CEDH · CASELAW;CLIN;ENG — 7 mars 2017

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Denmark - 52629/11 Judgment 7.3.2017 [Section II] Article 8 Positive obligations Article 8-1 Respect for family life Respect for private life Refusal, on grounds that it was in best interests of the children, to recognise biological father’s paternity: no violation Facts – The first and second applicants were a married couple. In 2004 the wife gave birth to a boy, L., and the husband was registered as the father. In 2005 the applicants legally separated but they continued to legally cohabit until June 2006. In October 2006 the wife gave birth to another boy, S. Although the husband no longer lived with her and had had no sexual contact with her since 2004, he submitted a signed declaration to the State Administration, co-signed by the wife, which stated that together they would take care of and be responsible for S. Consequently, the husband was registered as S.’s father. In October 2008 the wife informed the husband that another man, E., was the biological father of S. and probably also of L. The applicants then submitted a formal request that both paternity cases be reopened in order to formally establish E.’s fatherhood. The request was refused by the State Administration in a decision that was ultimately upheld by the High Court. Subsequently, the husband took a DNA test which established that he was not the father of either L. or S. The applicants were refused leave to appeal to the Supreme Court. Law – Article 8: An attempt by a putative father to officially disavow his paternity concerned his private life. Likewise, the private and family lives of the mother and the children were at issue. Article   8 was thus applicable. The applicants’ requests to reopen the paternity cases were refused because the High Court made a concrete assessment that the conditions set out in the Children Act were not fulfilled. The High Court noted that it was not until November 2008, when lodging 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. Furthermore, despite being aware all along that he could not be S.’s biological father the husband had continued to treat both children as his own, at least until the end of 2008, by which time L. was almost five and S. was two. Finally, in the case of a reopening of the paternity cases, there was a risk that paternity would not be established and that the children might thus become fatherless. The High Court had thus taken the various interests into account and given weight to what it believed to be the best interests of the children and notably their interest in maintaining the family unit. The Court was mindful of the wife’s assertion that it was in the children’s best interests to find out their true identity and it was true that a person has a vital interest, protected by the Convention, in receiving the information necessary to uncover the truth about an important aspect of his or her personal identity and to eliminate any uncertainty. However, the wife’s views on what would be in the children’s best interests were not only opposed to those of the High Court, but also to those of the children’s counsel, who pleaded that the paternity cases should not be reopened. The Court could not ignore, either, that the wife, who was best placed to know about any uncertainty regarding the fatherhood of her children, had not taken any initiative to establish their biological identity until November 2008. Finally, before the domestic courts E. had opposed the reopening of the paternity cases and there was no conclusive evidence that he was the biological father of either boy. In the light of the foregoing, the High Court had given relevant and sufficient reasons and struck a fair balance between the interests of the applicants and the other individuals concerned and the general interest in ensuring legal certainty in family relationships. Conclusion : no violation (five votes to two). (See Mikulić v.   Croatia , 53176/99, 7   February 2002, Information Note   39 ; Odièvre v.   France [GC], 42326/98, 13   February 2003, Information Note   50 ; Shofman v.   Russia , 74826/01, 24   November 2005, Information Note   80 ; Mizzi v.   Malta , 26111/02, 12   January 2006, Information Note   82 ; Kňákal v.   the Czech Republic (dec.), 39277/06, 8   January 2007, Information Note   93 ; Phinikaridou v.   Cyprus , 23890/02, 20   December 2007, Information Note   103 ; Mandet v.   France , 30955/12, 14   January 2016, Information Note   192 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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