Dismissal of paternity claims not breach of right to family life

Family Law|October 5th 2017

It is quite rare for me to come across something that I never dealt with during the time that I was practising. However, I did the other day, in a judgment of the European Court of Human Rights (ECHR). As I will explain in a moment, the judgment is of no relevance to proceedings in this country, but it does provide a useful reminder of a point that is perhaps not well known.

The judgment is Silva v Portugal. It actually concerns two cases.

The first case was brought by Mr Silva, who was born out of wedlock in 1944. His mother always considered T.S. to be his father, and in 2012 he instituted an action for recognition of paternity. T.S. objected, arguing that the claim was time-barred under Article 1817 of the Portuguese Civil Code, which states that the right to seek paternity recognition by judicial decision lapses ten years after the person has attained the age of majority. Interestingly, in the course of the proceedings DNA tests were ordered, and they established that T.S. was Mr Silva’s father.

It should be noted that:

“…the Civil Code provides for a supplementary three-year period within which paternity proceedings can be instituted. According to this provision, a person can seek paternity recognition by judicial decision within three years of one of the following events: a) paternity being successfully challenged by a third party; b) the applicant’s becoming aware, after the expiry of the ten-year time-limit, of a factor or circumstances which may justify the proceedings, in particular where they have ceased to be treated as a son or daughter; c) in the event that paternity has not been established, the investigating party’s becoming aware of facts and circumstances which warrant the investigation.”

The second case was brought by a Mr Correia, who was also born out of wedlock, in 1970. His mother always considered A.M. to be his father, and in 2014 he issued paternity proceedings, seeking recognition of A.M. as his father. A.M. objected, again arguing that the claim was time-barred.

To cut a long story short, in both cases the Portuguese court found that the claims were time-barred, and the claims were therefore dismissed. Both Mr Silva and Mr Correia applied to the ECHR, alleging that the dismissal of the paternity proceedings instituted by them constituted a breach of their right to respect for his private and family life under Article 8 of the European Convention on Human Rights.

The ECHR found that there had been no breach of Article 8. In both cases the applicants had always been aware of their respective father’s identity. In the court’s view they had shown an unjustifiable lack of diligence in instituting paternity proceedings, in that they had waited fifty and twenty-six years, respectively, since reaching the age of majority to seek to have their paternity legally established. Their ‘vital interest’ in having their biological truth legally established did not exempt them from complying with the requirements laid down by domestic law.

I’m not sure that I agree with this decision. Surely, as a dissenting judge in the Portuguese Constitutional Court said, the fundamental right to personal identity required that the possibility of investigating one’s biological identity should not be subject to a time-limit? Still, at least Mr Silva had the issue determined by science, if not by law.

It is possible to seek a declaration of parentage in this country, under section 55A of the Family Law Act 1986. Unlike in Portugal, there is no time limit within which an application for such a declaration must be made, so this judgment is not relevant over here. However, it is all too easy to think that section 55A is just for parentage disputes in relation to minor children, as that is what it is predominantly used for. The Portuguese cases act as a reminder that section 55A may also be used by the child when they are an adult. It can even be used after the person believed to be the applicant’s parent has died. In other words, there is potentially no limit to how late an application may be made.

The full judgment can be found here.

Image by Mike Licht via Flickr under a Creative Commons licence

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