Information Note on the Court’s case-law 192

January 2016

Mandet v. France - 30955/12

Judgment 14.1.2016 [Section V]

Article 8

Article 8-1

Respect for family life

Respect for private life

Change of recognised paternity at request and in favour of biological father without child’s consent: no violation

Facts – The first two applicants married for the first time in 1986. Three children were born to them. In 1995 they filed jointly for divorce. The divorce was granted on 17 June 1996. The first applicant gave birth to a fourth child (the third applicant) in August 1996. The child was registered under his mother’s name. In September 1997 the second applicant recogni sed the third applicant. The first two applicants married each other again in October 2003 thereby legitimising the third applicant.

In February 2005 Mr G. applied to a court, challenging the recognition of paternity in respect of the third applicant, who was then aged eight, and seeking to have his own paternity outside marriage recognised. By a judgment of 10 February 2006, the court held that as the third applicant was born more than 300 days after the decision authorising the first two applicants to li ve separately, the legal presumption that the second applicant was the father ought to be dismissed. It further noted that it was not contested that, at the time of the child’s conception, Mr G. had been in a sexual relationship with the first applicant an d that numerous witness statements, supported by a social services report, confirmed that they had lived together as a couple, and that the third applicant had been considered their common child. The court concluded that the child had not had continuous st atus as the first two applicants’ legitimate child, and that his paramount interest lay in knowing the truth about his origins. In consequence, the court declared Mr G.’s action admissible and ordered genetic testing. An ad hoc guardian was appointed to re present the third applicant’s interests. The latter, who was in Dubai, never met her, and it proved impossible to carry out the genetic tests on him. The court set aside the recognition of paternity and subsequent legitimation of the third applicant, held that he was to resume use of his mother’s surname and that Mr G. was his father; it also ordered that this was to be entered on the birth certificate and that parental authority was to be exercised by the mother alone, and organised contact and residence r ights for Mr G. The third applicant was aged about fifteen at the close of the proceedings.

Law – Article 8: By setting aside the legal parent-child relationship between the third and second applicants, the domestic courts had, from a legal viewpoint, cha nged an important element of the family structure within which the former had developed for several years, replacing it with another legal father-child relationship. Consequently, Article 8 was applicable and the impugned measure amounted to an interferenc e with the third applicant’s right to family life, and also to respect for his private life. That interference had been in accordance with the law and had the aim of protecting the rights of Mr G., who, as the claimant before the domestic courts, wished to be recognised as the third applicant’s father. Approached from this standpoint, the impugned interference had been aimed at protecting “the rights and freedoms of others”, the “other” being Mr G.

As to the domestic courts’ findings with regard to the pare nt-child relationship between the third applicant and Mr G., this was not based on the first applicants’ opposition to genetic tests, but on the establishment of the legal period of conception and an assessment of the elements submitted by the parties in a dversarial proceedings. In addition, the court had appointed an ad hoc guardian to represent the third applicant’s interests. Moreover, the Court of Cassation had examined the question of the child’s right to be heard in the proceedings and had held that t his right had been respected. It had noted in this regard that the third applicant had been informed of the proceedings and knew that his paternity was being challenged, and that he had sent letters from Dubai to the courts examining the case, in which he expressed his wish not to change his surname and to retain his legal parent-child relationship with the second applicant, without however directly asking to be heard. It followed that the domestic courts could not be considered to have failed to do what co uld be expected of them in order to involve the third applicant in the decision-making process.

In addition, the reasoning in the domestic courts’ decisions showed that the child’s best interests had been duly placed at the heart of their considerations. Without criticising the first two applicants’ wish to preserve the family as it was constituted a fter their remarriage, they had held that although the third applicant considered the second applicant to be his father and had forged a very strong emotional bond with him, his interests lay primarily in knowing the truth about his origins. Thus, the cour ts had not failed to attach decisive importance to the child’s best interests, but had held, in substance, that those interests did not lie where he perceived them – in maintaining the established parent-child relationship and preserving emotional stabilit y – but rather in ascertaining his real paternity. In other words, their decision did not amount to unduly favouring Mr G.’s interests over those of the third applicant, but in holding that the two sets of interests partly overlapped.

Admittedly, the domes tic proceedings and the decisions concerning the third applicant’s legal parent-child relationship and surname, and the contact and residence rights granted to Mr G., were such as to cause confusion in the third applicant’s private and family life, especia lly as they occurred during his childhood and adolescence. However, the domestic courts had entrusted the exercise of parental responsibility to the first applicant, and their decisions did not prevent the third applicant from continuing to live on a daily basis within the family unit centred around the first two applicants, in line with his wishes. In effect, he had continued living within that family until he reached adulthood.

The Court fully appreciated the impact of the impugned interference on the thi rd applicant’s private and family life. However, in holding that the child’s best interests lay less in preserving the parent-child relationship created by the second applicant’s recognition of paternity than in establishing his real parental filiation – i n which his interests partly overlapped with those of Mr G. –, the domestic courts had not exceeded the margin of appreciation afforded to them.

Conclusion : no violation (six votes to one).

(See also the Factsheets Parental rights and Children’s rights )

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

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