2017/10/30 - 21 Cdo 1852/2017 (summary)

Decision of the Supreme Court of 30 October 2017, Ref. No. 21 Cdo 1852/2017

(Determination of paternity, right of the child to know his or her parents, best interest of the child)

Petitioner filed an application for determination of paternity as the mother of the minor had not allowed him to contact the minor. However, the mother opposed the application and argued that it was not in the interest of the minor to recognize the petitioner as the legal father since the relation between the parents was conflicting. Nevertheless, she did not dispute that the petitioner was a biological father of the minor. The lower courts granted the petition and stated that the petitioner is the father of the minor as they had lived together in a common household, the petitioner cared for the minor, and the minor considered the petitioner as a father. Accordingly, lower courts stated that the interest of the child cannot be investigated in the paternity proceedings. It can only be examined in the proceedings regarding the exercise of the rights and obligations arising from parental responsibility.

The Supreme Court assessed the importance of the best interest of a minor in the paternity proceedings. Firstly, it recalled that under Article 3 (1) of the Convention on the Rights of the Child, the interest of the child must be a primary consideration in any activity concerning children. However, according to Article 7 (1) of the Convention, every child has a right to know his or her parents. The Convention also requires the father of a child to be determined unless there is compelling reason that prevents it. Therefore, the Supreme Court stated that the principle of the best interest of the child is reflected in the paternity proceedings, but in a different way than in the proceedings regarding parental responsibility. In particular, the best interest of the child is secured by the fact that according the law, the father is a man who had a sexual intercourse with the mother of the minor in the decisive period. It is therefore necessary to distinguish proceedings on status issues and proceedings in which the responsibilities and rights of the parents are concerned. The fact that the relationship between the parents is conflicting is not relevant for an assessment of whether a man is a father of a child. Conversely, such a fact is important in the proceedings regarding parental responsibilities, for example when the contact between a parent and a minor is modified.