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Date when decision was rendered: 30.4.1999 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1076; S98/1281 Reference to source KKO 1999:50. Decisions of the Supreme Court 1999 I January-June Avgöranden av Högsta domstolen 1999 I januari-juni Korkeimman oikeuden ratkaisuja 1999 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1999 Pages: pp. 360-367 Subject
right to liberty,
security of person,
respect for private life,
rights of the child,
children,
fair trial,
paternity,
Relevant legal provisions sections 1, 2, 3 and 8 of the Act on blood tests and other tests concerning hereditary characters; sections 26 and 30 of the Paternity Act; Chapter 31, section 16 of the Code of Judicial Procedure; section 6 of the Constitution Act = lag om vissa blodundersökningar och andra undersökningar rörande ärftliga egenskaper 1 §, 2 §, 3 §, 8 §; lag om faderskap 26 §, 30 §; rättegångsbalken 31 kapitel 16 §; regeringsformen 6 § = laki eräistä veri- ja muita periytyviä ominaisuuksia koskevista tutkimuksista 1 §, 2 §, 3 §, 8 §; isyyslaki 26 §, 30 §; oikeudenkäymiskaari 31 luku 16 §; hallitusmuoto 6 §. ECHR-5; ECHR-8; CRC-7; CRC-8 Abstract In a case concerning the establishment of paternity, the man suspected to be the father of the child had died before the case was instituted, and he was represented in the proceedings by his mother and two brothers.The court of first instance had ordered the relatives to deliver blood samples so that the suspected paternity could be investigated on the basis of a DNA-test.The decision was not subject to appeal.The relatives refused by referring to their constitutional right to liberty and security of person and to the fact that the order made by the court was without a foundation in law.In a case concerning the establishment of paternity, only the child, the mother, and the man who is party to the case may be ordered to deliver blood samples (sections 1 and 2 of the Act on blood tests). The court referred to the right of the child to know his or her parents and to preserve his or her identity and family relations as prescribed in Articles 7 and 8 of the CRC.It also referred to the Paternity Act, the purpose of which it is to investigate and to establish or annul a family relation between a child and a suspected father.According to the same Act, the court may on its own initiative collect all evidence which is necessary in order to decide the matter.In this case, the only means to obtain the necessary evidence was to examine the blood samples of the relatives.According to the court, the rights of the child, as defined both in national and international law, were more important than the arguments against delivering the blood samples. The relatives appealed to the Kouvola Court of Appeal which considered the case as an extraordinary appeal.The court referred to Articles 7 and 8 of the CRC, to the decision of the European Court of Human Rights in the Marckx case (judgment of 13 June 1979, Series A, No. 31) concerning the inheritance rights of a child born out of wedlock, and to the decision of the European Commission of Human Rights in the case of X v.Austria (Application No. 8287/78, decision of 13 December 1979), according to which obligating the defendant to a blood test in order to establish paternity was not against Articles 5 or 8-1 of the ECHR.The court noted that the right of the child to a fair trial was jeopardized if the court because of an outdated provision of law could not obtain all available evidence in the case.The breach of the relatives' right to personal integrity was smaller than the damage inflicted to the rights of the child in case the blood samples were not examined.The appeal was dismissed. The relatives took the case before the Supreme Court which assessed first whether the matter could be considered as an extraordinary appeal and answered the question in the affirmative.In the matter itself, the Supreme Court referred to Articles 5 and 8 of the ECHR as well as to section 6 of the Constitution Act concerning the right to liberty and security of person.According to section 6-3, no interference in personal integrity is allowed without grounds prescribed by Act of Parliament.The Act on blood tests contains an exhaustive list of persons who may be ordered to a blood examination against their will.The decision ordering the relatives of the suspected father to deliver blood samples against their will was without a foundation in law.Such an order could also not be based on the fact that during the proceedings the relatives represented the suspected father who had died. 24.10.2002 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 17.11.2003 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2829; S2002/324 Reference to source KKO 2003:107. Decisions of the Supreme Court 2003 II July - December Avgöranden av Högsta domstolen 2003 II juli - december Korkeimman oikeuden ratkaisuja 2003 II heinä - joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2004 Pages: 659-666 Subject
non-discrimination,
children,
paternity,
Relevant legal provisions Section 7-2 of the Act on the Implementation of the Paternity Act, section 6 of the Constitution Act = lag angående införande av lagen om faderskap 7 § 2 mom.; grundlagen 6 § = laki isyyslain voimaanpanosta 7 § 2 mom.; perustuslaki 6 §. ECHR-8; ECHR-14; CRC-7 Abstract A had been born out of wedlock in 1968.In 2000, A filed a paternity suit on the basis of the 1975 Paternity Act in order to establish that B was A's father.B had died in 1999.According to section 7-2 of the Act on the Implementation of the Paternity Act, a paternity suit in relation to a child who had been born out of wedlock before the entry into force of the Paternity Act (1 October 1976) had to be filed within five years from the entry into force of the Act.The suit could not be filed if the father was dead.A claimed, among other things, that section 7-2 of the Implementation Act was discriminatory.Persons who had been born out of wedlock after the entry into force of the Paternity Act could initiate proceeding without any time limit.A was thus treated differently from these persons because of her date of birth and thus her age.The Supreme Court considered the five-year transition period as reasonable.The transition period had been set on grounds of legal security.Presently, the transition period was even more important in view of legal security as the legislation in question had been in force for more than 25 years and all those covered by the transition provision had reached the age of majority some time ago.A and B had never lived together, and there was no genuine family tie or other close bond between the two.When filing the paternity suit A was 32 years old.The establishment of paternity was relevant mainly with respect to A's inheritance right.The Supreme Court made a general reference to the Convention on the Rights of the Child and the ECHR and their interpretation practice and found no support for the claim that the application of section 7-2 in this case would be in conflict with the two conventions.The Court also found that A had not without an acceptable reason been treated differently on grounds of her age.The Court concluded that section 7-2 was not in conflict with the prohibition of discrimination as prescribed in section 6 of the Constitution Act. See also the case of Grönmark v.Finland (application no. 17038/04, judgment of 6 July 2010) in which the European Court of Human Rights found a violation of Article 8 of the ECHR.A then filed with the Supreme Court a request for the reversal of judgment KKO 2003:107.In its decision (KKO 2015:97) of 22 December 2015, the Supreme Court noted that the new Paternity Act (11/2015) will enter into force 1 January 2016.Under the new Act, the possibility to file a paternity suit is no longer time-barred.The court's previous decision (2003:107) does not prevent A from filing a paternity suit under the new Act.Therefore, there was no need for a reversal of the judgment. 21.4.2004 / 23.12.2015 / RHANSKI
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Date when decision was rendered: 16.4.2010 Judicial body: Helsinki Administrative Court = Helsingfors förvaltningsdomstol = Helsingin hallinto-oikeus Reference: Report no. 10/0303/5 Reference to source Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta Date of publication: Subject
citizenship,
children,
paternity,
best interests of the child,
rights of the child,
Relevant legal provisions sections 4 and 32 of the Nationality Act = medborgarskapslag 4 § och 32 § = kansalaisuuslaki 4 § ja 32 §. CRC Abstract X was a Finnish citizen and married to a Kenyan citizen Y.Their child Z was born in Finland in 2007 and acquired Finnish citizenship because the father X was a Finnish citizen.In 2008, X's paternity was annulled by a court decision.According to the Nationality Act, if the husband's paternity has been annulled or if a claim which has resulted in his paternity being annulled has been brought before the child has reached the age of five years, the child loses the Finnish citizenship which he or she has acquired on the basis of his or her father's citizenship.A decision on this is based on the overall consideration of the child's situation.In 2009, the Finnish Immigration Service made a decision to the effect that Z should lose the Finnish citizenship.The Immigration Service based its decision on the facts that the mother Y had objected to any investigation of paternity and had also not taken any action in order for the child to acquire Kenyan citizenship in accordance with Kenyan law.Y claimed that she did not know the child's father and that the child could not acquire Kenyan citizenship without the investigation of paternity.The administrative court noted that having lost the Finnish citizenship, Z could under the circumstances become stateless.According to the Nationality Act, the provisions of the Act on the loss of citizenship must not be applied if, as a consequence of the application of the provisions, a person were to become stateless.The court also referred to the best interests of the child and to international obligations on the rights of the child which are binding on Finland.It concluded that Z must be regarded as a Finnish citizen, despite the annulment of X's paternity.The administrative court revoked the decision of the Immigration Service and returned the matter to the Immigration Service for a new consideration. 26.1.2011 / 26.1.2011 / RHANSKI
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Date when decision was rendered: 5.7.2013 Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus Reference: Report no. 2064; H13/1327 Reference to source HelHO 2013:4. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
paternity,
best interests of the child,
rights of the child,
Relevant legal provisions sections 51 and 52-1 of the Paternity Act; section 8 of the Act on Assisted Fertility Treatments = lag om faderskap 51 § och 52 § 1 mom.; lag om assisterad befruktning 8 § = isyyslaki 51 § ja 52 § 1 mom.; laki hedelmöityshoidoista 8 §. CRC-2; CRC-3: CRC-7 Abstract A surrogate mother in India had given birth to a child born from the gametes of a Finnish married couple.On the birth certificate issued by the relevant authority in India, the Finnish couple were named as the child's parents.In accordance with the Paternity Act, X asked the Helsinki court of appeal to confirm that the birth certificate is a decision on paternity and is recognized in Finland.According to the Paternity Act, the recognition of a decision on paternity issued in a foreign state may be refused, among other grounds, if it results in an outcome that is incompatible with the Finnish public policy.The Act on Assisted Fertility Treatments prohibits the provision of assisted fertility treatment if there is reason to believe that the child will be given up for adoption.On the basis of the provision, surrogacy is thus not legal in Finland. The court of appeal noted that although commercial surrogacy as such is legal in India, there is no legislation in force on surrogacy arrangements, which would explicitly regulate the legal status of the child and the rights and duties of the persons involved.The lack of specific legislation essentially increases the risk that the arrangement is not satisfactory from the point of view of the child or the parties involved.In the court's opinion, it was obvious that X and his spouse had used the surrogacy arrangement in India in order to circumvent the Finnish law.The court referred to Article 2 of the CRC, according to which states shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the activities of the child's parents.Therefore, the court found that in making a decision on the child's legal status, the actions and motives of X and his spouse were not of essential importance. In the court's opinion, the appropriateness of a decision on paternity issued in India and the commercial surrogacy arrangement preceding the decision were in many ways questionable from the perspective of the Finnish legal system.However, the court did not find anything that would indicate that the health of the surrogate mother or the child would have been in danger or that their human dignity would have been violated.Refusing the recognition would in this case lead into an unsustainable situation for the child, when the surrogate mother, her spouse and the Indian authorities all regarded X and his spouse as the child's parents.Besides all other negative consequences, the child would be stateless, which is something explicitly to be avoided under Article 7 of the CRC.Considering also Article 3 of the CRC, according to which in all actions concerning children undertaken by courts of law, the best interests of the child shall be a primary consideration, the court of appeal concluded that there was no reasonable cause to find the decision issued in India as being incompatible with the Finnish public policy as prescribed in the Paternity Act.The court confirmed that the birth certificate was a decision on paternity issued in a foreign state and recognized in Finland. 3.10.2014 / 3.10.2014 / RHANSKI
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Date when decision was rendered: 19.3.2014 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 603; S2012/374 Reference to source KKO 2014:14. Decisions of the Supreme Court 2014 January-June Avgörande av Högsta domstolen 2014 januari-juni Korkeimman oikeuden ratkaisuja 2014 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2014 Pages: 107-116 Subject
paternity,
respect for private life,
right to property,
equality,
Relevant legal provisions section 7-2 of the Act on the Implementation of the Paternity Act; sections 6, 10, 15 and 106 of the Constitution Act = lag angående införande av lagen om faderskap 7 § 2 mom.; grundlagen 6 §, 10 §, 15 § och 106 § = laki isyyslain voimaanpanosta 7 § 2 mom.; perustuslaki 6 §, 10 §, 15 § ja 106 §. ECHR-8; ECHRP-1-1 Abstract Twin sisters A and B had been born out of wedlock in 1959.They claimed that they had known since their childhood that C was their father and had believed that the paternity had been established by means of a child maintanance agreement which C had respected.In 2009, A and B filed a paternity suit and requested a DNA test.C objected to the confirmation of paternity.According to the transitional provisions of the Implementing Act of the Paternity Act, a paternity suit in relation to a child who had been born out of wedlock before the entry into force of the Paternity Act (1 October 1976) had to be filed within five years from the entry into force of the Act (i.e., before 1 October 1981).Both the court of first instance and the court of appeal dismissed the claim on the grounds that the proceedings had not been initiated within the statutory time-limit.Both courts found that applying the time-limit did not in this case violate the right to private life as guaranteed in the Constitution Act and the ECHR. The Supreme Court agreed with the lower courts.In its decision, the Supreme Court discussed at length the relevant case law of the European Court of Human Rights and referred also to its own decision in a precedent case (KKO 2012:11).The court noted that the assessment whether reasons favouring the granting of the right of appeal weigh heavier than the reasons speaking against it, must be made on a case-by-case basis and with an intent to reach a fair balance between the competing interests.Considering the statutory time-limit, the court found that A and B had had a real opportunity to have the paternity confirmed by a court within the time-limit and that the failure to do so was not due to reasons beyond their control.A and B had known the identity of their father long before the time-limit was imposed.They were 17 years old when the Paternity Act came into force and they reached the age of majority in 1977, which was more than four years before the time-limit expired.It would have been possible to have the paternity confirmed through a DNA test within the time-limit, because the mother and the putative father were both alive.In the court's view, the claim that A and B were not fully aware of the legislation on the establishment of paternity cannot as such be regarded as decisive. The Supreme Court acknowledged that a child has, save in exceptional cases, a right to know of his or her biological father and a right to at least once bring an action for judicial recognition of paternity.However, the court noted that no support can be found in the case law of the European Court of Human Rights for an interpretation that the child should have a right to freely choose the particular point in time when to file a paternity suit despite a statutory limitation period.The introduction of a time-limit for the institution of paternity proceedings may be justified by the desire to ensure legal certainty and finality in family relations.Therefore, the existence of a limitation period per se is not incompatible with the ECHR. The Supreme Court continued that the confirmation of paternity, as falling within the scope of the right to private life, may be in conflict with the right to property in cases where the putative father, in relying on the statutory time-limit, has made arrangements concerning his property.Also, the child requesting the establishment of paternity may have expectations concerning inheritance.With reference to the case law of the European Court of Human Rights, the Supreme Court noted that the right to private and family life (Article 8) does not require the recognition of inheritance rights, except when taken together with the prohibition of discrimination (Article 14).In this case, C had relied on the legal state of affairs and the statutory time-limit and had made arrangements in order to transfer the large family farm to his daughter and heir.The Supreme Court concluded that applying the time-limit did not in this case violate the private life of A and B. A and B had also claimed that restriction of their right to institute paternity proceedings amounted to discrimination in comparison with children born after the entry into force of the Paternity Act.The Supreme Court assessed whether there was reasonable justification for such a difference in treatment.It referred to the case law of the European Court of Human Rights as well as to its own case law and noted that the time-limit can no longer be applied in a rigid and inflexible manner.The assessment must be made on a case-by-case basis and considering, in particular, whether a child has had a real opportunity to clarify the identiy of his or her father and to have the paternity confirmed by a court.Thus construed, restriction of the time allowed to institute paternity proceedings is possible, even considering the prohibition of discrimination.The court concluded that applying the time-limit in this case did not put A and B in a different position without acceptable justification, due to their date of birth, to those children who were born out of wedlock after the entry of the force of the Paternity Act. 23.12.2015 / 1.2.2016 / RHANSKI
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Date when decision was rendered: 19.3.2014 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 602; S2010/522 Reference to source KKO 2014:13. Decisions of the Supreme Court 2014 January-June Avgörande av Högsta domstolen 2014 januari-juni Korkeimman oikeuden ratkaisuja 2014 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2014 Pages: 98-106 Subject
paternity,
respect for private life,
right to property,
Relevant legal provisions section 7-2 of the Act on the Implementation of the Paternity Act; sections 10, 15 and 106 of the Constitution Act = lag angående införande av lagen om faderskap 7 § 2 mom.; grundlagen 10 §, 15 § och 106 § = laki isyyslain voimaanpanosta 7 § 2 mom.; perustuslaki 10 §, 15 § ja 106 §. ECHR-8; ECHRP-1-1 Abstract X had been born out of wedlock in 1962.In 1982, X had learned from his mother that B was his father.After B's death in 2009, X filed a paternity suit on the basis of the 1975 Paternity Act in order to establish that B was his father.According to the transitional provisions of the Implementing Act of the Paternity Act, a paternity suit in relation to a child who had been born out of wedlock before the entry into force of the Paternity Act (1 October 1976) had to be filed within five years from the entry into force of the Act (i.e., before 1 October 1981).The suit could not be filed if the father was dead.The court of first instance dismissed X's claim on the grounds that the claim had been brought after the expiry of the five-year time-limit.The court of appeal found that considering his young age X had not had a real opportunity to file a paternity suit within the time-limit.However, the suit was not filed within a reasonable time. The Supreme Court agreed with the court of appeal in that it had not been reasonable to expect that X, due to his age at the time, could have ascertained the identity of his biological father and filed a paternity suit within the time-limit.The court also referred to the decision of the European Court of Human Rights in the case of Jäggi v.Switzerland (13 July 2006) and found that a mere passing of time did not in this case mean that X would have lost his right to ascertain the identity of this father by means of testing and to establish the relationship by means of a court decision.The Supreme Court also ruled that the death of the putative father can no longer form an independent and absolute obstacle for bringing a paternity claim, because today, paternity can be determined with certainty through DNA tests even after the man's death. The Supreme Court held that in cases where a child, due to circumstances beyond his or her control, cannot bring a paternity suit in court within the prescribed time, denying the right to institute proceedings requires that there are extremely weighty and factual counter-arguments pertaining to the interests of the putative father or other persons.The court continued that according to the principle established in the case law of the European Court of Human Rights, a child has, save in exceptional cases, a right to know of his or her biological father and a right to at least once bring an action for judicial recognition of paternity. The Supreme Court continued that the establishment of paternity, as falling within the ambit of the right to private life, may lead into a conflict with the right to property and possible arrangement made relying on the limitation period in the Implementing Act of the Paternity Act.B's estate consisted almost entirely of one half of the house where B and his family had lived.In 2003, B had made a will, naming one of his children as beneficiary.On the basis of the will and the Code of Inheritance, B's widow could continue to live in the family house.The Supreme Court held that when making a will, B had thus made arrangements in preparation for possible new claims to an inheritance as a result of the establishment of paternity.Although the establishment of B's paternity would provide X with an opportunity to present a claim to an inheritance, the interests of B's widow and children could not be deemed as weighty counter-arguments which would form sufficient grounds for denying X's right to bring a paternity suit. The Supreme Court concluded that the application of the time-limit, as prescribed in the Implementation Act of the Paternity Act, would in this case be in evident conflict with the right to privacy, as provided for in section 10 of the Constitution.Under section 106 of the Constitution, primacy shall in such a case be given to the provision in the Constitution.In 2009, it had been established through DNA tests what B was X's biological father with 99,8 per cent certainty.B's widow and children had not denied this.The Supreme Court concluded that it had been proven that B was X's father and established the paternity. 23.12.2015 / 1.2.2016 / RHANSKI
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Date when decision was rendered: 14.12.2015 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 2392; S2012/216 Reference to source KKO 2015:92. Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
paternity,
respect for private life,
right to property,
access to court,
fair trial,
Relevant legal provisions Paternity Act; sections 15, 21 and 106 of the Constitution Act = lag om faderskap; grundlagen 15 §, 21 § och 106 § = isyyslaki; perustuslaki 15 §, 21 § ja 106 §. ECHR-6; ECHR-8; ECHRP-1-1 Abstract X's parents A and B had adopted C, who had been born out of wedlock.When A and B had died, their estate had been distributed between X and C.When C died, unmarried and without children, his heirs were his stepsister from his mother's side Y and X, who would only receive the share C had inherited from his adoptive parents.X claimed that she was also C's stepsister because her father A had in fact been C's biological father.As C's stepsister she would be entitled to a larger share of the estate.X then brought an action against Y and asked the court to confirm her status as C's stepsister.The court of first instance and the court of appeal dismissed X's action. The Supreme Court considered the case on the basis of the Paternity Act, the Code of Inheritance and the procedure for the establishment of family relationships under the law of inheritance.The court found that establishing X's status as heir required the prior establishment of a relationship between C and his alleged biological father A following the procedure as prescribed in the Paternity Act.Neither A nor C had taken any action in order to establish the alleged paternity, and under the Paternity Act, X had no right of action.X's action should therefore be dismissed. The Supreme Court then considered whether dismissing X's action was in conflict with the Constitution Act or human rights provisions binding on Finland.The Supreme Court acknowledged that X was as such C's heir and her undisputed right of inheritance, as confirmed in the distribution of C's estate, falls within the scope of the right to property.However, X's claim for a larger share of C's estate was not based on legitimate expectations which have a sufficient basis in Finnish law and was therefore not protected by the right to property in the meaning of Protocol No. 1 to the ECHR and the case law of the European Court of Human Rights (Fabris v France, judgment of 7 February 2013, Reports of Judgments and Decisions 2013).The Supreme Court also found that under the circumstances X's claim could not be accommodated within the right to private life ans provided for in Article 8 of the ECHR.A person cannot derive from Article 8 a right to be recognised as the heir of a deceased person for inheritance purposes (Haas v the Netherlands, judgment of 13 January 2004, Reports of Judgments and Decisions 2004-I).Also, in the case of Menéndez García v Spain (decision of 5 May 2009), the European Court of Human Rights had declared the application manifestly ill-founded with regard to the right to private life, in a situation where the applicant had been refused her request to have her deceased father recognised as the son of a man she alleged was her deceased grandfather.Finally, the Supreme Court discussed the right of access to court in the light of the case law of the European Court of Human Rights (Menéndez García v Spain), and noted that states have a certain margin of appreciation in deciding whether to limit the group of persons with a right to bring an action to establish descent.The Supreme Court found there were weighty grounds for the legislative solution that the biological relationship between a father and his child is to be established solely within the procedure and the requirements as prescribed in the Paternity Act.This is in order to ensure legal certainty and to safeguard respect for the deceased and for the protection of their private life.Therefore, dismissing X's action did not violate her right of access to court or her right to a fair trial. 23.12.2015 / 23.12.2015 / RHANSKI
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Date when decision was rendered: 28.5.2010 Judicial body: Vaasa Court of Appeal = Vasa hovrätt = Vaasan hovioikeus Reference: Report no. 645; S08/1210 Reference to source VaaHO:2010:3. Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta Date of publication: Subject
paternity,
respect for private life,
equality,
rights of the child,
Relevant legal provisions section 7-2 of the Act on the Implementation of the Paternity Act; sections 6-2, 10 and 106 of the Constitution Act = lag angående införande av lagen om faderskap 7 § 2 mom.; grundlagen 6 § 2 mom, 10 § och 106 § = laki isyyslain voimaanpanosta 7 § 2 mom.; perustuslaki 6 § 2 mom., 10 § ja 106 §. ECHR-8; ECHR-14; CRC-7; CRC-8 Abstract X was born in 1970 and had been adopted in 1971.In 2005, X filed a paternity suit on the basis of the 1975 Paternity Act in order to establish that Y, who had died in 1998, was X's biological father.According to the transitional provisions of the Implementing Act of the Paternity Act, a paternity suit in relation to a child who has been born out of wedlock before the entry into force of the Paternity Act (1 October 1976) had to be filed within five years from the entry into force of the Act (i.e., before 1 October 1981).The court of first instance noted that the five-year time-limit was not absolute and exceptions could be made in certain cases.In addition to the Implementation Act, the court considered the case from the point of view of the relevant constitutional and human rights provisions on the prohibition of discrimination, the right of the child to know his or her parents and the right to respect for private and family life.Noting also that there had been no actual family bond or other relationship between X and Y, the court concluded that a strict application of the time-limit in this case was not unreasonable and dismissed the action. On X's appeal, the court of appeal first noted that when the five-year time-limit expired, X had been 11 years old.According to the law in force at the time, being a minor, X's right to be heard could have been exercised by the adoptive parents, who however had no interest in bringing an action for the confirmation of Y's alleged biological paternity.Only after having attained 15 years of age, X would have had an independent right to be heard, parallel to that of the adoptive parents.The court of appeal found that there had been legal reasons which had prevented X from initiating paternity proceedings within five years from the entry into force of the Paternity Act.A strict application of the time-limit in this case would thus be in evident conflict with Articles 8 and 14 of the ECHR and the prohibition of discrimination in section 6 of the Constitution Act.It would put X in a worse position than children born out of wedlock after the entry into force of the Paternity Act and children born out of wedlock before the entry into force of the Act who were old enough to initiate proceedings themselves in due time.In the opinion of the court, this worse position of a child under the age of 15 was not acceptable.Consequently, the court applied the provision on the time-limit to the effect that the time-limit should start at the earliest from June 1985 when X had turned 15.However, X had not initiated paternity proceedings until in 2005.Also, X had not presented any evidence to the claim that X had not known the identity of the alleged biological father until in the 2000s and that X's mental health problems had prevented any further clarification of the matter.The court of appeal concluded that it had not been shown that X would have lacked the necessary information in order to request the establishment of Y's alleged paternity or to clarify the matter within the five-year time-limit starting in 1985.The court therefore dismissed the action.The decision of the court of appeal is final.The Supreme Court did not grant leave to appeal in the case (decision no. 866 of 9 May 2012). 11.1.2016 / 11.1.2016 / RHANSKI
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Date when decision was rendered: 30.1.2012 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report no. 158; S2010/118 Reference to source KKO 2012:11. Decisions of the Supreme Court 2012 January-June Avgörande av Högsta domstolen 2012 januari-juni Korkeimman oikeuden ratkaisuja 2012 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2012 Pages: 74-101 Subject
paternity,
respect for private life,
equality,
Relevant legal provisions section 7-2 of the Act on the Implementation of the Paternity Act; sections 6, 10 and 106 of the Constitution Act = lag angående införande av lagen om faderskap 7 § 2 mom.; grundlagen 6 §, 10 § och 106 § = laki isyyslain voimaanpanosta 7 § 2 mom.; perustuslaki 6 §, 10 § ja 106 §. ECHR-8: CRC-7 Abstract A was born out of wedlock in 1961.He had found out as late as in 2007 that B was his biological father.B agreed to a DNA test, which showed with 99.9 per cent certainty that B was A's biological father.However, B did not acknowledge his paternity.In order to confirm the paternity, A filed a paternity suit under the 1975 Paternity Act.B objected, on the grounds that the statutory time-limit for filing a paternity suit had expired.According to the transitional provisions of the Implementing Act of the Paternity Act, a paternity suit in relation to a child who had been born out of wedlock before the entry into force of the Paternity Act (1 October 1976) had to be filed within five years from the entry into force of the Paternity Act (i.e., before 1 October 1981). In its decision, the Supreme Court referred to the decisions of the European Court of Human Rights in equivalent cases concerning Finland (Backlund v.Finland and Grönmark v.Finland, judgments of 6 July 2010).The Supreme Court noted, among other things, that a strict application of restrictions of the right to institute paternity proceedins may lead to a violation of the right to respect for private life if such restrictions in practice prevent any clarification as to a person's biological father and the confirmation of the paternity.An assessment must be made whether reasons favouring the granting of the right of appeal weigh heavier than the reasons speaking against it.Knowing one's biological origin and its judicial confirmation are important parts of a person's identity and fall to the core areas of protection of private life.A child has, except in special circumstances, a right to know who his or her biological father is and to have the case concerning confirmation of paternity examined by a court at least once.In Finland, a child's legal relationship to a father can be confirmed, according to the Paternity Act, only by acknowledgement or by a court decision.Any legal effects, based on other legislation, cannot be restricted in the context of the confirmation of the paternity; if necessary, they are to be decided separately.Imposing restrictions in the current case of A was in the court's view not justified because the expressely mentioned main aim of the Paternity Act is the realisation of the legal equality of children.The constitutional principles of equality before the law and non-discrimination must also be taken into account.In the current case, because B had refused to acknowledge his paternity, A had no other alternative for the confirmation of the paternity but filing a paternity suit before a court.The Supreme Court found that A had not had a real opportunity to institute paternity proceedings within the statutory time-limit or any other alternative means of having the paternity confirmed.During the process, B had not brought forth any grounds relating to his rights or those of his family to support that A should not be granted the possibility to institute paternity proceedings.In the court's opinion, the fact that B had relied on the legal state of affairs and the statutory time-limit could not as such be regarded as sufficient grounds for denying A's right of action.The Supreme Court concluded that dismissing A's claim as time-barred would be in evident conflict with the right to respect for private life as provided for in the Constitution Act.Therefore, the time-limit should not be applied in this case.The court also held it had been shown that B was A's father. Two concurring justices of the Supreme Court left the time-limit inapplicable, for the purpose of respecting the right to know one's biological origin and the right to private life, but held that this should not lead to producing legal effects of paternity.One dissenting justice would have dismissed the claim.He agreed that A had a right to know his biological origin but held that this request had already been fulfilled by means of the DNA test, which showed with 99.9 per cent certainty that B was A's father, and a court decision was in fact not necessary. 1.2.2016 / 1.2.2016 / RHANSKI
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