Exceptional lenght of the paternity recognition process! Violation of the respect for private and family life

JUDGMENT

A. L. v. France 07.04.2022 (app. no. 13344/20)

see here

SUMMARY

The case concerned the compatibility with the right to respect for private life (Article 8 of the
Convention) of the domestic courts’ refusal to legally establish the applicant’s paternity vis-à-vis his
biological son – who had been born in the framework of a gestational surrogacy contract in France –
after the surrogate mother had entrusted the child to a third couple.

The Court noted that the Court of Appeal, backed up by the Court of Cassation, had duly prioritised
the best interests of the child, which it had been careful to characterise in practical terms having
regard to the biological reality of the paternity claimed by the applicant. In balancing the applicant’s
right to respect for his private life, on the one hand, with his son’s right to respect for his private and
family life, which required compliance with the principle of prioritising the child’s best interests, the
Court considered that the grounds set out by the domestic courts to justify the impugned
interference had been relevant and sufficient for the purposes of Article 8 § 2 of the Convention.
Nevertheless, the Court noted that the proceedings had taken a total of six years and about one
month, which was incompatible with the requisite duty of exceptional diligence. The child had been
about four months old when the case had gone to court, and six-and-a-half years old when the
domestic proceedings had ended. In cases involving a relationship between a person and his or her
child, the lapse of a considerable amount of time could lead to the legal issue being determined on
the basis of a fait accompli.

The Court concluded that there had been a violation of Article 8 of the Convention on account of the
respondent State’s failure to honour its duty of exceptional diligence.

The Court emphasised, however, that the finding of a violation should not be interpreted as
questioning the Rouen Court of Appeal’s assessment of the child’s best interests or its decision to
dismiss the applicant’s requests, as upheld by the Court of Cassation.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Mr A.L., is a French national who was born in 1987.

In 2012 Mr A.L. and his partner, Mr Ma., posted an advertisement on the Internet for a woman with
whom to conclude a gestational surrogacy contract. Ms B., wife of M., agreed to be impregnated
with gametes from the applicant, Mr A.L., in return for payment. The child, S., was born on 8 March e
2013. Ms B. entrusted S. to another couple, Mr and Ms R., in return for payment of 15,000 euros
(EUR), telling the applicant that the child had died. Ms B. informed Mr and Ms R. neither of the
existence of the couple consisting of the applicant and Mr Ma. nor of the fact that the child had been
conceived in the framework of a gestational surrogacy contract which she had concluded with them.
The child was recognised before his birth by Mr Ma., Mr A.L.’s partner, and by Ms B. on 11
September 2012. Furthermore, on 17 September 2012 he was recognised in a different town hall by
Mr. R., of the third couple, and by Ms B. S.’s birth certificate states “born on 8 March 2013 in …, of
C.R., who recognised him on 17 September 2012 at … town hall, and A.B.”.

On 26 March 2013, suspecting that the child had been born in the framework of a gestational
surrogacy contract, a health professional from the maternity hospital where Ms B. had given birth
reported her suspicions to the Blois public prosecutor. The latter initiated a preliminary investigation
concerning incitement to abandon a child, and substitution, simulation or dissimulation having
infringed a child’s civil status. On the same day, Ms B.’s sister lodged a complaint accusing her of
being a surrogate mother and of having sold her child to the applicant and his partner.

Ms B. was charged with the offences of fraud and attempted fraud. The applicant and his partner,
and later Mr and Ms R., were charged with incitement to abandoning a child.

By judgment of 26 January 2016, Blois Criminal Court sentenced Ms B. to a one-year suspended
prison sentence for fraud, attempted fraud and fraudulent receipt of social benefit allowances. The
court fined Mr and Ms R., the applicant and Mr Ma. EUR 2,000 each, suspended, for incitement to
abandon a child born or as yet unborn

On 19 July 2013, meanwhile, the applicant had lodged an application contesting the recognition of
paternity in respect of Mr and Ms R. and Ms B., and an action to establish his own paternity of the
child.

By judgment of 23 March 2017, the court declared admissible the application to contest paternity
and the action to establish paternity. Relying on the biological analysis conducted during the criminal
proceedings and on the fact that Ms B. had not denied having been impregnated with gametes from
the applicant, the court declared the applicant to be the child’s father, ordered that the child should
bear his name, assigned him exclusive exercise of parental authority, established the child’s address
at the applicant’s home as of 9 December 2017, specified that he would meanwhile continue to live
with Mr and Ms R., and granted the applicant gradually increasing contact rights. The court ruled
that the judgment was immediately enforceable on the grounds that “as time passes, it will become
more difficult for [S.] to adapt to his new identity and family”.

Mr R. appealed to the Rouen Court of Appeal. On 28 July 2017, on an urgent application from Mr R.,
the First President of that court ordered the suspension of immediate enforceability. Emphasising
that S.’s best interests should guide the judicial decision, and relying on the submissions of a child
psychiatrist who had examined the child at Mr and Ms R.’s request, the judge held that the
implementation of the decisions taken in respect of the child, and in particular his change of
address, even if they were organised gradually, would pose severe risks of causing him not only a
great deal of confusion, grief and distress, but also major psychological difficulties. He added that
“the triggering of the procedure as ordered would in fact make it irreversible without creating a
serious risk in terms of [S.’s] psychological equilibrium, thus rendering the appeal pointless”.

In a judgment of 31 May 2018 setting aside the judgment of 23 March 2017, the Rouen Court of
Appeal declared the applicant’s requests inadmissible.

The applicant lodged an appeal on points of law on 31 May 2018.

The Court of Cassation dismissed that appeal by judgment of 12 September 2019.

THE DECISION OF THE COURT…

Article 8

The Court afforded the respondent State a wide margin of appreciation in balancing the different
rights secured under the Convention: on the one hand, the right to respect for the applicant’ private
life, and on the other, the right to respect for the child S.’s private and family life, which necessitated
compliance with the principle of prioritising the best interests of the child.

As regards the reasoning of the domestic courts, the Court noted that the Rouen Court of Appeal
had declared the applicant’s requests inadmissible on the grounds that they had concerned a
situation resulting from a gestational surrogacy contract, this type of contract being absolutely null
and void. The Rouen Court of Appeal also balanced the competing interests, as noted by the Court of
Cassation in its judgment of 12 September 2019. It found that it would be in the child’s best interests
to allow him to continue to live with Mr and Ms R., rather than changing the current situation as
regards his parentage and establishing his descent from his biological father.

The Court also noted that in his opinion appended to the judgment of 12 September 2019, the
Advocate-General had observed that the Court of Appeal had “analysed together the public-order
ban on gestational surrogacy and the best interests of the child in practical terms” and considered
that “the Court of Appeal had drawn the requisite conclusions from that analysis” by declaring the
applicant’s request inadmissible. The Court of Cassation had followed its Advocate-General’s
recommendations in conducting its review, finally concluding that “having balanced the competing
interests, including those of the child, which it had prioritised, the Court of Appeal had not flouted
the requirements of Article 8 of the Convention”.

That being the case, the Court deduced that the Court of Appeal, backed up by the Court of
Cassation, had duly prioritised the best interests of the child, which it had been careful to
characterise in practical terms having regard to the biological reality of the paternity claimed by the
applicant.

While pointing out that its judgment in no way prejudged the outcome of any further steps which S.
or his legal representatives might wish to take in future as regards his affiliation, the Court noted
that the Rouen Court of Appeal had stated that it might, “in due course”, be in S.’s interest for him to discover the truth about his origins, and for possible contact to be organised between him and the applicant.

In conclusion, the Court held that the reasons given by the domestic court to justify the impugned
interference had been relevant and sufficient for the purposes of Article 8 § 2 of the Convention.
In the Court’s view, the concrete prioritisation of the child’s best interests by the Rouen Court of
Appeal, backed up by the Court of Cassation, had not only satisfied its case-law requirements but
had also been the only way to settle the confused and difficult situation in which the child S. had
found himself, for which situation each of the adults involved had borne some of the responsibility,
that is to say the child’s biological mother, the applicant, the latter’s partner, and Mr and Ms R.
As regards the quality of the decision-making process in the present case, the Court noted that the
applicant had benefited from adversarial proceedings, during which he had been able to debate the
arguments of the other parties, including those of the child S. as presented by a special
representative, and to present his own case before independent and impartial courts, which had
given reasons for their decisions.

However, the proceedings had lasted a total of about six years and one month, which was
incompatible with the requisite duty of exceptional diligence. In cases involving a relationship
between a person and his or her child, the lapse of a considerable amount of time could lead to the
legal issue being determined on the basis of a fait accompli. The child had been six-and-a-half years
old when the domestic proceedings had ended.

The Court could not discern how the complexity of the case could have justified such a lapse of time.

There had therefore been a violation of Article 8 of the Convention on account of the respondent
State’s failure to honour its duty of exceptional diligence in the specific circumstances of the case.

The Court emphasised that this finding of a violation should not be interpreted as questioning the
Rouen Court of Appeal’s assessment of the child’s best interests or its decision to dismiss the
applicant’s requests, as upheld by the Court of Cassation.

Just satisfaction (Article 41)

The Court held that France was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 20,450.94 in respect of costs and expenses.