SECOND SECTION

CASE OF KRISZTIÁN BARNABÁS TÓTH v. HUNGARY

( Application no. 48494/06 )

JUDGMENT

STRASBOURG

12 February 2013

FINAL

12/05/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Krisztián Barnabás Tóth v. Hungary ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Guido Raimondi , President, Danutė Jočienė , Peer Lorenzen , András Sajó , Işıl Karakaş , Nebojša Vučinić , Helen Keller , judges, and Stanley Naismith , Section Registrar ,

Having deliberated in private on 22 January 2013 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 48494/06) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr Krisztián Barnabás Tóth (“the applicant”), on 24 November 2006 .

2 . The applicant was represented by Mr I. Hegedűs, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi , Agent, Ministry of Public Administration and Justice .

3 . The applicant complained under Article 8 of the Convention about the impossibility o f hav ing his biological paternity established.

4 . On 7 December 2010 the application was communicated to the Gove rnment. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1974 and lives in Budapest .

6 . From January 2004 the applicant lived in a common-law marriage with Ms H.K. On 5 April 2004 it was confirmed t hat she was pregnant. On 1 September 2004 their cohabitation ended.

7 . On 26 November 2004 a Mr P. made a declaration of paternity in respect of the child to be born. The mother consented to this.

8 . On 4 January 2005 Ms H.K. gave birth to a girl.

9 . On 13 January 2005 Mr P. ’ s wife adopted the girl . This was endorsed by the Gyomaendrőd Custody Board. The mother consented to the adoption.

10 . When the applicant found out about this, on 20 January 2005 he requested the Pest County Administrative Office to appoint an ad hoc guardian for the baby so that he could file an action with a view to establishing his own paternity. The case was transferred to the Gyomaendrőd Custody Board . The Board refused to appoint a guardian , observing that the girl ’ s family situation was settled and it was not in her interest to have the issue of paternity tried in court. The applicant ’ s administrative appeal was to no avail.

11 . The applicant chall enged these decisions in court.

12 . On 15 September 2005 the Békés County Regional Court held a hearing at which the applicant was heard as to his personal circumstances and his vision about raising the child.

On the same day, the court dismissed his action. It upheld the finding that it was not in the child ’ s interest to institute proceedings for challenging the fiction of paternity. The court pointed out that the applicant had also had the opportunity to make a declaration of paternity with the consent of the mother after the conception of the child. However, the paternity had meanwhile been acknowledged by Mr P. and the child had been adopted by Mrs P. Therefore, the child ’ s legal status was settled and, according to the evidence obtained by the custody authorities , including a home visit and interviews , she was being raised in a loving family atmosphere and it was not in her interest to be removed from that environment for the sole purpose of establishing the biological paternity by medical tests. The court added that if the fiction of paternity were successfully challenged, the ‘ status of father ’ would necessarily fall vacant, but the applicant ’ s declaration of paternity would not take full effect in the absence of the mother ’ s consent. Under those circumstances, the child would lose her settled family status.

The court added that had the custody board granted the applicant ’ s request, it would have committed a grave breach of the law, since this might have resulted in the child being depriv ed of her settled family status and her removal from the loving family atmosphere in which she was raised , whereas her best interest was to preserve her existing family relationship s which in the long run could secure harmonious physical, mental and moral development.

13 . On 17 May 2006 the Supreme Court dismissed the applicant ’ s petition for review .

The Supreme Court endorsed the administrative authorities ’ position that it was not in the interest of the child to call into question the paternity. While acknowledging the applicant ’ s argument about the significance for the child o f get ting to know her biological father, the Supreme Court insisted that the child ’ s interest was of paramount importance, observed that she was being brought up in a loving family with appropriate means and held that a lawsuit challenging the paternity was at that time not in her best interest. The Supreme Court noted that should the child herself wish at one point to bringing a case with a view to establishing biological paternity, she could do so once she reached fourteen years of age.

II. RELEVANT DOMESTIC LAW

14 . The Constitution, as in force at the mate rial time, provided as follows:

Article 67

“(1) In the Republic of Hungary all children shall have the right to such protection and care by thei r family, the state and society as necessary for their satisfactory physical, mental and moral development.”

15 . Act no. IV of 1952 on Marriage, Family and Guardianship (“the Csjt.”) provides as follows:

Section 1

“ (2) In the application of this Act the minor child ’ s interests shall always be taken into account and his or her rights shall be safeguarded. ”

Section 37

“(2) The ma n from whom the child originated may, from the date of the conception , acknowledge the child as his own by a declaration of full legal effect, if

a) no other man is to be regarded to be the father under the law and

b) the child is at least sixteen years younger than the person making the declaration who must have attained sixteen year s of age . ”

Section 44 [1]

“ (1) The judicial declaration of paternity, maternity and the effect of subsequent marriage can be requested in an action ; and the presumption of paternity can be challenged by an action. The action shall be brought in person by the entitled person. ...

(4) Before the institution of an action challenging the presumption of paternity , the child custody board shall, in case of a minor lacking capacity, hear the mother and the presumed father, except where an impediment beyond its control occurs . The child custody board shall not give its approval to the initiation of a lawsuit, unless the establishment of the [child ’ s] origin and the settling of his/her family status are in the interest of the minor. If there i s a dispute between the mother and the presumed father about the custody of the child, the child custody board ’ s approval shall only be given in exceptionally justified cases. ”

16 . Go vernment Decree no. 149/1997. (IX. 10.) on Child Custody B oards, C hild Protection Procedure and Child Custody Board P rocedure provides as follows:

Section 64

“ (1) In order to initiat e an action for settling the family status of a child , the child custody board shall appoint an ad hoc guardian for the child ’ s statutory representation. The appointment of an ad hoc guardian may be requested by the parent, the guardian and the child having attained the age of 14 , but the child custody board may also decide on the appointment ex officio . ...

(4) In determining whether or not to give approval for the initiation of an action for the establishment of the child ’ s family status , the child custody authority shall examine whether the establishment of the origin and the settling of the family status is in the interest of the child or the person placed under guardianship. ”

17 . Decision n o. 57/1991. (XI. 8.) AB of the Constitutional Court contains the following passages:

“ 3. The Constitutional Court holds that Article 67 (1) of the Constitution cannot be interpreted in such a way as to include the child ’ s right to family status and right to belong to a family based on biological kinship. From the constitutional rule relied upon, only the entitlement to actual family care can be inferred. T his does not mean only belonging to a family based on blood relations but also belonging to a so-called social family, and includes care an d protection within that family .

The Constitutional Court, however, points out that the right to ascertain one ’ s parentage and to challenge and call into question the legal presu mption relating to it is a most personal right which falls within the scope of the “general right of personality” found in Article 54 (1) of the Constitution. ...

The Constitutional Court holds that the right to identity and self-determination form part of the “general right of personality” . T he right to identity and self-determination includes, as a most personal right, the right to ascertain one ’ s parentage and to challenge and find out one ’ s biological status ... The forfeiture of this right by an earlier law suit conducted by other persons ... violates the child ’ s right to identity ... Therefore , the Constitutional Court has held that the ir revocable forfeiture of a child ’ s right to ascertain his or her parentage by conferring upon the statutory representative an unqualified right to sue is unconstitutional. ”

18 . Decision no. 982/B/1998. AB of the Constitutional Court contains the following passages:

“ ... According to the well-established jurisprudence of the Constitutional Court, Article 67(1) of the Constitution cannot be vested with the meaning that a child ’ s upbringing within a family, or his/her claim for family care , shall [and can] only be realis ed in a fami ly based on blood relations. ...

Therefore , the family protection element of the cons titutional protection afforded to the child can be realised within a family based or not based on blood kinship, that is , also within a family taken “ merely” in a sociological and legal sense, consequently – in this latter case – also within a family where the parental status is based on a presumption of paternity under the Csjt., that is, where it does not correspond to an objective biological truth. Such a broad interpretation of the notion of family for the purposes of child protection is justified because, among other reasons, often the upsetting and the public questioning of the existing family background, conceived in a sociological and legal sense, might disadvantageously affect the child ’ s proper physical, mental and moral development ...

[ ... T] he right to ascertain one ’ s blood lineage is granted constitutional protection, irrespecti ve of the above considerations ... ”

I I I. RELEVANT COMPARATIVE LAW

19 . For elements of comparative law within the Member States of the Council of Europe concerning certain rights of putative fathers, see Kautzor v. Germany , no. 23338/09 , § § 37 to 39 , 22 March 2012 .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

20 . The applicant complained that the authorities ’ refusal to allow his claim of paternity amounted to a breach of his right to respect for family /private life as provided in Article 8 of the Convention . He also invoked Articles 6, 13 and 14 of the Convention, without further developing these complaints.

The Court considers that this application falls to be examined under Article 8 of the Convention alone, which 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.”

21 . The Government contested that argument.

A. Admissibility

22 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ arguments

a. The Government

23 . At the outset, t he Government we re of the opinion that there had been no interference with the applicant ’ s right to respect for his family life under Article 8 § 1 as there had not been any “family life” between him and the girl in question, especially since it was not uncontested that he was her biological father . It was true that his conduct after the birth had demonstrated his interest in her, however this had not been the case before her birth , in particular in that he had not made a declaration of paternity after conception.

T he impossibility for the applicant to have his biological paternity established should therefore be examined as an interference with his private , rather than family , life.

24 . This interference was justified under Article 8 § 2 as being in accordance with the law and necessary for the protection of the rights and freedoms of others, notably those of the child . Contrary to the applicant ’ s perception , his right to private life was not balanced against the rights of the mother or that of the adoptive parents but solely against the best interest of the child concerned. In the Government ’ s view, there had been a fair balancing of the various inter ests of the child, which had led to a fair outcome, reconcilable with the child ’ s best interest being of paramount importance.

25 . Moreover, the Government argued that the authorities ’ having been vested with discretionary powers as to whether to institute the procedure requested corresponded to the need to safeguard the best interest of a child in respect of whom paternity had already been recognised and, at the same time, to balance the interests of both the child and the putative biological father. As reflected by the reasoning of the domestic decision s , those authorities had thoroughly examined whether or not in the circumstances the examination of the applicant ’ s paternity would harm the child ’ s interests – and this in proceedings free of unfairness or arbitrariness. Eventually, the applicant ’ s action had been dismissed since an examination of his claims would not have been in the interest s of the child , those interests having been justifiably given more weight than those of the applicant in obtaining the dete rmination of a biological fact.

In line with the Constitutional Court ’ s approach (see above in paragraph 17 above), t he Supreme Court had further found that to ascertain her biological origin had not been in the child ’ s interest at that time and noted that its decision did not prevent her from getting to know her biological father in the future . The interest attached to her knowing the biological father had been found to be outweighed by her interest in being brought up in her existing legal and social family ensur ing adequate physical, emotional and mental development. In reaching this conclusion, the domestic courts, having the benefit of direct contact with all th os e concerned, had exercised their power of appreciation in determining the child ’ s best interest in accordance with the requirements of the Convention.

b. The applicant

26 . The applicant contested these views in general terms , stressing that the authorities ’ refusal to launch the desired proceedings amounted to a breach of his right to respect for family and/or private life . He submitted in particular that by the impugned decisions the domestic authorities had ignored the natural and biological fact of parenthood. He argued that the authorities had failed to strike a fair balance between his interests as a father and those of the child. In any event, he challenged the view of the domestic courts according to which the interest s of the child were best served by leaving her in an adoptive family. Moreover, in his opinion , it could not be held against him that he had not develop ed family ties with the child, since he had been unaware of her birth until she had been given f o r adoption. He added that no directly accessible procedure was available to him to seek the establishment of paternity, and the authorities which were to act in his stead did not give due consideration to his capacity and willingness to raise the child.

2. The Court ’ s assessment

a. Applicability of Article 8

28 . In the present case, the Court notes that the applicant ’ s cohabitation with the mother of the child had ended before the birth . Shortly after the birth, the mother decided to give the baby away for adoption, without seeking the applicant ’ s consent or opinion in this matter. For the Court, these elements reveal no intention on the mother ’ s side to consider the applicant as the child ’ s father or to build family life including him. It is true that after having learnt about the adoption, the applicant attempted to have his paternity recognised. However, the Court considers that this fact alone cannot outweigh the absence of emotional ties – which appears to have been unavoidable in the circumstances – betwe en the applicant and the child.

The Court finds that, in the circumstances of this case, the applicant ’ s link with the child has an insufficient basis in law and fact to bring the alleged relationship within the scope of family life within the meaning of Article 8 § 1 of the Convention (see Nylund v. Finland (dec.), no. 27110/95, ECHR 1999–VI; compare and contrast Różański v. Poland (dec.) no. 55339/00, 10 March 2005 ) .

However, Article 8 protects not only “family” but also “private” life (see among many other authorities, Rasmussen v. Denmark , 28 November 1984, § 33 , Series A no. 87 ). The Court has found on numerous occasions that proceedings concerning the establishment of or challenge of paternity concerned that man ’ s private life under Article 8, which encompasses important aspects of one ’ s personal identity (see Kautzor , cited above, § 63 with further references).

b. Whether there has been an interference

29 . The Court notes that there has been no dispute between the parties that there has been an interference with the applicant ’ s private life and sees no reason to hold otherwise.

c . Whether the interference was justified

30 . The Court reiterates that such an interference will constitute a violation of Article 8 § 1, unless it is “in accordance with the law”, pursued a legitimate aim for the purposes of Article 8 § 2 and can be considered nec essary in a democratic society.

31 . The Court notes that it has not been argued by the applicant that the interference was not in accordance with the law and sees no reason to hold otherwise. Furthermore, it observes the Government ’ s submission according to which the interference pursued the legitimate aim of protecting the rights and freedoms of others. The Court shares this view which , in any e vent , has not been disputed by the applicant.

It remains to be ascertained whether the interference was nec essary in a democratic society.

The national authorities have the benefit of direct contact with all the persons concerned. The Court ’ s task is therefore not to substitute itself for the domestic authorities in the exercise of their responsibilities , but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see, among many other authorities, Ahrens v. Germany , no. 45071/09 , § 64, 22 March 2012 ).

33 . In the present case, t he Court observe s that , in allowing a paternity action , the domestic authoriti es ’ enjoyed discretionary powers , designed to safeguard the best interest of the child and also to balance the interest s of both the child and the putative biological father. It recalls that it has alr eady held that such discretionary powers in this field are not as such irreconcilable with the guarantees contained in Article 8 (see Różański , cited above, § 75). In this context, t he Court emphasises that the present case can be distinguished from the above-mentioned Różański case in that the domestic authorities refused to bring a paternity action on behalf of Mr Tóth not only because of the mere fact that Mr P . had already legal recogni sed the child; those authorities also carried out a careful weighing of the child ’ s best interests and the applicant was involved in this procedure .

34 . In addition to taking into consideration the element that it transpires from the Békés County Regional Court ’ s decision that it treated Mr P. ’ s paternity as a legal fact (see paragraph 12 above) , the Court notes the Regional Court ’ s observation about the relevant law , according to which should Mr Tóth ’ s motion be granted and Mr P. ’ s paternity successfully challenged, the status of legal father might fall vacant , i f the mother d id not consent to the applicant being recognised as father. The Court attaches weight to the potential consequences of this situation which may have permanently deprived the ch ild of a settled family status.

35 . Furthermore, t he Court notes that the Békés County Regional Court relied on inter alia the Custody Board ’ s home visit conducted with the adoptive family to establish the actual circumstances of the child (compare and contrast, Różański , cited above, § 77). Th at court concluded (see paragraph 12 above) that the child had developed emotional ties with , and was integrated in to, a family wh ich provided her with the necessary care and support. It also observed in this connection that the establishment of the applicant ’ s paternity would have deprive d the child of her existing loving family and social environment, potentially causing such damag e to her that this could not be outweighed by the putative father ’ s interest in hav ing a biolo gical fact established.

36 . Moreover, as regards the applicant ’ s requisite participation in the proceedings, the Court observes that the Regional Court heard him in person so as to enable him to state his personal circumstances and ideas about bringing up the child but was not convinced by those elements . In the context of the authorities ’ perception about the applicant ’ s aptitude, the Court also notes one of their consideration s , according to which the applicant might have as well recognised, as the putative biological father, the child – pre-empting Mr P . and with the consent of the mother; however, he had not done so.

In these circumstances, the Court is satisfied that the domestic authorities did not carr y out their duties in a perfunctory manner , notwithstanding their final conclusion (compare and contrast Różański , cited above, § § 77-79) .

37 . In conclusion , the Court considers that the domestic authorities carried out a thorough scrutiny of the interests of those involved – attaching particular weigh to the interests of the child while not ignoring those of the applicant – and this in a procedure securing sufficient procedural safeguards for the applicant. In the face of these observations, the Court finds that, in exercising their discretionary power, the authorities have not overstepped the margin of appreciation afforded to them in this field – which the Court has recognised to be wider than the one relating to questions of contact or information rights (see Kautzor , cited above, § 72).

T he Court is therefore satisfied that the reasons adduced by the national authorities to justify the interference with the applicant ’ s rights were relevant and sufficient. Therefore, it considers that the measure complained of can be seen as corresponding to a pressing social need in order to protect the rights of others.

38 . The foregoing considerations are sufficient to enable the Court to conclude that th ere has been no violation of Article 8 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2 . Holds that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 12 February 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi Registrar President

[1] Text established by section 2 of Act no. XVI of 1992.