CASE OF KAUTZOR v. GERMANY
Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life;Article 8-2 - Necessary in a democratic society;Protection of the rights and freedoms of others)
André Potocki;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger
5. The applicant was born in 1971 and lives in Willich. 6. On 19 December 2003 the applicant married Ms D. The couple separated in June 2004. In July 2004 Ms D. informed the applicant that she was pregnant. The couple divorced on 12 November 2004. 7. On 5 March 2005 Ms D. gave birth to a daughter, M. 8. On 5 May 2006 the applicant wrote a letter to Ms D., indicating that he wished to have access to the child and to acknowledge paternity. 9. On 16 May 2006 Mr E., with the consent of Ms D., acknowledged paternity of the child before the Youth Office. On 20 June 2006 the applicant declared in a document certified by a notary that he acknowledged paternity of the child. 10. On 5 July 2006 the applicant lodged an action with the Bielefeld District Court (Amtsgericht) to have his paternity established, submitting that he had had sexual intercourse with the child’s mother during the period of conception. Ms D. replied that Mr E. was the biological father and that he lived with the child and herself in a social and family relationship. 11. On 18 August 2006 Mr E. and Ms D. got married. The couple live together with the child M. and with two further children, born in June 2006 and May 2008. 12. On 22 August 2006 the applicant further requested the District Court to establish that Mr E. was not the child’s father and submitted a statutory declaration that he had had sexual intercourse with the child’s mother during the time of conception. 13. On 24 August 2006, during a first hearing, the District Court informed the parties that a guardian ad litem should be appointed to represent the child’s interests, as a conflict of interests had arisen due to the fact that Mr E. and Ms D. had married. Ms D. declared that the applicant was not the child’s father. 14. On 30 August 2006 the District Court judge submitted the case file to the judicial officer in charge of appointing guardians (Rechtspfleger). On 10 October 2006 the judicial officer refused to appoint a guardian. 15. On 31 October 2006 the District Court instituted separate proceedings aimed at appointing a guardian ad litem. On 27 November 2006 the Youth Office submitted their comments. On 30 January 2007 the District Court appointed a guardian ad litem to represent the child in the pending proceedings and also in case the child should lodge an action in her own right challenging paternity. 16. On 27 February 2007 Mr. E and Ms. D lodged an appeal against the guardian’s appointment. On 28 March 2007 they submitted reasons for their appeal. On 31 May 2007 the applicant requested that the appeal be rejected. On 26 June 2007 the Hamm Court of Appeal (Oberlandesgericht) scheduled a hearing for 11 September 2007 which was postponed on the applicant’s request to 20 September 2007. 17. On 20 September 2007 the Court of Appeal confirmed the appointment of a guardian, but quashed the District Court’s decision insofar as it concerned the child’s representation in case she should lodge her own action. 18. On 4 January 2008 the District Court scheduled a hearing for 29 January 2008. 19. On 24 January 2008 the guardian ad litem submitted his observations to the Regional Court. Following a visit to the family home, he concluded that there existed a strong social and family relationship between the child and Mr E., and considered that it was most important to assure that the child was allowed to grow up undisturbed within her family. On the same day, the District Court cancelled the hearing and invited the parties to submit comments on the guardian’s observations. 20. On 22 February 2008 the District Court ordered an expert opinion on the question whether a social and family relationship existed between the child and Mr E., and requested the applicant to pay an advance of 1,000 euros (EUR). On 28 March 2008 the District Court reminded the applicant to pay the advance. 21. On 14 April 2008 the applicant, referring to the guardian’s submissions, conceded that a social and family relationship existed between the child and Mr E. He therefore did not consider it necessary to hear expert opinion in this respect. He contended, however, that his action should be allowed because the applicable legislation did not sufficiently take into account his rights as a parent. 22. On 24 April 2008 the District Court scheduled a hearing for 29 May 2008. 23. On 6 May 2008 the District Court, on the applicant’s request, postponed the hearing to 10 June 2008. 24. On 27 May 2008 the applicant, relying on Article 1598a of the Civil Code as in force since 1 April 2008 (see Relevant domestic law, below), lodged an alternative request to order the child to undergo genetic testing in order to establish her descent. 25. On 10 June 2008, during the hearing, the parties unanimously declared that a social and family relationship existed between Mr E. and the child. Following the hearing, the District Court rejected the applicant’s request. According to that court, the applicant was precluded from contesting paternity under Article 1600 § 2 of the Civil Code (see Relevant domestic law, below) because a social and family relationship existed between the child and her legal father. He did not have the right to have his paternity established or to demand genetic testing because the child already had a legal father. 26. On 2 December 2008 the Hamm Court of Appeal rejected the applicant’s appeal lodged on 10 July 2008. It noted that it was no more in dispute between the parties that a social and family relationship existed between the child M. and her legal father, who, in the meantime, had married the child’s mother and fathered two further children. Confirming the District Court’s judgment, that court further considered that the relevant legislation did not violate the applicant’s rights under the German constitution and under Articles 8 and 14 of the Convention. Referring to its own constant case-law and to the case-law of the Federal Constitutional Court, the Court of Appeal considered that the legislature had been entitled to let the interests of the child and of her legal parents prevail over the biological father’s interest to have his paternity legally established and to preclude the biological father from contesting paternity. There was no room for the court to examine in individual cases whether it was necessary in the child’s best interests to allow the presumed biological father to contest paternity. This general approach also protected the concerned families from being forced to reveal intimate details of their family life. 27. The Court of Appeal further confirmed that the applicant’s request to have his paternity established was inadmissible as the child already had a legal father. Relying on the case-law of the Federal Constitutional Court, the court considered that Mr E.’s acknowledgment of paternity had been valid and that the relevant legislation did not violate the applicant’s constitutional rights. It was, in particular, justifiable to make acknowledgement of paternity dependent on the mother’s consent. The legislature was not obliged to make acknowledgment of paternity dependent on a genetic examination of descent. It was acceptable to base the granting of legal status on an assumption which was based on specific factual and social situations. Such an assumption existed if a man declared in a legally binding way and with the express consent of the mother of a child born out of wedlock that he was willing to assume parental responsibility. The Court of Appeal further considered that the child’s rights were sufficiently protected by her own right to challenge paternity upon reaching the age of majority. 28. The Court of Appeal further considered that the Constitution protected a man’s interest to learn whether a child was his descendant and to have this fact legally established. However, this did not include the right to examine descent in any conceivable case. When developing the procedure for examining a child’s true descent, the legislature had to take into account the child’s interest in the stability of his legal and social-family affiliation and the mother and child’s interest not to have personal data and intimate circumstances revealed, and had done so in an acceptable way. There was, in particular, no right under the Constitution to have biological descent legally established as long as another man’s legal paternity persisted. 29. The Court of Appeal finally considered that the applicant’s alternative request to order the child to undergo genetic testing was inadmissible, because such a request had to be lodged in separate proceedings. 30. On 20 March 2009, following a complaint by the applicant, the Court of Appeal confirmed its judgment of 2 December 2008 and stated that the alternative request to clarify the child’s genetic descent was not inadmissible but unfounded, as Article 1598a of the Civil Code did not entitle the presumed biological father to demand genetic testing. Relying on the Federal Constitutional Court’s case-law, the Court of Appeal considered that the applicant did not have the right to have biological paternity established without establishing legal paternity. 31. On 30 June 2009 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint for adjudication. This decision was served on the applicant’s counsel on 8 July 2009. 32. Under Article 3 of the Basic Law, everyone is equal before the law (§ 1); men and women have equal rights (§ 2). 33. Article 6 of the Basic Law, in so far as relevant, provides: “(1) Marriage and the family shall enjoy the special protection of the State. (2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall watch over them in the performance of this duty.” 34. According to Article 1592 of the Civil Code, a child’s father is either the man who on the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2), or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3). An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code). Paternity can only be validly acknowledged with the mother’s consent (Article 1595 § 1). 35. Paternity may be challenged within a time-limit of two years. The period commences on the date on which the entitled person learns of the circumstances that militate against the established paternity; and the existence of a social and family relationship does not prevent the period from running (Article 1600b § 1). Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, under Article 1600 § 2, the biological father has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if there is no social and family relationship between the legal father and the child. A social and family relationship is considered to exist if the legal father has or had actual responsibility for the child at the relevant point in time. There is, as a rule, an assumption of actual responsibility if the legal father is married to the mother of the child or has lived together with the child in a domestic community for a long period of time (Article 1600 § 4). 36. Under Article 1598a of the Civil Code as in force since 1 April 2008, the legal father, the mother and the child can request the examination of paternity by genetic testing. The outcome of these proceedings does not change the legal status of the persons involved. However, no such right is granted to a third person alleging that he is the biological father. 37. Research undertaken by the Court in respect of twenty-six Council of Europe Member States shows that in twenty-one of those States acknowledgment of the paternity of a child born out of wedlock requires the mother’s consent. In seventeen Member States (namely Azerbaijan, Croatia, Cyprus, Estonia, France, Georgia, Ireland, Italy, Lithuania, Moldova, Romania, Russia, San Marino, Spain, Turkey, Ukraine and the United Kingdom), the presumed biological father is entitled to challenge the legal paternity of a third party established by acknowledgment. This right may be subject to certain time-limits. In fifteen States this remains the position where the legal father has lived with the child in a social and family relationship. In France and Spain, the biological father may not challenge paternity if the child has lived in a social and family relationship with the legally acknowledged father for a period of at least five or four years, respectively (la possession d’état conforme au titre). 38. By contrast, in nine Member States (Armenia, Bulgaria, Hungary, Iceland, Latvia, the Netherlands, Poland, Slovakia and Switzerland) the biological father does not have standing to challenge the paternity of the legal father established by acknowledgement. In those nine jurisdictions, the courts are not entitled to judicially consider (on the grounds of the best interests of the child or otherwise) whether the biological father should be allowed to challenge paternity. 39. None of the Member States examined provide a procedure to establish biological paternity without formally challenging the recognised father’s paternity and without changing the child’s legal status.