An extrajudicial DNA test is not a conclusive evidence to challenge paternity
The European Court of Human Rights (ECHR) issued a decision about the case Bagniewski vs Poland (case n°28475/14), concerning the rejection of the claim initiated by a prosecutor to challenge the paternity of Sir Bagniewski, a polish citizen. The plaintiff based his claim on the article 8 of the European Convention on Human Rights concerning the right to respect for his or her private and family life. Nevertheless, the Court concluded that there was no infringement of the mentioned article.
To sum up the facts, in September 1995, Sir Bagniewski married his partner and, in February of 1997, they gave birth to a child for whom the plaintiff is designated as being the father on the civil registration. Years after that, the couple decided to divorce, and the claimant started to have some doubts about his paternity of the child, so he required an extrajudicial DNA test (fingerprints DNA test) with his own biological samples and the child’s samples. The result of the test revealed a lack of biological bond between the two donors of samples.
In this regard, the claimant solicited the prosecutor to present, in his name, a judicial action to challenge paternity. The national court ordered the realization of a DNA test which the mother and the child refused to submit to. In consequence, the court considered that Sir Bagniewski was not the father of the child. The child’s mother appealed this decision and the second instance court esteemed her request and rejected the challenge of the paternity by Sir Bagniewski, considering that the extrajudicial evidence of the DNA test could not be regarded as being conclusive in the context of the procedure.
The ECHR specified, after saying that the second instance court motivated its decision in a detailed and convincing way, that it took in consideration all the circumstances of this case and correctly balanced the interests at stake, that is to say the interests of the claimant and the ones of the child. Consequently, it concluded that the national court accurately exercised its power in order to evaluate the relevant facts. The Court observed that the national right does not foresee any measure to compel the child to submit to DNA test. According to the TEDH, this is a major element to balance the interests at stake.
The ECHR is aware that the appearance of DNA tests and the possibility for any claimant to take this test constitutes a progress at the judicial level because they allow to establish with certitude the existence or, in the opposite case, the lack of biological bounds between various individuals. That being said, it reminds that it previously established that the need to protect third parties might imply to exclude the possibility to compel them to take any medical test, including the DNA tests. This is even more accurate when, like is this very case, the third in question is a child with a legitimate legacy for a long time. In consequence, this Court does not see anything arbitrary nor disproportionate in the decision by the national court for giving more weight to the minor’s interests than the eventual interests of the applicant to obtain the verification of biological datas.
In this particular case, in the absence of any manifestation of the wish to verify his filiation by the child, the time during which he benefited from his civil status in a stable way, and the patrimonial consequences resulting of this kind of judicial action, work in favour of his interest to not be deprived of an already established filiation based of an eventual controversy about the biological reality.