CASE OF A.L. v. POLAND
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1974 and lives in Straszęcin. 6. On 27 October 1995 R, with whom the applicant had been in a relationship but to whom he was not married, gave birth to a son, D. 7. R and the applicant got married on 31 October 1995. On 2 November 1995 the applicant acknowledged paternity of D before the Dębica Registry Office (Urząd Stanu Cywilnego). In accordance with Article 77 § 1 of the Family and Custody Code R, the mother of the minor child, gave her consent to the applicant’s acknowledgment of paternity. 8. On an unspecified date R lodged a petition for divorce with the Zielona Góra Regional Court. On 12 January 2000 the Regional Court granted a decree of divorce. The court awarded the custody of D to the mother. Both parents were ordered to contribute to the maintenance and upbringing of the child. The applicant was ordered to pay first 300 PLN and later 400 PLN per month in child maintenance. No questions as to the applicant’s paternity were raised in the divorce proceedings. 9. Soon after, R married D.S. and their son B was born in 2000. 10. The applicant submitted that he subsequently began having doubts as to his paternity of D and decided to undergo a DNA test. 11. On 4 January 2007 the applicant took D to a private DNA analysis laboratory and had a DNA paternity test conducted. The DNA test confirmed that the applicant was not D’s father. As the applicant could not personally initiate civil proceedings for denial of paternity, due to the expiry of the time-limit specified in Article 80 § 1 of the Family and Custody Code, he requested the Nowa Sól District Prosecutor to file a claim in his name. 12. On 7 February 2007 the District Prosecutor questioned the applicant about the circumstances surrounding the recognition of his paternity of D. The applicant stated, among others, that: “She told me that I had had sexual intercourse with her during a party to which she had invited me as her fiancé. .... I do not remember having had sexual intercourse [with R] at the time... Never before marrying R did I have physical contact with her. ... I have never believed that I am the father of the child. I have recognised this child as mine because I thought I did not have any other option. ... Even before the birth of the child I learnt that R, who at that time had the family name N, had had sexual intercourse with other men during the period in which D had been conceived. .... ” 13. With regard to his contact with D, the applicant stated that he had not yet informed D that he was not his father. D still considered him as his father and called him “Dad”. However, their contact was rare and not particularly warm. He requested the prosecutor to file a claim disclaiming his paternity because he had been deceived by R. 14. R was also questioned by the prosecutor. She stated that the applicant had been aware that he may not have been the father of D. Nonetheless, he had voluntarily decided to recognise his paternity of D. She also stated that D had close emotional ties with the applicant and that the annulment of recognition would be a terrible shock for D. 15. D.S., R’s current husband, stated that he did not intend adopting D because the child had a difficult personality and suffered from the ADHD (Attention Deficit Hyperactivity Disorder). Furthermore, D knew that D.S. was not his father. 16. On 22 March 2007 the District Prosecutor filed a statement of claim with the Nowa Sól District Court asking for the annulment of the applicant’s recognition of paternity of D. The defendants in the proceedings were the applicant, R and D. The prosecutor referred to the DNA test results and to the child’s mother’s testimonies which confirmed that at the time when D had been conceived she had had sexual contact with other men. The prosecutor further stressed that R’s new husband D.S. confirmed that he treated D as his son and together with his biological son B they all formed a family. Lastly, the prosecutor submitted that the applicant’s contact with D was rare and mostly amounted to his obligation to pay maintenance. 17. The District Court appointed a guardian ad litem for D. The guardian requested the court to dismiss the prosecutor’s claim as it was contrary to the child’s interests. 18. The court heard evidence from the applicant, R and D.S. 19. The applicant testified that he had been aware that D may not have been his child at the time of the recognition of his paternity in November 1995. 20. R objected to the prosecutor’s claim on the ground that the applicant had recognised his paternity of D being aware that he could not have been his father. She had not deceived the applicant because the applicant had known that she had had sexual contact with other men. She stated that D had close emotional ties with the applicant and was convinced that the applicant was his father. It would have been very traumatic for D to learn that the applicant was not his father given his ADHD. She submitted that the applicant had stopped paying child maintenance in January 2007. 21. On 20 June 2007 the Nowa Sól District Court dismissed the prosecutor’s action. 22. The court established the following facts. Before the birth of D the applicant and R were cohabiting. However, they also had sexual contact with other partners of which they were both perfectly aware. In 1995 R fell pregnant. She told the applicant that he had been the father of the child and that the child had been conceived during a party. The applicant’s mother put pressure on the applicant to marry R. 23. D was a pupil at primary school. He was diagnosed with the ADHD. From the age of seven years old D was certified as disabled and in need of assistance in his education. The court further established that the applicant had had sporadic contacts with D and that the latter had considered the applicant his father. The court noted that the private DNA paternity test confirmed that the applicant was not D’s biological father. The current husband of R did not treat D as his own child and had no intention of adopting D even in the case of the applicant’s acknowledgment of paternity being annulled. 24. Having regard to these facts, the District Court held that the prosecutor’s claim was ill-founded. The court noted that the applicant could not personally file a claim under Article 80 § 1 of the Family and Custody Code due to the fact that more than one year had elapsed since the date of the recognition of the child. However, even assuming that that the relevant time-limit had not yet expired, his claim would not have been successful since he was required to prove that his recognition of paternity was affected by one of the defects of his declaration of will specified respectively in Articles 82, 84, 86 or 87 of the Civil Code. 25. The court stressed that the applicant had confirmed that he had been perfectly aware that R had had sexual relationships with other men. It did not find credible the applicant’s assertion that he had recognised his paternity of D simply because he had been told by R that D had been conceived at a party. There were no grounds to consider that R had deceived the applicant in order to make him to recognise the child. The court held that the applicant had been fully aware that D might not have been his child; nevertheless, he decided to acknowledge his paternity of D. 26. Furthermore, it was not established that the applicant’s recognition of D had been affected by any other fault which could affect its validity. Accordingly, the court found that there were no grounds to annul the applicant’s recognition of D on the basis of Article 80 § 1 of the Family and Custody Code. 27. However, the claim was filed by a prosecutor who was not bound by the conditions specified in Article 80 § 1 of the Family and Custody Code. Therefore, the court had to examine whether the child’s interest and the rule of law required the annulment of the act of recognition of paternity. 28. The court noted that the institution of recognition of paternity was based on the premise that the child’s interest and the proper functioning of the family were priority values. In this connection, the legislature assumed that for the protection of these values it was justified in some cases to accept a legal fiction that a child was recognised by a man who was not his biological father. In principle, the act of recognition of paternity should reflect the actual legal situation; however, the legislature did not exclude that an act of recognition of paternity would be furnished by a man who only considered having a duty of care towards the child. This was reflected in the fact that there was no duty to verify whether an act of recognition of paternity conformed to the reality. 29. The court held that the arguments put forward by the prosecutor did not justify the finding that the annulment of recognition would be in the child’s interest. The court found, in so far as relevant: “First of all, the prosecutor’s argument, that due to sporadic contacts between the defendant [the applicant] and the minor and the fact that the current husband of R accepted the boy and treats him as his biological son there are no contraindications to the annulment of recognition, was not confirmed. It was established in the proceedings that the minor D still considers the defendant [the applicant] as his father. DS [R’s husband] does not intend to adopt the boy or even to treat him as his own son. In this situation there is a real risk that making the boy aware after so many years that the man who he has considered as his biological father, was not his real father, would constitute a traumatic experience for him. Such information would have been also very difficult to convey due to the fact that it is not possible to establish who the real father is. It does not seem either that the protection of the rule of law would justify the annulment of recognition. It is not possible to defend the argument that the existence of a legal relationship in which a man, who is not a biological father of the child, is considered the father of the child would be an affront to the rule of law, in particular where a man conscientiously decided to recognise his paternity of the child. In the present case it should be firmly underlined that the defendant [the applicant] knew perfectly well that he may not be the father of the child, yet he decided to recognise his paternity. ... Accordingly, the defendant [the applicant] should bear the consequences of his conscious decisions for the sake of the child’s well-being and the child’s proper development. The position of the legislature in this respect is perfectly clear. The rationale of the provisions concerning the acknowledgment of paternity of a child clearly indicates that the legislature considers this manner of establishing the filiation too serious so as to make its existence dependent on a free wish of a man. For this reason the law treats the recognition of paternity of a child as a definitive act and permits that it will be questioned only when the act was affected by defects or in the case of unforeseen special circumstances – which cannot be accepted in the light of the existing legal order or the principles of social co-existence. There were no such circumstances in the present case. The protection of the rule of law does not justify, as claimed by the prosecutor, the disclaiming of the recognition of paternity and the child’s interest goes against the change of the existing legal relationship.” 30. The applicant appealed against the District Court’s judgment. He argued that the court had disregarded the DNA evidence which excluded his paternity of D. He also submitted that the interest of the minor and the rule of law required that the child’s paternity be assigned to the biological father in order to terminate the legal fiction. 31. The prosecutor requested the Regional Court to dismiss the appeal. In his view, the interest of the child no longer justified the pursuance of the original claim. The prosecutor also raised the issue of the applicant’s standing to file an appeal. 32. On 29 November 2007 the Zielona Góra Regional Court dismissed the applicant’s appeal. 33. The court firstly referred to the Supreme Court’s resolution of 20 March 1975 (case no. III CZP 81/74) according to which a legally recognised father was not entitled to file an appeal against the judgment dismissing the prosecutor’s claim on the basis of an accepted fact that he was not the child’s biological father. The Regional Court noted that the Family and Custody Code did not bestow on the man who had recognised paternity of a child the right to sue for annulment of his recognition on the ground that he was not the child’s father. The right to sue for annulment of recognition of paternity in such circumstances was bestowed on the child so recognised when he or she reached the age of majority (Article 81 of the Family and Custody Code). 34. The court further considered that, even assuming that the applicant had standing to file an appeal, there were no grounds to change the firstinstance judgment. The lower court found that the rule of law required maintaining the status quo and that the child’s well-being justified a departure from the biological truth. In addition, the Regional Court relied on the applicant’s divorce file from which it transpired that he had treated D as his own child. It also referred to the Supreme Court’s view that in matters of establishing paternity there was no absolute priority for biological truth. In the light of the above, the applicant’s claim for annulment of the recognition was ill-founded. 35. The applicant filed a cassation appeal. However, on 17 October 2008 the Supreme Court refused to entertain it.