NYLUND v. FINLAND
Inadmissible
Georg Ress
The applicant is a Finnish national, born in 1950 and living in Helsinki. He is a maritime broker. He is represented before the Court by Mr Matti Wuori, a lawyer practising in Helsinki. The facts of the case, as submitted by the parties, may be summarised as follows. A. In October 1987, the applicant started a relationship with T. They began living together in mid-November and became engaged to be married on 1 January 1988. In May 1988 it was confirmed that T was pregnant. According to the applicant, he and T had deliberately decided to found a family. In mid-June their engagement and cohabitation ended. On 21 July 1988, T married a person called R. In January 1989, T gave birth to a daughter called J. The applicant claims to be the biological father of J. On 7 September 1989, on his own initiative, he recognised J as his child before the Child Welfare Supervisor (lastenvalvoja, barnatillsyningsman) of Espoo. By virtue of section 20 of the Paternity Act (isyyslaki, lagen om faderskap), the matter of the approval of his recognition came before the District Court Judge (kihlakunnantuomari, häradshövding) of Espoo. In his decision of 28 September 1989, the Judge noted that J was born in wedlock whereby followed a legal presumption of the husband’s paternity. In the written proceedings T denied the applicant’s paternity and maintained that she had already had a relationship with her husband around the time of J’s conception. On the basis of these circumstances, the Judge found that the applicant was not J’s father. According to section 45 of the Paternity Act, no appeal lay from the Judge’s decision. The Judge’s decision was written on a form designed for decisions concerning the recognition of paternity. On the back of the form was attached information for the man about, inter alia, the legal consequences of the recognition. T refused the applicant’s offer to pay for a voluntary DNA test. The applicant’s attempts to see J have been fruitless, apparently due to T’s opposition thereto. On 14 June 1991, the applicant took legal action seeking a determination of whether he was the biological father of J or not. In doing so, he referred to Article 8 of the Convention. The mother T and the child J were summoned to the District Court (kihlakunnanoikeus, häradsrätten) of Espoo. During the first hearing on 22 October 1991, they objected to the trial, stating that the applicant had no right of action. Furthermore, they based their objection on the failure to summon J’s other guardian R to the court. Subsequently, R was also summoned. On 10 March 1992, the District Court held a second hearing in which it considered the matter of the applicant’s right of action. Both parties submitted to the District Court an expert opinion, respectively, concerning the issue of the applicant’s legal standing. The parties disagreed over whether it was at all possible to start legal proceedings concerning only the determination of whether a person was a natural father or not, or whether the action should include a request for the establishment or annulment of paternity. On 10 March 1992, the District Court decided that the claim was not, as such, formulated in a manner that would be contrary to the Paternity Act. It found that the Paternity Act gave the courts an opportunity merely to declare whether a man and a child were, in reality, close relatives without, at the same time, establishing a legal father-child relation between them. However, the District Court also found that, according to the Paternity Act, a man claiming to be a father did not have the right of action as regards paternity proceedings relating to a child born in wedlock. The District Court considered Articles 8 and 12 of the Convention and Article 5 of Protocol No. 7 to the Convention as well as Article 7 of the United Nations Convention on the Rights of the Child of 20 November 1989. It concluded that the applicant had no right of action regarding the determination of whether he was J’s father or not. The District Court then dismissed the applicant’s action without examining it on the merits. The applicant appealed to the Court of Appeal (hovioikeus, hovrätten) of Helsinki. He emphasised that the child’s fundamental right to know her origins could not be denied on the grounds that the other biological parent had opposed it. From the applicant’s point of view, the focus of his action was whether a woman, who had become pregnant while living in a relationship similar to marriage, had the right to prevent the examination of the paternity and judicially to kidnap the child on the formal ground that she had married somebody else. The applicant stated that he had only requested that the fact that he was the father of J be confirmed, without asking to establish a legal father-child relation. The applicant had a very strong need for the protection of law in the case. He argued that it was in the best interest of the child that the matter be solved before she herself reached the age of 15, thereby obtaining the right of action of her own. He requested that the District Court’s judgment be quashed and the case be referred back to the District Court. On 23 December 1992, the Court of Appeal rejected the applicant’s appeal. It reached the same conclusion as the District Court but its reasoning differed from that of the latter. The Court of Appeal noted that the applicant had only requested that it be determined whether or not he had fathered the child born when T was married to R. Biological paternity, as a fact separate from the kinship, did not in itself create any rights or obligations for the man or the child. Furthermore, the establishment of such a fact without the consent of the child’s parents would disturb relations in the child’s family. The best interests of the child did not require that biological paternity should be determined separately from the kinship. The Court of Appeal found that the action was not based on the Paternity Act. Furthermore, since the action in reality included a request for the annulment of the presumption of the husband’s paternity, it was contrary to the aim of the Paternity Act. The Court of Appeal found that the applicant had no legal interest to have determined the biological paternity of J on any other grounds either. Lastly, the Court of Appeal found that the international conventions referred to in the District Court’s judgment did not include provisions pursuant to which the applicant would have had the right to the examination in issue. The applicant requested leave to appeal. He referred, inter alia, to Article 8 of the Convention. On 24 May 1993, the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal. B. Relevant domestic law The Paternity Act (700/1975) Chapter 1, General Provisions Section 2, Presumption of Paternity on the basis of Marriage (351/1980) The husband is the father of a child born during marriage. If the marriage is dissolved before the birth of a child due to the death of the husband, he is the father of the child if the date of birth of the child after the dissolution is such that the child could have been conceived during the marriage. However, if the mother has entered into a new marriage before the birth of the child, the latter husband is the father of the child. Section 3, Establishment of Paternity by Recognition and Decision of the Court When a man who was not married to the mother of the child at the time of the birth of the child wants to recognise his paternity, the provisions of chapter 3 on the recognition of paternity shall apply to such recognition (351/1980). The court shall establish that the man is the father of the child if it is shown that he had intercourse with the mother at the time of conception, and if, in view of the statements of the mother of the child and the man as well as all the other circumstances, it is deemed proven that the man has fathered the child. The provisions of chapter 4 shall apply to the court proceedings for the establishment of paternity. Section 4, Annulment of Paternity (351/1980) The paternity of the husband may be annulled through recognition. The court may upon an action establish that the husband or a man who has recognised his paternity is not the father. The provisions of chapter 5 shall apply to the annulment of paternity. Chapter 3, Recognition of Paternity Section 15, Issuing a Statement of Recognition A man who wants to recognise his paternity shall notify a child welfare supervisor, a population registrar or a notary public in person that he is the father of the child. ... Section 16, Approval by the Child If the child is legally competent, the recognition shall be subject to his approval. ... Section 16 (a), Approval by the Mother and Husband (351/1980) If the recognition concerns a child referred to in section 2, the recognition shall be subject to the approval of the mother and the husband. Section 20, Enforcement of Recognition When a man has recognised his paternity, the child welfare supervisor responsible for the investigation of paternity under section 6, paragraph 2 shall without delay send the documents on the recognition as well as the record of the investigation of paternity for approval to the competent district court judge or city court chairman or other legally trained court member appointed by the city court for this purpose (351/1980). The judge shall approve the recognition if 1) the recognition has been made in the manner provided in sections 15-19, and 2) if there is no cause to assume that the man who has recognised his paternity is not the father of the child. ... Chapter 4, Court Proceedings for the Establishment of Paternity Section 22, Right of Action The child shall have a right of action for the establishment of paternity. The man shall have a right of action for the establishment of paternity if the judge has not approved the recognition on the grounds referred to in section 20, paragraph 2 (2). The action shall be brought within one year from the date on which the man was informed of the decision of the judge. However, the man shall not have a right of action if the recognition concerns a child referred to in section 2 (351/1980). Chapter 5, Annulment of Paternity Section 34, Grounds for Annulment of Paternity On the basis of an action the court shall establish that the husband is not the father of the child referred to in section 2 if it is shown that someone other than the husband had sexual intercourse with the mother and, in view of all the circumstances, it may be deemed proven that the child was conceived at that time or if, on the basis of the hereditary characteristics of the child or of other special circumstances, it can otherwise be deemed proven that the man is not the father of the child. If the child was conceived before marriage or when the spouses were separated due to a breakdown of the relations between the spouses, the court shall establish that the husband is not the father of the child unless in can be proven to be probable that the spouses had sexual intercourse with one another at the time the child was conceived. The paternity of the husband is annulled when a man other than the husband has recognised his paternity in the manner provided in section 15, paragraph 1, and the judge has approved the recognition (351/1980). Section 35, Right of Action An action to annul paternity may be brought by the husband, mother or child. The husband and mother shall bring an action within five years from the birth of the child. ... Section 45, Restrictions on Appeal The decision of the judge in a matter concerning the approval of recognition shall not be subject to appeal. By virtue of section 4 of the Population Data Act (väestötietolaki, befolkningsdatalag, 507/1993), in the Population Data System shall be registered, as describing a persons status under family law, inter alia, data of his or her parents. The former Population Register Decree (väestökirja-asetus, personregisterförordning, 198/1970) included a similar provision.