The European Court of Human Rights' Decisions Attaching Increasing Importance to Paternal Care and Substantive Gender Equality

Alice Margaria, Another Side of Gender Equality: Fatherhood in the ECtHR Jurisprudence,  
I. Motoc, I. Jelic, S. Suteu and E. Brodeala (eds), Women's Human Rights in the Twenty-First Century: Developments and Challenges under International and European Law (Forthcoming)

This paper sheds light on a central, yet rarely discussed, contribution of the European Court of Human Rights to advancing women's rights and substantive gender equality: that is the increased importance attached to paternal care in its jurisprudence pertaining to fatherhood under Article 8 alone and in conjunction with Article 14. It is argued that this case-law gives us plenty of signs that the Court is taking some promising step towards creating a right to substantive gender equality. In particular, what appears to be the most promising is not – or at least not just – the extension of legal protection to a wider range of ‘unconventional’ fathers, but the way in which this extension has materialised: namely, by acknowledging the central value of care thus advancing, rather than overshadowing, women’s quest for equality. That being said, the same case-law poses also some limitations and risks from a substantive gender equality perspective. Firstly, paternal care is attached different meanings, ranging from actual caregiving to mere caring potential, entailing the risk of 'sentimentalising' care and fatherhood. Secondly, paternal care tends to be given ‘only’ conditional importance: expressions of paternal care are generally taken into consideration if expressed in an otherwise conventional context (eg, genetics, marriage, heteronormativity), rather than being decisive on its own. This assimilationist logic has, in turn, translated into a lower level of protection accorded to same-sex and trans fathers, thus calling for some critical reflections and (more) cautious interpretation of the Court’s reconstruction of fatherhood.