harm, as the negative effects of the legislation in place have not yet materialised. The Court rejects this argument and stresses, with a reference to Klass, that applicants that ‘run the risk of being directly affected’ by legislation, are also considered a victim for the purposes of the Convention. Thus, the Court accepts a hypothetical claim. One of the main concerns of the applicants regards inheritance of the child from the mother, but it might so happen that the child passes away before the mother does, so that the actual harm never materialises. While in the Klass cases, the Court struggles a bit between accepting in abstracto claims (for example referring to the fact that everyone is a victim by virtue of the legislation in place) and hypothetical claims, here it is clear that the Court refers to the hypothetical harm.
2. The question is whether there is ‘family life’ between mother and daughter. Yes, says the Court clearly. There is a natural tie between both and the mother takes care of the daughter. The legal reality, namely that it might be considered an ‘illegitimate family’, the father being absent, is not in any way relevant.
3. The Court reiterates that Article 8 ECHR may also imply positive obligations for governments: ´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. 8- 1) without there being any call to examine it under paragraph 2 (art. 8-2).
4. The Court finds a violation of Article 8 ECHR: ‘the necessity to have recourse to such an expedient derived from a refusal to acknowledge fully Paula Marckx’s maternity from the moment of the birth. Moreover, in Belgium an unmarried mother is faced with an alternative: if she recognises her child (assuming she wishes to do so), she will at the same time prejudice him since her capacity to give or bequeath her property to him will be restricted; if she desires to retain the possibility of making such dispositions as she chooses in her child’s favour, she will be obliged to renounce establishing a family tie with him in law (see paragraph 18 above). Admittedly, that possibility, which is now open to her in the absence of recognition, would disappear entirely under the current Civil Code (Article 908) if, as is the applicants’ wish, the mere mention of the mother’s name on the birth certificate were to constitute proof of any “illegitimate” child’s maternal affiliation. However, the dilemma which exists at present is not consonant with “respect” for family life; it thwarts and impedes the normal development of such life.’
5. It also finds that the distinction complained of lacks objective and reasonable justification and thus finds a violation of Article 8 + 14 ECHR. Importantly, the Court still maintains its stance that it only issues a judgement on a case by case basis. Thus, although this case in fact does not concern the specific application of the law in the circumstances of the case at hand, but the legal regime as such, the Court still stresses: ‘The Court confines itself to noting that it is required to rule only on certain aspects of the maternal affiliation of “illegitimate” children under Belgian law. It does not exclude that a judgment finding a breach of the Convention on one of those aspects might render desirable or necessary a reform of the law on other matters not submitted for examination in the present proceedings. It is for the respondent State, and the respondent State alone, to take the measures it considers appropriate to ensure that its domestic law is coherent and consistent.’ A few decades later, this approach was partially left both through the Court accepting in abstracto claims and through the introduction of the pilot judgements.
6. The Court also finds a violation of Article 8 alone and Article 14+8 to the extent that the Belgian law denies a child born out of wedlock any rights over the estates of his father’s or mother’s relatives, it does not expressly create any maintenance obligations between him and those relatives, and it empowers her guardian rather than those relatives to give consent, where appropriate, to her marriage.
7. Then, the Court turns to the patrimonial rights, the inheritance of the ‘illegitimate child’. Interestingly, during the drafting of the ECHR, there was considerable discussion whether Article 8 ECHR should also include reference to ‘private property’. This proposal was rejected, as the extent to which property was considered a ‘human right’ was disputed. That is why the right to property was moved to the First Protocol, which could be signed or not by governments that ascended to the Convention mechanism. Now, the Court makes explicit that economic aspects also fall under the scope of the right to privacy. ‘Matters of intestate succession – and of disposition – between near relatives prove to be intimately connected with family life. Family life does not include only social, moral or cultural relations, for example in the sphere of children’s education; it also comprises interests of a material kind, as is shown by, amongst other things, the obligations in respect of maintenance and the position occupied in the domestic legal systems of the majority of the Contracting States by the institution of the reserved portion of an estate (réserve héréditaire). Whilst inheritance rights are not normally exercised until the estate-owner’s death, that is at a time when family life undergoes a change or even comes to an end, this does not mean that no issue concerning such rights may arise before the death: the distribution of the estate may be settled, and in practice fairly often is settled, by the making of a will or of a gift on account of a future inheritance (avance d’hoirie); it therefore represents a feature of family life that cannot be disregarded.’ Still, the Court stresses that there is no positive obligation of states to ensure that citizens have patrimonial rights. That is why there is no violation of Article 8 ECHR taken alone. However, because of the distinction between ‘illegitimate’ children and legitimate ones is not objective, there is a violation of Article 8+14. Judge O’Donghue, in his dissenting opinion, rejects this wide interpretation of Article 8 ECHR.
8. Interestingly, the applicants suggest that the distinction between legitimate and illegitimate children is a matter that falls under the scope if Article 12 ECHR. This would appeal to the intuition that the distinction is made on the basis of marital status (Article 12 ECHR) rather than the existence of family life (Article 8 ECHR). However, the Court rejects this interpretation and stresses that the matter does not fall under the scope of said right.
9. Finally, although both the applicants and the government agreed to 1 Franc being paid for moral damages, the Court rejects this claim and the preceding findings amount in themselves to adequate just satisfaction. It is on this point that 6 judges write a dissenting opinion.
10. Many judges have taken the opportunity to write a partially dissenting opinion. sJudge Fitzmaurice has written a dissenting opinion, almost as long as the judgement itself, in which he concludes: ‘In my opinion, it is quite wrong and a misuse of the Convention – virtually an abuse of the powers given to the Court in relation to it – to hold a Government, or the executives or judicial authorities of a country, guilty of a breach of the Convention merely by virtue of the existence, or application, of a law which is not itself unreasonable or manifestly unjust, and which can even be represented as desirable in certain respects. That there may be grounds for disagreeing with or disliking the law concerned or its effects in given circumstances is not, juridically, a justification. No Government or authority can be expected to operate from within a straitjacket of this sort and without the benefit of a faculty of discretion functioning within defensible limits. Equally, breaches of the Convention should be held to exist only when they are clear and not when they can only be established by complex and recondite arguments, at best highly controversial, – as much liable to be wrong as right.’