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The Human Rights Implications of Establishing Legal Paternity
be compatible with the obligation to secure effect ‘respect’ for private and
family life, even having regard to the margin of appreciation left to States.
In this case, given the fact that the putative daughter was over 50 and not
dependent on the applicant for maintenance, the general interest in protecting her rights lost much of its importance compared to when she was a child.
Furthermore, she had agreed to the DNA test and did not, in any event,
consider the applicant to be her father. The lack of procedure for bringing the
legal position with the biological reality was inconsistent with the wishes of
those concerned and did not benefit anyone. A fair balance had not therefore
been struck between the applicant’s interests and those of society.
In the above-mentioned cases the challenge to paternity was made by the
man concerned but in Boljević v. Serbia1 it was the son who was the applicant.
Born in 1969, he thought it indisputable that a Mr A was his biological father. But in 2011, in inheritance proceedings brought after Mr A’s death, he
learned for the first time of a final judgment made in 1972, that Mr A could
not be his father. This finding was made on the basis of witness testimony,
the blood tests being inconclusive and DNA testing not then being available.
Notwithstanding this judgment, Mr A continued to be registered as the father
on the applicant’s birth certificate. In 2012, the applicant sought to re-open
the paternity proceedings but was held to be time-barred. The Court upheld
the son’s complaint that by being denied the opportunity to prove by means
of a DNA test that Mr A was his biological father, his Article 8 rights were
violated. Although the Court accepted that the Serbian authorities’ decision was in accordance with national law and pursued the legitimate aims of
ensuring legal certainty and protecting the rights of others, on these facts, a
fair balance between the competing interests of the applicant’s rights to know
his origins and personal identity and the deceased putative father’s interest
in being protected from claims going back many years, had been not struck.
Taking a DNA sample from the deceased, Mr A would not have adversely
affected his private life and the preservation of legal certainty could not suffice in itself to deprive the applicant of his right to ascertain his parentage.
In reaching its conclusion, the Court contrasted the position in the case
before them where the applicant acted quickly upon becoming aware of doubts
about his putative father’s paternity and the position in Silva and Mondim Cor-
reia v. Portugal2 in which the applicants had waited 50 and 26 years respectively,
1
(Application No 47443/14), [2020] ECHR. See also, to similar effect, Capin v. Turkey
(App No 44690/09), [2019] ECHR.
2
(App Nos 72105/14 and 20415/15), [2017] ECHR.
161
N. Lowе
after reaching the age of majority to bring their paternity suits, which was a long
time outside the 10-year time-limit provided by Portuguese law.
(ii) Asserting paternity
It is not always the case that men seek to contest paternity, there are cases
where paternity is asserted. One such case is Ahrens v v Germany1. Although
the applicant’s relationship with the mother had ended about a year before
the child was born, he continued to have a sexual relationship with her and
indeed the mother informed him about her pregnancy. However, before the
birth, the mother’s cohabitant acknowledged with her consent his paternity
and thereby became under German law the child’s legal father. The mother
and her cohabitant continued to live together after the child’s birth. Blood
samples, however, established that the cohabitant was not the biological father and that effectively the applicant was. Under German law, however, the
biological father only had the right to challenge paternity of the legal father
if there is no social and family life between the legal father and the child.
At first instance, the court held that the applicant was not precluded from
challenging paternity but this was quashed on appeal since there was a social
and family relationship between the cohabitant and the child. The Federal
Constitutional Court refused to hear the case. The applicant complained
that the denial of his ability to assert his paternity violated both Article 8 and
Article 14 taken in conjunction with Article 8. His action, however, failed.
The Court accepted that the applicant’s Article 8 rights were engaged because, as previously discussed, it was well established that challenges against
paternity concerned ‘private life’ since it encompassed important aspects of
his identity and that there appeared to be a tendency among Member States
to permit presumed biological fathers to challenge paternity in this type of
circumstance. Nevertheless, there was no overall consensus on that issue and
accordingly, applying inter alia H v. Austria2, Member States enjoy a wide
margin of appreciation on matters regarding legal status. Here, given the
overall aim of German law to protect the child and his or her social family
from external disturbance, there had been no violation of Article 83.
1
Above. Compare Lavanchy v. Switzerland (App No 69997/17), [2021] ECHR 850 – an
application by a child that a named man be recognised as her father made 12 years after her majority was time-barred (under Swiss law applications should be made within one year of attaining
majority unless there are ‘valid reasons’ for the delay) held not to violate Article 8 because, on
the facts, there were no such reasons.
2
(App No 57813/00), [2010] ECHR at 427.
3
See also Kautzor v. Germany, above n 17, in which there was a similar outcome.
162
The Human Rights Implications of Establishing Legal Paternity
In contrast to Ahrens, an Article 8 violation was established in LD and PK v.
Bulgaria1. Two male applicants wanted to establish their paternity of children born
out of wedlock but under Bulgarian law a man was not permitted to challenge
paternity that had already been established by recognition by another man. Only
the mother and child were allowed to do so. While accepting that the Bulgarian
authorities were entitled to legislate with the aim of ensuring the stability of the
family inter alia by prioritising already established relationships over the possibility of establishing biological paternity, it had to do so in a balanced way. This
absolute restriction failed to draw that balance and was held to violate Article 8.
IV. Determining Parentage Following a Gender Change
The cases to which consideration have so far been given, have concerned
assertions or denials of paternity which is, as has been said, the traditional basis
of legal fatherhood. In this section, attention is focussed upon a more modern
issue, namely, the effect of a sex change on legal parenthood.
A number of jurisdictions now make provision for a formal change of gender. This is the case, for example, in Germany and the United Kingdom2. One
problem that this possibility creates, is what effect it has on parentage. Both
the UK and German legislation deal with this issue by providing that such
a change does not affect the status of the person as the father or the mother
of the child (see further below). But the effect of this has been brought into
sharp relief by a case in which a woman having undergone a formal change
of gender then gives birth and wants to be regarded as the father.
(a) The English case
In R (McConnell and YY) v. Registrar General3, having undergone a gender
change and obtained a ‘Gender Recognition Certificate’ (by which a formal
change is achieved), the ‘trans-man’ conceived by artificial insemination and
gave birth. He wanted to be registered as the ‘father’ (or, if not, a ‘parent’ or
‘gestational parent’) on the birth certificate. The registry office informed him
1
(App Nos 7949/11 and 45522/13), [2016] ECHR. See also Rózański v. Poland (App
No 55339/00), [2006] EHRR at 625.
2
See respectively Transexuellengesetz (TSB) and the Gender Recognition Act 200 4.
Under Russian law, a statement on making changes in a record on civil status is made by the
civil status registration body, if, among other things, an appropriate document on a change of
gender, issued by an appropriate medical organization, has been presented. See Federal Law on
the Acts of Civil Status 1997 (as amended in 2021) Art. 70.
3
[2020] EWCA Civ 858.
163
N. Lowе
that he had to be registered as the ‘mother’ although the registration could be
in his current male name. He sought to have that decision quashed. He failed.
In the Court of Appeal’s view, the critical question was whether Gender
Recognition Act 2004 s 12 (which provides ‘The fact that a person’s gender
has become the acquired gender under this Act does not affect the status of
the person as the father or the mother of the child’) had prospective as well as
retrospective effect. They ruled that it does, pointing out, that interpreting as
having only retrospective effect would render otiose s. 9 (2) (which provides
that the Act ‘does not affect things done, or events occurring before the
certificate is issued’). Having ruled on the interpretation issue, the Court
then considered whether the resulting law was human rights compatible.
In this respect it considered both the position under the UNCRC and the
ECHR, concluding that the requirement that the appellant be registered as
the mother was human rights compliant.
With regard to the UNCRC, the Court noted that while the Convention
has not been incorporated into UK domestic law, like the ECtHR, the UK
courts will take it into account when interpreting Article 8 ECHR. The relevant
provision is Article 3 (1) which provides
In all actions concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.
In the context of a legislative measure, the Court said that what Article 3
(1) requires is that the best interests of children generally should taken into
account as a primary consideration when striking a balance in legislation. In
the Court’s view1:
that is precisely what Parliament has done in enacting a carefully crafted set of
provisions which balance the rights of transgender people and other, including
their children. The view that Parliament has taken is that every child should
have a mother and should be able to discover who their mother was because
this is in the child’s best interests. Others may take a different view and in time
may be able to persuade Parliament to take a different view. What cannot be
doubted is that Parliament has taken into account the best interests of children
as a primary consideration.
So far as the ECHR was concerned, the Court noted that the provenance
of the Gender Recognition Act 2004 was the Grand Chamber ruling in Good-
1
See [86].
164
The Human Rights Implications of Establishing Legal Paternity
win v. UK1 that the then UK law that a person’s sex was determined once and
for all at birth, violated the Convention. Although Goodwin concerned ‘fully
achieved and post-operative transsexuals’, the 2004 Act did not impose a
requirement for surgery (had it done so, this case should not have occurred).
The Court accepted that both the applicant’s and the child’s Article 8
rights were engaged but, held there was no violation, taking the view2:
‘The objectives pursued by the State are sufficiently important to warrant an
interference with Article 8 rights and there is a rational connection between
those objectives and the means chosen to achieve them.’
The Court was fortified in its view having taken note of (a) the Grand
Chamber ruling, Hamalainen v. Finland3, which emphasised that notwithstanding Goodwin, a wide margin of appreciation was still afforded to Contracting States in this area. Translated into domestic law terms, that meant
giving ‘a margin of judgment’ to Parliament; (b) there is no ECtHR decision
in support of the appellant’s contention (but see below) and it was the UK
courts’ approach to keep pace but not to go beyond Strasbourg jurisprudence4,
and (c) there was no European consensus5.
(b) The German case
In reaching its decision, the English Court of Appeal took note of a German
decision in which, like McConnell, involved a female-to-male trans person
who, having obtained a decision effecting a change of gender, subsequently
gave birth to a child via sperm donation.
German legislation is similar to that of the UK in that by § 1591 of the
German Civil Code, the mother of the child is the woman who gives birth (‘Mutter
eines Kinder ist die Frau, die es geboran hat’). By § 10 of the Transexuellengesetz
(TSB) the effect of a successful application to be recognised as of the ‘other’
gender is that they are seen as ‘of’ that gender. But this is subject to §11, which
provides that recognition of that acquired gender leaves the legal relationship
between that person and their parents/children undisturbed (‘unberuehrt’).
1
(2002) 35 EHRR 18.
2
At [60].
3
(App No 37359/09), [2014] ECHR at 877.
4
See [72], relying inter alia upon R (Ullah) v. Special Adjudicator [2004] UKSC 35, at [20]
per Lord Bingham.
5
Reference was made to a report commissioned by the court for the original litigation
‘Expert Report of Peter Dunne’.
165
N. Lowе
The Federal High Court1 considered that requiring the trans man to
register the child’s birth as the mother was the correct application of the
legislation. With regard to Article 8, the Court considered that the German
legislature had not overstepped the wide margin of appreciation accorded to
it and that, in any event, there was no European consensus in this area. In
its view, the law took into account (i) the public interest in the coherence
of the national legal order and (ii) the child’s right to personal knowledge of
his/her which is also protected by Article 8.
Subsequently, the German Federal Constitutional Court declined to hear
the case2, and the trans man has brought a complaint before the ECtHR3,
which remains pending.
(c) An evaluation
Of course, the ECtHR decision is eagerly awaited. In McConnell the Court
of Appeal commented4:
We cannot exclude the possibility that the Strasbourg Court might disagree
with the courts in Germany, although we respectfully suggest that their
reasoning is compelling. On any view, we should not pre-empt the Strasbourg
Court’s decision.
The same constraint on anticipating the outcome does not apply to commentaries such as this.
The outcome of the English decision has not escaped criticism. One commentator5 regretted its failure to challenge the status quo thereby entrenching
the traditional assumption underpinning English Family Law. In her view,
the court should have made a declaration of incompatibility (a mechanism
provided by s 4 of the Human Rights Act 1998 that empowers certain courts
to make a formal declaration that a provision of primary legislation is incompatible with a Convention right, the effect of which, while not affecting
the validity of the legislation in question, which will continue to apply, is the
1
XII 2B 660/14. see [75]–[76].
2
Az. 1 BvR 2831/17.
3
OH and GH v. Germany (App Nos 53568/18 and 54741/18). Note Y v. Poland (App
No 74131/14), [2022] ECHR at 159, in which it was held that not issuing a transgender person
with a new birth certificate without reference to the gender reassignment, did not violate Article 8.
4
Above n 34, at [78].
5
By C. Fenton-Glynn ‘Deconstructing Parenthood: What Makes a Mother?’ [2020]
Camb LJ 34.
166
The Human Rights Implications of Establishing Legal Paternity
consequent expectation that the offending provision(s) will subsequently be
amended)1. That, she argued, would:
have been one small step towards addressing a much wider issue and may have
provided the impetus needed for Parliament to re-evaluate our understanding
of legal parenthood to better reflect the complexities of modern family forms.
Whatever the merits of such an argument on the domestic law, it is suggested that both the English and German courts were right to say that, as
things currently stand, the law as it was found to be could not be said to violate
Article 8. There is no European consensus and legislatures are afforded a wide
margin of appreciation. Indeed, one cannot help but agree with Sir Andrew
McFarlane (the President of the Family Division), who decided McConnell at
first instance2, and who said3, that although the applicant parent’s and child’s
Article 8 rights were engaged, there had been no violation since the requirement
to register as the mother was ‘in accordance with the law’, the law having a legitimate purpose and was proportionate inasmuch as ‘the adverse impact upon
TT, significant it will be were it to occur [ie that the parent is ‘transgender’]
is very much outweighed by the interest of third parties and society at large in
the operation of a coherent registration scheme which reliably and consistently
records the person who gives birth on every occasion as ‘mother’4.
V. Some Concluding Remarks
As said at the beginning, the question of parentage is of fundamental
importance. Legal fatherhood is significant not least because of the rights and
responsibilities that it confers, in particular upon the man to maintain his child
and the rights of succession and citizenship it confers upon the child. But over
and above this, establishing paternity is integral to the child’s (and the man’s)
1
See s 10 of the 1998 Act.
2
Reported as R (TT) v. Registrar General for England and Wales [2019] EWHC 2384
(Fam) (Mr McConnell is the parent whose name had been previously anonymised as TT; YY
is the child.
3
At para [272]. Note McFarlane P’s comment (at para [279]) ‘It is now medically and
legally possible for an individual, whose gender is recognised in law as male, to become pregnant
and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which
derives from their biological role in giving birth, is that of ‘mother’’.
4
See also the Written Observations by G. Puppinck, C. Foltzenlogel and N. Farnworth
submitted to the ECtHR on 14 June 2019 on behalf of the European Centre for Law and Justice
and A. Margaria ‘Transmen giving birth and reflections on fatherhood’ (2020) 33 IPLJF 225.
167
N. Lowе
sense of identity – a child’s right protected by UNCRC, Article 7. As has been
discussed, the ECtHR has determined that questions of paternity fall under the
umbrella of Article 8 by reason of the right to respect for private life rather than
the right to respect for family life, though the latter has not been ruled out.
In applying Article 8, the Court’s function is not to develop new notions
of parenthood, however desirable that may be1, rather it is called upon to examine the particular application of the law of a Contracting State complained
about. In doing that, assuming that the particular decision is mandated by
the national law in question, it is called upon to consider whether the law
sought to be impugned has a legitimate purpose and draws a fair balance between any competing interests. To make that assessment the Court will take
into consideration the extent to which there is a consensus among States on
the position taken in the particular State against which a complaint is made.
For the most part, the complaints concerning paternity have concerned
the impositions of time restrictions within which proceedings can be brought.
In this respect, States have taken an interesting divergent view. On the one
hand, some, such as England and Wales, favour the view that it is generally in
the child’s interests to know the truth; on the other, the view is taken that the
preservation of family stability is a key consideration such that there should be
some time limit on the ability to challenge the status quo. Both points of view
have their merits and the Court has ruled that such limits are not incompatible
with the Convention per se. Instead, compatibility will depend on the nature
of the time limit and the manner in which the restriction is applied, the critical question being whether the law strikes a clear rational balance between
the applicant’s interests to uncover the truth about an important aspect of
their personal identity, the interests of the child to stability, and the general
child’s interests of the community as a whole. It is not an easy balance not
least because that balance might be different according to the child’s age and
the issue at stake. Furthermore, it is a balance that is liable to change as notions of parenthood continue to develop. In this latter respect the outcome
in OH and GH v. Germany2 is keenly awaited.
1
A common complaint is that the Court takes a too conservative approach as to what constitutes a ‘family’ and is in danger of being left behind modern developments, see eg C. FentonGlynn Children and the European Court of Human Rights (OUP, 2021) Ch 8. But the issue of
parenthood is sensitive and attempts to provide for such developments in a Council of Europe
Recommendation have so far failed, see N. Lowe ‘The impact of the Council of Europe on
European family law’ in European Family Law Volume 1 The Impact of Institutions and Organisa-
tions of European Family Law (ed. J. Scherpe, Elgar, 2016) 95, at 121–122. It is understood that
the Council of Europe is considering re-visiting the issue.
2
Above, n 46.
О.А. Хазова
КАФАЛА VERSUS УСЫНОВЛЕНИЕ:
ТРАНСГРАНИЧНЫЙ АСПЕКТ
Введение
На территории Европы в результате миграционного кризиса появилось огромное число детей-беженцев и мигрантов. Считается, что количество таких детей составляет треть всех прибывших в Европу1. Так,
в Грецию, Италию, Испанию, Болгарию, на Кипр и Мальту в 2020 г.
прибыли 16 750 детей; число прибывших детей сократилось на 50%
по сравнению с 2019 г. (33 200)2. Дети приезжают вместе со своими
семьями или в одиночку, без какого бы то ни было сопровождения;
кто-то из тех, кто приезжает самостоятельно, возможно, рассчитывает на поддержку близких, проживающих в Европе; кто-то приезжает
вместе со взрослыми, правовые отношения с которыми не являются
с точки зрения европейского права надлежащим образом формализованными. В подавляющем большинстве случаев речь идет о беженцах
и мигрантах из стран Северной Африки, Ближнего Востока и Южной
Азии – государств, правовые системы которых базируются на нормах
шариата или находятся под его влиянием3.
В контексте семейного права применительно к теме данной статьи
принципиально важно, что нормы шариата4 запрещают усыновле-
1
ЮНИСЕФ для каждого ребенка. Европа и Центральная Азия. Дети-беженцы
и дети-мигранты в Европе. URL: https://www.unicef.org/eca/ru/.
2
UNHCR, UNICEF and IOM (OSHA Services). Refugee and Migrant Children in Eu-
rope. Accompanied, Unaccompanied and Separated. Overview of Trends (January-December
2020). P. 1. URL: https://www.reliefweb.int/report/world/refugee-and-migrant-children-europe-accompanied-unaccompanied-and-separated-overview-5 (дата обращения: 08.12.2021).
3
Так, по данным ЮНИСЕФ, дети, приезжающие со Среднего Востока через восточное Средиземноморье в Грецию, преимущественно происходят из трех стран: Сирии
(54%), Ирака (27%) и Афганистана (13%) // ЮНИСЕФ для каждого ребенка. Европа
и Центральная Азия. Дети-беженцы и дети-мигранты в Европе.
4
О нормах шариата см.: Сюкияйнен Л.Р. Структура мусульманского права // Мусульманское право (структура и основные институты). М.: Ин-т гос-ва и права АН
СССР, 1984. С. 21 и след.
169
О.А. Хазова
ние1 – это прямо вытекает из запрета, предусмотренного в Коране2.
Вместо усыновления в абсолютном большинстве мусульманских стран
используется институт кафалы3, до недавнего времени совсем неизвестный праву европейских стран. Таким образом, миграционный
приток в Европу привнес новое, трансграничное измерение в понимание этого семейно-правового института мусульманского права4.
Это обусловливает необходимость решения, в частности, проблемы
соотношения кафалы и усыновления и совместимости в принципе этих
двух мер защиты детей, лишенных в силу разных причин надлежащего
семейного окружения, а также приспособления института кафалы
к европейским правовым реалиям.
1. Что такое «кафала»5 и чем этот институт
отличается от усыновления
Этимологически «кафала» означает «заботиться», «спонсировать ко-
го-то» и «действовать от имени кого-то»6. Термин «кафала» восходит
1
Усыновление полностью запрещено примерно в 20 исламских странах; оно
разрешено в Тунисе, Ираке, Турции, Сомали и Индонезии (см.: Duca R. Diffusion of
Islamic Law in the UK: The Case of the ‘Special Guardianship’ / Eds. S. Farran, J. Gallen,
J. Hendry and Ch. Rautenbach) // The diffusion of Law: the Movement of Laws and Norms
around the World. London; New York: Routledge, 2016. P. 50. См. также: Hague Conference
on Private International Law. Proceedings of the Seventeenth Session 10 to 29 May 1993. T. II:
Adoption – co-operation. SDU Publishers. The Hague, Netherlands,1994. Para 30, page 27.
О некоторых отступлениях от соблюдения запрета усыновления будет сказано далее.
2
Нормы шариата, как считают мусульманские юристы, не имеют территориального
характера; соответственно, все «правоверные» (мусульмане), где бы они ни находились,
«должны руководствоваться в своем поведении нормами шариата» (см.: Чиркин В.Е.
Мусульманская концепция права // Мусульманское право (структура и основные институты). М.: Ин-т гос-ва и права АН СССР, 1984. С. 13–14).
3
Институт кафалы, позволяющий принять в семью на воспитание ребенка, нуждающегося в защите, о котором речь пойдет в данной статье, следует отличать от кафалы
как системы спонсорства в отношении трудовой миграции, которая практикуется в ряде
стран Ближнего Востока.
4
См., например: OʼHalloran K. The Politics of Adoption. International Perspectives on
Law, Policy & Practice. 4th ed. Springer, 2021. P. 159; Kafalah: what Replies to Multiple Issues? //
ISS Monthly Review. No 213, July 2017.
5
Институт кафалы в разных странах обозначается по-английски либо как kafala,
либо как kafalah. В данной статье в сносках будет использоваться тот вариант написания,
который соответствует данному в цитируемом источнике.
6
Dambach M., Wöllenstein T.J. Kafalah: Preliminary analysis of national and cross-border
practices. Geneva, Switzerland, International Social Service (ISS). 2020. P. 14. URL: https://
170
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