CASE OF GRONMARK v. FINLAND
Violation of Art. 8
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1968 and lives in Mäntsälä. 6. The applicant was born out of wedlock. In 1969 her father R.J. was ordered, on the initiative of the social services and by a decision of a District Court (käräjäoikeus, tingsrätten), to pay child support until the applicant's 17th birthday. 7. On 1 October 1976 the Paternity Act came into force. The transitional provisions in the Implementing Act of the Paternity Act state that paternity proceedings with regard to a child born before the entry into force of the Act had to be initiated within five years, that is, before 1 October 1981. Moreover, no claim could be examined after the death of the father. No such restrictions exist for children born after the entry into force of the Paternity Act. 8. In 1985 the applicant's mother and R.J. agreed on one additional year of child support. The agreement was certified by the social services. The applicant attained majority in 1986. 9. R.J. died in November 1999 and the applicant found out that he had never been legally registered as her father. All of the parties had always been under the impression that paternity had been established when the duty to pay child support was ordered by the District Court. 10. In October 2000 the applicant brought a civil claim against R.J.'s legal heir and requested the Orimattila District Court to confirm the paternity. She stated that neither she nor her mother had known that they needed to bring a claim against R.J. to establish paternity, nor did they know that there was a time-limit. They further stated that the social services had been obliged by law to inform them of these issues. No such information had been given to them although the mother of the applicant's half-sister had been informed at the relevant time. 11. The District Court ordered DNA tests to be performed on the applicant, her mother and R.J.'s two brothers. The test was conclusive as to the paternity, with 99.8 % certainty. 12. On 12 April 2001 the District Court dismissed the applicant's claim. The court stated that the transitional provision with regard to the death of the father was no longer relevant in the case as modern technology enabled testing that had not been possible in the 1970s when the Act had been enacted. R.J.'s death was thus no longer an obstacle for bringing a paternity claim against him. However, the claim had been brought after the expiry of the five-year time-limit. The reason why the claim had been brought late was that the applicant and her mother had been mistaken about the legal character of the child support decision but this mistake was not of a kind that would have justified a derogation from the five-year time-limit. The time-limit itself was not unreasonable or discriminatory nor was it incompatible with the Constitution, the Convention or the United Nations' Convention on the Rights of the Child. The court thus concluded that the applicant's claim was time-barred. 13. On 6 February 2002 the Kouvola Appeal Court (hovioikeus, hovrätten) upheld the District Court's decision on the same grounds as the latter. 14. The referendary of the Appeal Court considered in her report (mietintö, betänkande) that, since it had been established with DNA tests that R.J. was actually the biological father and since the applicant had a half-sister born in 1976 who had been acknowledged by R.J. in 1981, it would not be against the spirit of the Act to allow the establishment of paternity with regard to the applicant. Furthermore, she considered that applying the five-year rule in the specific circumstances would put the daughters in unequal positions with regard to inheritance and family relations. She referred to Article 8 of the Convention as well as to Article 7 of the United Nations' Convention on the Rights of the Child. 15. The applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen). On 11 July 2002 the Supreme Court granted leave to appeal. 16. On 17 November 2003 the Supreme Court dismissed the applicant's claim in its precedent judgment KKO 2003:107 on the following grounds: “The Paternity Act, on which [the applicant's] claim is based, entered into force on 1 October 1976. According to section 4 of its Implementing Act, the provisions of the Paternity Act are also applied when the child is born before the entry into force of the Act, unless otherwise provided in the Implementing Act. When the child was born before the entry into force of the Paternity Act, proceedings for the establishment of paternity must be initiated, in accordance with section 7, subsection 2, of the Implementing Act, within the time-limit of five years from the entry into force of the Paternity Act. According to the same provision, proceedings can no longer be initiated if the man is deceased. [The applicant] requested in her action directed against the heir [S.T.] of [R.J.], who had died in 1999, that it be confirmed that [R.J.] was her father. [The applicant] was born out of wedlock on 2 September 1968 and thus before the entry into force of the Paternity Act. According to section 7, subsection 2, of the Implementing Act, proceedings for the establishment of the paternity of [R.J.] should have been brought within the five-year time-limit from the entry into force of the Paternity Act, that is, at the latest on 1 October 1981. [The applicant] initiated the proceedings only on 29 September 2000. Therefore the lower courts rejected her action as time-barred. The above-mentioned five-year time-limit applies only to those children who were born before the entry into force of the Paternity Act. Those children who were born after the entry into force of the Paternity Act can initiate proceedings for the establishment of paternity without any time-limits or any restriction related to the death of the man. The question is first of all whether the time-limit in question, which prohibits [the applicant] having paternity established, puts her, contrary to Article 6, paragraph 2, of the Constitution, in a different position without acceptable justification, due to her date of birth and thus her age, to those children who were born out of wedlock after the entry into force of the Paternity Act. Only in the case that the answer to this question is in the affirmative, can the question of whether [R.J.'s] death prevents the establishment of his paternity arise. It can be stated that the purpose of the time-limit in section 7, subsection 2, of the Implementing Act is that the child or its guardian decides to initiate the paternity proceedings within a reasonable time after the entry into force of the Act. Taking into account the interests of different parties, the legislator has considered five years as a reasonable and sufficient time-limit. This time-limit can be motivated by legal certainty considerations. Before the entry into force of the Paternity Act, paternity of a child born out of wedlock could normally be established only if the man acknowledged his paternity. The paternity could be established by a court decision against the man's will only on very limited occasions and mainly when the child was considered as an engagement child in accordance with section 6, subsection 1, of the Implementing Act of the Marriage Act and Chapter 2, section 4, subsection 1, of the Code of Inheritance, as in force at the relevant time. On other occasions the man, who by having intercourse with the mother could have made her pregnant, could only be held liable to pay to the child alimony in accordance with the Act on Children Born out of Wedlock (173/1922). A child who had not been acknowledged or who was not an engagement child had no right to inherit from its father or the father's relatives. The aim of the Paternity Act and of the concurrent legislative reform of the rights of a child was to guarantee the legal equality of children regardless of their descent. Therefore the provisions of the Paternity Act were made applicable also to children born before the entry into force of the Act. According to section 4 of the Implementing Act, children born out of wedlock had the same legal standing regardless of whether they were born before or after the entry into force of the Paternity Act. The fact that an alimony issue had been decided by a court before the entry into force of the Act did not prevent bringing proceedings for the establishment of paternity. Children also received the same right, irrespective of their descent, to inherit from their fathers and the fathers' relatives. The Paternity Act thus meant that the legal status of children born out of wedlock was fundamentally changed and that they received an equal status with children born within wedlock. The entry into force of the Act did not, however, automatically ex lege change the children's legal status. If a man did not acknowledge a child, paternity proceedings had to be initiated in respect of a child born out of wedlock and the action could only be granted if there was sufficient evidence of the biological paternity. In this respect the provisions are the same as concerning children born after the entry into force of the Act. The fact that the Paternity Act was made applicable also to children born before the entry into force of the Act created uncertainties as to whether new claims, which had not even been possible under the previous legislation and for which there had thus been no need to be prepared, were going to be presented on the basis of events that had maybe taken place long before the entry into force of the Act. It was important for a man to know, inter alia, who his heirs were in order to dispose by will of their shares. This also had consequences for the man's relatives as the establishment of paternity had an effect on their rights because of the child's right to inherit. The number of persons who could be concerned by the change of legal status provided for in the Paternity Act was considerable. Proceedings for the establishment of paternity could be initiated within the above-mentioned five-year time-limit irrespective of the age of the person born out of wedlock. The establishment of paternity could change legal relationships created maybe decades earlier. The change of the man's legal status due to the establishment of paternity can lead to an annulment of previous decisions also in cases when the children are born after the entry into force of the Paternity Act. The retroactive application of the provisions concerning establishment of paternity in respect of children born before the entry into force of the Act and the effects that it has on legal relationships created under the earlier provisions may create even bigger and more significant problems. The probability of such problems is greater the more time has elapsed since the entry into force of the Act. There are thus strong reasons for having the time-limit in section 7, subsection 2, of the Implementing Act. The provision containing the time-limit has not been conducive to creating confusing interpretations but, on the contrary, it is unambiguous and strict. In its precedent judgment KKO 1993:58 the court has examined an action for the establishment of paternity although it had been brought later than within the five-year time-limit from the entry into force of the Paternity Act and the man was deceased. However, the case concerned a child who had had the status of a child born within wedlock when the Act entered into force and who could only initiate proceedings for the establishment of the paternity of another man after the paternity of the mother's husband had been annulled. [In the applicant's] case there were no legal obstacles for initiating the proceedings. The Paternity Act has now been in force for more than 25 years. All children born before its entry into force have been adults for some time. It is probable that the paternity of almost all children born then out of wedlock has already been established in one way or another with a final court decision or otherwise in accordance with the time-limit provided in section 7, subsection 2 of the Implementing Act. The legal status of these children has also been determined accordingly. The legal situation can be regarded as established. For these reasons, and especially having regard to the time elapsed since the entry into force of the Paternity Act, this time-limit has today an even more significant role in providing legal certainty. It has not been claimed that [the applicant] and the putative father [R.J.] had ever lived together nor has there ever been any family relationship between them or any other close relationship. [The applicant] was already 32 years old when she initiated the proceedings. Taking into account [R.J.'s] death and the circumstances as a whole, the establishment of his paternity would have significance only in relation to the applicant's right to inherit. The international conventions by which Finland is bound, such as the Convention on the Rights of the Child (SopS 60/1991) and the European Convention on Human Rights (SopS 19/1990), and their case law, do not support such interpretation that the literal application of section 7, subsection 2, of the Implementing Act would be incompatible with these Conventions in the present case. On the above-mentioned grounds the Supreme Court considers that section 7, subsection 2, of the Implementing Act does not put [the applicant], who was born before the entry into force of the Paternity Act, in a different position without acceptable justification, due to her date of birth and thus her age, to those children who were born out of wedlock after the entry into force of the Act. The application of the five-year time-limit in that provision is thus not incompatible with the prohibition of discrimination provided in Article 6, paragraph 2, of the Constitution. 17. The referendary of the Supreme Court stated in her report that refusing to establish the applicant's paternity would be unconstitutional and would involve discrimination. The referendary proposed that the Supreme Court disregard the time-limit on the basis of Article 106 of the Constitution. 18. The Constitution of Finland (perustuslaki, grundlagen, Act no. 731/1999), Article 6, paragraphs 1 and 2, guarantees to everyone equality before the law and forbids discrimination of any kind: “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on grounds of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. ...” 19. Article 21, paragraph 1, of the Constitution guarantees to everyone the right to have one's case dealt with by a court of law: “Everyone has the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority ...” 20. Article 106 of the Constitution gives a court of law the right to give primacy to the Constitution when the application of an Act would conflict with the Constitution: “If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court shall give primacy to the provision in the Constitution.” 21. According to Chapter 12, section 1, subsection 2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 444/1999): “A minor who has attained fifteen years of age shall have an independent right of action and right to be heard in a matter concerning his or her person, parallel to that of the person responsible for his or her care and custody or his or her other legal representative.” 22. According to section 20 of the Act on Children Born out of Wedlock (laki avioliiton ulkopuolella syntyneistä lapsista, lagen om barn utom äktenskap, Act no. 173/1922), a child born out of wedlock had a father, if a man acknowledged paternity, but paternity could not be established against a man's will. According to section 24 of the same Act, such defendant was deemed to be the person liable to provide child support to the child if he had had sexual intercourse with the child's mother at the time when the child was possibly conceived. However, such an action was to be dismissed if it was manifestly improbable that the child was conceived as a result of that sexual intercourse. 23. As the children born out of wedlock were put in a substantially worse position than the children born in wedlock, there was a need to guarantee equal treatment of all children before the law (see government proposal HE 90/1974). This became the main aim of the new Paternity Act of 1975 (isyyslaki, lagen om faderskap, Act no. 700/1975) which repealed the Act of 1922. 24. Section 3 of the Paternity Act provides that paternity is established either by acknowledgement or by a court decision. According to section 22, subsection 1, the child has a right to institute proceedings with a view to having paternity established. 25. Section 4 of the Implementing Act of the Paternity Act (laki isyyslain toimeenpanosta, lagen angående införande av lagen om faderskap, Act no. 701/1975) provides that the provisions of the Paternity Act shall also apply if the child was born before the entry into force of the Act, unless otherwise provided below. Section 5 provides that if a man, pursuant to the Act on Children Born out of Wedlock, enacted before the entry into force of the Paternity Act, has committed or been obliged by a final judgment to pay child support to a child born out of wedlock who has not the status of an acknowledged child, the provisions in sections 6 and 7 of this Act shall apply to the investigation of paternity, actions for the establishment of paternity and the exercise of the child's right to be heard. 26. Sections 6 and 7 of the Implementing Act of the Paternity Act provide as follows: “The child welfare supervisor shall attend to the investigation of paternity as provided in the Paternity Act, if a child born before the entry into force of this Act has not reached fifteen years of age and the mother or the legal guardian of the child has expressed a wish that the child welfare supervisor attend to the investigation of paternity. After a man has acknowledged his paternity, the provisions in section 5, subsection 2; section 20, subsection 1; and section 21 of the Paternity Act shall apply to the obligation of the child welfare supervisor to attend to the investigation of paternity, and to the enforcement of acknowledgement.” “A child or his or her legal guardian shall have the right of action for the establishment of paternity as provided in the Paternity Act. The child welfare supervisor shall not be entitled to exercise the child's right to be heard without a separate authorisation. Proceedings for the establishment of paternity must be initiated within five years from the entry into force of the Paternity Act. However, no proceedings may be instituted if the man is deceased.” 27. It appears from the drafting history of the Paternity Act (see Report of the Legal Affairs Committee LaVM 5/1975 vp, p. 10) that considerations of legal certainty underlay the decision to restrict the right of action. The entry into force of the Act opened up an opportunity to initiate proceedings that did not exist at the time when the children in question were conceived. The legislator considered that putative fathers' legal security required rapid elimination of uncertainty about possible claims being brought against them on the basis of the Paternity Act. The restriction that a man's death prevented the initiation of proceedings was justified by the argument that in such cases it was usually no longer possible to obtain sufficient evidence of the man's paternity. 28. The Supreme Court has held on several occasions that the five-year time-limit in question is to be strictly applied. An exception has been made in a case where the paternity of the mother's husband had to be annulled first and, as a result of that, the child would have become fatherless if the time-limit had been strictly respected (see KKO 1993:58). 29. In its precedent case KKO 1982-II-165 the Supreme Court considered that the five-year time-limit in section 7, subsection 2, of the Implementing Act of the Paternity Act was not such a time-limit that could be restored by seeking extraordinary remedies (menetetyn määräajan palauttaminen, återställandet av försutten fatalietid).