Supreme Court: cooperation in DNA test to establish biological paternity mandatory in principle
A child can request the cooperation of his presumed biological father with a DNA test in order to definitively establish paternity. In principle, the presumed biological father must cooperate in this. It is only possible to deviate from this under exceptional circumstances. The Supreme Court ruled that today.
The case
In this case, a 53-year-old man (hereinafter: the man) has repeatedly requested his presumed biological father to have DNA taken to investigate whether the latter is actually his biological father. The presumed biological father, who had a relationship with the man's mother prior to the man's birth, refuses to cooperate.
The rulings of the court and the court of appeal
The court previously ruled that the presumed biological father must cooperate with DNA testing because the interest of a child to know from whom it descends outweighs the interest of the father to keep it hidden. In doing so, the court took into account that the violation of the physical integrity of the presumed father, which is required for a DNA test, is very minor (reduction of buccal mucosa).
On appeal, the Court of Appeal came to a different conclusion. The Court of Appeal has ruled that the basic principle is that the interest of the child to know who his biological parents are takes precedence, but that an exception must be made in this case. The Court of Appeal motivated this judgment by pointing to the advanced age of the presumed biological father, which means that cooperation in obtaining certainty about the biological paternity is burdensome for him, and that this cooperation affects his well-being and health. The court also considered it important that the man did not need certainty about biological paternity with a view to possible medical (hereditary) disorders and that the man also did not want to establish family contact. The court therefore rejected the man's claim to cooperate in DNA testing by his presumed biological father. The man appealed in cassation to the Supreme Court.
The judgment of the Supreme Court
The Supreme Court stated in its ruling that this concerns two opposing fundamental rights: on the one hand the right of a child to know who it is from, and on the other hand the right of the parent to keep this hidden and not to involuntarily undergo DNA testing. The Supreme Court ruled that the Court of Appeal correctly assumed that the right of the child takes precedence over that of the presumed biological parent. The reasons stated by the Court of Appeal for making an exception to this in this case are insufficient in the opinion of the Supreme Court. The Supreme Court points out that information about one's own descent is primarily important in order to be able to form one's own identity and personality.
The Supreme Court has referred the case to another court to reassess whether the suspected biological father should cooperate in the requested DNA test.
Search result - view documentECLI:NL:HR:2022:349
Body
High Council
Date of judgment
11-03-2022
Date of publication
11-03-2022
Case number
20/02857
Formal Relationships
Conclusion: ECLI:NL:PHR:2021:841 , Followed
In cassation on : ECLI:NL:GHAMS:2020:1769 , (Partial) destruction with revocation
Jurisdictions
Person-and familyright
Special characteristics
cassation
Content indication
Person-and familyright. Right to information about one's own descent as part of the right to protection of private life (Art. 8 ECHR); tort (art. 6:162 BW). Child's constitutional right to know who his biological father is clashing with the presumed biological father's constitutional right to keep parentage secret and not to undergo DNA testing involuntarily. Balancing of interests based on the principle that the best interests of the child prevail; has the court deviated from this on sufficient grounds?
Legal References
Constitution 1
Locations
Rechtspraak.nl
NJB 2022/694
PFR-Updates.nl 2022-0064
GZR-Updates.nl 2022-0077
Enhanced pronunciation
Statement
SUPREME COURT OF THE NETHERLANDS
CIVIL CHAMBER
Number 20/02857
Date March 11, 2022
JUDGMENT
In the case of
[plaintiff] ,
residing at [place of residence] ,
APPLICANT to cassation,
hereinafter: [claimant] ,
Attorney: HJW Alt,
against
[defendant] ,
residing at [residence] ,
DEFENDANT in cassation,
hereinafter: [defendant] ,
lawyer: K. Teuben.
1. Process
For the course of the proceedings in factual instances, the Supreme Court refers to:
the judgment in the case C/13/635651 / HA ZA 17-971 of the Amsterdam District Court of 15 August 2018;
the judgment in case 200.246.902/01 of the Amsterdam Court of Appeal of 16 June 2020.
The claimant has appealed against the judgment of the Court of Appeal.
[Defendant] filed a statement of objection.
The case has been explained to the parties by their lawyers.
The Opinion of Advocate General P. Vlas seeks to set aside the contested judgment and to settle the case by the Supreme Court as proposed in the Opinion under no. 3.26. Defendant's attorney responded to that statement in writing.
2Principles and facts
2.1
The following can be assumed in cassation.
(i) [claimant] was born in [date of birth] 1968.
(ii) In 1967 [defendant] had a relationship for some time with [claimant]'s mother (hereinafter: the mother).
(iii) The mother was married in March 1969 to a man (hereinafter: the legal father) who is not the biological father of [claimant].
(iv) [claimant] has repeatedly requested [respondent] to have DNA taken to investigate whether [respondent] is his biological father. [Defendant] did not cooperate in this regard.
2.2
[claimant] claims in these proceedings that [defendant] be ordered to cooperate in having DNA taken. [claimant] based this on the fact that [defendant] is acting unlawfully towards him by not cooperating with a DNA test and that the fundamental right of [claimant] to get to know his family outweighs the interest of [defendant] not to cooperate. The court allowed the claim.
2.3
The court overturned the trial court's decision and dismissed the claim. To this end, the court has, in summary, considered the following.
It is sufficiently plausible that [defendant] may be the progenitor of [plaintiff]. (para. 3.6)
The general personality right underlying fundamental rights such as the right to respect for private life also includes the right to know from which parents one is descended. However, this right is not absolute. It has to give way to the rights and freedoms of others, such as the equally fundamental right of the potential father to conceal the descent, which is inherent in the right to respect for his private life, if this is more important in the given case. A balancing of interests will therefore have to take place. In principle, the best interests of the child should prevail. In addition to the vital importance of knowing from which parents one descends for the child, this principle is justified by the fact that the natural parent generally bears joint responsibility for the existence of the child. However, the other circumstances of the case may mean that in the specific case the interest of the parent, in this case [defendant] as the presumed biological father, still outweighs. (para. 3.8)
In this case, the interests of [claimant] do not outweigh the interests of [respondent]. [claimant] has known for more than forty years that [defendant] is his biological father and had no doubts about this himself. Its history has therefore not been unclear to [plaintiff]. According to his own statements, [claimant] expects and does not want anything from [defendant]. Judicial determination of paternity, now that [claimant] has been recognized by the legal father, is not possible and is not intended by [claimant]. Furthermore, having contact with [defendant] is not something that [plaintiff] pursues, according to his assertions, and future contact between them is also not in the line of expectation. As a result, information about any mental or physical disorders will not be obtained automatically, leaving aside the fact that [defendant] has contradicted that the results of the DNA test may be used to obtain knowledge about possible genetic predispositions for one thing or another. The interest of [claimant] therefore lies in particular in removing the uncertainty created by [defendant] by his denial of his origin. Insofar as [claimant] furthermore wishes to have contact with relatives of [defendant], he has already taken steps to realize this and has made contact with his son(s) and it would even be possible in consultation with them to establish a blood relationship between (one of) them. and let him determine himself. The interest of [claimant] therefore lies in particular in removing the uncertainty created by [defendant] by his denial of his origin. Insofar as [claimant] furthermore wishes to have contact with relatives of [defendant], he has already taken steps to realize this and has made contact with his son(s) and it would even be possible in consultation with them to establish a blood relationship between (one of) them. and let him determine himself. The interest of [claimant] therefore lies in particular in removing the uncertainty created by [defendant] by his denial of his origin. Insofar as [claimant] furthermore wishes to have contact with relatives of [defendant], he has already taken steps to realize this and has made contact with his son(s) and it would even be possible in consultation with them to establish a blood relationship between (one of) them. and let him determine himself.
On the other hand, [defendant] is now elderly (almost 80 years) and that the current situation is particularly stressful for him and puts a lot of pressure on him. [Defendant] is clear in his position that he wants to be left alone by [Plaintiff]. The interference of [claimant] in his personal life resulted in [respondent] suffering from a reactive depressive disorder and that he had to turn to a psychologist for assistance. [defendant] has an interest in a peaceful old age, while [plaintiff] – despite the knowledge he had about [defendant] – left the situation as it was for years, as a result of which the age of [defendant] and his (mental) ) put health in the balance. Because of the major repercussions that the present situation has both physically and mentally on [defendant], his interest in preventing (further) interference in his private life must now outweigh [the plaintiff's] interest. The court ignores the argument of [claimant] that he wants to refute [defendant]'s denial that he is his originator because he does not want to be known as a liar or fraudster. Except that [claimant] himself, despite all resistance from [defendant], continued to approach the environment of [defendant] and made contact with various people stating that he is the son of [defendant], this does not concern an interest that is of such importance that the balancing of interests is in favor of [plaintiff]. The same applies to the extent that [plaintiff] invokes psychological complaints. Although the general practitioner states in a statement submitted by [claimant] that, in his opinion, the complaints experienced by [claimant] are the result of an identity disorder due to the denial of the causative agent by [respondent], but such a conclusion does not follow from the also by [respondent]. Plaintiff] a statement submitted by a psychologist. It follows from this statement, among other things, that [plaintiff]'s reason for seeking his father has a medical aspect (knowledge of his biological background) and a social aspect (contact). Both aspects have been discussed here and will not be resolved if the claim is allowed. (para. 3.11) It follows from this statement, among other things, that [plaintiff]'s reason for seeking his father has a medical aspect (knowledge of his biological background) and a social aspect (contact). Both aspects have been discussed here and will not be resolved if the claim is allowed. (para. 3.11) It follows from this statement, among other things, that [plaintiff]'s reason for seeking his father has a medical aspect (knowledge of his biological background) and a social aspect (contact). Both aspects have been discussed here and will not be resolved if the claim is allowed. (para. 3.11)
In view of the foregoing, the interest of [defendant] in preventing interference with his private life and well-being, and thus his right to respect for his private life, prevails over the interest of [plaintiff] to know with absolute certainty who is responsible for him. conceived and his associated well-being. For this reason, it cannot be said that [defendant], by not wanting to cooperate in a DNA test, is acting towards [claimant] contrary to what is customary in society under unwritten law. There is no question of an unlawful act. (para. 3.12)
3Assessment of the product
3.1.1
Part 2.1 of the plea argues, among other things, that it follows from the case law of the ECtHR and the Supreme Court that in the event of conflict between the right to information about one's own descent and the right to privacy of the (presumed) father, the first-mentioned right takes precedence. This also applies in the case where the requested cooperation in obtaining information about one's own parentage consists in cooperation with DNA testing, according to the section. The part complains that what the Court of Appeal in para. Although 3.8 has considered corresponds with that legal doctrine, the application that the Court of Appeal has given to it in the following considerations is contrary to that legal doctrine and is also insufficiently comprehensible or inadequately motivated.
3.1.2
The right to information about one's own (biological) descent is a fundamental right that is protected by international human rights treaties, including Art. 8 of the European Convention on Human Rights (hereinafter: ECHR), as part of the right to privacy 1 . The possibility to obtain information about one's own descent is important for forming and developing one's own identity and personality. 2 The importance of protecting this right does not diminish, but rather increases with age. 3
3.1.3
The right of a person to know who he is descended from is the right of the potential parent to conceal the parentage relationship, as well as the right of a person not to be subjected to a DNA test against his will. Those rights are also fundamental rights enshrined in the right to the protection of private life and as such are also protected by Art. 8 ECHR. 4 If the right of a person to know from whom he is descended conflicts with the right of the possible parent to conceal it or not to cooperate in a DNA test, according to the case law of the ECtHR, by means of a balancing of interests determines which of these rights prevails, whereby the Member States have a margin of appreciationdue. 5
3.1.4
With regard to the mutual hierarchy between, on the one hand, the right of an adult child to know by whom it was conceived and, on the other, the mother's right to conceal this from her child, the Supreme Court ruled in its judgment of 15 April 1994 that the right of the child prevails. 6 In that judgment, it was considered that, in addition to the vital importance of that right for the child, that priority is justified by the fact that the mother generally bears joint responsibility for the existence of that child. 7This consideration is equally valid in the relationship between a child and a person who is likely to be the biological father of the child. Therefore, the right of the child to obtain information about its own biological parentage must also take precedence in that relationship, even if this information must be obtained by means of a DNA test to be taken from the presumed biological father. The – relatively minor – infringement of a DNA test on the physical integrity of the presumed biological father is justified in such a case by the overriding interest of the child in knowing who his biological father is.
3.1.5
After the Court of Appeal correctly (in ground 3.8) had taken as the starting point that the best interests of the child should prevail, it subsequently ruled (in ground 3.11-3.12) that in this case the interest of [claimant] does not outweigh the interests of [defendant]. The circumstances taken into account by the Court of Appeal for that purpose mean that [claimant] does not have a concrete interest in obtaining certainty about the paternity of [defendant], such as obtaining knowledge about hereditary disorders or establishing family contact, and that, partly in view of the advanced age of [defendant], cooperating in obtaining that security is burdensome for him and the accompanying interference in his private life results in an impairment of his well-being and health. By arriving at the conclusion on the basis of these circumstances that the interest of [claimant] does not outweigh that of [defendant], the Court of Appeal departed on insufficient grounds from the principle that the interest of the child prevails over that of the presumed child. biological father. The Court of Appeal failed to recognize that the interest in obtaining information about one's own descent lies in the first place in being able to form and develop one's own identity and personality (see above in 3.1.2) and that this interest as such takes precedence. above the interest of the presumed biological father not to divulge this information, even without the child having a concrete interest in doing so, such as the interest in obtaining information about hereditary disorders or the interest in establishing family contact.
The complaints therefore succeed.
3.2
The other complaints of the product do not require treatment.
4Decision
The high Council:
- annuls the judgment of the Amsterdam Court of Appeal of 16 June 2020;
- refers the case to the Court of Appeal in The Hague for further consideration and decision;
- orders [defendant] to pay the costs of the proceedings in cassation, up to this judgment estimated on the part of [claimant] at € 528.14 in disbursements and € 2,600 for salary, plus the statutory interest on these costs if [defendant] has not paid this within fourteen days from today.
This judgment was delivered by the President G. de Groot as chairman and the judges CH Sieburgh, HM Wattendorff, FJP Lock and FR Salomons, and pronounced in public by the judge HM Wattendorff on 11 March 2022 .
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