Bulgarian man wins ECHR paternity case

paternity

A law that required him to pay maintenance for child that was not his breached his human rights.

In this country, and no doubt in many others, there is a presumption that a man married to a child’s mother at the time of the child’s birth is the father of the child. This has the obvious consequence that if the couple separate and the child lives with the mother, then the man will be liable to pay maintenance for the child. But what if he is not actually the father? Does the presumption mean that he still has to pay maintenance?

In a recent European Court of Human Rights (ECHR) case the answer to that question for a Bulgarian man turned out to ‘yes’, at least under Bulgarian law.

The case was Doktorov v Bulgaria. The relevant facts of the case were that the man was married to the mother of the child, who was born in 2003. The man and his wife were divorced in 2006, and it was agreed that he would pay maintenance for the child. The man subsequently learned that the child had actually been conceived as a result of the mother’s relationship with another man. A DNA test was carried out, and the result, which the man received in January 2007, confirmed that he was not the biological father of the child.

In March 2007 the man issued court proceedings seeking to contest his paternity of the child. However, the claim was dismissed, as Bulgarian law required any claim contesting paternity to be made within one year of the child’s birth, or one year of the ‘father’ learning of the child’s birth.

The man then issued proceedings in which he sought to stop paying child maintenance for the child. However, this claim was also rejected, as the man had not proved that he was not the child’s father, as he had not rebutted the presumption under Bulgarian law that the husband of a child’s mother was considered to be the father of any child born during the marriage or before the expiry of three hundred days from its dissolution.

The man then took his case to the ECHR, claiming that he was unable to contest his legal paternity of the child, despite a biological reality showing that he was not the father. He claimed that this breached his right to respect for his private and family life under Article 8 of the European Convention on Human Rights.

The Bulgarian government contested the claim, submitting that the law requiring paternity disputes to be issued within one year provided a fair balance between the need to establish biological reality and the need to protect the stability of the “already confirmed” origin of the child.

The ECHR rejected that submission. It said:

“…an excessively strict statutory limitation on an applicant’s possibility to contest paternity in the present case one year starting from the birth of the child rather than from the moment the applicant became aware that he might not be the father of the child cannot be said to constitute a proportionate balancing of the competing interests involved.”

In other words, a one-year period running from the date the man learned that the child was not his might have been acceptable. Here, however, the man simply hadn’t been given any opportunity to put his case, and the ECHR found that this amounted to a violation of Article 8. Accordingly, the Bulgarian court proceedings would be re-opened – Bulgarian law specifically providing that civil proceedings may be reopened when a judgment of the ECHR has established that the Convention had been violated, and where a fresh examination of the case is necessary in order to eliminate the consequences of the violation.

I suppose the obvious question readers will be asking is: can this happen in this country? Well, not really. As I indicated at the beginning of this post, in this country we have a presumption that a man named as the father on a child maintenance application is the father if he was married to the mother at any time between the conception and birth of the child (unless the child was adopted). That presumption means that the Child Maintenance Service can go ahead with a child maintenance assessment and require the man to pay, until such time as he can prove that he is not the father. There is no time limit within which he must deny he is the father, and if he does prove he is not then he may get a refund for any maintenance payments that he made after making the denial.

You can read the full report of the case here.

Photo of the Bulgarian flag by Todor Bozhinov via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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2 comments

Andrew - April 9, 2018 at 8:08pm

Would the CMS be jointly liable for the repayment or would the non-father be left to his remedy against the mother who has probably spent the money?
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No prizes for guessing what I think the answer should be. If the CMS has backed her it should stand to the loss.

Paul - April 25, 2018 at 12:19am

I believe that the CSA guidance states that they will calculate the amount due from the commencement of proceedings and begin charging / accruing the amount due immediately. The man may refuse to pay until such time as the paternity question is resolved, however the CSA advises that the man should put aside amounts equal to the payments due to avoid financial difficulties if it is established that he is the paternal father.

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