JOINT DISSENTING OPINION OF JUDGES LAFFRANQUE AND TURKOVIĆ

1 . Unfortunately, we are unable to agree with the majority for the following reasons.

2 . What is of primary importance in the present case is of course the best interests of the children. In its case-law on Article 8 the Court has on numerous occasions acknowledged that, where children are involved, their bests interests must be taken into account and significant weight must be attached to those interests whenever a judicial or administrative decision, or legislation, directly concerns children or has an impact on them, thus including legal proceedings for the establishment of paternity (see, for example, Mandet v. France , no. 30955/12, § 53, 14 January 2016).

3 . It is true that in Article 8 cases where it is necessary to assess the best interests of a child, the Court does not propose to substitute its own assessment for that of the domestic courts (see, mutatis mutandis , X v. Latvia [GC], no. 27853/09, § 102, 26 November 2013). This task falls in the first instance to the national authorities, which have, inter alia , the benefit of direct contact with the interested parties.

4 . However, despite the fact that in fulfilling their task under Article 8 the domestic courts enjoy a margin of appreciation, the process remains subject to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, mutatis mutandis , Hokkanen v. Finland , 23 September 1994, § 55, Series A no. 299 ‑ A; see also Maumousseau and Washington v. France , no. 39388/05, § 62, 6 December 2007, and Neulinger and Shuruk v. Switzerland [GC] , no. 41615/07, § 141, ECHR 2010 ). The margin of appreciation to be afforded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake (see Kutzner v. Germany , no. 46544/99, § 67, ECHR 2002-1).

5 . The Court has laid down certain criteria to be taken into account when assessing the best interests of the child. It insists on flexibility, consideration of all relevant factors and the application of various procedural safeguards. It requires appropriate weight (primary or paramount considerations) to be given to the best interests of the child, which it tends to interpret as a dynamic concept requiring context-specific and individualised assessment , and recognises the importance of those best interests in ensuring the full and effective enjoyment of children ’ s rights as well as their holistic development. [4]

6 . In our view, the relevant provisions of the Children Act on the institution and reopening of paternity proceedings (see paragraph 31 of the judgment) fail to give due regard to the right of children to know their own origin. Furthermore, the reasoning of the decision of the majority judges of the High Court of Eastern Denmark does not demonstrate that the High Court paid any attention to the right of children to express their views freely or that it carried out a sufficiently detailed analysis of the various interests at stake, especially of the best interests of the children involved.

7 . Under the Children Act, the right to bring a paternity suit after six months is conditional upon proof, on a balance of probabilities, that another man is the child ’ s father. In the present case, it was established that the second applicant was not the father of L. or S., and there was a high probability that the biological father was E. However, he opposed the reopening of the paternity suit and did not want to subject himself voluntarily to DNA testing. In making its decision not to allow the reopening of the paternity proceedings, one of the decisive elements for the High Court was that reopening carried a slight risk that paternity would not be established, with the result that the children might become fatherless. Apparently, Danish law does not give the courts the possibility of subjecting an alleged father to DNA testing prior to the reopening of a paternity suit. Thus the law obliges children who want to find out their true identity to bear the risk of becoming fatherless. In this way Danish law, instead of giving priority to the interest of children in establishing their true identity, actually protects the interests of alleged fathers who are afraid of having to assume their responsibilities.

8 . Proceedings for the establishment of paternity require a careful balancing exercise, weighing the child ’ s interest in knowing his or her identity against the interests of the putative or alleged father and the general interest. However, in that exercise the best interests of the child should be given priority. This is especially important in such sensitive cases as the present one, where the discovery of the truth concerning the identity of a child ’ s parents (see Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003 ‑ III) is highly relevant for his or her personal development. If the question of paternity is at stake and a potential biological father known to the mother, there should be some means guaranteed by the authorities whereby that person is obliged to undergo a DNA test, in order to ensure, as a prerequisite for the reopening of a paternity suit, that the biological father has already been established before the proceedings are finally resumed. As it failed to guarantee that possibility, we find Danish law to be contrary to the best interests of the child and overly protective of the interests of the putative or alleged father.

9 . The majority in the Chamber correctly point out in paragraph 47 of the judgment that the reasoning of the High Court is rather laconic and could have been more developed; but then in contradiction with this statement, the majority nevertheless, to our mind wrongly, accept that the High Court took the various interests into account.

10 . It is noteworthy that in the present case the domestic authorities were not unanimous as to the outcome. Firstly, the City Court in Copenhagen, having assessed as a whole the interests of the children and the union of the family, finding that the children would not be subjected to unnecessary inconvenience by the reopening of the proceedings, and considering it expected that paternity would be established, decided that, exceptionally, both paternity suits should be reopened. Secondly, the judgment of the High Court, which unlike the City Court refused to reopen the paternity suits, was not unanimous, the minority (one judge out of three) agreeing with the decision by the City Court, mainly with the same reasoning as at first instance.

11 . Furthermore, it is significant that in the present case the first and second applicants were both in agreement and wanted the paternity suits to be reopened.

12 . Nevertheless, the wishes of the children, who by the time of the High Court proceedings were around seven and four years old respectively, were not discussed in the majority judgment of the High Court. The minority judge pointed out that both boys had said that it was not the second applicant but E. who was their father. The Court has on several occasions emphasised the importance of the right of children to be heard and the need to take their views into consideration on matters which concern them in accordance with their age and maturity (see, for example, M. and M. v. Croatia , no. 10161/13, § 171, ECHR 2015; see also Mandet , cited above, § 55). The children were not parties to the proceedings before the High Court. The present judgment refers in this connection to the proceedings in the City Court, where the children ’ s counsel pleaded that the paternity suits should not be reopened (see paragraph 11), but does not elaborate on that point.

13 . Another important factor is time, which often plays a crucial role in cases concerning the interests of children. Unfortunately, just under ten years have already elapsed since the first and second applicants requested in November 2008 that both paternity suits be reopened and a not insignificant part of that time has regrettably been spent before this Court. Yet, in the present case, the first applicant has been reproached by the majority for not having taken any initiative to establish the biological identity of the father of her children any earlier than 2008. In the circumstances as they were in the case at hand we find this criticism inappropriate, as it appears to have been delicate for the first applicant to reveal the situation about the alleged true biological father of her first son, L., any earlier.

Instead, what is relevant is that in the autumn of 2008, when this situation was made known, the second applicant withdrew from the children and has seen them only occasionally since then. They were no longer living together so that in reopening the paternity suits there would have been no risk of breaking up a family because it, in any event, no longer existed. Unfortunately, the analysis as to whether the second applicant had treated the children as his own and would continue to take care of them as a father after the end of 2008 is rather weak in the High Court ’ s judgment.

14 . It is regrettable that the issue of the children ’ s interest in discovering their true identity has been left unanswered in this case. As even the majority have also pointed out, this Court has indeed acknowledged that a person has a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of his or her personal identity and to eliminate any uncertainty in this respect (see paragraph 48 of the judgment, with further references to Mikulic v. Croatia , no. 53176/99, § 54, ECHR 2002-I, and Odièvre , cited above, § 42).

A child ’ s identity and right to know the truth as to his/her biological father is an important aspect that should not be overlooked in assessing the overall situation (see also the dissenting opinion of Judges Laffranque and Pinto de Albuquerque in Marinis v. Greece , no. 3004/10, 9 October 2014). Unfortunately, this aspect was not given appropriate attention either by the domestic authorities (legislative or judicial) or by the majority in the Chamber.

15 . Having regard to the shortcomings that we have identified in the legislation and judicial proceedings, we find that there has been a violation of Article 8 of the Convention in the present case.

[1] . In paragraph 48 of the judgment, the first applicant is blamed for not having acted before November 2008. I do not find this reproach very realistic, given that she was hiding her sexual activities from the second applicant.

[2] . This does not mean that “when domestic authorities carefully assess the best interests of the child, the Court should not, in principle, contradict their findings, in particular if they are made by an independent court in judicial proceedings” (see paragraph 47 of the judgment, referring to A.L. v. Poland, no. 28609/08, § 72, 18 February 2014). Such a standard of review would result in too much deference by the Court to the domestic courts. I prefer to adhere to the standard according to which, “where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts” (see, among others, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012, and Couderc and Hachette Filipacchi Associés, cited above, § 92).

[3] . The majority acknowledge that the High Court’s reasoning “is rather brief and could be more developed” (see paragraph 47 of the judgment). This is something of an understatement. By not thoroughly discussing the children’s best interests, the reasoning barely meets the minimum requirement.

[4] For further elaboration see K. Turković and A. Grgić, “Best Interests of the Child in the Context of Article 8 of the ECHR” in Essays in Honour of Dean Spielmann (2015), pp. 629-42.