Court/Judicial body: The Supreme Court of Lithuania
Date: January 21, 2004 CRC
Provisions: Article 3: Best interests of the child Article 4: Implementation of rights Article 7: Name and nationality
Other international provisions:European Convention on the Legal Status of Children Born out of Wedlock ( Article 3: Paternal affiliation evidenced or established by voluntary recognition or by judicial decision; Article 5: Scientific evidence which may help to establish or disprove paternity shall be admissible)
Domestic provisions: Constitution of the Republic of Lithuania ( Article 21: Inviolability of the person) Civil Code of the Republic of Lithuania ( Article 3.3: Principles of the legal regulation of family relationships; Article 3.146: Conditions for paternal affiliation; Article 3.147: Persons end to petition for paternal affiliation; Article 3.148: Grounds for paternal affiliation; Article 3.150: Grounds for contesting paternity (maternity); Article 3.153: Mandatory participation of the agency for the protection of the child’s rights) Code of the Civil Procedure ( Article 391.1: Cases which may be heard as fact-finding) Law on Fundamentals of Protection of the Rights of the Child ( Article 59.2: State institutions’ responsibility for administration of law concerning child rights; Article 60.1: Municipal institutions’ responsibility for protection of child rights)
Background: I.B. married E.B. in 1984 and began a romantic relationship with M.R. in 1994. She became pregnant with M.R.’s child in 1997, but her husband was registered as the child’s father. I.B. and E.B. separated in 2000. M.R. offered financial assistance to I.B., but was killed later that year in a car accident. As a result, I.B. applied to change the child’s paternity with the court. DNA tests proved that E.B. was not the father of the child, and the court ordered M.R.’s relatives to undergo a similar test. The relatives repeatedly refused, and the mother asked the court to recognise M.R. as the child’s father. The lower court and the court of appeal both held that where the prospective father is dead, the father’s relatives bear the same responsibility as the father in establishing legal family relations. Thus, as a prospective father’s refusal to participate in a DNA test would be treated as an acknowledgment of paternity, so too would a prospective father’s relatives’ refusal.
Issue and resolution: Paternity. The Supreme Court overturned the lower court decisions, finding that a prospective father’s relatives could not be forced or expected to undergo DNA testing and that no assumptions could be drawn from this.
Court reasoning: The best interests of the child and the child’s right to know his or her biological parents are fundamental principles of family law and must be a primary consideration in paternity proceedings as required under the Convention on the Rights of the Child. However, these rights cannot be interpreted or expanded to essentially force the relatives of a prospective father to submit to DNA testing to establish a paternal affiliation with a child. Article 21 of the Constitution establishes the inviolability of the person, and there are no provisions of the Civil Code that would provide for DNA testing in these circumstances. Moreover, Article 3.148 of the Civil Code states that paternity may be confirmed by the existence of other circumstances like a shared life between the child’s mother and prospective father, a common interest in the child’s education, or the provision of maintenance payments to support the child.
Excerpt citing CRC and other relevant human rights instrumentsas translated by CRIN: Deciding on the question of the applicable law to determine the paternity of the child in this case, it is important that on 17 September, 1996 the Republic of Lithuania ratified the 1975 European Convention on the Legal Status of Children Born out of Wedlock (hereinafter “Convention”) by national Law Act No. 1519. Once ratified by the Republic of Lithuania, the Convention became an integral part of the national legal system and is directly applicable ( Article 138, paragraph 3 of the Constitution of the Republic of Lithuania). Article 3 of the Convention states that the paternal affiliation of every child born out of wedlock may be evidenced or established by voluntary recognition or by judicial decision.
Furthermore, Article 5 officially declares that in actions relating to paternal affiliation, scientific evidence which may help to establish or disprove paternity shall be admissible. In this case, the child was born on 5 May, 1998, and the applicant filed an application with the court for a determination of paternity on 29 May, 2001. At that time, the Convention was ratified by Parliament. Therefore, it could be stated that Article 5 of the Convention, providing scientific evidence as a basis to establish parenthood, was valid and applicable in the territory of Lithuania. On 25 March, 1999, the Marriage and Family Code (adopted in 1964) was harmonised with the provisions of the Convention (national Law Act No. VIII-1106) and repeated the basis for establishing parenthood by both expert opinion and factual evidence which may prove paternity. On 1 July, 2001 the Civil Code of the Republic of Lithuania was adopted. As a result, Article 3.148 of the Code declares that the basis for establishing parenthood is scientific evidence (DNA expert conclusions). Thus, it could be stated that both the former and current national law of Lithuania and also the Convention provide that the basis for proving parenthood is either scientific evidence or other factual evidence … The Advanced Trial Chamber of the Supreme Court of Lithuania considers that under Article 7 of the United Nations Convention on the Rights of the Child, each child has a right as far as possible to know his or her parents. Moreover, Article 3 of this Convention highlights the priority of the best interests of the child. Also, Article 3.3 of the Civil Code enshrines the priority of the principle of securing and defending children’s rights and interests. However, despite Articles 3146 – 3148 and 3150 of the Civil Code declaring that the establishment and disavowal of paternity must be addressed in the interests of the child, the interpretation of the law cannot be understood as allowing the coercion of a presumed father’s relatives (parents, children, brothers or sisters) to participate in scientific testing aimed to establish a child’s paternity. In particular, Article 21 of the Constitution of the Republic of Lithuania stipulates the inviolability of the person of the human being. As a result, forced examination to test the paternal affiliation of the presumed father and especially the presumed relatives, even in such sensitive cases, may not be allowed and should be primarily considered as illegal. Therefore, the refusal of close relatives of the presumed father to participate in the test cannot be considered as proof of parentage, even though the prospective father’s refusal is legally treated as a sufficient evidence to recognise paternity under national law, because Article 3.148, paragraph 2 does not provide any procedural consequences for the presumed father’s close relatives and in particular regulates only the legal relationship between a child (or his/her representatives) and a prospective father. … Article 3.153 of the Civil Code establishes that in all legal proceedings concerning paternity (or maternity) issues, the Institute for Protecting Child Rights must participate. Article 4 of the United Nations Convention on the Rights of the Child and also Article 59, paragraph 2 and Article 60, paragraph 1 of the Law on Fundamentals of Protection of the Rights of the Child declare that in adjudicating paternity or disputes over paternity, the participation of the agency for the protection of the child’s rights shall be mandatory.
Notes: The European Court of Human Rights in Mikulić v. Croatia, 7 February 2002 (53176/99) also forbade forced DNA testing in order to establish paternity. The European Court of Human Rights declared that national courts are also free to reach their own conclusions when a party has been obstructing the establishment of certain facts. However, when paternity cannot be established by means of DNA testing, the interests of the individual seeking the establishment of paternity must be secured in another manner such as circumstantial evidence.
CRIN Comments: CRIN believes that this decision is consistent with the CRC insofar as the Court recognised that children’s rights and best interests must be a primary consideration in proceedings that concern them. In line with children’s right to know and be raised by their parents, States should also take steps to facilitate the establishment of paternal affiliation as here in legal proceedings or otherwise.
Citation: 2004 91 21, 3K-7-607/2004, LAT, Civilinė, Kasacinė Nutartis
Link to Full Judgment:http://www.lat.lt/3_nutartys/senos/nutartis.aspx?id=27456