ECtHR Confirms Child's Interest in Establishing Paternity, Parent's Right to Enforcement of Visitation

Credit: European Court of Human Rights

In late January, the European Court of Human Rights (ECtHR) elaborated on the right to private and family life, as protected by the European Convention on Human Rights, in two new judgments – one concerning restrictions on the ability to establish one’s paternity and the other involving enforcement of a non-custodial parent’s visiting privileges.  

The European Court’s caselaw on parents’ and children’s rights mainly arises under Article 8 (right to respect for private and family life) of the Convention.  Article 8 reads as follows:

(1)  Everyone has the right to respect for his private and family life, his home and his correspondence.

(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.

When ruling on private and family life cases, the Court attempts to strike a balance between individual and State interests. This is accomplished by analyzing whether the interference with privacy or family life was 1) in accordance with the law, 2) pursued with legitimate aim or aims, and 3) proportionate to the aim(s) pursued. See ECtHR, Factsheet- Parental Rights; Factsheet- Children’s Rights.  Of several rulings published by the ECtHR last week, two in particular concern the application of Article 8.

Röman v. Finland: Right to Establish Paternity

The first is Röman v. Finlandno. 13072/05, Judgment of 29 January 2013.  The applicant, Mirja Anneli Röman, is a 59-year-old Finnish national born out of wedlock.  Relying in particular on Article 8, she complained of the impossibility to have her biological father’s paternity legally established due to a restriction imposed by the 1975 Paternity Act. [ECtHR]  The ECtHR’s conclusion was that this amounted to a violation of Article 8. 

The 1975 Paternity Act was adopted with the aim of ensuring equal treatment for children born out of wedlock, who were believed to be in a substantially worse position than children born to married parents, by providing them the opportunity to have paternity formally established.  Section 3 of the Paternity Act provides that paternity is established either by acknowledgement or by a court decision, and the child has a right to institute proceedings in an attempt to have paternity established. The transitional provisions of the Implementing Act, however, required that – with regard to children born before the Paternity Act’s entry into force – paternity proceedings had to be initiated within five years, and that no claim would be considered after the purported father’s death.

Röman was born before the law was enacted, but did not learn of her biological background until 2001, and only sought to initiate paternity proceedings in 2003.  The Finnish courts dismissed her claim as time-barred, through several levels of appeal that came to an end in October 2004.  In 2007, Röman was able to establish her father’s paternity through a private DNA test. The following year, he passed away.  Röman complained that her right to respect for family life had been violated by the Finnish courts’ refusal to make an exception to the Paternity Act’s five-year limitation.

In its decision, the Court reiterated that the essential object of Article 8 is to protect the individual’s right to private and family life against arbitrary action by public authorities.  As it had on previous occasions, the Court determined that paternity proceedings fall within the scope of Article 8. See, e.g., Mikulić v. Croatia, no. 53176/99, Judgment of 2 July 2002; Jäggi v. Switzerland, no. 58757/00, Judgment of 13 July 2006.  In determining whether – taking into account the State’s margin of appreciation – Finland had complied with its positive obligations under Article 8, the Court determined that the five-year limitation pursued a legitimate aim of “protect[ing] the interests of putative fathers from stale claims and prevent[ing] possible injustice if courts were required to make findings of fact that went back many years.”

However, Finland was required to strike a fair balance between this legitimate aim and the individual’s “vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of his or her personal identity and eliminate any uncertainty in this respect.”  Here, the Court noted the absence of any alternative means of redress or exceptions to the five-year limitation, and observed “that a significant number of States do not set a limitation period for children to bring an action aimed at having paternity established and that there is a tendency towards a greater protection of the right of the child to have his paternal affiliation established.”   Because the legislation did not allow Finnish courts to balance the child’s interests against those of the State and father, the European Court held the five-year limitation was not proportionate to its legitimate aim, in violation of Article 8.

Lombardo v. Italy: Prompt Enforcement of Visitation Rights

A second recent ECtHR judgment involving Article 8 is Lombardo v. Italyno. 25704/11, Judgment of 29 January 2013 (available only in French).  The applicant, Sergio Lombardo, complained he was unable to visit his daughter, although the juvenile court had awarded him specific visitation rights. [ECtHR]  The child’s mother refused to allow him access, and the applicant alleged that Italian social services failed to take action to ensure his access to his daughter and that the domestic courts failed to enforce their decisions identifying and upholding his visitation rights.  Mr. Lombardo cited Article 8 in pointing to the damaging effects of the situation on his relationship with his child.

In its judgment, the European Court again emphasized the positive obligations inherent in ensuring enjoyment of the right to private and family life and highlighted the importance of timely action by the State when  the parent-child relationship is at issue. Because the Italian authorities and courts failed to act quickly and effectively to restore the applicant’s enjoyment of visitation rights, the Court found Italy responsible for a violation of Article 8.

Inheritance Rights of Children of Adulterous Relationships

Later this week, the ECtHR will issue the Grand Chamber’s judgment in another family life case, Fabris v. Franceno. 16574/08. [ECtHR]  The case concerns the inheritance rights of children born from an adulterous relationship.  The applicant, who was born in 1943, was the product of an extra-marital affair between his father and mother, a married woman who already had two children with her husband.  Mr. Fabris was precluded from inheriting any property when his mother and his mother’s husband died because, unlike his half-siblings, he was not included in their will. Mr. Fabris attempted to collect a share of his mother’s property independent of the will, as a biological heir.

French law governing the inheritance rights of heirs changed three times since the will was drafted in 1970. Under the first implementation of French inheritance law, illegitimate children not provided for in a will were excluded from collecting from a deceased biological parent if they were the product of that parent’s adultery. The law changed in 1972, allowing these children to collect “only half of the share to which they would have been entitled if all the children of the deceased, including themselves, had been legitimate.” Law of 3 January 1972, Article 760.  In 2001, France passed amending legislation, granting children born of an adulterous relationship identical inheritance rights to legitimate children. Law of 3 December 2001, Section 25. Neither revision permits retroactive application. Though the will was written in 1970 and his mother died in 1998, Mr. Fabris claims he is should be entitled to inherit in line with the 2001 revision.

Before the European Court, the applicant argued that his inability to inherit violated Article 14 (prohibition of discrimination) taken together with Article 1 of Protocol No. 1 (protection of property) and Article 8 (right to respect for private and family life).