Instantie

Europese Commissie voor de rechten van de mens

Samenvatting

X. heeft een brief ontvangen van mw. Y. dat zij zwanger is van hem of
van haar huidige partner. Is X. vader van haar kind dan wil zij het kind
aanbieden ter adoptie, is haar huidige partner de vader dan wil zij het kind
zelf opvoeden. X. wilde niet dat zijn kind ter adoptie aangeboden werd, hij
meende de vader van het kind te zijn. Na de geboorte van het kind nodigde
de moeder X. uit om het kind te bezoeken, aangezien het kind geen Aziatische
trekken vertoonde (de huidige partner was van Aziatische herkomst) bood X. aan
financieel bij te willen dragen aan de opvoeding van het kind. De moeder
accepteerde verschillende keren de financiele bijdrage van X. en X. mocht het
kind meerder malen bezoeken. Echter op de tweede verjaardag van het kind
werd hem niet toegestaan het kind te bezoeken, en daarna heeft hij het kind
nooit meer mogen zien

X. heeft het Hoge Gerechtshof (familiezaken) gevraagd om ervoor te
zorgen dat mw. Y. het kind niet ter adoptie kon aanbieden, en dat het kind
onder voogdij komt te staan van dit Gerechtshof. Daarna zijn er bloedtesten
uitgevoerd waaruit bleek dat niet uitgesloten werd dat X. de vader van het
kind was. Echter de huidige partner van mw. Y. weigerde mee te werken aan
een bloedtest

Het Hoge Gerechtshof heeft op 30 juli 1979 besloten dat niet bewezen was
dat X. de vader van het kind is. Daarom staat het kind niet langer meer
onder voogdij van dit Gerechtshof en vervallen de verdere eisen

In hoger beroep is dit vonnis bevestigd

De verzoeker klaagt erover dat geweigerd is om vast te stellen dat hij
de vader is van het kind van mw. Y. Hij beroept zich op art. 8 EVRM

Volgens de Commissie is er geen recht voor de man tot vaststelling van h
et vaderschap van een kind met wiens moeder hij niet getrouwd is of met wie
hij geen stabiele familierelatie heeft. Dus art. 8 is niet geschonden

Volledige tekst

The facts

The facts, as they have been submitted by the applicant, may be
summarised as follows:

He is a Britisch citizen, born in 1949 and residing in London

He is an accountant by profession

The applicant states that in June 1975 he received a letter from a Miss
S., informing him that she was found to be 5 months pregnant and that either
the applicant or a Mr. R., with whom she is now living, would be the father of
the child. Miss S. further informed the applicant that if the child was Mr.
R’s she would keep it but if the child was his, she would place it for
adoption. The applicant informed her that he was totally opposed to having
a child of his adopted, as he anticipated that he would be the father, bearing
in mind the expected date of birth

On 28 September 1975 Miss S. gave birth to a boy, and she invited the
applicant to come an visite her and the child on the same day, which he did

After the child was born, Miss S. decided to keep it

Since Mr. R. is Eurasian, and the child, according to the applicant,
lacked any Asiatic features, he states that he offered the mother financial
support, which, on several occasions, she accepted. She also allowed the
applicant to visit the child at approximately 3 or 4-weekly intervals during
the child’s first two years. But on the child’s second birthday, for no
apparent reason, according to the applicant, its mother refused to allow him
further acces to the boy

It appears that on 13 October 1975 the applicant instituted proceedings
before the High Court of Justice, Family Division, requesting that the child
be made a ward of court and that MissS. be restrained from taking steps to
have it adopted

On 6 November 1975 wardship was confirmed by the Registrar of the Court
who also ordered that Mr. R. be added as a defendant

On 19 November 1976 blood tests were carried out on the applicant, Miss.
S. and the child. The test did not exclude applicant as the father, in fact
the test indicated that he was “among approximately 1% of unrelated men of
Western European origin who, if subjected to the same tests, would not be
excluded from possible paternity of (James). “

On 28 April 1977 the High Court directed that a blood sample be taken
from Mr. R. He, however, then and later, refused to take the test

On 13 October 1977 the High Court made an order that the applicant, who
had requested this, should be allowed to obtain en expert’s report on the
likelihood of a person of mixed Chinese, Portugese and English blood, as Mr.
R. may be, being the father of the child. (The report (23 November 1977)
turned out to be inconclusive)

On 19 June 1978 the applicant applied for access and for restoration of
the wardship application for hearing for final determination. The Official
Solicitor consented to act as guardian ad litem of the child, who was then
also joined as a defendant

No application had ever been made for the issue of paternity to be
decided, and it was not until much later, in May 1979, that application was
made by the applicant’s counsel for leave to issue a summons out of time.
No objection was taken by the parties and leave was granted. The actual
summons, however, was not issued until 19 May 1979

That summons, in terms, asked for an order that:

“1. the plaintiff be declared the father of the minor, and

2. the plaintiff be granted reasonable access to the said minor”

On 30 July 1979 the High Court of Justice, Family Division, gave its
judgement and found that the applicant had not proven that he was the father
of the child, and consequently ordered as follows:

“1. The issue of Paternity having been tried and the Court not being
satisfied that the Plaintiff is the father of the minor, James S., the said
Plaintiff’s summons dated 15 May 1979 be and is hereby dismissed

“2. The said minor do cease to be a Ward of this Court forthwith and the
originating summons herein be and the same is hereby dismissed. “

The applicant appealed this order to the Court of Appeal which, on 22 Ja
nuary 1980, dismissed the appeal, but ordered that the High Court order be
amended by deleting the first paragraph and substituting an order dismissing
the applicant’s summons of 19 May for a declaration of paternity

The Court of Appeal refused the applicant leave to appeal to the House
of Lords. The applicant then applied to the Appeal Committee of the House
of Lords for leave to appeal, which was refused on 27 March 1980

Complaints

1. The applicant firstly complains about the aforementioned decisions of
the Britisch Courts. By their refusal to give a declaration that he is the
father of the child in question, the applicant submits that there has been a
distortion of evidence and a failure to draw the right inference from Mr. R.’s
refusal to undergo a blood test. By not recognising the applicant as the
child’s father, he underlines that he is not given a role in the child’s life
and will be unable to act on its behalf in the future. The applicant, who
is Jewish, has expressed wishes that the boy be circumcised and that he be
brought up to have a knowledge of his Jewish heritage

Further, he submits that the boy will be denied the love and care of one
of his parents and will really only know his mother, but very little about his
father. Furthermore, he will be unable to claim an inheritance from the
applicant under English law. The applicant considers this to be a gross
violation of his human rights and maintains that a failure to issue a
declaration of paternity under any circumstances constitutes a breach of human
rights under Art. 8 (1) of the Convention, as it is in the interest of any
child to be given an opportunity to form a relationship with both of its
parents

2. The applicant secondly complains about the length of the legal
proceedings and points out that they were instituted in October 1975 but not
concluded until March 1980. He feels it indefensible of the Royal Courts of
Justice to take so long to reach a final ruling on the welfare of the child

3. Thirdly, the applicant wishes the Commission to discuss the
possibility of awarding him compensation against the Royal Court of Justice
He maintains that a legal remedy will not recompense him for the costs
involded in conducting this case, the mental and emotional distress it has
caused him or for the irreparable damage that it has done to his career

THE LAW

1. The applicant complains of the proceedings by which the English
courts refused to declare that he is the father of thechild to whom Miss S.
gave birth on 28 September 1975. He alleges, on the one hand, that the
length of these proceedings was excessive and, on the other hand, that there
was a distortion of evidence and a wrong assessment of the facts before the
courts

Article 6, para. 1 of the Convention ensures inter alia, that 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’

As far as the length of the proceedings complained of is concerned, the
Commission notes that the issue of paternity was not raised by the applicant
with the High Court of Justice before May 1979 and that the case was decided
at first instance on 30 July 1979 and on appeal on 22 January 1980. Leave
to appeal to the House of Lords was refused on 27 March 1980. In these
circumstances, the Commission is satisfied the the applicant’s case was heard
within a reasonable time

As far as the fairness of the hearings is concerned, the Commission
considers, after an examination of the judgements complained of, the the
courts gave the parties full opportunities to present their case

The Commission finds therefore no appearance of a violation of the
rights set forth in Article 6, para. 1 of the Convention

This part of the application is therefore manifestly ill-founded within
the meaning of Art. 27, para. 2

2. The applicant further complains of the refusal of the English courts
to declare that he is the father of the said child. He invokes in this
respect Article 8 of the Convention which secures to everyone the right to
respect for his private and family life

There is no right under the Convention for a man to obtain a judicial
declaration regarding the paternity of a child of a woman to whom he is not
married or with whom he has not an established family relationship

In the present case, the applicant is not married to the mother of the
child and has never lived in a family relationship with her and her child

There is therefore no appearance of a violation of Art. 8 of the
Convention and the remainder of the application is manifestly ill-founded
within the meaning of Art. 27, para. 2

Rechters

C.A. Norgaard, Acting President, G. Sperduti, L. Kellberg, T. Opsahl,J.A. Frowein, G.J. Horundsson, S. Trechsel, B. Kiernan, N. Klecker, M.Melchior, J.A. Carrillo, mr. H.C. Kr Huger, Secretary to the Commission