SECOND SECTION

Application no. 52629/11 R.L. and O thers against Denmark lodged on 22 July 2011

STATEMENT OF FACTS

THE FACTS

The applicants, M. (the first applicant) and F. (the second applicant) are Danish nationals, who were born in 1965 and 1951. The first applicant also represents her two children, L. and S., born in 2004 and 2006. The applicants live in Copenhagen and are represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant was born in Tanzania. She moved to Denmark in 2001 after having married the second applicant. They separated in 2005.

On 7 January 2004 the first applicant gave birth to a boy, L., of whom the second applicant formally acknowledged fatherhood.

On 1 October 2006 the first applicant gave birth to a boy, S. Although no longer living together with the first applicant, and having had no sexual contact with her since 2004, the second applicant nevertheless formally acknowledged fatherhood of S.

Without the knowledge of the second applicant, during the period from 2003 to 2008, the first applicant had also had a relationship with a man called E. When that relationship ended in October 2008, the first applicant told the second applicant that E. was the biological father of S. and probably also of L.

On 29 November 2008, the applicants requested that the paternity cases be reopened in order to establish formally E. ’ s fatherhood of L. and S. The first applicant submitted, in English, that E. was the children ’ s biological father and that he “had warned me not to tell the truth about the fatherhood of the children”. Their request was refused by the Copenhagen State Administration ( Statsforvaltningen Hovedstaden ) on 30 April 2009.

The applicants brought the case before the City Court ( Københavns Byret ) before which E. opposed the reopening of the paternity cases. They were all heard.

The first applicant explained that she had met the second applicant in Tanzania in 2001. They were married in December 2001 and she moved to Denmark in 2002. Approximately one year later, she met E. on a dating site and they commenced a relationship and had sex twice a week. She became pregnant and told E. about it, but he was confused because he was married at the time. In November 2003 she was diagnosed as HIV positive. When L. was born in January 2004 the second applicant acknowledged fatherhood. She separated from him in 2005 but they continued to live together until the beginning of 2006. During that year she wanted L. to be introduced to E. ’ s other children, but E. did not want that. However he did see L. several times and took him swimming or to play in a park. She and E. agreed that L. should have a sibling and they planned their sexual activities according to her ovulation in order for her to become pregnant. When S. was born in December 2006, the second applicant wanted to help her and therefore acknowledged fatherhood. E. came to see her at the hospital after she had given birth to S. He knew that he was the biological father of both boys. He also acknowledged that in several e-mails and text messages to her. Moreover, E. ’ s mother met the boys and said that L. reminded her of E. when he was a child. E. had never contributed financially. In 2008 she told E. that he would have to take care of the children soon and that she would report to the authorities that he was the biological father. He replied that he did not want any responsibility for the children and ended their relationship. She did not have sex with other men in the relevant periods. L. was confused about the situation and said “my father is uncle E., but my old father is [the second applicant] ” .

The second applicant confirmed that he and the first applicant had not had a sexual relationship since L. ’ s birth. He believed that L. was his son. He was aware that S. was not his son but since the boys would grow up together, he felt it important to treat them equally and he also wanted to help and support the first applicant. In the autumn of 2008 he was told about E. At the beginning of 2009 he overheard a telephone conversation between the first applicant and E., during which E. talked about the boys as “our children” both in Danish and English. E. had stated that he did not want to take financial responsibility for the boys. The second applicant still saw the boys regularly and would continue to do so after the case had been settled. He felt that the biological father should take responsibility, also financially, and that the boys should know their identity.

E. explained that he had two adult children from a previous marriage. He had met the first applicant in April or May 2003 but at the time they could not meet very often, because they were both married. The relationship was purely sexual, and he had no feelings for the first applicant. Their relationship continued until 2008. They met in the first applicant ’ s home or in swinger clubs. He and another man had sex with her at the same time but he could not recall when. He might be L. ’ s father but they did not as such discuss it at the time. He did not want a child, whereas the first applicant did. She told him that she would take care of the child herself. In December 2004, due to the applicants ’ separation, the first applicant took an apartment on her own and E. visited her and L. there. L. called him “uncle E”. Their sexual relationship continued in 2005 but the first applicant told him that she had also met other men on a dating site. In 2006 they had sex regularly, including in a swinger club once or twice. They had made a plan for the first applicant to become pregnant again and thought that it would be good for L. to have a sibling. He could not remember whether they had sex in the fertile period between December 2005 and 26 February 2006 and they did not discuss whether he was the biological father. He visited the first applicant at the hospital in connection with the birth. He found it natural that the second applicant should be father to the children since he was married to the first applicant. He never behaved like a father to the children, he was still “uncle E”. It was true that he went swimming with L. once in October 2008 and that he told his mother that he might be the children ’ s father. The relationship between him and the first applicant ended because she had not told him that she was HIV positive.

By decision of 11 February 2010, the City Court in Copenhagen decided to reopen the paternity cases.

As to L., the Court noted that both the second applicant and E. had had a sexual relationship with the first applicant during the fertile period and that the request for a reopening had been lodged more than three years after L. ’ s birth.

As to S., the Court noted that E. and the first applicant had had sex in the relevant fertile period. The Court did not find it established that the first applicant had had sex with other men during that period. The request for a reopening had been lodged less than three years after S. ’ s birth.

It took into account the disadvantage to which the children might be subjected in case of a reopening, including the risk that paternity might not be established. It found it established that the first applicant let both men treat the children as theirs; that E. took on a paternal role; that E. had frequent and regular contact with both children; that E. took L. swimming; that E. took the children with him on trips, to birthday parties and so on; and that E. was spoken of in familiar terms by the children.

In respect of S. there was such new information and circumstances in the case that it had to be assumed that a mistake had been made when registering paternity and that there might be a different outcome. Accordingly, that case was to be reopened.

Moreover, having assessed overall the interests of the children and the union of the family, and the fact that the children would not be subjected to unnecessary inconvenience by a reopening, and since it was expected that paternity would be established, the court found that, exceptionally, both cases should be reopened.

E. appealed against the decision to the High Court of Eastern Denmark ( Østre Landsret ), before which the applicants and E. were heard anew. E. added that he had moved to Sweden in August 2008 and thereafter had had no contact with the first applicant or the children. From 2004 to 2008 he had visited the first applicant for two to four hours, once or twice every month. He had become a sort of uncle for the children. He could not rule out that he was the father of the children but he would not voluntarily submit to a DNA test, since he would never be able to act as their father.

The first applicant added, amongst other things, that E. gave the children presents. They both received a teddy bear when they were born. They also received a book with 100 Danish kroner (DKK) (approximately 13 euros (EUR)). When L. turned two years old, he had received a birthday card with the text: “Dear L., happy birthday, love daddy”. The children still had contact with the second applicant.

The second applicant added that he would keep in contact with the children but that he had withdrawn after learning that he was not their father. He mainly took care of the children when the first applicant needed help due to her illness.

By decision of 26 November 2010 the High Court refused to reopen the paternity cases.

The majority (two judges) noted that it was not until the proceedings on paternity that the applicants had informed the authorities that they had not had sexual contact in the fertile period as regards S. Moreover, despite giving the children the impression that E. was their biological father, the second applicant had continued to treat the children as his own, at least until the end of 2008. In these circumstances, and since it was uncertain whether paternity would be established for the children if the paternity cases were to be reopened, they did not find a basis for reopening the case regarding S. under section 24 the Child Act. By the same line of reasoning, they did not find a basis for reopening the paternity case regarding L. under the stricter conditions set out in section 25 taken in conjunction with section 24 of the Child Act.

The minority (one judge) agreed with the decision by the City Court by and large with the same reasoning. In addition he pointed out that the second applicant had not been aware until autumn 2008 that the first applicant and E. had had a long relationship, and that he was probably not L. ’ s father. Furthermore, the second applicant had withdrawn from the children after learning about E. and he mainly saw them in order to help the first applicant. Finally, the minority took into account that both children openly stated that it was E., and not the second applicant, who was their father.

Subsequently, the second applicant took a DNA paternity test regarding both children which turned out negative with 0% compatibility, thus proving that he was not the father of L. or S.

The applicants submitted this result to the Appeals Permission Board ( Procesbevillingsnævnet ) and requested leave to appeal to the Supreme Court ( Højesteret ), which was refused on 28 January 2011.

B. Relevant domestic law

The purpose of the Danish paternity rules laid down in the Child Act, ( Børneloven ), Act no. 460 of 7 June 2001, as amended, is to ensure the mutual rights of the child and the father. The most important legal effects of paternity are that the father has a duty to maintain the child according to specific rules, that the father and the child have a right to inherit from each other, that the child may take the father ’ s surname, and that the child may have the same nationality as the father if the relevant conditions are met. In addition, paternity is generally a condition for allowing the father to have a share in the custody of the child and a condition for the right to access of a man who does not have the child living with him. The Child Act is based on Report No. 1350/1997 on the legal rights of children issued by the Child Act Committee of the Danish Ministry of Justice. The Child Act Committee was appointed by the Ministry of Justice in 1992 and was to make proposals for a revision of the Child Act, including considering new paternity rules. In 1997, the Committee issued an interim report on paternity. According to the interim report, the Committee had worked on the basis of the fundamental assumption that a child should be entitled to have both a mother and a legal father to the widest extent possible. The report also states that the Committee found that an attempt should be made to design the rules on reopening paternity proceedings so that permanent stability concerning the child ’ s situation could be provided as rapidly as possible. The Committee also found that it should generally not be possible to revoke paternity unless the child was acknowledged by another father. The Child Act Committee also proposed enactment of the non-statutory doctrine of acknowledgement on which case-law had been based prior to the Act. The doctrine of acknowledgement implies that a party can be barred from instituting paternity proceedings even when the statutory time-limits have not expired. This is the case if the father or mother has treated the child as being the father ’ s even though they know or suspect that the father is not the genetic father of the child. Application of the doctrine is based on a specific assessment of the individual case. The relevant provisions on institution and reopening of paternity proceedings are laid down in sections 5, 24 and 25 of the Child Act, which read as follows:

Section 5

Where paternity has been recorded by or acknowledged before the Regional State Administration, proceedings may be instituted by the mother, the father or the child ’ s guardian within six months of the child ’ s birth.

The preparatory notes set out that the reason behind section 5 was to give the mother and the father a “cooling-off” possibility. Recordings and acknowledgements covered by the provision are therefore not final until six months after the child ’ s birth. The fairly short period was laid down in order to provide stability concerning the child ’ s situation. The right to institute paternity proceedings within the six months is free and is thus not conditional upon proof on a balance of probabilities that another man is the child ’ s father, and the doctrine of acknowledgement is not applied either.

If the six-month time-limit set out in section 5 has expired, the proceedings can only be reopened if the following conditions, set out in section 24 of the Child Act, are met.

Section 24

1. If the fatherhood of a child is registered, or established by acknowledgment or by judgment, the mother or her estate, the guardian or the child ’ s estate, the father or his estate, may within three years after the child ’ s birth request that the paternity case be reopened, provided that facts have come to light which may result in another outcome, or in other respects there is a special reason to believe that the paternity case may turn out differently.

2. When deciding under subsection 1, importance should be attached in particular to the following:

i ) the length of time elapsed since the child ’ s birth;

ii) whether the father, with actual or presumed knowledge of the circumstances which raise doubts as to his fatherhood, has [nevertheless] acknowledged the child by treating it as his own;

iii ) whether the mother, with actual or presumed knowledge of the circumstances mentioned under ii) has let the father treat the child as his own;

iv) whether a party, with actual or presumed knowledge of the circumstances which raise doubts as to who is the child ’ s father, failed within a reasonable time to request a reopening of the case; and

v) whether in case of a reopening, it can be expected that fatherhood of the child will be established.

It appears from the preparatory notes that it is a condition for reopening the proceedings under section 24 that information has come to light about circumstances that will presumably result in another outcome to the proceedings, or that there is otherwise a special reason to assume that the proceedings will now have another outcome. This is particularly aimed at cases where another potential father turns up. Moreover, the provision does not confer a right of reopening even though the said conditions have been met. The decision to reopen the proceedings thus depends on an overall assessment, particularly including the circumstances listed in subsection 2.

If the three-year time-limit set out in section 24 has expired, the proceedings can only be reopened if exceptional reasons exist, see section 25 of the Child Act.

Section 25

Reopening of proceedings under sections 23 and 24 may be permitted after the expiry of the time -limit stipulated by those provisions if exceptional reasons for not making the request earlier can be given, if the circumstances otherwise make reopening of the proceedings appropriate to a high degree, and if a renewed review of the proceedings will presumably not imply material nuisance to the child .

COMPLAINT

The applicants complained that the refusal to reopen the paternity cases was in breach of their rights under Article 8 of the Convention.

QUESTION TO THE PARTIES

Was the refusal to reopen the paternity cases in the application compatible with the applicants ’ right to respect for their private and family life as defined by Article 8 of the Convention?