Lapse of a child’s right to bring an action challenging paternity
Right to personal identity
Right to know one’s parents
Restriction of a fundamental right
RULING Nº 609/07
11 of December of 2007
Deadlines for bringing an action to disprove paternity can only be accepted if they do not disproportionately restrict the main fundamental rights to personal identity and development of personality and the right to found a family.
The question of the constitutionality of the time-limit for initiating an action to establish paternity is under increasing debate. The Constitutional Court has already dealt with this constitutionality issue on several occasions, albeit in connection with the time-limits for commencing actions to establish paternity. The main grounds set out for these decisions have been based on the idea that the provisions in question flow from a balance among several contradictory rights or interests, leading to an acceptable limitation on, rather than a restriction of, the exercise of the applicant's right to personal identity.
The argument may be different in the case of deadlines for bringing an action to disprove paternity because some of the legal situations challenged in such case may have been established a long time previously, thus potentially heightening the need to defend the stability and certainty of the law.
The inclusion in the Constitution of a fundamental right to knowledge and recognition of maternity and paternity as one dimension of the right to personal identity secured under Article 26.1, must be considered as an effective enshrinement of this right.
It is nevertheless accepted that other values, such as those arising from the stability and certainty of the law, may have to be taken into consideration in weighing up the interests at issue, thus overriding the evidence of biological truth.
The question is whether, from the constitutional angle, the rules on the lapse of the right to establish paternity are justified by the need to balance divergent interests, describing them as restrictive and consequently liable to be deemed constitutionally legitimate in the light of the principle of proportionality.
The provisions of Article 1842.2.c of the Civil Code establish the principle of the lapse of the right of a child who has initiated an action to disprove paternity and who was born before his or her mother's marriage. In line with this principle, the child must bring the action within one year from the date of his or her majority or emancipation or, subsequently, within one year from the date on which (s)he has learnt of the circumstances suggesting that (s)he was not his/her mother's husband's child.
The decision complained of ruled that this legal provision was unconstitutional on the grounds that the deadline set by the law for bringing the action is irrelevant in the light of biological truth.
In connection with an action brought by a mother and her husband to disprove paternity, the setting of short deadlines has so far been positively interpreted as protecting the child's interest not to be at an indefinite risk of preclusion of the legal presumption of paternity.
As regards action to disprove paternity as brought by a child, the one-year deadline laid down in Article 1842.1.c is evidently insufficient to appropriately reflect the facts and facilitate an action to disprove the putative paternity, particularly in such cases as the instant one where the circumstances proving that the mother's husband is not the biological father came to light around the date of the child's maturity and independence.
Inasmuch as the provisions of Article 1842.1.c set a one-year deadline from the date on which a child who is of full age or emancipated was apprised of circumstances suggesting that (s)he is not the child of his/her mother's husband, enabling him/her to exercise the right to challenge the putative paternity of the mother's husband, the Constitutional Court concluded that it was unconstitutional in that it violated the rights to personal identity and development of personality and the right to found a family, and failed to fulfil the conditions for unambiguous compliance with the principle of proportionality.
The judgment was adopted, with one vote against, ruling that the decision was based on insufficient grounds for legitimacy, and that furthermore the Constitutional Court had no jurisdiction for the point at issue since it was not responsible for sanctioning political choices in the legislative field.
Consideration of comparative law shows that setting time and other limits on the right to attempt to disprove paternity is not an isolated legislative measure (cf. the Spanish Civil Code and corresponding French, Swiss and German legislation). The European Court of Human Rights has also pronounced on legal time-limits on actions to disclaim putative paternity on the part of the mother's husband. It has emerged from the Court's various decisions that the setting of legal deadlines is not in itself contrary to the European Convention on Human Rights, notably Article 8 ECHR. The main thing is that the deadline set should effectively enable holders of the right in question to have recourse to a given procedural facility in order to counter the legal presumption of paternity in order to give precedence to biological truth.
For Portuguese constitutional case-law on action to establish paternity and action to disprove paternity, see judgment [614/05] and the supplementary information provided.