CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 mars 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sF9B3189B { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify } .s4B8D41EE { font-family:Arial; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s2571CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:14pt } .s4B4B41EE { font-family:Arial; font-size:12pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .s58B8AE49 { clear:both; mso-column-break-before:always } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sDB6B63EE { width:176.94pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 35016/07 by Henrik Munkholm WULFF against Denmark The European Court of Human Rights (Fifth Section), sitting on 9   March   2010 as a Chamber composed of:   Renate Jaeger, President,   Peer Lorenzen,   Karel Jungwiert,   Rait Maruste,   Mark Villiger,   Isabelle Berro-Lefèvre,   Mirjana Lazarova Trajkovska, judges, and Claudia Westerdiek, Section Registrar , Having regard to the above application lodged on 9 August 2007, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Henrik Munkholm Wulff, is a Danish national who was born in 1981 and lives in Perth, Australia. He was represented before the Court by Mr Tyge Trier, a lawyer practising in Copenhagen. The Danish Government (“the Government”) were represented by their Agent, Mr   Thomas Winkler, of the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst-Christensen, of the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 16 December 2002, the applicant and his girlfriend of three years duration had a daughter, A, of whom the applicant formally acknowledged fatherhood. The couple separated in March 2003. The applicant maintained access to A every second weekend and paid child support. In the United States of America the applicant obtained a private DNA test, which showed that he could not be A’s father. The test is dated 12 May 2005, but the applicant did not receive the results until 5 December 2005. Thereafter he stopped seeing A, and on 14 December 2005 he requested that the paternity case be reopened and his established fatherhood of A be annulled. His request was refused by Vejle County ( Statsamtet Vejle ) on 30   January 2006. The applicant brought the case before the City Court ( Retten Vejle ), before which he and A’s mother, M, were heard. On 29 March 2006, the City Court passed judgment, which included the following: “[The applicant] has explained that the couple were lovers and cohabited in Vejle from February 2002 until March [2003]. M was not using the contraceptive pill. In March 2002, they went on a skiing holiday. They had a row, whereupon M slept overnight in another flat. Four or five weeks later she discovered she was pregnant. When the relationship broke up around 20   March 2003, he had a nagging doubt. He did not tell M about this. He has had access to the daughter A every second weekend. In October 2005 they had a big row during which M accused him of being a poor father. This caused him to order a paternity test on the Internet which has been submitted to Vejle County. Through his job as a policeman he knew how to provide a saliva sample, which he did for the purpose of this test. He took a saliva sample with a cotton swab from both his own cheeks and A’s. The samples were sent to the US laboratory, which concluded that he could not be the father. He received the reply in December 2005. He has no name of any other possible father. However, with his present knowledge he believes that he cannot be the father of A. M has confirmed [the applicant’s] statement about the course of events. She is also unable to give the name of any other possible father. Findings of the Court: M and [the applicant] were cohabiting lovers when A was born. Since the termination of their cohabitation in March [2003], [the applicant] has had access to A. The request for reopening of the proceedings was made by him. M did not object to the reopening of the proceedings, but stated in a letter of 7   January 2006 to Vejle County: “Of course, an official test should be made as I have no clue as to who the father could otherwise be”. [The applicant] has submitted a privately performed DNA test according to which he cannot be the father of A. The conditions for reopening paternity proceedings are stated in section 24 of the Child Act. According to this provision, it must be considered of importance whether the paternity of the child is likely to be established if the proceedings are reopened. Pursuant to section 22 of the Child Act, paternity proceedings may be reopened if the father and mother so request in agreement, and only if it is proved on a balance of probabilities that another man can become the child’s father. As the request for reopening of the proceedings was made by [the applicant] alone, the Court finds that the request should be assessed under section 24 of the Child Act. Although, according to the DNA test produced by [the applicant] it is precluded that he is the father, the Court finds that the paternity proceedings should not be reopened as it must be considered of decisive importance that the request for reopening was made almost three years after the child’s birth, that [the applicant] has had ordinary weekend access to A also since the termination of cohabitation, and that it must be considered a fact on the basis of [the applicant’s] and M’s statements that A cannot be expected to be acknowledged by another father if the proceedings were reopened.” The applicant appealed to the High Court of Eastern Denmark ( Vestre   Landsret ), hereafter the High Court, which on 28   September 2006 passed judgment, which included the following: “[The applicant] has additionally stated that M had been out partying and came home early in the morning just before they went on holiday. He and M did not use contraception around the time of the conception, but their sexual practice was such that he found it improbable that he had made M pregnant. M did not say at the termination of their cohabitation that he was not the father. He said during the pregnancy that he wanted a DNA test, but M opposed that. He has not cohabited with A since she was three months old. He has seen A approximately four times a month. It was only in October   2005 during a row that he became aware of the incidents when M could have been together with somebody else. They were on a skiing holiday from 23   March until 1 April 2002. He received the test results in December 2005. For reasons of anonymity, the declaration from the American firm does not bear any names. He last saw A in December 2005. A has not had any contact with his parents since then. He acknowledged the paternity after A’s birth and did not question it then. A was born at the due time. M has explained that they became lovers in 2000 after having met in 1999. They had a normal sex life also at the time around the conception. She did not remember having been out partying before the skiing holiday. She was not together with other men during the period of their cohabitation. They had not fallen out that evening on the skiing holiday, but she was unable to return to the hotel room as she had no key. She had something to drink with young people, and she was probably rather intoxicated. They were Danes, including a girl. She woke up at 9   a.m.. She had not had intercourse with others that night. However, due to her intoxication she cannot rule out that it may have happened. But she was wearing her clothes when she woke up, and she felt no sign of having had intercourse. The first time that [the applicant] questioned his paternity was on 12 December 2005. A has asked for her father and his parents since the connection was broken off. M has no current plans to marry her boyfriend, who has, however, been playing with the idea of adopting A. She expects to marry her boyfriend eventually. Her boyfriend is fond of A. She still thinks that a DNA test should be performed, also because A is entitled to know. However, she is in no doubt that [the applicant] is the father.     Reasoning and decision of the High Court: It must be considered a fact that, prior to acknowledging paternity, [the applicant] had knowledge of the circumstances that made him obtain a DNA test and cast doubts about the paternity almost three years after A’s birth. For this reason and for the reasons stated by the District Court, the High Court upholds the judgment.” Leave to appeal to the Supreme Court was refused by the Appeals Permission Board (Procesbevillingsnævnet ) on 7   March 2007. B.     Relevant domestic law The purpose of the Danish paternity rules laid down in the Child Act, ( Børneloven), Act no. 460 of 7   June   2001, as amended, is to ensure the mutual rights of the child and the father. The most important legal effects of paternity are that the father has a duty to maintain the child according to specific rules, that the father and the child have a right to inherit from each other, that the child may take the father’s surname, and that the child may have the same nationality as the father if the relevant conditions are met. In addition, paternity is generally a condition for allowing the father to have a share in the custody of the child and a condition for the right to access of a man who does not have the child living with him. The Child Act is based on Report No. 1350/1997 on the legal rights of children issued by the Child Act Committee of the Danish Ministry of Justice. The Child Act Committee was appointed by the Ministry of Justice in 1992 and was to make proposals for a revision of the Child Act, including considering new paternity rules. In 1997, the Committee issued an interim report on paternity. According to the interim report, the Committee had worked on the basis of the fundamental assumption that a child should be entitled to have both a mother and a legal father to the widest extent possible. The report also states that the Committee found that an attempt should be made to design the rules on reopening paternity proceedings so that permanent stability concerning the child’s situation could be provided as rapidly as possible. The Committee also found that it should generally not be possible to revoke paternity unless the child was acknowledged by another father. The Child Act Committee also proposed enactment of the non-statutory doctrine of acknowledgement on which case-law had been based prior to the Act. The doctrine of acknowledgement implies that a party can be barred from instituting paternity proceedings even when the statutory time-limits have not expired. This is the case if the father or mother has treated the child as being the father’s even though they know or suspect that the father is not the genetic father of the child. Application of the doctrine is based on a specific assessment of the individual case. The relevant provisions on institution and reopening of paternity proceedings are laid down in sections 5, 24 and 25 of the Child Act, which read as follows: Section 5 Where paternity has been recorded by or acknowledged before the Regional State Administration, proceedings may be instituted by the mother, the father or the child’s guardian within six months of the child’s birth. The preparatory notes set out that the reason behind section 5 was to give the mother and the father a “cooling-off” possibility. Recordings and acknowledgements covered by the provision are therefore not final until six months after the child’s birth. The fairly short period was laid down in order to provide stability concerning the child’s situation. The right to institute paternity proceedings within the six months is free and is thus not conditional upon proof on a balance of probabilities that another man is the child’s father, and the doctrine of acknowledgement is not applied either. If the six-month time-limit set out in section 5 has expired, the proceedings can only be re-opened if the following conditions, set out in section 24 of the Child Act, are met: Section 24 1. If the fatherhood of a child is registered, or established by acknowledgment or by judgment; the mother or her estate, the guardian or the child’s estate, the father or his estate; may within three years after the child’s birth request that the paternity case be reopened, provided that facts have come to light which may result in another outcome, or in other respects there is a special reason to believe that the paternity case may turn out differently. 2. When deciding under subsection 1, importance should be attached in particular to the following: i) the length of time elapsed since the child’s birth; ii) whether the father, with actual or presumed knowledge of the circumstances which raise doubts as to his fatherhood, has [nevertheless] acknowledged the child by treating it as his own; iii) whether the mother, with actual or presumed knowledge of the circumstances mentioned under ii) has let the father treat the child as his own; iv) whether a party, with actual or presumed knowledge of the circumstances which raise doubts as to who is the child’s father, failed within a reasonable time to request a reopening of the case; and v) whether in case of a reopening, it can be expected that fatherhood of the child will be established. It appears from the preparatory notes that it is a condition for reopening the proceedings under section 24 that information has come to light about circumstances that will presumably result in another outcome to the proceedings, or that there is otherwise a special reason to assume that the proceedings will now have another outcome. This is particularly aimed at cases where another potential father turns up. Moreover, the provision does not confer a right of reopening even though the said conditions have been met. The decision to reopen the proceedings thus depends on an overall assessment, particularly including the circumstances listed in subsection 2. If the three-year time-limit set out in section 24 has expired, the proceedings can only be reopened if exceptional reasons exist, see section 25 of the Child Act: Section 25 Reopening of proceedings under sections 23 and 24 may be permitted after the expiry of the time-limit stipulated by those provisions if exceptional reasons for not making the request earlier can be given, if the circumstances otherwise make reopening of the proceedings appropriate to a high degree, and if a renewed review of the proceedings will presumably not imply material nuisance to the child. COMPLAINT The applicant complained under Article 8 of the Convention that the Danish authorities refused to re-open the paternity case. THE LAW The applicant complained that the refusal to re-open the paternity case in the application was in breach of his rights under Article 8 of the Convention which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” The Government submitted that the applicant had failed to exhaust domestic remedies. They pointed out in this respect that the applicant had explained that he already had doubts during M’s pregnancy about whether he was the biological father and he had asked M in vain to have a DNA test done at that time. Nevertheless, he acknowledged paternity of A. Likewise, according to the applicant’s own statement, he again started doubting his biological paternity of A when the relationship with M   broke up in March   2003, when A was about three months old. Despite this, the applicant failed to bring proceedings to disclaim paternity within six months of the child’s birth, which was the time-limit provided for by section 5 of the Child Act. In the alternative, the Government maintained that the application should be declared manifestly ill-founded since the interference with the applicant’s private life in the particular case was in accordance with law and justified under Article 8 § 2 of the Convention. More specifically, they submitted that the principle in the Danish paternity legislation that it became more difficult with time to reopen paternity proceedings, and the concrete decision in the present case not to reopen the paternity proceedings, were justified and fully compatible with the Convention. Substantial importance had been attached to the interests of A and to the applicant’s own conduct, namely that he had failed to act although, even prior to the birth of A, he had knowledge of the circumstances which several years later made him obtain a DNA test and cast doubt on his paternity. The applicant maintained that he had exhausted domestic remedies and complied with the procedural time limit set out in section 24 of the Child Act, thus within three years after A’s birth on 16   December 2002. He had also complied with the requirement that “facts had come to light, which might result in another outcome” in that on 5   December 2005 he had received the result of the DNA test which ruled out that he was the biological father. The applicant submitted that a fair balance had not been struck in the decision to refuse him a re-opening of the paternity proceedings. He emphasised in this respect that the interest for society was very weak because the child was already being taken care of by the mother and her partner, who had even considered adopting A. Moreover, A had an interest in knowing at an appropriate time that the applicant was not her father and in knowing the identity of her biological father. Finally, the applicant found that the margin of appreciation was limited in this sort of case and pointed out that the rigid re-opening rule de facto forced him to furnish information which was solely in the possession of the mother. In the circumstances of the case, the Court finds it unnecessary to examine further whether the requirement of exhaustion of domestic remedies has been complied with since it finds that the complaint is, in any event , inadmissible for the reasons set out below. The Court finds, and this is not in dispute, that the facts of the case fall within the ambit of Article 8 of the Convention (see, for example, Shofman v. Russia , no. 74826/01, §§30-32, 24 November 2005) and that the domestic courts’ decisions were “in accordance with the law”, namely section 24 of the Child Act. The Court will therefore proceed to examine whether the respondent State, in handling the applicant’s paternity action, has complied with its positive obligations under Article 8 of the Convention. The Court reiterates that respect for private life requires that everyone should be able to establish details of their identity as individual human beings and that an individual’s entitlement to such information is of importance because of its formative implications for his or her personality (see, for example, Mikulić v. Croatia , no. 53176/99, §§ 53-54, ECHR 2002-I, and Gaskin v. the United Kingdom , judgment of 7   July 1989, Series A no.   160, p. 16, §§ 36-37, 39). This includes obtaining information necessary to discover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents (see Phinikaridou v. Cyprus , no. 23890/02, ECHR 2007 ‑ XIV (extracts); Jäggi v.   Switzerland , no.   58757/00, §   25, ECHR 2006-...; and Odièvre   v.   France [GC], no.   42326/98, §   29, ECHR 2003-III). In respect of paternity proceedings, the Court has previously accepted that the introduction of a time-limit or other limitations on the institution of such is justified by the desire to ensure legal certainty and finality in family relations and to protect the interests of the child (see, for example , Phinikaridou v. Cyprus , (cited above) § 51; Mizzi v. Malta , no. 26111/02, §   88, ECHR 2006 ‑ I (extracts) and Rasmussen v. Denmark , 28 November 1984, § 41, Series A no. 87). The establishment of an inflexible time limit, however, is likely to run counter to the importance of the private life interest at stake. Thus, the Court found a violation in Shofman v. Russia (cited above) where an absolute one-year time limit ran without any exceptions from the date when the putative father was informed that he had been registered as the father, irrespective of his awareness of the circumstances casting doubt on his paternity. Danish law operates with three different time limits, the first being six months after the child’s birth under section 5 of the Child Act, when the mother, the father or the child’s guardian could freely institute paternity proceedings. The second time limit was set out under section 24 of the Child Act, stating that paternity proceedings could be reopened for up to three years after the child’s birth if new information had come to light about circumstances that would presumably result in another outcome of the proceedings or if there was a special reason for assuming that the proceedings would have another outcome. Finally, under section 25 of the Child Act, paternity proceedings could be reopened more than three years after the child’s birth, if exceptional reasons could be given. In the Court’s view, such a time limit system cannot per se be characterized as inflexible. It remains to be examined whether its application in the present case failed to strike a fair balance between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of the biological evidence. The Court reiterates that the States enjoy a certain margin of appreciation in this connection (see, inter alia , Kroon and Others v. the Netherlands , 27 October 1994, § 31, Series A no. 297 ‑ C and Shofman v. Russia, cited above § 34) and that it is not the Court’s task to substitute itself for the competent domestic authorities. In its judgment of 28   September 2006, the High Court considered it a fact that, prior to acknowledging paternity, the applicant had knowledge of the circumstances that made him obtain a DNA test and cast doubts about the paternity almost three years after A’s birth. It was therefore for reasons unconnected with the law that the applicant took no steps to contest paternity within the statutory six months time limit under section 5 of the Child Act. During the domestic proceedings he invoked circumstances that took place in March 2002 to challenge his paternity, but it was only in 2005 that he chose to obtain a DNA test privately. Accordingly, in the Court’s view, the present case differs significantly from for example Shofman v. Russia (cited above). The Court also considers that the case differs significantly from, for example, Paulík v. Slovakia , no. 10699/05, ECHR 2006 ‑ XI (extracts) and Tavlı v. Turkey , no. 11449/02, 9 November 2006, in which the “children” had reached the age of majority and the general interest in protecting their rights at the relevant stage had lost much of its importance compared to when they were children (see, Paulík v. Slovakia , cited above, § 46). In the present case A is currently seven years old. From the time she was born in December   2002, and despite the applicant and M separating in March   2003, A had a close relationship with the applicant as her father until December   2005. Moreover, having regard to the applicant’s and M’s statements before the domestic courts, it must be considered a fact that A could not expect to be acknowledged by another father if the paternity proceedings were reopened. In such circumstances, it may be justifiable for the domestic courts to give greater weight to the interests of the child than to the interests of a putative father in obtaining determination of a biological fact (see, inter alia , Nylund v. Finland (dec.), no.   27110/95, ECHR 1999-VI and Yildirim v. Austria (dec.), no.   34308/96, 19 October 1999). The applicant argued that A’s interest was already taken care of by M and her new partner, and that the latter had considered adopting A. In the Court’s view, however, the domestic courts could not have relied on such a future possibility when taking the decision in dispute, which became final on 7   March 2007. Conclusively, the Court is satisfied that in the special circumstances of the present case the domestic courts struck a fair balance between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of the biological evidence. It follows that the application must be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Renate Jaeger   Registrar   President