CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 avril 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                       Application No. 22920/93                     by M. B.                     against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 6 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 26 August 1993 by M. B. against the United Kingdom and registered on 16 November 1993 under file No. 22920/93;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:     THE FACTS   a.    Particular circumstances of the case        The applicant is a British citizen born in 1947 and resident in Ashford. The facts as submitted by the applicant may be summarised as follows.        The applicant is unmarried. In July 1990, he began a sexual relationship with a married woman Mrs. F. Mrs F told him that she had been married for 15 years and that she had never become pregnant though she had undergone treatment to promote fertility.        Towards the end of 1990, the applicant believed that Mrs. F was thinking of separating from her husband and coming to live with him. When early in 1991, Mrs F informed the applicant that she was pregnant, it seemed to him that they had agreed that the applicant was the father and they would look after the child together.        Mrs. F informed her husband of the affair and the pregnancy. Shortly after, she told the applicant that she would continue to live with her husband and that she and her husband would bring up the child.      The applicant did not wish to be deprived of his future relationship with the child and sought legal advice.        0n 14 November 1991, Mrs F gave birth to a daughter E.        Mrs F refused to enter into a parental responsibility agreement with the applicant and denied that he was the father. On 31 March 1992, the applicant applied to the courts for an order of parental responsibility and contact with E under the Children Act 1989 (the 1989 Act) stating that he believed that he was the natural father of E.        Following a directions hearing before the magistrates' court on 11 May 1992, the magistrate transferred the applications to the High Court. He referred, inter alia, to the fact that at the time of conception Mrs. F was having sexual relations with both her husband and the applicant and that Mrs F opposed any application for DNA tests which might disturb the presumption of legitimacy which E enjoyed.        On 17 June 1992, a High Court judge directed that the question as to whether or not blood tests should be taken for the purposes of determining whether the applicant was or was not the father of E should be referred to a High Court judge.        On 6 July 1992, following a hearing at which the applicant was represented by counsel, the High Court decided that no order for tests determining paternity should be made.        The High Court judge stated the applicant had never seen the child and that it had been accepted by the parties that the relationship between the applicant and Mrs F had ended the moment that she discovered that she was pregnant. He held:          "Where a child is conceived and brought up in an existing      marriage as a child of the family, and the association of      the mother with the man who claims to be the putative      father has terminated well before the birth of the child,      and such      association co-existed with sexual relations with the      husband, a court should decline to exercise its discretion      to order a blood test for DNA profiling under section 20 of      the Law Reform Act 1969..."        The judge noted that any successful application by the applicant for a parental rights order or a contact order was a remote and unlikely prospect. He considered it unfair to expose E to the risk of losing the presumption of legitimacy that she had hitherto enjoyed. He also stated that the court would not order a test to be carried out against the will of the parent who has sole parental responsibility and residence of the child at the behest of a stranger to the marriage during which the child was conceived to satisfy that stranger's own desire to know the truth about the consequences of a relationship with the mother that terminated well before birth. Even if the object of the application for a test was to regulate the putative father's conduct as to whether to seek parental responsibility of or contact with the child, he stated that this would be counterbalanced by the interests of the child not to be disturbed in its present status and position as child in the family of Mrs F and her husband.        The applicant appealed to the Court of Appeal. He could no longer afford to pay for his own counsel. The Legal Aid Board refused to provide legal aid for the purposes of the appeal.        On 18 December 1992, after a hearing at which the applicant represented himself, the Court of Appeal rejected the applicant's appeal. In its written judgment delivered on 5 February 1993, the Court found the following principles established in the relevant domestic case-law:        1.    the presumption of legitimacy merely determines the           onus of proof;        2.    public policy no longer requires that special           protection be given by law to the status of           legitimacy;        3.    the interests of justice will normally require that           available evidence be not suppressed and that the           truth be ascertained where possible;in many cases the           interests of the child are also served if the truth is           known;        4.    the interests of justice may conflict with the           interests of the child. In general the court ought to           permit a blood test to be taken unless it is satisfied           that it would be against the child's interests : it           does not need to be satisfied that the outcome of the           test will be of benefit to the child;        5.    it is not protecting a child to ban a blood test on           vague or shadowy conjecture that it may turn out to           its disadvantage;        6.    a blood sample may not be taken from person under 16           years without the consent of the person having his or           her care and control. Without such consent it may not           be proper for the court to order a test.        The Court of Appeal agreed with the High Court judge that it was relevant to take into account the applicant's prospects of obtaining orders for parental responsibility and contact and commented that it could not see how such orders could possibly have benefited E. While it found that the judge might have given more weight than was proper to the presumption in favour of legitimacy, this did not detract from the main thrust of his judgement. It found that the risks of E marrying someone within the prohibited degrees of relationship or of being ignorant of a factor vital to her health were infinitesmal when brought into the balance against the harm that might be caused to her if the applicant's applications proceeded.        The Court of Appeal concluded:        "...E's welfare depends for the foreseeable future      primarily upon her relationship with her mother...Anything      which may disturb that relationship or the stability of the      family unit within which E has lived since her birth is      likely to be detrimental to E's welfare, and unless that      detriment is shown to be counter-balanced by other positive      advantages to her which an order for the taking of blood      tests could confer, then the judges's refusal was not      merely an exercise of his discretion with which we cannot      interfere, but one with which in the circumstances of this      case we agree.        <The applicant> made a number of other points by way of      criticism of the judgment below, including the point that      the public interest, as well as E's own personal interest,      requires that the truth of her paternity be ascertained if      possible. However, in the last resort it is clear that E's      interests must be the decisive factor; where, as here, the      judge was satisfied that it would be against E's interests      to order blood tests to be taken -a decision with which we      agree - then it was his duty and his right to refuse the      application. It was for these reasons that we dismissed the      appeal."        The applicant's petition for leave to appeal to the House of Lords was refused on 30 March 1993.   b.    Relevant domestic law and practice        Welfare of the child        Section 1 of the Children Act 1989 provides, inter alia;        (1) When a court determines any question with respect to-        (a) the upbringing of a child;...        the child's welfare shall be the court's paramount      consideration.          Acquisition of parental responsibility by an unmarried father        Section 4 of the Children Act 1989 provides as relevant:        "1.   Where a child's father and mother were not married to      each       other at the time of his birth-             (a) the court may, on the application of the father,           order that he shall have parental responsibility for           the child; or             (b) the father and mother may by agreement ("a           parental responsibility agreement")provide for the           father to have parental responsibility for the           child..."        Discretion of the courts to order blood tests        Section 20 (1) of the Family Law Reform Act 1969 provides:        "In any civil proceedings in which the paternity of any      person fails to be determined by the court hearing the      proceedings, the court may, on an application by any party      to the proceedings, give a direction for the use of blood      tests to ascertain whether such tests show that a party to      the proceedings is or is not thereby excluded from being      the father of that person and for the taking, within a      period to be specified in the direction, of blood samples      from the person, the mother of that person and any person      alleged to be the father of that person or from any, or any      two, of those persons..."   COMPLAINTS        The applicant submits that he has been deprived of a fair hearing   contrary to Article 6 of the Convention. Under the 1989 Act, only an unmarried father can make an application for parental responsibility. Since the courts have refused to order the tests which would establish if he was the biological father of F, the applicant is unable to have determined before the courts the issue as to whether he should enjoy parental responsibiity in respect of E.        The applicant also invokes Article 8 of the Convention. He submits that knowledge of family and blood relationships is a right of family and private life and the courts violate that right if they deliberately prevent the truth about this aspect of personal identity being discovered. The decisions of the courts have denied the applicant the possibility of any future paternal relationship with the child. He complains that this also constitutes a violation of the rights of E. In addition, E has been prejudiced in that the decisions of the court deny her the possibility of enjoying the legal right to inherit from him and deprive her of the knowledge which would enable her to avoid marrying within the prohibited degrees of relationship and of the correct knowledge of her genetic origins which might be relevant to her health.        The applicant claims further that   he has been subject to discrimination contrary to Article 14 of the Convention. There is no legal obstacle preventing a natural mother from having her parenthood recognised and registered in respect of her child. Where scientific methods exist which can resolve doubts as to parenthood, it is unjust discrimination, he submits, to deny a man the possibility of having his paternity established. In addition, where a woman wishes to prove a man is the biological father of her child, for example, with regard to child support provisions, the courts are generally required to determine the issue.       THE LAW   1.    The applicant complains that he has been deprived of a fair hearing in his applications for paternal responsibility and contact in respect of E. He invokes Article 6 (Art. 6) of the Convention which provides as relevant in its first paragraph:        "1.   In the determination of his civil rights and      obligations..., everyone is entitled to a fair and public      hearing within a reasonable time by an independent and      impartial tribunal established by law..."        The applicant submits that since the courts refuse to order a blood test he is unable to obtain a proper determination of his claims as natural father to paternal responsibility of and contact with E.        The Commission considers that the fact that an applicant's case stands poor prospects of success due to evidential difficulties in establishing his right to make   a particular claim does not constitute a denial of effective access to court. Insofar as the applicant complains that the court decisions with regard to the blood test deprived him of the necessary evidence, the Commission notes that in respect of this issue the applicant had the opportunity of arguing his case for an order of testing in the High Court and on appeal to the Court of Appeal. Both courts gave full reasoned judgments for refusing to make an order after hearing the parties. The Commission recalls that the applicant was represented by counsel at first instance. While the refusal of legal aid for his appeal resulted in the applicant presenting his own appeal, it does not appear that he was prevented thereby from placing his arguments before the court in an effective and cogent manner.        In these circumstances, the Commission finds no indication of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.          It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains that the refusal of the courts to order a blood test violates his right to respect for family and private life. He also submits that the rights of E have been violated. The Commission notes that the applicant is not under domestic law E's guardian or legal representative. The Commission does not find that the applicant has any standing to represent E in these proceedings and therefore limits its examination of these complaints relating to the applicant.          Article 8 (Art. 8) of the Convention provides as relevant:        "1.   Everyone has the right to respect for his private and      family life...        2.    There shall be no interference by a public authority      with the exercise of this right except such as is in      accordance with the law and is necessary in a democratic      society in the interests of national security, public      safety or the economic well-being of the country, for the      prevention of disorder or crime, for the protection of      health or morals, or for the protection of the rights and      freedoms of others."   a.    The Commission has first examined whether the applicant's claimed relationship with E falls within the scope of "family life" as protected by the above provision.        The Commission recalls that the existence or not of a "family life" falling within the scope of Article 8 (Art. 8) of the Convention will depend on a number of factors, of which co- habitation is only one, and on the circumstances of each particular case (see eg. No. 12402/86, Dec. 4.3.88, D.R. 55 p. 224). The application of this principle has been found by the Commission to extend equally to the relationship between natural fathers and their children born out of wedlock (No. 18280/91, Dec. 9.4.92 to be published in DR). Further, the Commission considers that Article 8 (Art. 8) cannot be interpreted as only protecting "family life" which has already been established but, where the circumstances warrant it, must extend to the potential relationship which may develop between a natural father and a child born out of wedlock. Relevant factors in this regard include the nature of the relationship between the natural parents and the demonstrable interest in and commitment by the natural father to the child both before and after the birth (see eg. No. 16969/90, Keegan v. Ireland, Comm. Rep. 17.2.93).        In the present case, the Commission recalls that the applicant did not cohabit with the mother and that his relationship with her lasted approximately 6-7 months. Unlike in the case of Keegan (see above) where the Commission found the relationship of a natural father and his child fell within the scope of Article 8 para. 1 (Art. 8-1) of the Convention, the pregnancy was not planned and the applicant in this case did not see the child or form any emotional bond with her. Further, the mother of the child asserts that the father of the child is her husband, not the applicant.        The Commission finds that in the circumstances of this case the applicant's link with the child has insufficient basis in law and fact to bring the alleged relationship within the scope of Article 8 para. 1 (Art. 8-1) of the Convention.   b.    The applicant has also submitted that the refusal to allow him to uncover the truth about an important aspect of his personal identity, namely, the nature of his relationship with E, affects his private life. The Commission recalls that in the Rasmussen case (Eur.Court H.R., Rasmussen judgment of 28 November 1984, Series A no. 87 p. 13, para. 33) the Court found that the determination of the applicant's legal relations with his putative daughter undoubtedly concerned his private life.        The Commission has therefore considered whether the courts' refusal to order a blood test which might disclose the applicant's paternity of E reveals a lack of respect for his private life.        The Commission considers that the applicant is arguing in effect not that the State should refrain from acting but rather that it should take steps to ensure adequate recognition   of his potential relationship as biological father of a child being brought up as the child of a married couple. Although the essential object of Article 8 (Art. 8) is to protect the individual against arbitrary interference by public authorities, there may in addition be positive obligations inherent in an effective "respect" for family life (see eg. Eur. Court H.R., Marckx judgment of 13 June 1979, Series A no. 31 p. 31 para. 31). In this context, the notion of "respect" is not clear-cut and its requirements will vary considerably from case to case according to the practices followed and the situations obtaining in Contracting States.        In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual (see eg. Eur. Court H.R. Abdulaziz judgment of 28 May 1985, Series A no. 94 p. para. 67 and the B. v France judgment of 25 March 1992, Series A no. 232-C para. 44). In striking this balance the aims mentioned in the second paragraph may be of   a certain relevance, although this provision refers in terms only to "interferences" with the right protected in the first paragraph ie regarding the negative obligations imposed (Eur. Court H.R. Rees judgment of 17 October 1986, Series A no. 106 p. para. 37)        In this case, the Commission recalls that the courts refused to order a blood test since in their view it would not be in the interests of the child. They relied on the consideration that the child's welfare was bound up inextricably with the family unit in which she was being brought up and the risk of disturbing the stability of that family by a blood test would be to her detriment.        The Commission finds nothing arbitrary or unreasonable in this assessment of the child's interests, given that the applicant was making no claim for custody. As the Commission found in a previous case, there are sound reasons of legal certainty and security of family relationships for States to apply a general presumption according to which a married man is regarded as the father of his wife's children and to require good cause before allowing the presumption to be disturbed (see No. 18535/91, Comm. Rep. 7.4.93) On the same basis, it is justifiable for domestic courts to give greater weight to the interests of the child and the family in which it lives than to the interest of an applicant in obtaining verification or otherwise of a biological fact.        In conclusion, the Commission finds that the facts of this case fail to disclose any   lack of respect for the applicant's family or private life contrary to Article 8 (Art. 8) of the Convention.          It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant further submits that he has been the subject of discrimination contrary to Article 14 (Art. 14) of the Convention which provides:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any      ground such as sex, race, colour, language, religion,      political or other opinion, national or social origin,      association with a national minority, property, birth or      other status."        The applicant appears to complain of discrimination in that he suffers from a number of disadvantages as a natural father which he alleges do not apply to a natural mother.        The applicant alleges that it is unjust discrimination not to permit a man to use scientific methods to establish his paternity. While it is true that natural mothers rarely find themselves in a position where their relationship with a child is factually in doubt, this is a consequence of the biological process involved and cannot found an allegation of difference in treatment of any natural father by the courts.        Insofar as the applicant alleges that natural mothers are generally successful in obtaining blood tests when they wish to prove paternity eg. in the context of seeking child support, the Commission finds that he has not substantiated this claim. In matters relating to children, the courts are bound to give paramount consideration to the welfare of the child. There is no indication in the file that a practice of assessing the interests of the child differently depending on the sex of the person seeking the order has been followed in this case.        The applicant also complains that natural mothers have no requirement of seeking legal recognition and registration of their parenthood of a child. Insofar as the applicant is referring to the requirement that a natural father must obtain a parental responsibility agreement with the mother or a parental responsibility order from a court, whereas a natural mother enjoys parental responsibility automatically, the Commission finds that this difference in treatment has objective and reasonable justification. The relationship between a natural father and a child may differ widely in nature and degree from, for example, circumstances where a child is conceived casually, unintentionally or perhaps even violently to the situation where a child is born into a stable and established relationship between an unmarried man and woman. The requirement that a natural father obtain an agreement or court order permits a flexibility of response to the differing situations. In deciding an application for parental responsibility, the courts are required to have regard to the paramount principle of the child's welfare. The Commission finds that this procedure pursues a legitimate aim of securing or reconciling the rights of children and their natural parents and that the means employed to this end are not disproportionate.          In light of the above, the Commission finds that the applicant is not a victim of discrimination contrary to Article 14 (Art. 14) of the Convention.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   For these reasons, the Commission by a majority   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)