Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22920/93

by M. B.

against the United Kingdom

The European Commission of Human Rights (First Chamber)

sitting in private on 6 April 1994, the following members being

present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 August

1993 by M. B. against the United Kingdom and registered on 16

November 1993 under file No. 22920/93;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

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 to

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.

0n 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, inter alia, 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, a High Court judge directed that the

question as to whether or not blood tests should be taken for the

purposes of determining whether the applicant was or was not the

father of E should be referred to a High Court judge.

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 purposes 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 interests : 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 shadowy 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

judgement. It found that the risks of E marrying someone within

the prohibited degrees of relationship or of being ignorant of

a factor vital to her health were infinitesmal 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 or the stability of the

family unit within which E has lived since her birth is

likely to be detrimental to E's welfare, and unless that

detriment is shown to be counter-balanced by other positive

advantages to her which an order for the taking of blood

tests could confer, then the judges's refusal was not

merely an exercise of his discretion with which we cannot

interfere, but one with 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 interest, 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 fails 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 F, the applicant is unable to have determined before the

courts the issue as to whether he should enjoy parental

responsibiity 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 would 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 the 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 (Art. 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 stands 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 (Art. 6-1) of the Convention.

It follows that this complaint must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) 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 (Art. 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 whether 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 (Art. 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 (Art. 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 the 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 (Art. 8-1) 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 (Art. 8-1) 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 whether 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 (Art. 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 to 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 inextricably with the family unit

in which she was being brought 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 (Art. 8) of the

Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

3. The applicant further submits that he has been the subject

of discrimination contrary to Article 14 (Art. 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 automatically, the Commission

finds that this difference in treatment 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 (Art. 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

(Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First

Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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M.B. v. THE UNITED KINGDOM

M.B. v. THE UNITED KINGDOM