CONCURRING OPINION OF JUDGE LEMMENS

1. I voted with the majority for a finding of no violation of Article 8 of the Convention.

I must admit, however, that I did so with considerable hesitation. There are indeed a number of troubling elements.

First of all, both applicants, that is to say the mother of both children and the man who was considered to be their father, applied for a reopening of the paternity proceedings. They both agreed that the second applicant was not the children ’ s biological father.

Secondly, the first applicant kept the fact hidden for years that she had had sexual relations with other men, in particular with E. Although the children were born in 2004 and 2006 respectively, the first applicant informed the second applicant (only) in October 2008 that she had these relations, between 2003 and 2008 (see paragraph 9 of the judgment). This new development prompted both applicants to file their request, in November 2008 (paragraph 10 of the judgment). [1]

Thirdly, while the second applicant was unaware of what exactly had happened behind his back, he fully assumed the role of father of L., and even accepted that role with respect to S., although by that time he knew that, because there had been no sexual contact between him and the first applicant, he could not have been the biological father of S. He nevertheless accepted to be registered as the father of S., because at that time he believed that L. was his son and he wanted the two boys to grow up together and to be treated equally; he also wanted to help and support the first applicant (see paragraph 13 of the judgment). When he learned the true facts, including about L., he — understandably — no longer wished to continue supporting the mother and the two children who were not his (see paragraph 23 of the judgment). The refusal to reopen the proceedings has the effect of keeping him locked in a father-child relationship which he had accepted without being informed of the true situation.

Fourthly, E., who could well be the biological father of both children (see paragraph 9 of the judgment), but who refused to accept parental responsibility, is left completely off the hook.

Fifthly, what is in the best interests of the children, in the long run? It is hard to imagine that there will be a loving relationship with the man who had thought he was the father of one of them, but later found out that he is the father of neither. I would not rule out the possibility that at some point the children will themselves take the initiative of contesting the paternity of the second applicant and trying to establish the paternity of the real, biological father (or fathers).

2. If I had been a national judge in the case brought by the applicants before the domestic courts, I might very well have taken the same decision as the City Court of Copenhagen and ordered a reopening of the paternity issue. The biological reality is an important guiding principle. In this respect I would like to refer to the Court ’ s case-law to the effect that a situation in which a legal presumption is allowed to prevail over biological reality might not be compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life (see, among others, Kroon and Others v. the Netherlands , 27 October 1994, § 40, Series A no. 297 ‑ C, and Mizzi v. Malta , no. 26111/02, § 113, ECHR 2006 ‑ I [extracts] ).

3. However, I must admit that different views on this issue are reasonably possible, as is illustrated by the decision taken by the High Court of Eastern Denmark.

In such a situation, I am mindful of the limits of the supervisory power of our Court. The Court ’ s task is not to take the place of the national courts, which have, inter alia , the benefit of direct contact with the interested parties, but rather to review whether the decisions the courts have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see, among many others, X v. Latvia [GC], no. 27853/09, § 101, ECHR 2013, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 90, ECHR 2015 [extracts]). [2]

That is why in the end, without any enthusiasm at all, I felt compelled to conclude that, having due regard to the margin of appreciation enjoyed by the domestic courts and the reasons given by the High Court [3] , the latter had struck a fair balance between the various interests involved.