Grandparents challenge legal provision on paternity

Two grandparents yesterday filed a constitutional application asking the First Hall of the Civil Court to declare that two provisions of the Civil Code concerning the denial of paternity were in violation of their fundamental human rights.

The grandparents said they had filed a court case arguing that a child born to the widow of their late son was not their grandchild.

Section 77 of the Civil Code provided for denial of paternity in certain cases and it was therefore clear that there was no absolute presumption that the husband of a woman was the father of her child.

In a judgment delivered by the Court of Appeal on June 13, the court declared that, in terms of section 77, the presumption of paternity could only lapse in cases where the husband was overseas, or in prison and in the physical impossibility of having sexual relations with his wife. This interpretation was valid even if the blood tests carried out showed the absolute opposite.

The proof of paternity and of family lines was not a matter that concerned only the interests of a child, the grandparents said.

Section 77 of the Civil Code, as interpreted by the Court of Appeal, was in conflict with the provisions of the European Convention of Human Right as it interfered with family life. In this case, the grandparents' family was burdened with a child who was not theirs.

The grandparents added that article 77 and any other article in the Civil Code that set presumptions or obstacles on the recognition and registration of the real biological identity of children was in contravention of the European Convention.

The proof of genetic veracity was in the interest of all parties, the grandparents argued, and they asked the court to declare that these provisions of the law were in violation of the European Convention.

Dr Daniela Chetcuti signed the application.