CASE OF R.L. AND OTHERS v. DENMARK
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life)
Dean Spielmann;Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Ksenija Turković
4. The first applicant was born in Tanzania. She moved to Denmark in 2001 after marrying the second applicant. 5. On 7 January 2004 the first applicant gave birth to a boy, L. Because of their marriage, by virtue of section 1, subsection 1, of the Children Act (Børneloven), the second applicant was considered to be L.’s father, and this was recorded by the civil registrar in connection with the child’s birth. 6. The applicants legally separated on 16 June 2005, but they continued to cohabit until June 2006. 7. On 12 October 2006 the first applicant gave birth to a boy, S. 8. Although he no longer lived with the first applicant, and had had no sexual contact with her since 2004, the second applicant nevertheless submitted to the State Administration for Greater Copenhagen (Statsforvaltningen Hovedstaden) (now the State Administration) a declaration, cosigned by the first applicant, stating that together they would take care of and be responsible for S. The declaration was dated 21 December 2006 and received in mid-January 2007. Consequently, the second applicant was registered as S.’s father under section 2, subsection 1, of the Children Act. 9. Without the knowledge of the second applicant, during the period from 2003 to 2008, the first applicant had also had a relationship with a man called E. When that relationship ended in October 2008, the first applicant told the second applicant that E. was the biological father of S. and probably also of L. 10. On 29 November 2008, the applicants requested that both paternity cases be reopened in order to establish formally E.’s fatherhood of L. and S. The first applicant submitted, in English, that E. was the children’s biological father and that he “had warned me not to tell the truth about the fatherhood of the children”. Their request was refused by the State Administration on 30 April 2009. 11. The applicants brought the cases before the City Court (Københavns Byret) before which E. opposed their reopening. The children L. and S., represented by counsel, also objected to the reopening of the paternity cases, finding that the conditions set out in sections 22 and 24 of the Children Act had not been met. 12. The first applicant explained that she had met the second applicant in Tanzania in 2001. They had married in December 2001 and she had moved to Denmark in 2002. In March 2003, she had met E. on a dating site and they had commenced a relationship and had sexual relations twice a week, on a few occasions without protection. She had become pregnant and informed E., but he had been in a dilemma because he was married at the time. In November 2003 she had been diagnosed as HIV-positive. When L. was born in January 2004 the second applicant was considered to be the father. They had separated in 2005 but had continued to live together until the beginning of 2006. After she and the second applicant had stopped having sexual relations, she had only had sexual relations with E. The latter had said that he would provide support for her and L, but he had never given her any money. He had said that everything would fall into place once he divorced. E. had seen L. several times and taken him swimming or to play in a park. She wanted L. to be introduced to E.’s other children, but E. did not want that. Instead they had agreed that L. should have a sibling and they had planned their sexual activities according to her ovulation cycle in order for her to become pregnant. When S. was born in December 2006, the second applicant had wanted to help her and had therefore acknowledged fatherhood. E. had come to see her at the hospital after she had given birth to S. He knew that he was the biological father of both boys. He had also acknowledged that in several emails and text messages to her. Moreover, E.’s mother had met the boys and had said that L. reminded her of E. when he was a child. E. had never contributed financially to the care of the children. In 2008 she had told E. that he would have to take care of the children soon and that she would report to the authorities that he was the biological father. He had replied that he did not want any responsibility for the children and ended their relationship. She wanted the boys to know their true identity while she was alive. L. was confused about the situation and had said “my father is uncle E., but my old father is [the second applicant]”. 13. The second applicant confirmed that he and the first applicant had not had a sexual relationship since L.’s birth. He believed that L. was his son. He was aware that S. was not his son, but since the boys would grow up together he felt it important to treat them equally and he also wanted to help and support the first applicant. In the autumn of 2008 he had been told about E. At the beginning of 2009 he had overheard a telephone conversation between the first applicant and E., during which E. had talked about the boys as “our children” both in Danish and English. E. had stated that he did not want to take financial responsibility for the boys. The second applicant still saw the boys regularly and would continue to do so after the case had been settled. He felt that the biological father should take responsibility, including financial responsibility, and that the boys should know their identity. 14. E. explained that he had two adult children from a previous marriage. He had met the first applicant in April or May 2003 but at the time they could not meet very often, because they were both married. The relationship was purely sexual, and he had no feelings for the first applicant. Their relationship had continued until 2008. They had met in the first applicant’s home or in swinger clubs or in hotels. They had had sexual relations in swinger clubs from spring 2003 until 2007. He and another man had had sexual relations with her at the same time, but he could not recall when. The first applicant had given him the impression that she protected herself. He had chosen to use a condom. He might be L.’s father, but they had not as such discussed the matter at the time. He had not wanted a child, whereas the first applicant had. She had told him that she would take care of the child herself. In December 2004, due to the applicants’ separation, the first applicant had taken an apartment on her own and E. had visited her and L. there. L. called him “uncle E”. Their sexual relationship had continued in 2005 but the first applicant had told him that she had also met other men on a dating site. In 2006 they had had sexual relations regularly, including in a swinger club once or twice. They had made a plan for the first applicant to become pregnant again and thought that it would be good for L. to have a sibling. He could not remember whether they had had sexual relations in the fertile period between December 2005 and 26 February 2006 and they had not discussed whether he was the biological father. He had visited the first applicant in hospital in connection with the birth. He had found it natural that the second applicant should be father to the children since he was married to the first applicant. He had never behaved like a father to the children: he was still “uncle E”. It was true that he had gone swimming with L. once in October 2008 and that he had told his mother that he might be the children’s father. The relationship between him and the first applicant had ended because she had not told him that she was HIV-positive. 15. By decision of 11 February 2010, the City Court in Copenhagen decided to reopen the paternity cases. 16. Regarding L., the City Court noted that both the second applicant and E. had had a sexual relationship with the first applicant during the fertile period and that the request for reopening the cases had been lodged more than three years after L.’s birth. 17. Regarding S., the City Court noted that E. and the first applicant had had sexual relations in the relevant fertile period. The Court did not find it established that the first applicant had had sexual relations with other men during that period. The request for a reopening had been lodged less than three years after S.’s birth. 18. The court took into account the disadvantage to which the children might be subject in case of a reopening, including the risk that paternity might not be established. It found it established that the first applicant had allowed both men to treat the children as theirs; that E. had taken on a paternal role; that E. had had frequent and regular contact with both children; that E. had taken L. swimming; that E. had taken the children with him on trips, to birthday parties and so on; and that E. was spoken of in familiar terms by the children. 19. In respect of S. new information and circumstances in the case gave reason to believe that a mistake might have been made when registering paternity and that there might be a different outcome. Accordingly, that case was to be reopened. 20. Moreover, having assessed overall the interests of the children and the union of the family, and the fact that the children would not be subjected to unnecessary inconvenience by a reopening, and since it was expected that paternity would be established, the court found that, exceptionally, both cases should be reopened. 21. E. appealed against the decision to the High Court of Eastern Denmark (Østre Landsret), before which the applicants and E. were heard anew. E. added that he had moved to Sweden in August 2008 and thereafter had had no contact with the first applicant or the children. From 2004 to 2008 he had visited the first applicant for two to four hours, once or twice every month. He had become a sort of uncle for the children. He could not rule out that he was the father of the children but he would not voluntarily submit to a DNA test, since he would never be able take on the role of being their father. 22. The first applicant added, amongst other things, that E. had given the children presents. They had both received a teddy bear when they were born. They had also received a book with 100 Danish kroner (DKK) (approximately 13 euros (EUR)). When L. had turned two years old, he had received a birthday card with the text: “Dear L., happy birthday, love daddy”. The children were still in contact with the second applicant. 23. The second applicant added that he would keep in contact with the children but that he had withdrawn after learning that he was not their father. He mainly took care of the children when the first applicant needed help due to her illness. 24. By decision of 26 November 2010 the High Court refused to reopen the paternity cases. 25. The majority (two judges) noted that it was not until the proceedings on paternity that the applicants had informed the authorities that they had not had sexual contact in the fertile period as regards S. Moreover, despite giving the children the impression that E. was their biological father, the second applicant had continued to treat the children as his own, at least until the end of 2008. In these circumstances, and since it was uncertain whether paternity would be established for the children if the paternity cases were to be reopened, they did not find a basis for reopening the case regarding S. under section 24 the Children Act. By the same line of reasoning, they did not find a basis for reopening the paternity case regarding L. under the stricter conditions set out in section 25 taken in conjunction with section 24 of the Children Act. 26. The minority (one judge) agreed with the decision by the City Court, mainly with the same reasoning. In addition he pointed out that the second applicant had not been aware until autumn 2008 that the first applicant and E. had had a long relationship, and that he was probably not L.’s father. Furthermore, the second applicant had withdrawn from the children after learning about E. and he saw them mainly in order to help the first applicant. Finally, the minority took into account that both children openly stated that it was E., and not the second applicant, who was their father. 27. Subsequently, the second applicant took a DNA paternity test regarding both children which turned out negative with 0% compatibility, thus proving that he was not the father of L. or S. 28. The applicants submitted this result to the Appeals Permission Board (Procesbevillingsnævnet) and requested leave to appeal to the Supreme Court (Højesteret), which was refused on 28 January 2011.