Koychev v. Bulgaria (European Court of Human Rights)

Information Note on the Court’s case-law 244
October 2020

Koychev v. Bulgaria – 32495/15

Judgment 13.10.2020 [Section IV]

Article 8
Positive obligations

Article 8-1
Respect for private life

Dismissal of an action challenging paternity on the grounds of the interests of the child, who had been recognised by the mother’s husband, without sufficient safeguards for the alleged biological father: violation

Facts – In 2006 the applicant’s former live-in partner gave birth to a child. In 2010 she began a relationship with another man, whom she subsequently married. In 2013 the applicant recognised the child; the mother objected. The husband then recognised the child; the mother accepted this declaration. The applicant attempted unsuccessfully to challenge this legal parent-child relationship, by addressing, in turn, the authorities, the prosecutor’s office and the courts.

Law – Article 8:  Bulgarian law did not allow for the possibility that a man claiming to be the biological father of a child whose legal father-child relationship had been established through a statement of recognition could directly challenge this recognition or establish his own paternity.

The Government was mistaken in submitting that the applicant could have had the registration procedure for recognition by the mother’s husband suspended, if he had informed the civil status authorities in good time of his intention to bring an action to establish paternity. Firstly, the applicant had not been informed about the husband’s action. Secondly, the domestic law contained no specific mechanism to prevent recognition from being entered on a birth certificate on the grounds that a person who had made a previous equivalent declaration had brought an action to establish paternity, or set out a time limit for doing so.

In contrast to the case of L.D. and P.K. v. Bulgaria (7949/11 and 45522/13, 8 December 2016, Information Note 202), the national courts in this case had not merely referred to the provisions of domestic law when refusing to examine the applicant’s request to have paternity established, but had set out several grounds for concluding that such an approach would not be in the child’s interests, specifically: (i) the risk of disrupting the child’s emotional and familial balance; (ii) the applicant’s lack of diligence, in that he had waited seven years before recognising his paternity; (iii) the aim of the domestic legislation, namely giving priority to the legal parent-child relationship which corresponded to the social and familial reality.

The Court accepted that such grounds were in principle capable of justifying a limitation on the possibility of establishing biological paternity. However, other factors ought to have been taken into consideration.

The relationship between the applicant and the child, and the importance of that relationship for both individuals, had never been assessed. As to the fact that the applicant had not recognised the child for seven years, his explanations to the effect that he had acted in this way at the mother’s request, and not from a lack of interest in the child, had also not been examined. Moreover, the domestic law did not stipulate any time limit for recognising a child: recognition could be made at any point, so long as no other legal parent-child relationship had been established. Although the steps taken by the applicant to recognise the child had been unsuccessful, this was because the child’s mother, after having objected to his recognition of paternity, had immediately accepted the recognition submitted directly afterwards by her husband; however, the applicant had not been informed of this move, and had had no possibility to object to it.

The Court also noted other procedural shortcomings. Firstly, before the department of social welfare: although the visit to the child’s home had admittedly been such as to allow for a detailed assessment, it was nonetheless the case that the applicant had been unable to take part in this procedure or to defend his interests. In addition, the department’s refusal had been communicated to him merely by ordinary mail, and not though a reasoned decision against which he could have appealed to the courts. Lastly, this department was not required to take into consideration the various interests at stake, especially those of the putative biological father.

Then, before the civil courts: here, the applicant had had the benefit of adversarial proceedings, but there had been no detailed examination of the case: the courts had not heard the parties concerned, particularly the child; and the Supreme Court had relied on the findings reached by the department of social welfare, which, in addition to the failings noted above, were about two years old.

– oOo –

In spite of the broad margin of appreciation enjoyed by the State in this matter, the Court considered that the decision-making process had lacked adequate safeguards, in the absence of a detailed examination of the facts and a weighing up of the various interests at stake.

Conclusion: violation (unanimously).

Article 41: EUR 6,000 in respect of non-pecuniary damage.

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