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Family Law

The leading authority on all aspects of family law

28 AUG 2007


(European Court of Human Rights; 17 July 2007)

The child and the mother brought paternity proceedings against the man. Blood tests established that the man was 'highly likely' to be the child's father. The man subsequently failed to submit to DNA testing and frequently failed to attend hearings. Eventually, after over 7 years, a final order was made identifying the man as the child's father, and awarding maintenance and costs. The mother and child complained that there had been a breach of Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, in that the length of proceedings had been unreasonable, and that Art 8 on the right to respect for family life had also been breached.

A chronic backlog of cases was not a valid explanation for excessive delay, and the repeated re-examination of a single case following remittal might in itself disclose a serious deficiency in a state's judicial system. In this case there had been a significant period of judicial inactivity. The Serbian courts could have applied the relevant rules on the burden of proof, drawing inferences and reaching conclusions based on the man having obstructed the establishment of the relevant facts. In addition to the breach of Art 6(1) there had been a breach of Art 8, in that the child had been left in a state of prolonged uncertainty concerning her identity. The lack of any procedural measure to compel the man to comply with a court order for DNA testing was only proportionate if an alternative means was provided to enable an independent authority to determine the paternity speedily.

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