Information Note on the Court’s case-law 202

December 2016

L.D. and P.K. v. Bulgaria - 7949/11 and 45522/13

Judgment 8.12.2016 [Section V]

Article 8

Positive obligations

Article 8-1

Respect for private life

Inability of man claiming to be biological father to contest paternity of child whose paternity had already been recognised by another man: violation

Facts – The applicant in each of these two cases was a ma n claiming (with a probability of 99.99%, according to the DNA test in one case) to be the biological father of a child whose paternity had already been recognised by another man. The domestic law did not allow an individual to challenge that paternity or to recognise the child as his own. Merely finding that the legal father-child relationship was already established, the courts denied the applicants any standing to bring a suit.

One of the applicants, who suspected that trafficking had taken place (the mo ther subsequently admitted that she had been put in touch with a couple wishing to adopt a child by the clinic which had monitored her pregnancy), persuaded the public prosecutor to bring proceedings in the appropriate court. Without giving any reasons, th e prosecutor discontinued the proceedings, later seeking to reopen them in vain.

Law – Article 8: A comparative law study had been carried out by the Court in 2012, showing that a significant majority of member States allowed suits to challenge paternity b ut there was no consensus.

In view of that observation and other pertinent factors, the respondent State had a broad margin of appreciation. The examination of the case led to the Court to conclude, however, that this margin had been overstepped.

In the present case, referring to the relevant provisions of the Family Code, the domestic courts had rejected the applicants’ suits for lack of standing.

The statutory ban on challenging a registered paternity did not appear to allow for any exception in domestic law. It stemmed from the intention of the Bulgarian legislator, with the aim of ensuring the stability of family relations, to give priority to the legal relationship already established rather than allowing claims by putative biological fathers.

In the Court’s view, while it was of course reasonable on the part of the domestic authorities to take account of the fact that the child already had an established parent-child relationship, other factors should have been taken into account, such as the s pecific circumstances of each case, and in particular the situation of the various protagonists – the child, the mother, the father by law and the putative biological father. The courts had not taken those circumstances into consideration.

As to any other remedies available to the applicants in domestic law, the following reasons led the Court to take the view that they were not effective in the present situations.

(a) Possibility of direct action under Article 8 of the Convention – While a recent decision of the Supreme Court of Cassation seemed to suggest such a possibility, no example of any exercise of such an action had been demonstrated by the Government. An action brought by the first applicant on this basis had in fact been declared inadmissible.

(b ) Possibility of involving public prosecutor or welfare services – Domestic law enabled the public prosecutor’s office or the territorial social welfare unit to bring proceedings to challenge paternity, which could lead to a declaration that a recognition of paternity was null and void if it did not correspond to the g enetic relationship (Article 66 § 5 of the Family Code). A man claiming to be the biological father could thus refer his claim to the above-mentioned authorities and ask them to initiate proceedings. That avenue, which seemed to have been used in practice, nevertheless had the following limitations.

(i) Neither the Family Code nor any other statutory instrument indicated the situations in which the authorities should take such an initiative. It transpired from domestic case-law and observations submitted b y the Social Welfare Agency that such proceedings would be brought where there was a suspicion that the recognition had been used to circumvent the law on adoption or where there was a risk to the child.

(ii) Such a suit was not directly accessible to th e applicants, as it remained subject to the decision of those public authorities, who had discretion as to its use in a particular case.

(iii) There was no statutory obligation to hear such a claimant (even though this was the case in practice in the con text of the home study).

(iv) Any refusal to initiate proceedings, or any subsequent discontinuance, could not be appealed against before the courts. In both cases the authority was not required to give reasons for its decision.

(v) In order to decide w hether or not to bring proceedings, the authorities in question were not required to examine the various interests at stake. Whilst they apparently took the child’s best interests into account, particularly in a case where there was a risk to the child’s h ealth or well-being, or ensured compliance with adoption law, it did not appear that those interests were weighed against the other interests at stake, especially those of the biological father.

(vi) The aim of such a suit was not in fact to lead to the judicial establishment of the paternity of the biological father, but only the annulment of the legal parent-child relationship established by recognition. Such proceedings thus appeared to be reserved for exceptional situations concerning compliance with the law or a risk for the child, and not a mere conflict concerning the establishment of paternity.

(c) Possibility of recognising paternity before birth – The law admittedly allowed a child’s paternity to be recognised before birth, from the time of its conception. However, that had not always been possible in reality, especially where the father had not been informed about the pregnancy; and in any event this was not common practice in Bulgaria. Even in the case of early recognition, the mother had the possibility of rendering it ineffective merely by declaring her objection. If the mother then agreed to recognition by another man, before the man claiming to be the father who made the first declaration of recognition had been able to bring a paternity su it, the latter, even if he was the biological father, would be in the same situation as the present applicants, unable to establish his paternity. Accordingly, the possibility of recognising paternity before birth could not be regarded as an effective mean s of establishing paternity in the absence of agreement by the mother.

In those circumstances the Court could not reproach the applicants for failing to make a declaration of paternity before the birth. In both cases the applicants had in fact taken steps to establish their paternity as soon as they had become aware of the respective births.

It was concluded from the foregoing that the applicants did not have an effective possibility of challenging the legal parent-child relationship established by recognit ion or of directly establishing their own paternity. Accordingly, their right to respect for their private life had been breached.

Conclusion : violation (unanimously).

Article 41: EUR 6,000 awarded to each applicant for non-pecuniary damage.

(See also Róża ński v. Poland , 55339/00, 18 May 2006, Information Note 86 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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