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Legal Aspects of Denial of Paternity

Legal Aspects of Denial of Paternity

Legal Aspects of Denial of Paternity by a Father Registered in a Birth Certificate of an Adult Child According to Case Law of the Czech Constitutional Court and the European Court of Human Rights

This article summarizes the basic legal aspects of the possible denial of paternity of an adult child by a father registered in the child's birth certificate in accordance with the law of the Czech Republic, while reflecting also the relevant case law of the Constitutional Court of the Czech Republic (the “Constitutional Court”) and the European Court of Human Rights. (the “ECHR”).

First of all, in the whole field of family law, in particular in cases of determination and denial of parenthood, maintenance of a parent towards a child or parental responsibility, all courts are obliged to assess each individual case based on the specific circumstances of such case, as it is stipulated that each case is individual in some aspect.

Legal frame according to the Czech law

Only court can decide on the denial of paternity, and such decision is always on the basis of an petition for denial of paternity. Under the article 785, paragraph 1 of Act No. 89/2012 Coll., the Civil Code, as amended (the “Civil Code”) stipulates deadlines for filing a petition for denial of paternity, which shall ensure the maximum stability of family relationships between parents and children as follows: “A husband may deny his paternity in court within six months from becoming aware of the facts constituting reasonable doubt that he is the father of a child born to his wife, but no later than six years after the birth of the child. He denies paternity against the child and mother, if both are alive; if one of them is dead, against the other; if both of them are dead, the husband does not have this right.” Therefore, the law lays down two basic periods, a subjective period of six months, which runs from the moment when the reasonable doubts are raised for the father about his fatherhood to a child and an objective period of six years, which must be respected in any case, regardless of when the father raised reasonable doubt about his fatherhood to the child.
The parties to the abovementioned proceeding are the petitioner and the person designated by the law as a party. Thus, the following are always considered to be parties in the proceeding on the denial of paternity: the woman who gave birth to the child, the child and the man who claims to be the father of the child (the alleged father) or whose fatherhood is to be denied.
Section 792 of the Civil Code contains an exception under which the court may waive the aforementioned denial period of six years after the child is born, but only where the interests of the child and public order require to do so. Whether the waiver of the absence of the denial period (and thus the denial of paternity) is in the child's interest must be assessed in the light of all the circumstances of the particular case. According to the commentary literature on the aforementioned provision, "such a denial of paternity, even after the expiry of the denial period, will undoubtedly be the case, for example, if the man who is registered as a father is not the child's biological father, and for that reason does not show interest in child’s upbringing, does not maintain any contacts with the child, etc., while the biological father, on the other hand, shows interest in the child, its upbringing and in fact already raises the child with the mother ”. At the same time, consideration of the child's interest cannot be reduced to mere compliance of biological paternity with the legal status, but it is always necessary to assess whether the father is interested in the child and whether participates in the child’s upbringing and whether there is an emotional relationship between the legal father and the child.
The legal definition of public order is interpreted mainly by commentary literature as a relatively broad set of rules of conduct and principles on which the whole society insists as necessary rules for the society to work.

European law

The European Convention for the Protection of Human Rights (the “European Convention”) provides in Article 8 paragraph 2 the right to respect for family and private life of each person as follows: “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 interpretation of the European Convention is left mainly to the ECHR case law, which consistently expresses the belief that “respect for family life requires that biological and social realities outweigh the legal presumption, if such legal presumption directly collides with both proven facts and the wishes of those concerned without actually being in anyone’s benefit”, which was first judged in the ECHR judgment in case Kroon v. Netherlands from 27.10.1994, complaint No. 18535/91.

ECHR case-law

In accordance with the stable case-law of the ECHR, it is necessary to examine the actual relationship between a child and a man who denies paternity to such child in each case individually. As follows from the ECHR judgment in case Shofman v. Russia from 24.11.2005, complaint No. 74826/01, the ECHR recognizes that it is not possible to set out a standard length for deadline to fill the petition for the paternity denial, since it differs across the European Union from the Member States with half-year, one year, two-year deadline, or even Member States who do not have any deadline. At the same time, these deadlines should not cause the legal presumption to outweigh the biological factual state and social realities, taking into account the objective reality. At the same time, however, it is necessary to respect the protection of the child's interests and legal certainty in family relationships, while respecting private and family life according to the Art. 8 of the European Convention.
If there is a strong social bond between the legal father and the child, and this relationship is of stable nature, namely that the legal father cares for the child, has a close relationship with the child and participates strongly on the upbringing of the child, it is unlikely to be in the public interest, that the paternity of this man should be denied, especially in order to maintain the legal and social level of parenthood. In its judgements, the ECHR emphasizes the effort to strike a fair balance between the general interest in maintaining family security and the complainant's right to review his paternity in the light of biological evidence.
In accordance with ECHR case law, it is deduced that the interest of the child should outweigh the interest of the legal father registered in the birth certificate, especially in the following cases where this legal father:

i. acknowledged his fatherhood to the child, even though he knew he is not the child’s biological father;

ii. married a woman he knew to be expecting a child with another man;

iii. did not deny his paternity to the child born during the marriage within the statutory period, even though he knew that the child had been conceived from extramarital intercourse, raised the child as his own and, after breaking up with his mother, seeks primarily the extinction of maintenance.


Case law of the Constitutional Court of the Czech Republic

According to the Czech law until July 8, 2010, the deadline for denying paternity by the mother's husband was six months from the date when the father learned that a child had been born to his wife. The Constitutional Court's judgment identified this legislation as unconstitutional and annulled it by judgment file no. Pl. ÚS 15/09 from 8.7.2010, in which the Constitutional Court concluded that “The right to the protection of private and family life within the meaning of Art. 10 para. 2 of the Charter of Rights and Art. 8 of the Constitution prevents public authorities from arbitrarily interfering in such intimate sphere of the relationships between parents and the child. These relationships are the most natural expression of human identity and the law in a democratic and free society must respect their existence. The meaning and nature of family relationships and family life is not primarily legal; law merely confers protection on their real existence. Such protection cannot be ensured solely by the obligation to refrain from certain interference by the public authorities. At the same time, the state is obliged to adopt legislation that guarantees legal recognition of family relationships and defines their content both in relations between family members and towards third parties.” Subsequently, the repealed legislation was replaced by the current regulation, which we described in more detail in the introduction of this article.
The Constitutional Court has already dealt with denial of paternity after the expiry of the denial period several times, the most recent case-law being from May of this year. In its case-law, the Constitutional Court has consistently concluded that the legal definition of family relationships must reflect biological ties, while respecting the legal certainty of family ties created on the basis of a legal presumption. This position was reiterated in judgment file No. II ÚS 1741/18-1 from May 21, 2019, when the Constitutional Court ruled that “The legal definition of family relationships must reflect biological links. Parents have the right for their biological parenting to be respected by the public authorities and the child has the right to know their biological parents. On the other hand, the requirement of legal and biological paternity is not absolute. The legal relationship between father and child is not merely a mechanical reflection of the existence of a biological relationship, but over time, even in the absence of such a relationship, a legal and social link between the legal father and the child may develop. protection. In this case, the continued duration of the legal relationship will depend on several factors, among which the best interests of the child will play an important role. Therefore, when assessing the issue of determining and denying paternity, the courts must always carefully balance all conflicting values and interests, in particular the protection of the best interests of the child, the public interest in stabilized family law relations and the right of the persons concerned to ensure their biological links.”
The Constitutional Court also pointed out that the role of courts in proceedings for determining or denying paternity cannot be confined to the formal certification of paternity test results, as it was ruled for example in judgement file No. I. ÚS 475/17 from May, 3 2017.
The Constitutional Court has previously commented on the nature of legal presumptions of paternity, namely in judgment file No. II. ÚS 405/09 from November, 18 2010 in a way that “Although legal presumptions significantly simplify the determination of legal paternity, they cannot by their nature be considered as a sufficient guarantee of conformity of biological and legal paternity. For that reason alone, it is necessary for the legal system to create, in addition to presumptions, the legal means by which a person whose paternity has been presumed on the basis of a presumption and who denies his biological paternity can claim protection of his subjective rights by proves by the public authority that he is not the child's biological father. If the legislature restricts the possibility of denying a person's paternity by setting a deadline, it must not deny the relevance of the moment when the person whose paternity was based on the presumption of paternity of the mother's spouse learns relevant facts challenging his paternity. It is only from that moment that the child's legal father has a genuine opportunity to assess the further consequences of such a finding for his personal life, including the possibility of applying to the competent public authority for a denial of paternity within the time limit for bringing an action for denial of paternity.”

Final summary

In the light of the existing case-law, it can be concluded that an action for the denial of paternity of a child older than 6 years is likely to be dismissed by the competent court of first instance and possibly also by the court of appeal, precisely because of the expiration of the objective period of denial. It cannot be ruled out, however, that the supreme courts or the ECHR will decide in accordance with the stable judicature, which constantly permeate their case-law and find that a father's legal interest in denial of paternity is given due to a lack of legal and biological status despite the child's legal age and in spite of the aforementioned provisions of the Czech legal order, the absence of the above-mentioned objective denial period will be waived, and the denial of paternity will be allowed.
However, each case will have to be considered very specifically, and the above conclusions from the mentioned case-law cannot be fully taken into account without examining the specific differences and nuances of the mentioned cases.
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JUDr. Mojmír Ježek, Ph.D.
ECOVIS ježek, advokátní kancelář s.r.o.
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