pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en CZECH FAMILY LAW IV. FILIATION DETERMINATION OF PARENTHOOD © Zdeňka Králíčková Radovan Dávid 2015 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 2 BIOLOGICAL, SOCIAL AND LEGAL ASPECTS n nHARMONY: idealistic approach n nDISHARMONY: national laws + n nthe UN CONVENTION ON THE RIGHTS OF THE CHILD nthe Council of Europe Convention for the Human Rights and Fundamental Freedoms n Article 8: n „Everybody has the right to respect for his private and family life … “ n nTHE CHILD HAS THE RIGHT TO KNOW HIS/HER ORIGIN AND THE RIGHT TO FAMILY LIFE WITH HIS/HER PARENTS n nTHE PARENTS (each of them) HAVE THE RIGHT TO PRIVATE AND FAMILY LIFE n n n n pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en 3 WHO IS THE CHILD´S MOTHER? www.law.muni.cz PF_PPT_nahled PF_PPT_en2 4 MATER SEMPER IN IURE CERTA EST ROMAN LAW RULE Iulius Paulus 2./3. century www.law.muni.cz PF_PPT_nahled PF_PPT_en2 5 THE CONCEPTION OF STATUS LAW IN EUROPE nFrance (1804), Italy, Luxemburg, Belgium: n n n n nrecognition of the child born out of wedlock by the mother nAustria (1811), Germany, Czech republic, Slovakia, Poland: n § n n n nblood/nature tie – mother is certain by the child´s birth www.law.muni.cz PF_PPT_nahled PF_PPT_en2 6 EUROPEAN COURT OF HUMAN RIGHTS nTHE RIGHT OF THE MOTHER TO ESTABLISH THE STATUS MOTHER-CHILD, including property aspects n nMarckx v Belgium (1979) n establishment of affiliation had effect only between mother and the child, a child did not become a member of the mother´s family n n n n breach of Art. 8 n „family life“ includes at least the ties between near relatives (grandparents and grandchildren) n nTHE RIGHT OF THE CHILD TO GET TO KNOW HIS/HER ORIGIN n n nOdièvre v France (2003) n the mother requested that the child´s birth be kept secret n later: n - the child wanted to know circumstances, information about natural family, personal history, not establish relationship! n - the mother wanted to remain secret (no social, no legal, just biological tie) - private life n no violation of Art. 8 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 7 Czech family law de lege lata (CC: 775) nTHE RULE: n „The woman who bore a child is the child's mother“ n nPROBLEMS weaking the roman law rule n - the child births with the secret motherhood n (Act No. 422/2004 Coll.) n - baby-boxes n (reality) www.law.muni.cz PF_PPT_nahled PF_PPT_en2 8 IMG_2603 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 9 IMG_2410 www.law.muni.cz PF_PPT_nahled PF_PPT_en2 10 REALITY IN THE CZECH REPUBLIC n for details see www.statim.cz n (4. 11. 2015: 65 places, 127 children) pruh+znak_PF_13_gray5+fialovy_RGB PF_PPT_en 11 WHO IS THE CHILD´S FATHER? www.law.muni.cz PF_PPT_nahled PF_PPT_en2 12 MATER SEMPERIN IURE CERTA EST, PATER INCERTUS n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 13 THE CONCEPTION OF STATUS LAW IN EUROPE ntradition: conception of three legal presumptions based on probability ninnovation: certainty based on DNA? n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 14 EUROPEAN COURT OF HUMAN RIGHTS nKeegan v Ireland (1994) n the child was born out of marriage, but there was informal long lasting relationship! n mother left the father and gave the child for adoption n n violation of Art. 8 n n nPaulík v Slovakia (2006) n fathership established by the court decision in 70´s - res iudicata n discrepancy between legal position and biological reality (DNA) n n „The lack of procedure for bringing the legal position into line with biological reality flies in the face of the wishes of those concerned and does not in fact benefit anyone“ n n violation of Art. 8 n nKňákal v the Czech Republic (2007) n acknowledgement of paternity by a man, who knew before the child´s birth that he was not her biological father n n no violation of Art. 8 n n nKroon and others v the Netherlands (94) n child was born into marriage, mother „lived“ with another man + other children of his n n „The respect for family life requires that biological reality prevail over a legal presumption ….“ n n violation of Art. 8 n n n n n n n n n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 15 Czech family law de lege lata: the first presumption nmarriage - ex lege: n n § 776 CC: „If the child was born during the period from entrance into the marriage to the lapse of the three hundredth day after the extinction of the marriage or after declaration of its invalidity, the mother's spouse is presumed to be the father“ n n n § 785 (1): „The husband may deny his fatherhood before court within six months from the day on which the reasonable doubts arise about the child's paternity. n Latest he may deny his fatherhood within six years from the child's birth. n n § 789: „Within six months from the child's birth, the mother may deny that her husband is father of her child.“ n n child: NOT entitled to deny fathership before the court n www.law.muni.cz PF_PPT_nahled PF_PPT_en2 16 Czech family law de lege lata: the second presumption nmutual consent – declaration n n § 779 CC: „Otherwise, the presumption of fatherhood shall point to the man whose fatherhood was determined by a consent declaration of parents done before the register office or before court.“ n nthe right to deny the presumption: n § 790 CC: The man whose fatherhood was determined by the consent declaration of parents may deny his fatherhood before court only if it is excluded that he could be the father and only within six months from the day when the fatherhood was determined in this way; this period shall not elapse before the lapse of six months from the child's birth. § 791 CC: Also the mother may deny within the same period that the man whose fatherhood was determined by a consent declaration of parents is the father.“ n n Child: NO www.law.muni.cz PF_PPT_nahled PF_PPT_en2 17 Czech family law de lege lata: the third presumption nsexual intercourse n n § 783 CC: the child, the mother or the man claiming himself to be the father may ask the court to determine the fatherhood. n The presumption of fatherhood shall point to the man who had sexual intercourse with the child's mother at the moment from that no less than one hundred and eighty and no more that three hundred days elapsed to the child's birth, unless his fatherhood is excluded by significant circumstances. www.law.muni.cz PF_PPT_nahled PF_PPT_en2 18 MODEL FAMILY CODE by I. Schwenzer, Antwerpen/Oxford: Intersentia, 2006 n nINTENTIONAL PARENTAGE (not relevant, whether there is marriage or cohabitation or not): n „Legal parent is the person who, with the consent of the birth mother, intentionally assumed parentage for the child“ n nCOURT DETERMINATION/ADJUDICATION: n „Legal parent is the person determined by judicial adjudication to be the genetic parent of the child“ n n n n nCzech Constitutional Court n decision from 28. 2. 2008, I ÚS 987/07 – AF: „archaic“ n