On Compliance of the Words “Within two years calculated from the day when they have found out about the circumstances that preclude paternity” of the Second Part of Section 156 of the Civil Law with Article 92 and Article 96 of the Satversme (Constitution) of the Republic of Latvia and Article 4 of the European Convention of the Legal Status of Children Born out of Wedlock
The Constitutional Court of the Republic of Latvia
3 June 2009
Latvian Constitution, Article 96 on the right to private life
Civil Law, Section 156 on contesting paternity
European Convention of the Legal Status of Children Born out of Wedlock, Article 4
The applicant had filed a request to initiate proceedings contesting the paternity of a child at a regional court, including a request for paternity to be determined using a DNA test. His request was rejected by the court on the basis of Section 156 of the Civil Law which provides that paternity may only be contested within two years calculated from the day a person had found out about the circumstances precluding paternity. The applicant then appealed to the Constitutional Court in the present case challenging the compatibility of that provision with the right to respect for private life guaranteed under Article 96 of the Constitution. He also relied on Article 4 of the European Convention of the Legal Status of Children Born out of Wedlock (the European Convention) which places an obligation on the State Parties not to allow the voluntary recognition of paternity to be contested, except where the legal father is not the biological father of the child. The applicant argued that although the objective of the Section 156 is to ensure stability of a family and the interests of a child, it is important for a man who is not the biological father of the child to have the right to contest paternity and the rights of the child should be secondary to the right to private life of the man who is contesting paternity.
Issue and resolution:
Determining paternity. The Court held that the two year period to contest paternity of a child was consistent with the right to private life granted by the Constitution and with Latvia's obligations under Article 4 of the European Convention.
Protection of human rights in society begins with that society guaranteeing the rights of the child by ensuring circumstances allowing them to develop their potential to be better prepared for the life of an adult person. The aim of Section 156 is to ensure that the legal situation would not depend on the persons who have the right to contest paternity and the possibilities of these persons to change their mind subsequently. It can be concluded that, to ensure the right of the child to identity, it is necessary to ensure legal certainty, and to reach this objective, a term for contesting paternity can be established.
Article 4 of the European Convention can be interpreted to allow contesting or appealing paternity if the person, who wants to recognize or has recognized paternity of a child, is not the biological father of the child. However, this does not mean that a state cannot impose restrictions. The purpose of the European Convention is to provide legal certainty and certain social stability to children born out of wedlock. Consequently, the Constitutional Court has no reason to hold that the term of two years established in the Contested Norm is not compatible with the aim of the Convention.
The Court did not accept the applicant's argument that his right to private life has been infringed and should take priority over the right of a child. The law clearly provides that in all matters relating to the child, the best interests of the child shall be the primary consideration. Encouraging voluntary recognition of paternity (and accordingly – decreasing the possibilities of opposing or contesting voluntary recognition of paternity) promotes the protection of the interests of the child, as it improves the status of children born out of wedlock and balances the legal status of children born out of wedlock with that of children born of a marriage.
Therefore, the State has protected both the child and private person's rights by providing a person the right to contest recognition of paternity within the period of two years starting from the date when he has found out about circumstances precluding paternity. In the opinion of the Court, this is a proportionate and balanced approach.
Excerpts citing CRC and other relevant human rights instruments:
"9.2. [...] The UN Committee of the Rights of the Child has emphasized in particular the necessity to ensure protection of the rights of the child in early childhood. Protection of the rights of the child begins at birth when the child is being registered and gains identity, the right to health, education and social welfare.”
“9.3. The duty of the State to protect the rights of the child, as established in Article 110 of the Satversme, is provided in details in the Children’s Rights Protection Law. The first part of Section 6 thereof provides that in legal actions which effect a child, the child's rights and interests shall be paramount. The second part of the same Section provides that all activities regarding a child, regardless of which are performed by the state or local government institutions, public organisations or other physical and legal persons which are occupied with taking care about the child and his/her upbringing, as well as courts and other rights protection institutions, shall ensure the priority of the child's interests. [...] Likewise, the following conclusion follows from the Preamble and the first part of Section 3 of the UN Convention of the Rights of the Child: The rights of the child shall be conferred a greater legal protection and the State activities regarding legislation should be guided towards best protection possible of the interests of the child. It has already established in the UN Declaration on the Rights of the Child that was adopted in 1959 that certain human rights have a special role regarding children because they reflect the necessity for special care and attention for them, violability of children and differences between their world and that of an adult person. It can also be concluded from the information provided by the Senate that the Contested Norm shall be applied and interpreted, among the rest, in conjunction with Article 110 of the Satversme and the UN Convention of the Rights of the Child.”
CRIN believes this decision is consistent with the CRC. The best interests of the child should be accorded primary importance over the competing interests of others. The best interests principle can also be used an interpretative guide to the application of the other rights enshrined in the CRC, such as the right to preservation of identity.
Case No. 2008-43-0106
Link to Full Judgment:
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