Court/Judicial body: The Republic of Latvia Constitutional Court
Date: 11 October 2004 CRC
Provisions: Article 3: Best interests of the child Article 7: Name and nationality
Other international provisions: Article 4 of the European Convention on the Legal Status of Children Born Outside of Wedlock (European Convention): The voluntary recognition of paternity may not be opposed or contested insofar as the internal law provides for these procedures unless the person seeking to recognise or having recognised the child is not the biological father
Domestic provisions: Article 6 of the Law on Protection of the Rights of the Child: In legal relations, concerning the child, the rights and interests of the child shall prevail Article 155(6) of the Civil Law: The father of the child, who is married to another woman, may submit a claim for recognition of paternity only with the consent of his spouse Article 110 of the Republic of Latvia Satversme (Constitution): The State shall protect and support marriage, the family, the rights of parents and rights of the child
Background: This case was raised by the State Human Rights Bureau requesting the Constitutional Court to declare that Article 155(6) of the Civil Law, which states that “the father of the child, who is married to another woman, may submit a claim for recognition of paternity only with the consent of his spouse”, is incompatible with: (1) Article 110 of the Constitution as it disproportionately violates the rights of the child born out of wedlock; and (2) Article 4 of the European Convention, which states that the voluntary recognition of paternity may not be opposed or contested insofar as the internal law provides for these procedures unless the person is not the biological father.
Issue and resolution: Children born out of wedlock; discrimination. The Court ruled that the Civil Law provision is incompatible with Article 4 of the European Convention and the best interests of the child.
Court reasoning: Latvia has ratified the European Convention without reservations. The provisions of the European Convention are therefore binding. Having to seek the consent of a spouse under Article 155 of the Civil Law is equivalent to contestation. However, the European Convention is silent on the question of the process of contestation and who and under what circumstances a contestation is permitted. This is a matter left for each individual state to legislate. Article 155 of the Civil Law is also silent on the specific reasons or circumstances where contestation is permitted. This gives the spouse a veto right and creates a real obstacle to the process of voluntary recognition of paternity, which is inconsistent with the European Convention and not in the best interests of the child. In performing its legislative duties and in all matters relating to child rights, the state, the courts and other institutions must be mindful of Article 3 of the CRC which states that the best interests of the child shall prevail. In addition, the European Court of Human Rights has reiterated that in judicial decisions where a parent’s right to private and family life (under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms) is in question, the child’s rights must be the paramount consideration. If any balancing of interests is necessary, the interests of the child must also prevail. The current norm that gives preference to a spouse’s objection and a review process that takes between four to eight months is not satisfactory, does not prioritise the best interests of the child and fundamentally restricts the child’s rights during the review period. Encouraging voluntary recognition of paternity (and, accordingly, limiting the possibilities of opposition or contestation) promotes the rights and interests of the child and equalises the legal status of children born out of wedlock with the legal status of children born in wedlock.
Excerpt citing CRC and other relevant human rights Article 110 of the Satversme envisages protection of the interests of the child. Article 3 (the first part) of the UNO Convention on the Rights of the Child determines the priority of the rights of the child. The duty of the State to protect the rights of the child is specified in the Law on Protection of the Rights of the Child. Article 6 (the first part) of it determines that in legal relationships, which concern the child, the rights and interests shall prevail. The second part of the same Article adds to it the statement that “all the activities with regard to children, regardless whether they are carried out by the State or municipal institutions, public organizations or other physical or legal entities, which are engaged in child care as well as courts and other law enforcement institutions shall secure priority of the interests of the child”. It follows from the above that in legal relationships, concerning the child, in all the activities the rights and interests of the child shall prevail. It means that not only the courts and other institutions shall adopt their decisions on the basis of the interests of the child, but the legislator has also to observe it, so that the adopted or amended normative acts would protect the interests of the child in the best possible way. Article 7 of the UNO Convention on the Rights of the Child determines that the child – from the moment of birth – has the right of obtaining the surname. While the paternity has not been established, the child may not have his/her father’s surname, even if the parents want it. Thus to the moment of establishing paternity, several rights are denied to the child and that is at variance with his/her interests. As the court practice testifies, establishment of paternity by the court may continue for several months. Thus, even though the father of the child wants to voluntary recognize paternity, for four months or longer in the documents of the child only the mother’s name is indicated. Besides, one may agree with the statement of the State Human Rights Bureau that the opposed norm may lessen the will of the father to voluntary recognize paternity. Thus, the number of children, who have no father, may increase. And that may deny the child several rights and is at variance with his/her interests.
Follow up: This decision was a final judgment (without possibility of appeal). Article 155(6) of the Civil Law was subsequently deleted.
CRIN comments: CRIN believes this decision is consistent with the CRC. In addition to the best interests of the child principle ( Article 3), the CRC requires the State to ensure the rights of the Convention to each child without discrimination of any kind, irrespective of the child’s or his or her parent’s status ( Article 2). Accordingly, no distinction should be made between children born out of wedlock and children born in wedlock.
Citation: Constitutional Court October 11, 2004 Judgment in Case No. 2004-02-0106, Item 11 (Satversmes tiesas 2004.gada 11. oktobra sprieduma lietā Nr. 2004-02-0106 11. punkts)
Link to full judgement: http://www.satv.tiesa.gov.lv/upload/2004-02-0106E.rtf