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Файл:Альманах семейного права = International Aspects of Protection of Children’s Rights. Вып.1. Международные аспекты защиты прав ребенка
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К вопросу о месте жительства ребенка и его изменении
16. Совместная опека гармонизирует современные социальные тренды:
а) равенство полов;
b) принятие развода: расторжение брака – это не трагедия, ребенок
не теряет родителей, взрослые люди разводятся не с ребенком,
а друг с другом.
Несомненно, родителям во время и после развода надо учиться договариваться и сотрудничать. Но как правильно решать споры в ситуации,
когда родители не готовы или не могут договориться? Нельзя отрицать
значение медиативных процедур с участием квалифицированных медиаторов по семейным спорам для урегулирования конфликтных ситуаций
при расторжении брака, а также в период после развода для «повышения
качества» сотрудничества между родителями в наилучших интересах ребенка. Наблюдаемое увеличение в европейских юрисдикциях и странах
общего права количества случаев определения поочередного проживания ребенка с обоими родителями, обладающими правами совместной
опеки, заслуживает внимания и изучения специалистами по семейному
праву. Важно, однако, иметь в виду, что такая форма проживания, как
указано выше, возможна только в том случае, если родители хорошо
сотрудничают друг с другом.
Например, если оба родителя могут и хотят создать надлежащие
условия для воспитания и развития ребенка и сделать оба места «домом» для ребенка, если ребенок в равной степени привязан к обоим
родителям и родственникам с обеих сторон, если ребенок оказывается
в сложной ситуации выбора / предпочтения того или иного родителя
и своими оценками и выбором он не хочет и не может обидеть коголибо из родителей, то «поочередное родительство» может стать одной
из действенных современных форм воспитания детей неконфликтующими родителями и даже оказать содействие в снятии конфликта,
налаживании новых конструктивных связей между родителями. И, конечно, необходимо продолжать совершенствовать семейное законодательство и законодательство в социальной сфере, регламентирующие
рассмотрение вопросов воспитания ребенка, места жительства ребенка,
изменения места жительства ребенка, предоставления услуг и помощи семьям, разрабатывать понятные нормы, опираясь на рекомендации и принципы, уже разработанные международным сообществом,
сближая правовые системы различных государств в наилучших интересах детей.
Nigel Lowe КC (Hon)
THE HUMAN RIGHTS IMPLICATIONS
OF ESTABLISHING LEGAL PATERNITY
I. Introduction
As Sir James Munby P once said1:
The question of who, in law, is or are the parent(s) of a child… is a question
of the most fundamental gravity and importance. What, after all, to any child,
to any parent, never mind to future generations and indeed to society at large,
can be more important, emotionally, psychologically, socially and legally, than
the answer to the question: Who is my parent? Is this my child?
Given its fundamental importance, it should come as no surprise that the
identification of legal parents is an important human rights issue. Article 7 (1)
of the UN Convention on the Rights of the Child (UNCRC), for example,
provides that a child should, ‘as far as possible’ have ‘the right to know and
be cared for by his or her parents’. Although the European Convention on
Human Rights (ECHR) does not expressly deal with parenthood as such, it is
well established (see below) that disputes over parentage engage Article 8 rights.
Without gainsaying the importance of legal maternity nor to suggest that
there are no legal difficulties in that regard, the focus of this contribution is on
legal paternity, which has raised and continues to pose human rights issues, as
the extensive jurisprudence of the European Court of Human Rights (ECtHR)
bears testimony. Indeed, it is that jurisprudence that forms the core of this paper.
II. Legal Fathers
Although UNCRC broke new ground in providing for the right of the
child to know and be cared for by his/her parents2, the Convention does not
1
Re The Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H)
[2015] EWHC 2602 (Fam), at para [3].
2
See Tobin J. and Seow F. Article 7. The Rights to Birth Registration, a Name, Nationality,
and to Know and Be Cared for by Parents // The UN Convention on the Rights of the Child –
A Commentary / Ed. J. Tobin. OUP, 2019. P. 237, at 238.
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The Human Rights Implications of Establishing Legal Paternity
define ‘parent’ for these purposes. The ECHR confers rights on ‘persons’
and, strikingly, makes no reference to ‘parents’, ‘mothers’ ‘fathers’ nor to
‘child’ or ‘children’ and, perforce, contains no definitions.
According to one commentary on the UNCRC, the term ‘parent’ in
Article 7, is taken to mean ‘the two parents who have direct biological, gestational and social nexus with a child’1. While this might be an appropriate
definition for UNCRC purposes, by including the social nexus, it goes beyond
what most legal systems in general and European jurisdictions in particular,
would regard as legal parents. These latter systems have, in the words of another commentary, ‘chosen to accord the legal status of parenthood in the
first instance to those who have been responsible for creating the child rather
than to those, sometimes referred to as ‘social parents’, who care for the child
after the birth (though, of course, most persons responsible for creating the
child also bring up child)’2.
Before the advent of assisted reproduction technologies, the exclusive
underlying basis of legal paternity was the man’s genetic link to the child.
However, because that link was hard to prove, particularly before the advent of
blood tests and later DNA tests, reliance was placed on the presumption that a
child born to a married woman was that of her husband (pater est quem nuptiae
demonstrant). This made perfect sense in societies where cohabitation outside
marriage was not only unusual but frowned upon. But this approach makes
less sense where cohabitation outside marriage and the conception of children
within such unions is common place and where paternity can be proved with
practically 100% certainty. Furthermore, it is not necessarily an appropriate
means of assigning paternity where the child has been conceived by way of
assisted reproduction, nor where the parent legally changes gender. On top
of this, it is now regarded as unacceptable, that children conceived outside
marriage should be treated differently to those born within marriage3. Given
these developments, European legal systems, prompted in some cases by the
ECtHR, have tended to make it easier to challenge or assert paternity and,
in varying degrees, have modified the definition of legal fatherhood itself.
In England and Wales, for example, the changes with regard to legal
paternity over the last 50 years or so have been profound. At common law,
the presumption that the husband was the father could only be rebutted if
1
Tobin and Seow, above n 2, at 258.
2
Bromley’s Family Law by N. Lowe, G. Douglas, E. Hitchings and R. Taylor (OUP,
12th edn, 2021) at 388–389.
3
An issue that was sought to be addressed by the European Convention on the Legal Status
of Children Born Out of Wedlock 1975 (ETS No 85).
153
N. Lowе
it could be proved beyond all reasonable doubt that the child was not genetically his1. That position was changed by s 26 of the Family Law Reform Act
1969, which provided that the presumption of legitimacy (a different way of
expressing the pater est principle) could be rebutted on the balance of prob-
abilities. That change came in the context of improving the legal position of
children born outside marriage and, with the advent of DNA testing, meant
that it became relatively easy to rebut the presumption. Furthermore, the
courts have taken the view that it is in the interests of the child to know the
truth of their parentage2 and neither the judiciary nor the legislature have
ever imposed a time bar upon instituting legal proceedings to establish what
is regarded as an issue of fact.
Further important changes to the concept of legal fatherhood were made
by legislation, namely, the Family Law Reform Act 1987 and the Human
Fertilisation and Embryology Acts 1990 and 2008, by which a man whose
spouse or partner conceives as a result of State-licensed assisted procreation
treatment to which he has consented, is deemed to be the legal father. The
corollary of these ‘deemed fatherhood’ provisions, and expressly spelt out by
statute3, is that the genetic father is not regarded as the legal father4.
At first sight, the English common law position seems similar to that of
civil law systems in Europe generally and to Russia in particular. Certainly,
European jurisdictions, including Russia, operate the pater est principle,
though that principle operates more rigidly than under the common law in
that the issue is one of law rather than one of fact. Further, unlike the English system, paternity can be formally acknowledged, commonly by way of a
joint declaration by the man and the mother (in Russia, acknowledgement
is permitted during the pregnancy)5 or by a joint application to a competent
authority. Paternity can also be established in court proceedings as, for example, when the putative father does not want to acknowledge it voluntarily6.
1
See Bater v. Bater [1951] P 35.
2
See eg Re H. and A (Paternity): Blood Tests) [2002] EWCA Civ 383.
3
See HFEA 2008, s. 41 (1) and HFEA 1990, s. 28 (6).
4
For a discussion of these provisions, see Bromley’s Family Law, above n 4, at 398–399.
5
Russian Family Code 1995 Art. 48 (3).
6
For a survey (commissioned by the Council of Europe) of the position as it stood in 2009,
see N Lowe ‘A Study into the Rights and Legal Status of Children Being Brought up in Various
Forms of Marital and Non-Marital Partnerships and Cohabitation (Council of Europe 2009 –
CJ-FA (2008) 5. See also the discussion by N Lowe ‘Working Towards A European Concept
Of Legal Parenthood’ // Private Law, national – global – comparative Festschrift fűr Ingeborg
Schwenzer (eds Bűchler and Műller-Chen, Stämpfli Verlag AG Bern, 2011) 1105.
154
The Human Rights Implications of Establishing Legal Paternity
Although paternity can be challenged in court proceedings, in many civil
law jurisdictions, this right has or continues to be circumscribed and, as will
be seen, it is these restrictions that have given rise to numerous complaints
before the ECtHR.
English law is not alone making provision for the consequences of assisted procreation. In Russia, for example, there are separate provisions for
the registration of persons as legal parents in the case of assisted reproductive
treatment and on contesting parentage. Despite using donors’ gametes, the
intending parents are registered as legal parents, and they cannot contest
parentage if they consented to the treatment1.
III. The Application of the ECHR to Paternity Disputes
Most of the cases brought under the Convention have been concerned
with the traditional notion of paternity, based upon the man’s genetic link
to the child. The classic dispute is the man’s denial of paternity but there
have also been cases where the man has sought to assert his paternity. There
is also the situation where the child is seeking to establish his/her parentage.
The common background to cases coming before the ECtHR is a domestic
law time restriction on bringing such proceedings.
In this section we consider how the Convention is relevant to these
disputes. We then discuss the outcomes of the various applications.
(a) How the Convention is engaged in paternity disputes
(i) Article 8
As already said, the ECHR makes no specific reference to ‘parents’
in general, nor to ‘fathers’ in particular. But this does not mean that the
Convention is not engaged in disputes concerning parentage. To the contrary, it
is well established that it is engaged but not quite in the way that one might have
expected. Clearly the most appropriate provision is Article 8 (1) which provides:
‘Everyone has the right to respect for his private and family life, his home
and his correspondence.’
At first sight, the natural inclination is to regard disputes over paternity as
being an aspect of ‘family life’ and therefore engaging Article 8 in that way.
However, this analysis does not reflect ECtHR jurisprudence. The leading
1
Russian Family Code 1995 Arts. 51 (4), 52 (3).
155
N. Lowе
case is Rasmussen v Denmark1, in which the applicant sought to contest his
paternity and in which it was argued that Article 8 did not apply since its object was the protection of the family and not the dissolution of existing family
ties. The Court pointed out, however, that Article 8 protects not only «family»
but also «private» life and that although the paternity proceedings which the
applicant wished to institute were aimed at the dissolution in law of existing
family ties, the determination of his legal relations with his child undoubtedly
concerned his private life2. Hence, the case fell within the ambit of Article 8.
While concurring in the overall outcome (see below), Judge Gersing
disagreed with the majority’s view of the ambit of Article 8, which was, he
pointed out, broader than that previously adopted by the Court and seemed
to imply that any legal problem that has a bearing on a person’s private life
falls within the scope of the Article. In his view, the ordinary meaning of this
expression does not clearly cover a father’s right to disclaim his paternity of
a child and seemed well outside what the authors of the Convention had in
mind, namely, to protect the individual against an «arbitrary interference with
his privacy»3. He pointed to Article 5 of Protocol No. 7 to the Convention,
which contains, a provision concerning spouses’ relations with their children.
In his view, this was a further indication that the Parties to the Convention
have not found that Article 8 covers that aspect. In his view, contesting paternity did not engage Article 8 rights at all.
Although Judge Gerson’s analysis is not without merit, and notwithstanding the absence of any detailed reasoning by the majority as to why
contesting paternity is properly considered to engage rights to respect for
private life under Article 8, that it does so, has been accepted in subsequent
cases, albeit that the question of whether it also is an aspect of ‘family life’
has not been ruled out. In Shofman v Russia4, the Court said that the cases,
citing inter alia, Rasmussen,
left open whether paternity proceedings aimed at the dissolution of existing
family ties concerned the applicant’s ‘family life’ because of the finding that,
in any event, the determination of the father’s legal relations with his putative
child concerned his ‘private life’…
1
(App No 8777/79), (1985) 7 EHRR 371.
2
See para [33].
3
Having regard to the Collected Editions of the «Travaux Préparatoires» of the European
Convention on Human Rights. The Hague, Nijhoff, 1976. Vol. III. P. 222; Vol. IV. P. 110, 188,
202 and 222.
4
(App No 74826/01), (2007) 44 EHRR 741, at para [30].
156
The Human Rights Implications of Establishing Legal Paternity
This analysis has been repeated in several subsequent cases1. Furthermore, in Ahrens v Germany2 the Court considered it established that this
analysis applied both to proceedings concerning the establishment of and
challenge against paternity.
(ii) Other Articles of relevance
Article 8 is not the only Article that can be relevant in actions concerning
paternity. In Rasmussen, for example, the applicant, who was time-barred
from contesting paternity in contrast to his former wife who was entitled to
institute paternity proceedings at any time, complained that he had been
the victim of discrimination on the ground of sex, contrary to Article 14
taken in conjunction with Article 6 and with Article 8. Because, as the Court
observed, Article 14 complements the other substantive provisions of the
Convention and the Protocols and has no independent existence since it
has effect solely in relation to «the enjoyment of the rights and freedoms»
safeguarded by those provisions, to sustain the Article 14 contention it had
first to be shown that the case fell within the ambit of Articles 6 and 8.
We have already considered the ambit of Article 8 in this regard.
It remains to consider the ambit of Article 6, para 1 of which provides,
inter alia:
‘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’.
In Rasmussen it was questioned whether the object of a paternity suit was
a determination of «civil rights and obligations», for these purposes, given
the strong public interest involved in proceedings of this kind. The Court
accepted that the public interest may be affected by paternity proceedings
but, in its view, that factor could not exclude the applicability of Article 6
to litigation which, by its very nature, is «civil» in character. As the Court
observed, an action contesting paternity is a matter of family law; on that
account alone, it is «civil» in character3. Article 6 was accordingly held to
be engaged.
1
Eg Mizzi v. Malta (App No 26111/02), [2006] ECHR 28, at para [102], Ahrens v Germany
(App No 45071/090, [2012] ECHR 515, at para [60], Kautzor v Germany (App No 23338/09),
[2012] ECHR 516, at para [63], Krušković v. Croatia (App No 46185/08), [2011] ECHR 991, at
[18], Doktorov v. Bulgaria (App No15074/08), [2018] ECHR, at para [18], and Novotný v. Czech
Republic (App No 16314/13), [2018] ECHR, at para [42].
2
Above, at para [60].
3
This analysis was followed in Mizzi v. Malta, above n 17, at para [76].
157
N. Lowе
(b) Outcomes in paternity disputes
(i) Challenging paternity
The classic dispute is that of the man, commonly the husband, contesting
parentage. This was the issue in Rasmussen1. In that case, the applicant wished
to contest his paternity of a second child (then aged 5) who had been born
during his marriage to his former wife. Under the then domestic law2 paternity
proceedings had to be instituted by the husband within twelve months after
becoming cognizant of the circumstances which may give grounds for his
renunciation of paternity, and not later than five years after the birth of the
child. This was subject to the court’s power to give leave to re-open a paternity
case after the expiry of the time-limit ‘if quite exceptional reasons are given
as to why a review was not sought earlier, if the particular circumstances of
the case especially warrant it and if it can be assumed that the re-opening
will not cause the child any great inconvenience’. In this case the applicant
was refused leave and he complained to the ECtHR that given that the 1960
Act did not impose any restriction on the mother’s right to institute paternity
proceedings, he had been the victim of discrimination contrary to Article 14
taken in conjunction with Article 6 and with Article 8.
As previously discussed, the applicant succeeded in showing that Articles 6
and 8 were engaged, which left the issue of whether Article 14 had been
violated. It was held that it was not. The Court noted, applying Marckx v.
Belgium3, that a difference of treatment is discriminatory if it «has no objective and reasonable justification», that is, if it does not pursue a “legitimate
aim” or if there is not a “reasonable relationship of proportionality between
the means employed and the aim sought to be realised”. However, bearing
in mind that among Contracting States there was no common ground on
legislation regarding paternity proceedings and that in most States the position of the mother and that of the husband were regulated in different ways
and, bearing in mind the margin of appreciation which must be allowed to
the authorities in the matter, the Court considered that the Danish authorities
were entitled to think that the introduction of time-limits for the institution of
paternity proceedings was justified by the desire to ensure legal certainty and
to protect the interests of the child. The difference of treatment established
on this point between husbands and wives was based on the notion that such
time-limits were less necessary for wives than for husbands since the mother’s
1
Above.
2
Ie s 5(2) of the Danish 1960 Act on the Legal Status of Children.
3
(App No 6833/74), (1979-80) 2 EHRR 330.
158
The Human Rights Implications of Establishing Legal Paternity
interests usually coincided with those of the child, she being awarded custody
in most cases of divorce or separation1. The Court concluded that the difference of treatment complained of was not discriminatory, within the meaning
of Article 14 and the applicant’s action failed.
There was a different outcome in Mizzi v. Malta2. There, the applicant’s
former wife became pregnant whilst they were living together but she gave
birth after their separation. Although he had doubts about the paternity of
the child, under Maltese law as it then stood, the applicant had no legal
means of challenging his assumed paternity. The law was later amended to
allow paternity proceedings where there was scientific evidence but this was
subject to strict time limits with which the applicant could never comply.
Hence, although tests showed that the applicant was not the father, he was
still unable, according to a domestic court appellate ruling, to bring an action. The applicant successfully complained that his rights under Articles 6,
8 and 14 were violated.
The Court held that the impossibility of the applicant being able to bring
paternity proceedings violated Article 6 since the domestic law thereby failed
to strike a fair balance between the applicant’s legitimate interest in having a
judicial ruling on his paternity and the protection of the legal certainty and of
the interest of the persons involved in the case. The law also violated Article 8
since its effects were disproportionate to the legitimate aims pursued and,
because the strict limits did not apply to other interested parties, also violated
Article 14 taken in conjunction with Articles 6 and 8. The Court considered
the case before it to be distinguishable from Rasmussen upon the basis that,
there, the applicant had an opportunity to disavow the child during the five
years subsequent to the birth and within twelve months after he had become
cognizant of the circumstances affording grounds for contesting paternity
whereas in this case, the applicant never had such an opportunity. The rigid
application of the time-limit, coupled with the Constitutional Court’s refusal
to allow an exception, deprived him of the possibility of exercising the rights
guaranteed by Articles 6 and 8, which, on the contrary, were enjoyed by the
other interested parties. The Court concluded that in violation Article 14, read
in conjunction with Articles 6 and 8, the difference in treatment complained
of was disproportionate to the aims sought to be achieved.
1
Although the rules were subsequently modified by the Danish Parliament in 1982 because it considered that the thinking underlying the 1960 Act was no longer consistent with the
developments in society, the Court considered that it could not thus be inferred that the manner
in which it had evaluated the situation 22 years earlier was not tenable.
2
Above.
159
N. Lowе
The applicant also succeeded in Shofman v. Russia1. In that case, shortly
after his wife gave birth, the applicant was named as the child’s father. The
applicant later moved from Russia to Germany where he learned for the first
time that he might not be the child’s father. At that stage the child was over
two years old. DNA tests later showed that he could not be the father but
under Russian law, as it then stood, the father was time-barred (there was a
strict one-year time bar calculated from the time when the putative father
became or should have been aware that he had been registered as the father)2
from contesting paternity and his attempts to do so before the Russian courts
failed. He complained that his Article 8 rights had been violated. It was held
that notwithstanding its margin of appreciation, the respondent State’s failure
to permit the applicant to have the legal presumption of his paternity reviewed
in the light of the biological evidence violated Article 8 since the restriction
was not proportionate to the legitimate aims pursued3.
In the above-mentioned cases, paternity had been presumed under the pater
est principle but in Novotný v. Czech Republic4 the applicant, despite his denials,
was adjudged to be the father in proceedings brought by the child’s legal guardian on the basis of documentary evidence, a ‘bio-hereditary test’ and a presumption arising from the fact that the applicant had had intercourse with the mother
(with whom he had a relationship but to whom he was not married) sometime
between 300 and 180 days before the child’s birth. 42 years later, the applicant
and the putative daughter underwent a DNA test which unequivocally confirmed that the applicant was not the father. Notwithstanding this finding, the
applicant was unable to challenge the declaration of paternity as Czech law did
not permit challenges to judicial declarations once they have come into force.
It was held that this restriction violated Article 8, in that there had been
a failure by the domestic legal system to secure the applicant ‘respect’ for
his ‘private life’. In so concluding, the Court noted that case law5 established
that allowing a legal presumption to prevail over biological reality might not
1
Above.
2
Under the Russian Family Code 1969. Under the 1995 Code there is no time limit.
3
The Government gave no reasons why it should have been ‘necessary in a democratic
society’ to establish an inflexible time-limit with time running irrespective of the putative father’s
awareness casting doubt on his paternity. See also Doktorov v. Bulgaria, above n 17, in which a
strict one-year time bar running from the date of the child’s birth was held to be a disproportionate balancing of the competing interests involved.
4
Above. Cf RL and Others v. Denmark (App No 52629/11), [2017] ECHR, in which a
court refusal to re-open paternity was held not violate Article 8.
5
Eg Kroon v. The Netherlands (App No 18535/91), [1994] ECHR at 35 and Paulík v.
Slovakia (App No 10699/05), [2006] ECHR at 851.
160
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