Court/Judicial body:
European Court of Human Rights
Citation:
Application No. 30955/12
Date:
14 January 2016
CRC Provisions:
Article 3: Best interests of the child
Article 7: Name and nationality
Article 8: Preservation of identity
Other international provisions:
European Convention on Human Rights, Article 8: Right to respect for private and family life
Case summary
Background:
The case was lodged by three applicants. The first two applicants, Mr and Mrs Mandet, were married and had three children together. They divorced ten years later and Mrs Mandet had another child that year, who is the third applicant in this case. Mr and Mrs Mandet resumed their relationship a year later and Mr Mandet recognised the child as his own. This was recorded on the child’s birth certificate.
When the child was 8 years old, Mr Glouzmann applied to the Tribunal de Grande Instance (TGI) de Nanterre asking it to quash the recognition of paternity made by Mr Mandet and requested to be recognised as the child’s biological father. The TGI stated that given that the child was born 300 days after Mr and Mrs Mandet had separated, the legal presumption that Mr Mandet was the father of the child should be dismissed. There were several witness statements confirming Mrs Mandet’s relationship with Mr Glouzmann and that they lived together at the time of the child’s conception and birth. Furthermore, the child was known to others as Mrs Mandet and Mr Glouzmann’s child. The TGI held that it was in the child’s best interests to know his origins and ordered that Mr Mandet’s recognition of paternity and the legitimisation of the child is set aside. The child was to resume his mother’s maiden name and his birth certificate was to be amended to reflect this change. Parental authority was to be exercised exclusively by the mother and Mr Glouzmann was granted visitation rights.
The Mandet family appealed unsuccessfully. The child had written several letters to the French courts stating that he wishes to keep the status quo and he was nearly 12 years old when the TGI issued its judgment. An ad hoc guardian was appointed to represent the interests of the child, however, the Mandet family had moved to Dubai and the guardian was unable to ever meet with the child.
The applicants complained to the European Court of Human Rights that the quashing of the recognition of paternity and the legitimisation of the child at the request of Mr. Glouzmann were disproportionate measures which interfered with the family’s right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR). They argued that maintaining the parent-child relationship as it had been for several years was in the best interests of the child. By the time the decision of the European Court of Human Rights was handed down, the child had already reached majority.
Issue and resolution:
Recognition of biological paternity. The Court held that the French courts had not violated the ECHR by ruling that the best interests of the child and interest to know his origins require that the recognition of paternity by the mother’s husband is quashed when another man requests to be recognised as the child’s father.
Court reasoning:
The Court ruled that only the complaint by the child was admissible. The Court determined that changing the legal father-child relationship indeed amounts to an interference with the child’s right to respect for private and family life, however, this interference may be justified on the basis that it aimed to protect the rights of the biological father. The issue was whether the measures taken by the French courts were proportionate to achieving that aim.
The Court noted that France enjoys a certain degree of discretion, known as the margin of appreciation, when applying Article 8 of the ECHR to determining the legal relationship between parents and their children. However, whenever the situation concerned a child, the Court must consider that the best interests of the child as paramount.
The finding of a parent-child relationship between the child and Mr Glouzmann had been based on a calculation of the period of conception of the child and the assessment of evidence presented before the French courts. The French courts had done everything that could have been expected from them to involve the child in the decision-making process, including the appointment of an ad hoc guardian to represent the child’s interests. The Court agreed with the French courts that the child’s primary interest was to know the truth about his origins, despite the fact that the child had written letters to the French courts requesting to keep his existing name and legal father-child relationship. In the opinion of the European Court, the child’s best interest were given due consideration even if the outcome was contrary to the child’s wishes and the French courts had attempted to strike a abalnce between the child’s interests and those of the biological father.
The French court decision did not affect the child’s living arrangements as he carried on living with the Mandet family until his majority, in accordance with his wishes. Therefore, the French courts had not exceeded their margin of appreciation in this case and no violation of the ECHR has occurred.
Dissenting opinion:
Judge Nußberger dissented and stated that the importance of knowing one’s origins should be a right and not an obligation. She held that the measures taken by the French courts were taken solely in the interests of the biological father and not in the interests of the child. She added that the child should have been given a choice about whether he wanted to discover the truth about his origins and whether he wanted to resume contact with his biological father, especially given his age as he was close to majority.
Excerpt citing CRC and other relevant human rights
In French language:
§19. Dans un second moyen, [les requérants] dénonçaient notamment une méconnaissance de l’ Article 8 § 1 de la convention internationale des droits de l’enfant – qui consacre le droit de l’enfant de préserver son identité, y compris son nom et ses relations familiales – et, renvoyant en particulier à l’ Article 3 § 1 de cette même convention, de l’intérêt supérieur de l’enfant.
§23. Le Gouvernement soutient que les requérants n’ont pas épuisé les voies de recours internes, au sens de l’ Article 35 § 1 de la Convention. Il souligne à cet égard qu’ils n’ont pas invoqué l’ Article 8 de la Convention devant la Cour de cassation, mais se sont bornés à invoquer l’intérêt supérieur de l’enfant tel que garanti par les articles 3 § 1 et 8 § 1 de la convention internationale des droits de l’enfant du 20 novembre 1989.
§26. Cependant, comme le relève le Gouvernement, ils ont invoqué devant la Cour de cassation les articles 3 § 1 et 8 § 1 de la convention internationale des droits de l’enfant du 20 novembre 1989, qui consacrent la primauté de l’intérêt supérieur de l’enfant dans toutes les décisions concernant les enfants et le droit de l’enfant de préserver son identité, y compris, notamment, son nom et ses relations familiales. Par ailleurs, ils ont non seulement très clairement dénoncé tout au long de la procédure interne une méconnaissance de l’intérêt supérieur de l’enfant, mais se sont en outre fondés sur la possession d’état d’enfant légitime du troisième requérant et sur sa volonté de conserver son lien de filiation avec le deuxième requérant.
§38. Il s’agirait-là d’un droit consacré non seulement par l’ Article 7 de la convention internationale des droits de l’enfant du 20 novembre 1989 – qui pose le principe selon lequel, « dans la mesure du possible, [l’enfant a] le droit de connaître ses parents » – mais aussi par la jurisprudence de la Cour…
As translated by CRIN:
§19. Secondly, [the applicants] alleged there had been a breach of Article 8 § 1 of the Convention on the Rights of the Child – which enshrines the right of the child to preserve his or her identity , including nationality, name and family relations – and , referring in particular to Article 3 § 1 of that Convention, the best interests of the child.
§23. The Government claimed that the applicants had not exhausted domestic remedies pursuant to Article 35 § 1 of the Convention. It highlighted that they had not raised Article 8 of the Convention before the Court of Cassation but confined themselves to only invoking the best interests of the child, as guaranteed by Article 3 as well as Article 8 of the Convention on the Rights of Child of the 20 November 1989.
§26. However, as noted by the Government , they raised Articles 3 § 1 and 8 § 1 of the Convention on the Rights of the Child of 20 November 1989 before the Court of Cassation, which establish the primacy of best interests the child in all actions concerning the child and the right of the child to preserve his or her identity, including, his or her name and family relations. Moreover, they not only very clearly denounced ignorance of the best interests of the child throughout the entire domestic proceedings, but are also based themselves on the status of legitimate child of the third applicant and his desire to keep his parentage with the second applicant.
§38. This right would not only be guaranteed by Article 7 of the Convention on the Rights of the Child of 20 November 1989 – which established the principle that, “as far as possible, [the child has] the right to know and be cared for by his or her parents”- but also by the case law of the Court …
CRIN Comments:
CRIN believes that this decision is inconsistent with the CRC. Article 7 of the CRC provides for the right of a child, as far as possible, to know and be cared for by their parents. Since no definition of the term ‘parent’ can be found in the CRC, Article 7 must be interpreted with regard to the Convention’s guiding principles. General Comment No. 14 of the Committee on the Rights of the Child states that if the requirements of Article 12 of the CRC, guaranteeing the child’s right to be heard, are not met, the best interests principle in Article 3(1) CRC cannot be applied correctly. Furthermore, the child’s views must be accorded increasing weight in the assessment of his or her best interests as the child matures, in line with the child’s evolving capacities ( Article 5 CRC).
Link to Full Judgment:
http://hudoc.echr.coe.int/eng?i=001-159795
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.