Fatherhood is not always a desired state of affairs. There is a wealth of judgements and decisions in the case law of the European Court of Human
89Kroon and Others v. the Netherlands, para 40.
90Chavdarov v. Bulgaria, no. 3465/03, 21 December 2010.
91Chavdarov v. Bulgaria, paras 49 and 56.
92 SeeX, Y and Z v. the United Kingdom, para 46: “The Government pointed out that the applicants were not restrained in any way from living together as a "family" and they asserted that the concerns expressed by them were highly theoretical”.
Rights where presumed and probable fathers avoid the law, or use the possibilities that law offers to undo paternity attributed through marriage, recognition or a court decision. In the case of maternity, the rejection of motherhood is structured differently than in paternity, but as the practice of anonymous birth demonstrates, the identity of the birth mother may be effectively concealed with the help of the state. The judgement ofRasmussen v. Denmark from 198493 is an important judgement in weighing the concept of equality between men and women in the attribution of filiation. In the case, a husband and wife who had two children, divorced. The man had doubts about whether he was the father of the younger child, but did not try to institute paternity proceedings within the time-limit set by Danish law at the time due to an agreement with his ex-wife that she would waive rights to maintenance and he would refrain from a legal case rebutting his paternity of the younger child.
In the European Court, he
… complained of the fact that… his right to contest his paternity of a child born during the marriage was subject to time-limits, whereas his former wife was entitled to institute paternity proceedings at any time.
He alleged that he had been the victim of discrimination on the ground of sex, contrary to Article 14 of the Convention, taken in conjunction with Article 6 (art. 14+6) (right to a fair trial, including the right of access to court) and with Article 8 (art. 14+8) (right to respect for private and family life).
Rasmussen v. Denmark, para 27
The European Court found no violation of these Articles, as it left a wide margin of appreciation to the Danish Government. The Court argued that the existence of time limits for opening paternity proceedings could be backed up with the need to support legal certainty and to safeguard the interests of the child in question. Denmark was in no way an exception in this regard compared to other Member States of the Council of Europe. Furthermore, it was elaborated by the European Court that the time limits benefited the wives because a mother’s interests often coincided with the interests of the child, women ending up as the custodians in most situations of separation or divorce.94 However, the existence of strict time-bars has since been condemned by the European Court, for example, in the case fathers rejecting maritally attributed paternity such as in Mizzi v. Malta95 as well as in many judgements concerning the right of children seeking knowledge of their paternity.
93Rasmussen v. Denmark, no. 8777/79, 28 November 1984, Series A no. 87.
94Rasmussen v. Denmark, para 41.
95Mizzi v. Malta, no. 26111/02, ECHR-2006 (extracts), para 10.
Consanguinity: Maternity and Paternity
Shofman v. Russia from 200696 concerned a situation in many ways like Rasmussen, but the father only became aware of the possibility that the child born in wedlock might not be his biological child at the time of divorce when the time-limit for contesting paternity had run out. DNA testing offered proof that he was not the father of the child. The European Court found a violation in this case, arguing that
According to the Court’s case-law, the situation in which a legal presumption is allowed to prevail over biological and social reality, without regard to both established facts and the wishes of those concerned and without actually benefiting anyone, is not compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life...
The Court considers that the fact that the applicant was prevented from disclaiming paternity because he did not discover that he might not be the father until more than a year after he learnt of the registration of the birth was not proportionate to the legitimate aims pursued. It follows that a fair balance has not been struck between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of the biological evidence.
Shofman v. Russia, paras 44-45
Thus, the existence of the possibility of finding genetic evidence made a difference and should have been given a chance, even though the child had been benefiting of a paternal relationship. In a concurring opinion in the case material, Judge Lorenzen of the European Court reminds that
The assessment of to what extent and under what conditions a registered paternity may be contested is very difficult involving a number of conflicting interests. Thus the “biological reality” is only one of them, and it may in the circumstances of a given case be outweighed by for instance the interests of the child, the child’s mother or the society in preserving the stability of the legal status of persons...
Shofman v. Russia, concurring opinion of Judge Lorenzen
The judgement ofMizzi v. Maltafrom 200697 involved the case of a man who claimed the assumption of fatherhood within marriage had worked against him, as he suspected and later confirmed that he was not the father of a child born to his wife when he was still married to her. The complaint was made against the state of Malta in 2002 when Mizzi was in his sixties and his presumed daughter was an adult. Four years after getting married Mizzi and his wife ceased to live together. Four months later X gave birth to Y. Mizzi had
96Shofman v. Russia, no. 74826/01, 24 November 2005.
97Mizzi v. Malta, no. 26111/02, ECHR-2006 (extracts), para 10
suspicions that Y might not be his child and wanted to carry out blood tests. X refused to have a blood test carried out, which intensified Mizzi’s suspicions that he was not Y’s biological father. However, a test would not have been of much help as Maltese law at the time did not allow a man in his circumstances to challenge the legal assumption of fatherhood. He was registered as the legal father under the assumption that he was Y’s biological father. Mizzi and his wife soon separated legally and a few years later the marriage was annulled by the Vatican. Y contacted him after 1993 and said she wanted to carry out a blood test. Tests were carried out in Switzerland and they proved that Mizzi was not Y’s biological father. Mizzi began a legal process in 1996 in the Civil Court in order to establish that he had a right to bring action in order to disavow his paternity of Y98.
As Mizzi and his wife had been cohabiting at the time when Y was conceived and he had been aware of her birth, he could not have challenged the legal assumption of fatherhood under relevant Maltese law at the time. The Maltese Civil Code in force in 1967 allowed the paternity of a child born in wedlock to be challenged if cohabitation by the couple at the time of conception had been physically impossible, if they had been legally separated, or if the birth had been concealed from the husband, when he was allowed to repudiate the child on the basis of adultery. The Civil Code was amended in 1993, after which adultery was an accepted reason for a husband to repudiate a child if he produced further evidence, such as scientific tests, and acted within six months of the birth99. In the European Court, Mizzi complained that the legal presumption of him being the father of the child violated his rights to respect for private and family life under Article 8 of the ECHR. In addition, he complained about the absence of a possibility to challenge his paternity earlier within the Maltese legal system. In its final judgement, the Court concluded that there had been a violation of Article 14 taken in conjunction with Article 8.
Legal time-bars for establishing paternity were the bone of contention in a number of judgements given concerning Finland in 2010100 and 2013101. From the 1920s onwards, Finnish paternity legislation allowed recognition of paternity by the father for children born out of wedlock, but paternity could not be established if the presumed father was against it. In 1975, new paternity legislation was enacted in order to ameliorate the legal status of children born out of wedlock. However, strict time limits were instituted so that children born before the entry into force of the Act on 1 October 1976 had to institute paternity proceedings within five years of this date, after that they were not
98Mizzi v. Malta, paras 9-14.
99Mizzi v. Malta, paras 15-27.
100Grönmark v. Finland, no. 17038/04, 6 July 2010,Backlund v. Finland, no. 36498/05, 6 July 2010.
101Laakso v. Finland, no. 7361/05, §15 January 2013,Röman v. Finland, no. 13072/05, 29 January 2013.
Consanguinity: Maternity and Paternity
covered by the legislation. Also, if the presumed father was dead, paternity proceedings could not be instituted by the presumed child. The European Court eventually declared this rigid time-limit as a violation of Article 8 in Grönmark v. Finland andBacklund v. Finland, decided on the same day in 2010102. This was a considerable step in protecting the right to identifying information on one’s origins and for equality between persons born in and out of wedlock. Several complaints were taken as far as the ECHR as many persons in Finland were affected by this legislation and often these cases involved financial interests in possibly inheriting the presumed fathers.
Mikulić v. Croatia from 2002103 is often cited in legal literature as an important case in the area of attributing paternity. Its main import was in the ineffectiveness of the Croatian authorities to procedurally determine the paternity: the putative father was unwilling to cooperate, and failed to attend court sessions and DNA testing opportunities on several occasions. In the end, his unwillingness to submit himself to a DNA test was taken as a sign of his probable genetic paternity. In the judgement of A.M.M. v. Romania from 2012104 as well a violation of Article 8 was found as the Romanian authorities in question had acted ineffectively in order to carry out the judicial procedure concerning a child’s right to have her paternity established. The problems in the case arose from the lack of sufficient proof to actually determine the paternity, but the main crux of the matter was that the right and the interest of the child to know her origins was not protected well enough by the domestic authorities as the presumed father was not pursued effectively enough to conclude on the matter. The description of possible forms of proof paints a picture of the variety of proof that may be produced to support a paternity claim in the jurisdiction in question, Romania: testimonials, documents, the testimonial of the defendant party to the paternity claim, presumption and scientific proof105.
InJäggi v. Switzerland from 2006106 the applicant was a person in his 60s who wished to have his putative father’s physical remains disinterred from a grave in order to carry out a DNA test. He complained to the European Court that the refusal of the Swiss authorities to allow this constituted a violation of Article 8, arguing that “the right to know one’s parentage lay at the heart of the right to respect for private life”107. It was specifically asserted in the case that
”the proceedings brought by the applicant were intended solely to establish the
102Grönmark v. Finland andBacklund v. Finland.
103Mikulić v. Croatia, no. 53176/99, ECHR 2002-I.
104A.M.M. v. Romania, no. 2151/10, 14 February 2012.
105A.M.M. v. Romania, para 49
106Jäggi v. Switzerland, no. 58757/00, ECHR 2006-X. The issue of wishing to discover one’s genetic paternity at a later age has also surfaced inPhinikaridou v. Cyprus, no. 23890/02, 20 December 2007,Brauer v. Germany, no. 3545/04, 28 May 2009 andPascaud v. France, no.
19535/08, 16 June 2011.
107Jäggi v. Switzerland, para 23.
biological ties between him and his putative father and did not in any way concern his inheritance rights”108. At the European Court, he complained that he had suffered a violation under Article 8 pertaining to his private life and that there had also been a violation of Article 14 in taken in conjunction with Article 8: this meant that he argued that he ”had been subjected to discrimination that had not been based on objective grounds in that the Federal Court had taken into account his state of health and advanced age as reasons for justifying the refusal to perform a DNA test”109 on the remains of a deceased man who was presumed to be his biological father. In its reasoning, the Court came to the conclusion that Article 8 had been violated. It argued that
Although it is true that, as the Federal Court observed in its judgement, the applicant, now aged 67, has been able to develop his personality even in the absence of certainty as to the identity of his biological father, it must be admitted that an individual’s interest in discovering his parentage does not disappear with age, quite the reverse.
Moreover, the applicant has shown a genuine interest in ascertaining his father’s identity, since he has tried throughout his life to obtain conclusive information on the subject. Such conduct implies mental and psychological suffering, even if this has not been medically attested.
Jäggi v. Switzerland, para 40
The European Court also touched upon the fact that the remains would have been exhumed in a certain number of years as the lease on the grave was going to expire and that it was the applicant who had succeeded in renewing the lease of the grave. The outcome of the case goes to show that the European Court has attached great weight to the right to know one’s origins, as in this case such a right was deemed more important from the point of view of Convention rights than the right of the recognised and official close relatives of the deceased person to leave his grave untouched.
InKalacheva v. Russia from 2009110 the applicant was the mother of a child who had been born from a concealed relationship with a married man, A. After a court order, DNA evidence was obtained and said to prove that A.
was the genetic father of Kalacheva’s daughter born in 2003. Due to procedural shortcomings in the taking of the blood test, A. was able to dispute the validity of the samples taken111. The shortcomings in the signatures attached to the samples were described by the Government:
108Jäggi v. Switzerland, para 26.
109Jäggi v. Switzerland, para 48.
110Kalacheva v. Russia, no. 3451/05, 7 May 2009.
111Kalacheva v. Russia, paras 5-12.
Consanguinity: Maternity and Paternity
Blood sampling was conducted on… in the presence of the parties, their lawyers and four medical workers, including a person who took the samples. However, there were only two signatures on the envelopes with the samples instead of the three required; furthermore, these signatures were not decoded as there were no names or positions next to them.
Kalacheva v. Russia, para 24
Due to these shortcomings in the samples taken by the local public bureau of forensic medical examinations, the Kirovskiy District Court of Astrakhan dismissed the evidence produced112. According to Russian law, it was the court which should have ordered a second DNA examination, but the domestic courts failed to do so113. The European Court found a violation of Article 8. The European Court reasoned that
The Court does not lose sight of the fact that today a DNA test is the only scientific method of determining accurately the paternity of the child in question; and its probative value substantially outweighs any other evidence presented by the parties to prove or disprove the fact of an intimate relationship. Furthermore, the applicant suggested that she and the defendant had concealed their relationship; hence the genetic examination could have been the only persuasive evidence of the disputed paternity.
Kalacheva v. Russia, para 34
Thus, the importance of DNA testing is acknowledged when the matter at hand specifically concerns the establishment of paternity as a biological relationship. Even though the applicant was the mother of the child, the interests of the child in establishing her paternity should have made the domestic courts order a second DNA test after dismissing the first one due to the argumentation of A., the presumed father. The judgement of the European Court offers both legal argumentation in favour of establishing a child’s origin and the interests of the mother against the proceduro-legal stance of the presumed father and the judicial system that did not effectively seek to find an answer to the questions posed in the case.
Scientific methods providing unconclusive results such as comparing blood groups before the advent of DNA testing sometimes played a part in misattributing paternity from a genetic point of view. Such was the case of Ostace v. Romania114 from 2014 where a legal father had been unable to re-open a case of judicially attributed paternity, judged in the early 1980s when DNA testing was not available. Due to DNA evidence obtained when the child
112Kalacheva v. Russia, paras 9-11.
113Kalacheva v. Russia, para 36.
114Ostace v. Romania, no. 12547/06, 25 February 2014.
was an adult and cooperated with his father in the testing process, the genetic relation between them was disproven. In the judgement of Tavli v. Turkey from 2006115 a man had been barred from reopening a case of misattributed paternity as the Turkish courts did not regard the later emergence of DNA testing that would have counted as aforce majeure for not having this proof at hand in 1982. The paternity had been attributed to him by a court in 1982 due to blood group testing that showed that he could be the father, because he and his fiancée had lived together before getting married and because the child was born in wedlock. In 1997, DNA testing proved that he was not the genetic father of the child in question. In the judgement, the European Court found a violation of Article 8, noting that
…. the fact that the applicant was prevented from disclaiming paternity, because scientific progress was not considered to be a condition for retrial… was not proportionate to the legitimate aims pursued. It follows that a fair balance has not been struck between the general interest of the protection of legal certainty of family relationships and the applicant's right to have the legal presumption of his paternity reviewed in the light of the biological evidence… The Court is of the opinion that domestic courts should interpret the existing legislation in light of scientific progress and the social repercussions that follow.
Tavlı v. Turkey, para 36
Likewise, in the judgement ofIyilik v. Turkey from 2011116, a Turkish man was not given the possibility to re-open a case of paternity assumed on the basis of marriage where the disavowal of paternity involved blood-group testing in the 1960s. The difference toTavli was that the applicant inIyilik wanted his adult
Likewise, in the judgement ofIyilik v. Turkey from 2011116, a Turkish man was not given the possibility to re-open a case of paternity assumed on the basis of marriage where the disavowal of paternity involved blood-group testing in the 1960s. The difference toTavli was that the applicant inIyilik wanted his adult