Mandet v. France: Child’s “duty” to know its origins prevails over its wish to remain in the dark

By Evelyn Merckx, academic assistant and doctoral researcher at the Human Rights Centre (Ghent University)

The European Court of Human Rights has delivered many judgments about a child’s right to know its origins and whether this right can prevail over the refusal of the anonymous biological parent. In Mandet v. France, the opposite scenario took place. A presumed biological father wanted to have his paternity recognised vis-à-vis a child who already had a legal and social father and asked the judges not to change his established family ties. However, the domestic courts decided that it was in the son’s best interests that he knew the truth about his origins.

Relevant facts

Mr. and Mrs. Mandet married in 1986 and divorced ten years later. Shortly afterwards, Aloïs was born bearing his mother’s surname “Guillerm”. The following year, Mr. Mandet recognised the child and in 2003 he remarried Mrs. Mandet, hereby legitimising Aloïs. From then on, Aloïs bore the surname Mandet along with his siblings. In 2005, the paternity of Mr. Mandet was challenged by Mr. Glouzmann. He claimed to be the biological father of Aloïs and to have raised him from the day he was born until 2001. Mr. and Mrs. Mandet moved with Aloïs to Dubai following the start of the procedure. The domestic court ordered genetic testing, but only Mr. Glouzmann complied with this order. Aloïs wrote letters to the judges, expressing the wish not to change his surname and to retain his legal parent-child relationship with Mr. Mandet.

Finally, the domestic court held that the child had been born more than three hundred days after Mr. and Mrs. Mandet’s separation. The refusal of Mr. and Mrs. Mandet to take Aloïs to the expert corroborated the assumption that the parents knew the paternity of Mr. Mandet to be deceitful. The domestic court concluded that Mr. Glouzmann had proved the existence of an intimate relationship with Mrs. Mandet at the time of the conception of the child. Subsequently, the domestic court set aside the recognition of paternity of Mr. Mandet, held that the son was to resume use of his mother’s surname and that Mr. Glouzmann was his father. He was awarded contact rights but the exclusive parental authority remained with Mrs. Mandet.

Judgment

The ECtHR acknowledges that there has been an interference in the private and family life of Aloïs, but that it had the aim to protect the rights and freedoms of Mr. Glouzmann. Professor Letteron highlights the peculiarity of the argument of the domestic authorities that it also had the aim to protect the rights of Aloïs (to know his origins) even though in Odièvre v. France, the ECtHR did not find anonymous birth in violation of art. 8 ECHR. The Court solves this problem by stating that Aloïs is the applicant and cannot be invoked as the protected party. The Court grants the national authorities a broad margin of appreciation as they are better placed to examine the case and because of the lack of consensus between Member States. Furthermore, the facts include the difficult task of balancing competing interests. Normally the margin is restricted when important aspects of the existence or identity of a person are at stake. Yet, by referring to its established case law in Ahrens v. Germany, the Court maintains that the margin is wider in respect of the determination of a child’s legal status, than regarding questions of contact and information rights. The referral to Ahrens by the Court can be questionable, because in this case, contact rights were established and the complaint of the child also concerned them. Even so, this citation can probably be explained by the fact that the established contact rights were presumed to be limited, namely twice a year for fifteen consecutive days.

Furthermore, the Court analyses whether the domestic courts struck a fair balance between the conflicting interests and stresses that the interests of the child should prevail. The Court ascertains that the domestic courts tried to include the child in the decision-making process. The guardian ad litem appointed to watch over the best interests of the child could not fulfil her tasks due to the move abroad of the applicants. Furthermore, the child had made his wishes known through letters to the domestic courts but had not asked to be heard. The motivation of the domestic courts’ judgments clarify that the interests of the child had been placed at the heart of their reasoning. Herein, it was concluded that the interests of the son indicated that he should know the truth about his origins and that his interests simply did not lie where the applicant saw them. Finally, the Court decides that family life between Mr. and Mrs. Mandet and Aloïs was not hindered due to the fact that Mrs. Mandet maintained exclusive parental authority.

Child’s best interest to know its origins becomes a duty

The crucial aspect in this case is the analysis of the concept of the best interests of the child. The outcome of a case can differ greatly according to which interpretation is being administered. The advantage of the determination of the best interests of the child is that it enables a thorough case-by-case appreciation of delicate facts. However, dissenting judge Nuβberger stresses that it can be used to promote other interests. She states that the concept should be interpreted subjectively, by recognising the vital importance for the child to have his legal filiation correspond to an affective bond. She claims that the domestic courts erred by defining the interests of the child objectively in an abstract and generalised manner. The views of judge Nuβberger can be partly concurred, because the domestic courts’ approach doesn’t leave room for discussion. Yet, by defining their approach as ‘objective’, this could wrongly leave the impression that the definition of the best interest of the child in this case was based on scientific research. It is arguable that the generalised and abstract interpretation of the child’s interests remained a subjective opinion, namely that of the domestic judge. Actually, J. Zermatten prefers a more uniform and scientific (objective) approach of the best interest-concept.

Judge Nuβberger declares that the right to know one’s origins does not result in an obligation, but encompasses the right to remain ignorant. Moreover, the measures that were taken do not establish the truth as genetic testing was not carried out. As it can be agreed that it is not feasible to force a child to undergo genetic testing, the only possible solution is to give an adolescent child the free choice to discover the truth. Relying on this argumentation, Judge Nuβberger argues that the interests of Mr. Glouzmann should not prevail over the interests of the child, as he only started a procedure after he had not seen his child for two years.

Measure against parental alienation and child abduction?

It is obvious that the present case concerns the difficult balancing of competing interests. In the past, courts have often ignored the adverse effects of parental alienation not only on the victim, but also on the child itself when it grows older and realises the harm done. In this regard, it is possible that it can be in the best interests of the child to be forced to acknowledge another parent. The judgments of the French domestic courts can be a strong signal towards parents who do not recognise the rights of another parent who also established a bond with a child, be it biological or social. These parents tend to use the best interests of the child and their right to be heard to achieve parental alienation. However, the French judgments did not rectify this problem. It remains unclear whether Mr. Glouzmann is in fact Aloïs’ biological father and due to the absence of effective enforcement measures, Aloïs’ majority and residence in Dubai, it is highly probable that Mr. Glouzmann will never be able to contact Aloïs.

Considering the ineffectiveness of the judgment to combat parental alienation in this case, it also has a lot of adverse consequences upon the legal status of Aloïs. Probably Aloïs acknowledges that Mr. Mandet might not be his biological father but chooses not to give weight to this. The right of the child to know the truth was primarily invoked to justify the genetic testing order. The ensuing judgment should still be motivated in the interests of the child. On the one hand it is stated that it is in his best interests to know his origins, which is rather passive. On the other hand, the judgment connects active consequences to this interpretation without actually asserting whether Mr. Glouzmann is his biological father. Aloïs has to change his name and can no longer inherit from Mr. Mandet. Twice a year he was ordered to reside with his new father for fifteen days, which is a long period to stay with someone you hardly remember.

The approach of the domestic courts highlights the problematic nature of the concept of the best interests of the child when it is not duly motivated and how it can adopt paternalistic dimensions. The courts should have motivated why these measures where in the child’s best interests and what their impact could be on the child, because they do not directly correspond with the interest to know one’s origins. This is even more so if the child in question is of sound mind and judgment and is able to define his own best interests. It is also very ambiguous that between Member States and even in various courts of the same Member State, the interests of the child in similar cases can be defined completely differently. This can be illustrated through the comparison of the Ahrens-judgment and the present judgment. Contrary to the latter case, in the first case the guardian ad litem had deemed it to be in the best interests of the child to maintain his family bond. The approach of the ECtHR can have problematic effects, as it allows a Member State to use its margin of appreciation to define the best interests of a child without applying this standard definition to the specific, subjective circumstances in the case (such as the opinion of the child). Either way, there should be more psychological research into the best interests of the child to make a more uniform approach possible concerning what is generally speaking in the best interests of the child, but with the ability to test this general outcome to the various special circumstances in the case.

3 thoughts on “Mandet v. France: Child’s “duty” to know its origins prevails over its wish to remain in the dark

  1. Thank you for this interesting commentary on this case. I agree with you that an uniform approach would be very important regarding the margin of appreciation the court leaves to the Member States. Further, you call for more (psychological) research on the best interests of the child (BIC) to make this possible. There has been done some research in the last couple of years on how to assess and determine the child’s best interests. In 2006 a BIC-model and a BIC-method has been developed (by Kalverboer & Zijlstra) which can be applied as a tool in decision-making procedures in order to assess and determine the ‘best interests of the child’ in an individual case. It is found that this method is in line with the United Nations Committee on the Rights of the Child General Comment No. 14 on the ‘Best Interests of the Child’.
    See (among others):
    – this dissertation: http://www.rug.nl/research/portal/publications/in-the-best-interest-of-the-child(ebe11fbb-b320-40cc-a6a0-313bffa0ff14).html#
    – this book (inaugural lecture in Dutch as well as in English): http://www.swpbook.com/1760#.VrMpxNUrK70
    – this article (in Dutch): http://www.rug.nl/research/portal/publications/general-comment-nummer-14-in-vreemdelingenprocedures(042325cb-df8d-4ff9-a425-3910ee2f2cfe).html
    – this article (in English): http://link.springer.com/article/10.1007%2Fs12187-013-9225-3

    and for the United Nations Committee on the Rights of the Child General Comment No. 14 on the ‘Best Interests of the Child’: http://www2.ohchr.org/English/bodies/crc/docs/GC/CRC_C_GC_14_ENG.pdf

  2. Thank you very much for your reply. Even though these publications primarily concern migration law, I think a lot of the findings can also be applied to family law matters. Hopefully this method will trickle down in the jurisprudence of domestic (lower) courts. Probably awareness needs to be raised concerning its existence.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s