Instantie
Europese Commissie voor de rechten van de mens
Samenvatting
Een ongehuwde man heeft een relatie met een gehuwde vrouw en uit deze
relatie wordt een kind geboren. Na verloop van tijd scheidt de vrouw en
de echtgenoot ontkent zijn vaderschap. De biologische vader wil omgang
met het kind. De Commissie oordeelt dat het twijfelachtig is of de
biologische vader altijd recht heeft op omgang met het kind. In ieder
geval kan het recht op omgang op basis van art. 8 lid 2 EVRM worden
ontzegd, gezien het gewelddadig karakter van de man en het belang van
het kind buiten de conflicten van de ouders te blijven. De man is niet
ontvankelijk.
Volledige tekst
The facts
a. Particular circumstances of the case
The applicant is a British citizen born in 1947 and resident in
Ashford. The facts as submitted by the applicant may be summarised as
follows.
The applicant is unmarried. In July 1990, he began a sexual
relationship with a married woman Mrs. F. Mrs. F. told him that she had
been married for 15 years and that she had never become pregnant though
she had undergone treatment to promote fertility.
Towards the end of 1990, the applicant believed that Mrs. F was
thinking of separating from her husband and coming to live with him.
When early in 1991, Mrs F informed the applicant that she was pregnant,
it seemed to him that they had agreed that the applicant was the father
and they would look after the child together.
Mrs. F informed her husband of the affair and the pregnancy. Shortly
after, she told the applicant that she would continue live with her
husband and that she and her husband would bring up the child.
The applicant did not wish to be deprived of his future relationship
with the child and sought legal advice.
On 14 November 1991, Mrs. F gave birth to a daughter E.
Mrs. F refused to enter into a parental responsibility agreement with
the applicant and denied that he was the father. On 31 March 1992, the
applicant applied to the courts for an order of parental responsibility
and contact with E under the Children Act 1989 (the 1989 Act) stating
that he believed that he was the natural father of E.
Following a directions hearing before the magistrates’ court on 11 May
1992, the magistrate transferred the applications to the High Court. He
referred, interalia, to the fact that at the time of conception Mrs. F
was having sexual relations with both her husband and the applicant and
that Mrs. F opposed any application for DNA tests which might disturb
the presumption of legitimacy which E enjoyed.
On 17 June 1992, following a hearing at which the applicant was
represented by counsel, the High court decided that no order or tests
determining paternity should be made.
On 6 July 1992, following a hearing at which the applicant was
represented by counsel, the High Court decided that no order for tests
determining paternity should be made.
The High Court judge stated the applicant had never seen the child and
that it had been accepted by the parties that the relationship between
the applicant and Mrs. F had ended the moment that she discovered that
she was pregnant. He held:
“Where a child is conceived and brought up in an existing marriage as a
child of the family, and the association of the mother with the man who
claims to be the putative father has terminated well before the birth
of the child, and such association co-existed with sexual relations
with the husband, a court should decline to exercise its discretion to
order a blood test for DNA profiling under section 20 of the Law Reform
Act 1969 ….”
The judge noted that any successful application by the applicant for a
parental rights order or a contact order was a remote and unlikely
prospect. He considered it unfair to expose E to the risk of losing the
presumption of legitimacy that she had hitherto enjoyed. He also stated
that the court would not order a test to be carried out against the
will of the parent who has sole parental responsibility and residence
of the child at the behest of a stranger to the marriage during which
the child was conceived to satisfy that stranger’s own desire to know
the truth about the consequences of a relationship with the mother that
terminated well before birth. Even if the object of the application for
a test was to regulate the putative father’s conduct as to whether to
seek parental responsibility of or contact with the child, he stated
that this would be counterbalanced by the interests of the child not to
be disturbed in its present status and position as child in the family
of Mrs. F and her husband.
The applicant appealed to the Court of Appeal. He could no longer
afford to pay for his own counsel. The Legal Aid Board refused to
provide legal aid for the purpose of the appeal.
On 18 December 1992, after a hearing at which the applicant represented
himself, the Court of Appeal rejected the applicant’s appeal. In its
written judgment delivered on 5 February 1993, the Court found the
following principles established in the relevant domestic case-law:
1. the presumption of legitimacy merely determines the onus of proof;
2. public policy no longer requires that special protection be given by
law to the status of legitimacy;
3. the interests of justice will normally require that available
evidence be not suppressed and that the truth be ascertained where
possible; in many cases the interests of the child are also served if
the truth is known;
4. the interests of justice may conflict with the interests of the
child. In general the court ought to permit a blood test to be taken
unless it is satisfied that it would be against the child’s interest:
it does not need to be satisfied that the outcome of the test will be
of benefit to the child;
5. it is not protecting a child to ban a blood test on vague or shadow
conjecture that it may turn out to its disadvantage;
6. a blood sample may not be taken from person under 16 years without
the consent of the person having his or her care and control. Without
such consent it may not be proper for the court to order a test.
The Court of Appeal agreed with the High Court judge that it was
relevant to take into account the applicant’s prospects of obtaining
orders for parental responsibility and contact and commented that it
could not see how such orders could possibly have benefited E. While it
found that the judge might have given more weight than was proper to
the presumption in favour of legitimacy, this did not detract from the
main thrust of his judgment. It found that the risks of E marrying
someone with the prohibited degrees of relationship or of being
ignorant of a factor vital to her health were infinitesimal when
brought into the balance against the harm that might be caused to her
if the applicant’s applications proceeded.
The Court of Appeal concluded:
” …E’s welfare depends for the foreseeable future primarily upon her
relationship with her mother
.. Anything which may disturb that relationship of the stability of the
family unit within which E has lived since her birth is likely to be
determined to E’s welfare, and unless that detriment is shown to be
counterbalanced by other positive advantages to her which an order for
the taking of blood tests could confer, then the judge’s refusal was
not merely an exercise of his discretion with which we cannot
interfere, but one which in the circumstances of this case we agree.
made a number of other points by way of criticism of
the judgment below, including the point that the public interests, as
well as E’s own personal interest, requires that the truth of her
paternity be ascertained if possible. However, in the last resort it is
clear that E’s interests must be the decisive factor; where, as here,
the judge was satisfied that it would be against E’s interests to order
blood tests to be taken -a decision with which we agree- then it was
his duty and his right to refuse the application. It was for these
reasons that we dismissed the appeal.”
The applicant’s petition for leave to appeal to the House of Lords was
refused on 30 March 1993.
b Relevant domestic law and practice
Welfare of the child
Section 1 of the Children Act 1989 provides, inter alia;
(1) When a court determines any question with respect to (a) the
upbringing of a child; … the child’s welfare shall be the court’s
paramount consideration.
Acquisition of parental responsibility by an unmarried father
Section 4 of the Children Act 1989 provides as relevant:
“1. Where a child’s father and mother were not married to each other at
the time of his birth-
(a) the court may, on the application of the father, order that he
shall have parental responsibility for the child; or
(b) the father and mother may by agreement (“a parental responsibility
agreement”) provide for the father to have parental responsibility for
the child
..”
Discretion of the courts to order blood tests
Section 20 (1) of the Family Law Reform Act 1969 provides:
“In any civil proceedings in which the paternity of any person falls to
be determined by the court hearing the proceedings, the court may, on
an application by any party to the proceedings, give a direction for
the use of blood tests to ascertain whether such tests show that a
party to the proceedings is or is not thereby excluded from being the
father of that person and for the taking, within a period to be
specified in the direction, of blood samples from the person, the
mother of that person and any person alleged to be the father of that
person or from any, or any two, of those persons …”
Complaints
The applicant submits that he has been deprived of a fair hearing
contrary to Article 6 of the Convention. Under the 1989 Act, only an
unmarried father can make an application for parental responsibility.
Since the courts have refused to order the tests which would establish
if he was the biological father of E, the applicant is unable to have
determined before the courts the issue as to whether he should enjoy
parental responsibility in respect of E.
The applicant also invokes Article 8 of the Convention. He submits that
knowledge of family and blood relationships is a right of family and
private life and the courts violate that right if they deliberately
prevent the truth about this aspect of personal identity being
discovered. The decisions of the courts have denied the applicant the
possibility of any future paternal relationship with the child. He
complains that this also constitutes a violation of the rights of E. In
addition, E has been prejudiced in that the decisions of the court deny
her the possibility of enjoying the legal right to inherit from him and
deprive her of the knowledge which enable her to avoid marrying within
the prohibited degrees of relationship and of the correct knowledge of
her genetic origins which might be relevant to her health.
The applicant claims further that he has been subject to discrimination
contrary to Article 14 of the Convention. There is no legal obstacle
preventing a natural mother from having her parenthood recognised and
registered in respect of her child. Where scientific methods exist
which can resolve doubts as to parenthood, it is unjust discrimination,
he submits, to deny a man the possibility of having his paternity
established. In addition, where a woman wishes to prove a man is het
biological father of her child for example, with regard to child
support provisions, the courts are generally required to determine the
issue.
The law
1. The applicant complains that he has been deprived of a fair hearing
in his applications for paternal responsibility and contact in respect
of E. He invokes Article 6 of the Convention which provides as relevant
in its first paragraph:
“1. In the determination of his civil rights and obligations …,
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law….”
The applicant submits that since the courts refuse to order a blood
test he is unable to obtain a proper determination of his claims as
natural father to paternal responsibility of and contact with E.
The Commission considers that the fact that an applicant’s case stand
poor prospects of success due to evidential difficulties in
establishing his right to make a particular claim does not constitute a
denial of effective access to court. Insofar as the applicant complains
that the court decisions with regard to the blood test deprived him of
the necessary evidence, the Commission notes that in respect of this
issue the applicant had the opportunity of arguing his case for an
order of testing in the High court and on appeal to the Court of
Appeal. Both courts gave full reasoned judgments for refusing to make
an order after hearing the parties. The Commission recalls that the
applicant was represented by counsel at first instance. While the
refusal of legal aid for his appeal resulted in the applicant
presenting his own appeal, it does not appear that he was prevented
thereby from placing his arguments before the court in an effective and
cogent manner.
In these circumstances, the Commission finds no indication of a
violation of Article 6 para. 1 of the Convention.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 of the Convention.
2. The applicant complains that the refusal of the courts to order a
blood test violates his right to respect for family and private life.
He also submits that the rights of E have been violated. The Commission
notes that the applicant is not under domestic law E’s guardian or
legal representative. The Commission does not find that the applicant
has any standing to represent E in these proceedings and therefore
limits its examination of these complaints relating to the applicant.
Article 8 of the Convention provides as relevant:
“1. Everyone has the right to respect for his private and family life
…
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and
is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
a. The Commission has first examined wether the applicant’s claimed
relationship with E falls within the scope of ‘family life’ as
protected by the above provision.
The Commission recalls that the existence or not of a ‘family life’
falling within the scope of Article 8 of the Convention will depend on
a number of factors, of which co-habitation is only one, and on the
circumstances of each particular case (see eg. No. 12402/86, Dec.
4.3.88, D.R. 55 p. 224). The application of this principle has been
found by the Commission to extend equally to the relationship between
natural fathers and their children born out of wedlock (No. 18280/91,
Dec. 9,4,92 to be published in DR). Further, the Commission considers
that Article 8 cannot be interpreted as only protecting ‘family life’
which has already been established but, where the circumstances warrant
it, must extend to the potential relationship which may develop between
a natural father and a child born out of wedlock. Relevant factors in
this regard include the nature of het relationship between the natural
parents and the demonstrable interest in and commitment by the natural
father to the child both before and after the birth (see eg. No.
16969/90, Keegan v. Ireland, Comm. Rep. 17.2.93).
In the present case, the Commission recalls that the applicant did not
cohabit with the mother and that his relationship with her lasted
approximately 6-7 months. Unlike in the case of Keegan (see above)
where the Commission found the relationship of a natural father and his
child fell within the scope of Article 8 para. 1 of the Convention, the
pregnancy was not planned and the applicant in this case did not see
the child or form any emotional bond with her. Further, the mother of
the child asserts that the father of the child is her husband, not the
applicant.
The Commission finds that in the circumstances of this case the
applicant’s link with the child has insufficient basis in law and fact
to bring the alleged relationship within the scope of Article 8 para. 1
of the Convention.
b. The applicant has also submitted that the refusal to allow him to
uncover the truth about an important aspect of his personal identity,
namely, the nature of his relationship with E, affects his private
life. The Commission recalls that in the Rasmussen case (Eur. Court
H.R., Rasmussen judgment of 28 November 1984, Series A no. 87 p. 13
para. 33) the Court found that the determination of the applicant’s
legal relations with his putative daughter undoubtedly concerned his
private life.
The Commission has therefore considered wether the courts’ refusal to
order a blood test which might disclose the applicant’s paternity of E
reveals a lack of respect for his private life.
The Commission considers that the applicant is arguing in effect not
that the State should refrain from acting but rather that it should
take steps to ensure adequate recognition of his potential relationship
as biological father of a child being brought up as the child of a
married couple. Although the essential object of article 8 is to
protect the individual against arbitrary interference by public
authorities, there may in addition be positive obligations inherent in
an effective ‘respect’ for family life (see eg. Eur. Court H.R., Marckx
judgment of 13 June 1979, series A no. 31 p. 31 para. 31). In this
context, the notion of ‘respect’ is not clear-cut and its requirements
will vary considerably from case tot case according to the practices
followed and the situations obtaining in Contracting States.
In determining whether or not such an obligation exists, regard must be
had to the fair balance which has to be struck between the general
interest and the interests of the individual (see eg. eur. Court H.R.
Abdulaziz judgment of 28 May 1985, Series A no. 94 p. para. 67 and the
B. v. France judgment of 25 March 1992, Series A no. 232-C para 44). In
striking this balance the aims mentioned in the second paragraph may be
of a certain relevance, although this provision refers in terms only to
‘interferences’ with the right protected in the first paragraph ie
regarding the negative obligations imposed (Eur. Court H.R. Rees
judgment of 17 October 1986, Series A no. 106 p. para. 37)
In this case, the Commission recalls that the courts refused to order a
blood test since in their view it would not be in the interests of the
child. They relied on the consideration that the child’s welfare was
bound up and the risk of disturbing the stability of that family by a
blood test would be to her detriment.
The Commission finds nothing arbitrary or unreasonable in this
assessment of the child’s interests, given that the applicant was
making no claim for custody. As the Commission found in a previous
case, there are sound reasons of legal certainty and security of family
relationships for States to apply a general presumption according to
which a married man is regarded as the father of his wife’s children
and to require good cause before allowing the presumption to be
disturbed (see No. 18535/91, Comm. Rep. 7.4.93) On the same basis, it
is justifiable for domestic courts to give greater weight to the
interests of the child and the family in which it lives than to the
interest of an applicant in obtaining verification or otherwise of a
biological fact.
In conclusion, the Commission finds that the facts of this case fail to
disclose any lack of respect for the applicant’s family or private life
contrary to Article 8 of the Convention.
It follows that this part of the application is manifestly illfounded
within the meaning of Article 27 para. 2 of the Convention.
3. The applicant further submits that he has been the subject of
discrimination contrary to Article 14 of the convention which provides:
“The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property, birth
or other status.”
The applicant appears to complain of discrimination in that he suffers
from a number of disadvantages as a natural father which he alleges do
not apply to a natural mother. The applicant alleges that it is unjust
discrimination not to permit a man to use scientific methods to
establish his paternity. While it is true that natural mothers rarely
find themselves in a position where their relationship with a child is
factually in doubt, this is a consequence of the biological process
involved and cannot found an allegation of difference in treatment of
any natural father by the courts.
Insofar as the applicant alleges that natural mothers are generally
successful in obtaining blood tests when they wish to prove paternity
eg. In the context of seeking child support, the Commission finds that
he has not substantiated this claim. In matters relating to children,
the courts are bound to give paramount consideration to the welfare of
the child. There is no indication in the file that a practice of
assessing the interests of the child differently depending on the sex
of the person seeking the order has been followed in this case.
The applicant also complains that natural mothers have no requirement
of seeking legal recognition and registration of their parenthood of a
child. Insofar as the applicant is referring to the requirement that a
natural father must obtain a parental responsibility agreement with the
mother or a parental responsibility order from a court, whereas a
natural mother enjoys parental responsibility has objective and
reasonable justification. The relationship between a natural father and
a child may differ widely in nature and degree from, for example,
circumstances where a child is conceived casually, unintentionally or
perhaps even violently to the situation where a child is born into a
stable and established relationship between an unmarried man and woman.
The requirement that a natural father obtain an agreement or court
order permits a flexibility of response to the differing situations.
In deciding an application for parental responsibility, the courts are
required to have regard to the paramount principle of the child’s
welfare. The commission finds that this procedure pursues a legitimate
aim of securing or reconciling the rights of children and their natural
parents and that the means employed to this end are not
disproportionate.
In light of the above, the commission finds that the applicant is not a
victim of discrimination contrary to Article 14 of the Convention.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2 of the
Convention.
For these reasons, the Commission by a majority declares the
application inadmissible.
Rechters
Mrs Weitzel, Rozakis, Busuttil, Gozubuyuk, Liddy, Pellonpaa,Marxer, Reffi, Conforti, Bratza, Bekes, Konstantinov
