Family win right for action on ‘father unknown’

The paternal family of a child born out of wedlock could file an action to have the child declared the son of their own family member who died before the child was born, the Court of Appeal has ruled.

Biological and social reality prevail over legal presumptions

The family, comprising the child’s grandparents and uncles, had filed an action in the Family Court against the child’s mother. They claimed that the mother, AA, had had a relationship with GB and that a boy was born as a result.

But GB died before the boy was born and could not therefore declare himself to be the boy’s father. The family requested the court to declare that the boy was GB’s natural son and to amend his birth certificate accordingly to bear GB’s surname.

But AA contested this claim on the basis that the law made no provision for such an action to be filed by third parties other than the child’s natural ­parents.

The Family Court found in favour of the family and AA appealed to the Court of Appeal comprised of Chief Justice Silvio Camilleri, Mr Justice Geoffrey Valenzia and Mr Justice Giannino Caruana Demajo.On appeal the court found that the various provisions of the Civil Code regulating filiation and the recognition of children born out of wedlock were not applicable to the case in question. This case had therefore to be decided in the light of the general principles of law, including those provisions regulating the protection of fundamental human rights.

The European Court of Human Rights had ruled that the right to “respect for family life” required that biological and social reality were to prevail over legal presumptions.

The family had an interest to show that there was a blood relationship between themselves and the child and that this interest deserved protection. Indeed, were the family not permitted to file their court case to overturn the legal presumption that the child was born to an unknown father, then they could be deprived of access to the courts.

The Court of Appeal therefore dismissed AA’s appeal and ruled that the family was entitled to file its action for recognition of the child as the son of GB.