CRC/C/95/D/119/2020

GE.24-04532 (E) 021024 021024

Committee on the Rights of the Child

Views adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child

on a communications procedure, concerning

communication No. 119/2020*, **, ***

Communication submitted by:

N.G.P. (represented by counsel, Alberto Poletti)

Alleged victim:

G.G.P.

State party:

Paraguay

Date of communication:

27 May 2020 (initial submission)

Date of adoption of Views:

26 January 2024

Subject matter:

Unjustified delay in the recognition of paternal

filiation, affecting the right to identity and child

maintenance

Procedural issues:

Failure to exhaust domestic remedies,

insufficient substantiation of claims

Articles of the Convention:

3–5, 8, 18 and19

Articles of the Optional Protocol:

6 and 7 (e) and (f)

1.1

The author of the communication is N.G.P., a national of Paraguay, who submits the

communication on behalf of her son G.G.P., born on 20 March 2014. The author claims that

the State party has violated G.G.P.’s rights under articles 3–5, 8, 18 and 19 of the Convention.

She is represented by counsel. The Optional Protocol entered into force for the State party on

20 April 2017.

1.2

On 27 May 2020, the author requested that the Committee adopt interim measures so

that, following the outbreak of the coronavirus disease (COVID-19) pandemic, the case

would be considered urgently. On 4 June 2020, the Committee, acting through its Working

Group on Communications, decided not to request interim measures under article 6 of the

Optional Protocol.

1.3

On 17 April 2023, the author again requested interim measures, requesting the

Committee to ask the State party to confirm that the judgment in the filiation proceedings

* Adopted by the Committee at its ninety-fifth session (15 January–2 February 2024).

** The following members of the Committee participated in the consideration of the communication:

Suzanne Aho, Aïssatou Alassane Moulaye, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Mary

Beloff, Rinchen Chophel, Rosaria Correa, Bragi Gudbrandsson, Philip Jaffé, Sopio Kiladze, Benyam

Dawit Mezmur, Otani Mikiko, Luis Ernesto Pedernera Reyna, Ann Skelton, Velina Todorova, Benoit

Van Keirsbilck and Ratou Zara.

*** A joint opinion by Committee members Mary Beloff, Philip Jaffé and Benyam Dawit Mezmur

(partially dissenting) is annexed to the present Views

United Nations

CRC/C/95/D/119/2020

Convention on the

Rights of the Child

Distr.: General

23 August 2024

English

Original: Spanish

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had become enforceable for the purposes of initiating child maintenance proceedings in

France. On 5 May 2023, the Committee, acting through its Working Group on

Communications, decided not to accept the request for interim measures.

1.4

On 10 May 2023, the author requested a hearing before the Committee so that G.G.P.

could describe his current situation, his life plan and the author’s lack of means to pay for his

needs. On 12 May 2023, the Committee, acting through its Working Group on

Communications, rejected this request for a hearing.

Factual background

2.1

For five years, the author had a relationship with G.G., a French national, which

resulted in the birth of G.G.P. As G.G. refused to recognize G.G.P. as his son, on 25 June

2014, the author initiated filiation proceedings on behalf of G.G.P., requesting a temporary

measure to provisionally determine child maintenance and/or to provisionally attach

sufficient of the defendant’s assets. On 30 June 2014, the Sixth Rota Juvenile Court of the

Supreme Court of Justice of Paraguay initiated filiation proceedings and denied the request

for the temporary measure until the biological link between the defendant and the child had

been proven in order to avoid subsequent petitions for annulment.

2.2

On 8 August 2014, the author applied to the Court for the issuance of the

corresponding rogatory commissions to serve a claim for recognition of filiation on G.G.,

who was residing in France at the time. On 11 November 2014, the author requested the

Court to serve the claim on the defendant in person, as she had received information

indicating that G.G. was in the State party at the time. However, G.G. refused to receive the

notification of the claim. On 4 December 2014, the author requested that G.G. be declared in

contempt of court and that the proceedings be initiated with the opening of the evidential

stage, including the request to take samples for DNA testing. On 5 December 2014, the Court

ordered the initiation of the evidential stage.

2.3

On 11 December 2014, the author requested, inter alia: (a) the initiation of the

evidential stage; (b) the submission of testimonial and documentary evidence; (c) the

issuance of a rogatory commission to the French authorities to serve notice on G.G., to

summon him for DNA tests and to obtain information on the assets registered in France in

his name; and (d) the issuance of rogatory commissions with a view to obtaining documentary

evidence and information on the defendant’s assets and properties in the State party, for the

purpose of securing child maintenance for G.G.P.

2.4

On 12 December 2014, the Court issued rogatory commissions notifying G.G. of the

commencement of the evidential stage of the proceedings and, on 23 December 2014, the

Embassy of France in Asunción requested French translations of the documents

accompanying the rogatory commissions. On 13 February 2015, the author submitted the

translation requested by the Embassy and on 2, 11 and 26 March 2015, she reiterated her

request for the transmittal of the translated documents.

2.5

On 5 March 2015, the National Migration Directorate reported that G.G. had had

permanent resident status in the State party since 21 May 2008.

2.6

On 29 April 2014, the Embassy of France in Asunción responded to the rogatory

commission of 3 October 2014, stating that the French police had served G.G. with the

notification of the start of the filiation proceedings but he had rejected the document, claiming

that it had been badly translated and that his place of residence had changed and was now in

Bamako, Mali.

2.7

On 17 December 2015, the author again requested the Court to: (a) open the evidential

stage; (b) appoint a qualified public translator; (c) reiterate the request for DNA tests to be

conducted; (d) declare the defendant to be in contempt of court; and (e) serve notice of the

opening of the evidential stage at the address in Bamako given by the defendant. In this brief,

the author stated that the defendant’s refusal of the notification should not be considered an

obstacle for the proceedings to continue.

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2.8

On 22 December 2015, the Office of the Public Defender for Children and

Adolescents established1 that the judge had erred by not clearly establishing that the rogatory

commission should be accompanied by duly authenticated copies and the corresponding

translation by the translator registered with the Supreme Court, in accordance with article 105

of the Code of Civil Procedure, which required him to make use of a public translator.

2.9

Between 30 March and 23 May 2016, the author reiterated her request for rogatory

commissions requesting DNA testing and informed the Court that the defendant had

contacted her by telephone to request that he be notified by WhatsApp as Mali does not have

diplomatic representation in the State party.

2.10

On 4 July 2016, the Court received a response from the State party’s National Service

for Animal Quality and Health, stating that G.G. was the registered owner of animals in a

livestock enterprise in the State party. On 8 July 2016, the Court admitted the testimonial

evidence and set a date of 19 September 2016 for the hearing. On 5 September 2016, a

rogatory commission was sent to the Argentine authorities, requesting information on the

hotels where the author and G.G. had stayed. A further rogatory commission was sent to the

French authorities, requesting information on G.G.’s properties and accounts in France.

2.11

On 13 September 2016, the Court postponed the hearing owing to delays in issuing

rogatory commissions requesting the defendant’s appearance and DNA testing. After

repeated requests by the author, on 2 December 2016, the Court sent rogatory commissions

to the authorities of France and Mali, requesting G.G.’s appearance at a hearing scheduled

for 6 March 2017 and issuing a summons for DNA testing.

2.12

On 30 November 2016, the Court received the rogatory commission issued to the

Argentine authorities. No action had been taken on the commission owing to a failure to

comply with the Protocol on Cooperation and Jurisdictional Assistance in Civil, Commercial,

Employment and Administrative Matters, which applies within the Southern Common

Market (MERCOSUR).2 On 3 April 2017, the Court issued a new rogatory commission to

Argentina that was returned on 12 October 2017, also without any action having been taken,

for the same reason.

2.13

On 29 December 2016, the author sent a written submission to the Court requesting

the expedition of the proceedings, on the basis of the best interests of the child, and reiterating

her request for the issuance of the pending rogatory commissions, the summons for DNA

testing, and the provisional attachment of G.G.’s assets. On 6 April and 3 May 2017, the

author sent a written submission to the Court reiterating her requests for rogatory

commissions to be sent to Argentina and for a temporary measure to ensure the provision of

child maintenance. She also requested that new information and communications technology

be used to notify the defendant. On 25 April 2017, the author requested the Court to locate

the defendant by collaborating with the International Criminal Police Organization

(INTERPOL).

2.14

On 3 May 2017, the Court contacted the Office of the Public Defender for Children

and Adolescents to request the Office’s opinion on the case. In its opinion of 23 May 2017,

the Office stated that the dispute was deadlocked owing to the defendant’s failure to respond.

It also stated that the temporary measure relating to child maintenance could be requested

“when the prima facie merit of the applicant’s argument in support of the claim and the

urgency of the adoption of such a measure have been established” and that the right to child

maintenance is recognized from the outset of applications for the recognition of filiation.

Therefore, in order to avoid a violation of G.G.P.’s rights, the Office considered viable the

request for a temporary child maintenance measure and the issuance of an order for a

provisional attachment in order to guarantee the right to child maintenance. The Office

recalled that the right to an identity entails a dual form of protection, which means that

filiation proceedings are of the utmost importance. It also noted that the defendant’s different

addresses were an obstacle to determining G.G.P.’s identity and that the rogatory

1 On 17 December 2015, the Court notified the Fourth Rota Office of the Public Defender for Children

and Adolescents.

2 Protocol on Cooperation and Jurisdictional Assistance in Civil, Commercial, Employment and

Administrative Matters, arts. 6 and 7 (a) and (b).

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commissions that had been issued contained formal defects. In view of this situation, and

given that the defendant had an address in the State party, all notifications should be sent to

this address. On 12 July 2017, the Public Prosecution Service aligned itself with the opinion

of the Office.

2.15

On 4 July 2017, the French authorities, providing information on the defendant’s

assets and declaration of income, stated that, according to the defendant, he had not engaged

in any professional activity since 2015 and had been retired since 2016.

2.16

On 19 July 2017, the author requested that a decision be taken in line with the

recommendation made by the Office of the Public Defender for Children and Adolescents

and that steps be taken to follow up on the rogatory commissions on which no action had

been taken. On 2 August 2017, the author requested that the respondent be summoned for

DNA testing and that he be declared to be acting in bad faith as he had stated that he resided

in Mali when he was living in France, had failed to cooperate when he was in the State party

and was failing to comply with his obligations to recognize his son.

2.17

On 9 October 2017, the author reiterated the request for a summons for DNA testing

and, on 30 October and 23 November 2017, she requested that notification be served by

telegram on the basis of article 139 of the Code of Civil Procedure, a request that was rejected

by the Court on 6 December 2017.

2.18

On 29 January 2018, the Embassy of Paraguay in Brazil reported that the documents

relating to the rogatory commission addressed to the Malian authorities had been received by

the Malian justice system after the date of the hearing.

2.19 On 6 March 2018, the Court ordered that a biological sample be taken for DNA testing.

The author argues that, under article 184 of the Code on Children and Adolescents,

preferential consideration is to be given to DNA testing and that, in the event of unwillingness

to submit to it, refusal should be considered a presumption of paternity. Given the nature of

the test, however, the Court considered that it was not only necessary but essential to

resolving the lawsuit: “this Court is of the opinion that the test should be carried out, since it

is the only means by which to determine the child’s identity effectively and with near

certainty”. That same day, a rogatory commission was sent to the French authorities. On

21 August 2018, the French authorities responded to state that the lack of clarity and

inaccuracy of the translation prevented the rogatory commission from being executed and

that, in the event that the father lived in France, the jurisdiction of the State party should

request the French jurisdiction to designate a French laboratory to perform DNA sampling

using a DNA sample kit previously sent by the authorities of the State party, following which

the French authorities would send the kit back to the State party so that the sample could be

compared with the child’s DNA. On 27 November 2018, the author requested the Court to

send a new rogatory commission with the DNA extraction kit.

2.20

On 10 May 2019, the author requested that a new date be set for a hearing so that the

defendant could take a DNA test, arguing that, if he failed to appear, the presumption of

paternity would apply. However, the Court ruled that the DNA test be performed in France,

as required by the French authorities. On 18 June 2019, the Court issued a new rogatory

commission requesting that the defendant appear for a sample of his DNA to be taken on

2 October 2019, naming the expert and the laboratory that would take the sample.3

2.21

On 20 June 2019, the author filed a motion for the recusal of the judge in the case

owing to systematic delays, difficulty in accessing the case file and the lack of information

on the timescales. The judge responded that, in view of the particular nature of the

proceedings, the Court of Appeal had already flatly rejected three previous complaints of

judicial delay submitted by the author.

2.22

On 25 June 2019, the French judicial authorities reported that G.G. had refused the

summons, arguing that it was “manipulation and a fraud by a woman from Paraguay because

she told me that she had taken the necessary preventive measures”. Faced with this response,

3 According to the information available in the case file, there is no record of the DNA sample kit being

sent and the author bore the cost of hiring the expert and the laboratory for the hearing, which was

suspended on several occasions.

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between July and November 2019, the author repeatedly requested that the evidential stage

be brought to a close and that the defendant be declared to be acting in bad faith. However,

the Court stated that other rogatory commissions were still pending a response from the

French authorities. On 6 March and 29 May 2020, the author urged the Court to bring the

evidential stage to a close and requested the judge to issue a judgment, noting that the

defendant had been notified on several occasions without having appeared to date.

Complaint

3.1

The author claims that the State party has violated G.G.P.’s rights under articles 3–5

and 18 and 19 of the Convention. With regard to article 3, the author alleges that the State

party has failed to adequately consider G.G.P.’s best interests, as the determination of his

paternal filiation is essential for his development, and the unwarranted delay in resolving the

matter undermines his best interests. The author argues that, in addition to the excessive

delays in the proceedings, the judicial authorities have failed to order adequate provisional

measures. The author also highlights the failure to respond to her many complaints and claims

of unjustified delays. Six years after the proceedings began, G.G.P.’s paternal filiation has

yet to be established and he does not receive child maintenance or assistance from his father.

3.2

With regard to article 4 of the Convention, the author alleges that, despite the existence

of judicial proceedings and legal rules providing for a summary procedure in filiation

proceedings, and despite her having issued and reissued numerous written requests, the

judicial authorities have not taken adequate measures to give effect to the rights recognized

by the Convention and have not taken the steps requested by the authorities of other countries

for the effective conduct of the proceedings.

3.3

With regard to article 5 of the Convention, the author argues that both parents, and

not only the mother, are responsible for the care of the child and that the State party must

take the necessary measures to ensure that both parents fulfil their obligations. In the present

case, the author argues that the State party did not collaborate sufficiently with other countries

to ensure that the father complied with his obligations.

3.4

With regard to article 8, the author argues that the State party has failed to guarantee

G.G.P.’s right to an identity, and the fact that his biological father is a foreign national should

not be an impediment to the speedy establishment of this identity. The author states that, in

accordance with article 184 of the Code on Children and Adolescents (see para. 2.19), the

authorities had sufficient evidence, including the father’s repeated refusal to undergo DNA

testing, to establish filiation, even without such testing. She notes that G.G. never appeared

in court, was found to be in contempt of court, refused to be served documents on numerous

occasions and claimed to have changed his address, although he continued to live in France

and had permanent resident status in the State party. For her part, the author notes that she

presented witnesses, put forward evidence and requested DNA testing. The author alleges

that, although the issuance of rogatory commissions delays the proceedings, the present case

has been ongoing for six years and the State party has not taken the necessary steps to

expedite it.

3.5

With regard to article 18 of the Convention, the author alleges that G.G. has not taken

responsibility for bringing up his son and that obliging G.G. to undergo DNA testing to

determine filiation does not entail a violation of his right to privacy.4

3.6

Lastly, the author alleges that her son’s rights under article 19 were also violated

because of the consequences of the failure to determine a filiation regime for him. She also

argues that the State party did not take the necessary steps to enable the child to establish his

paternal filiation, or to proceed towards the issuance of a judgment, or to obtain assistance

from the father, or at least to make it possible to claim such assistance.

3.7

The author requests that, as reparation measures, a judgment be handed down and that

steps be taken to establish G.G.P.’s filiation and ensure his rights. She also requests

guarantees of non-repetition, including an investigation into the case, the punishment of the

4 European Court of Human Rights, Mifsud v. Malta, application No. 62257/15, judgment of

29 January 2019.

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persons responsible and compensation for her and G.G.P. for the harm caused. Lastly, the

author states that she is willing to find an amicable solution in the event that the State party

takes active steps to defend G.G.P.’s rights.

State party’s observations on admissibility and the merits

4.1

In its observations of 10 February 2021 on the admissibility and merits of the

communication, the State party argues that the communication was not accompanied by proof

of express consent to the submission of the communication by the author.

4.2

The State party maintains that the communication is inadmissible under article 7 (e)

of the Optional Protocol and rule 16 (3) (g) of the Committee’s rules of procedure under the

Optional Protocol because the author has failed to exhaust all available domestic remedies.

The State party argues that the author herself acknowledges that the available remedies had

not been exhausted and that she did not justify exactly to what extent domestic remedies, i.e.

the filiation proceedings, were not the appropriate remedy for the alleged violations.

4.3

The State party maintains that final judgment No. 1885 was issued on 1 September

2020 and that all procedural steps have been completed within the time scales required by

the level of complexity of a case where one party was in the State party and the other was

residing in France. The State party argues that, in view of the time that it took to obtain a

judgment, the author may have assumed that the proceedings were unreasonably prolonged.

In this regard, the State party adds that the rogatory commissions requested by the author,

which were sometimes necessary and sometimes not, had the effect of prolonging the filiation

proceedings.

4.4

The State party also argues that the author failed to exhaust domestic remedies by not

invoking the Convention in the domestic proceedings. The State party adds that, although it

might be reasonable to assume that ample reference was made to the content of the articles

of the Convention, it cannot be said that the State party was given the opportunity to remedy

the violations of articles 3–5, 8, 18 and 19. The State party adds that filiation proceedings are

the effective domestic procedure to give effect to the right to an identity.

4.5

Lastly, the State party argues that final judgment No. 188 of 1 September 2020

resolves the substance of the communication by “declaring the child born on 20 March 2014,

and registered on 20 June 2014, as the biological child of G.G., born in Paris, France” and

“ordering the registration of the child as the biological child of G.G.”. The State party

therefore claims that the author’s complaint has been definitively settled and that the claims

put forward in the communication are no longer relevant, in accordance with rule 26 of the

Committee’s rules of procedure under the Optional Protocol.

4.6

With regard to the merits of the case, the State party affirms that the only factual basis

for the communication lies in the alleged delay in the filiation proceedings, considered from

the point when the Optional Protocol entered into force for the State party, in 2017. The State

party argues that the defendant’s failure to appear at the trial is a procedurally legitimate

approach for any party to a dispute and is not the responsibility of the State party. In addition,

the Code of Civil Procedure establishes the procedure for continuing with trials when the

defendant fails to appear and, under article 184 of the Code on Children and Adolescents, a

valid judgment may be issued in filiation proceedings, even in the defendant’s absence, with

paternity being presumed, as eventually occurred in the present case.

4.7

The State party also argues that the issuance of diplomatic rogatory commissions can

take up to one year and that, in the present case, 13 such commissions were issued. The State

party was not responsible for these commissions since they were requested by the author and,

secondly, it was not responsible for processing them once they had been received in the

country of destination. Furthermore, the State party argues that it was not responsible for the

defendant’s changes of domicile between France, Mali, Argentina and the State party.

4.8

With regard to the translation of documents, the State party argues that it is up to the

parties to use certified public translators and that the parties are responsible for any flaws in

the translations. As for the costs incurred by the author in the proceedings, the judgment itself

5 Sixth Rota Juvenile Court of First Instance, judgment No. 188, dated 1 September 2020.

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requires the defendant to bear the costs, which the author should settle in their entirety and

then seek reimbursement from the defendant.

4.9

The State party adds that the specialized court for children and adolescents has tools

and supervisory bodies to deal with exceptional situations. The State party reiterates that

article 3 of the Convention was not violated, since the court hearing the case presided over

the trial and made decisions in accordance with developments in the proceedings, with their

various complexities, and handed down a judgment that took into consideration the best

interests of the child. Likewise, the State party reiterates that the communication does not

reveal facts that would involve a violation of articles 4, 5, 8, 18 and 19 of the Convention.

Author’s comments on the State party’s observations on admissibility and the merits

5.1

On 24 June 2021, the author submitted her comments on the State party’s observations

concerning the admissibility and merits of the communication. With regard to the claim that

the communication had not been submitted with proof that her son expressly consented to

being represented (see para. 4.1), the author alleges that the power of attorney that she

attached is a general power of attorney for judicial and administrative matters that does not

exclude the initiation of proceedings with international bodies and that confirms that such

actions are authorized.

5.2

With regard to the failure to exhaust domestic remedies, the author states that her

communication contained details of numerous procedures that were indicative of the delays

in resolving the case, as well as the failure of the State party’s judicial authorities to meet the

deadlines. In this regard, the author reiterates that the trial began on 25 June 2014 and that,

in June 2021, G.G.P.’s birth certificate had not yet been issued. Although the State party

issued a judgment in September 2020, after the submission of the communication to the

Committee, this judgment has not yet been registered and therefore cannot be enforced. In

this connection, an appeal was filed on 20 October 2020. The author reiterates that she filed

several complaints about the unjustified delay and never received a response from the

authorities. In view of the unjustified prolongation of the proceedings, the exception to the

rule of exhaustion of domestic remedies is justified.

5.3

In relation to the State party’s arguments regarding the defendant’s absence and the

number of rogatory commissions processed, the author states that the judicial authorities

failed to use electronic means to communicate decisions to the defendant. While the

summonses for DNA testing were necessary, the author reiterates that some of the rogatory

commissions were unnecessary, in particular those ordered by the Court itself, and that during

the evidential period, the judicial authorities took an unreasonably long time to summon

witnesses and grant access to the case file.

5.4

With regard to the State party’s argument that she did not expressly invoke

international standards in the domestic proceedings, the author argues that there are no

domestic standards comparable to the Convention and that the Convention rights violated are

related to the rights claimed in the proceedings.

5.5

In relation to the State party’s argument that the defendant’s failure to appear in court

was valid, the author argues that, in a case where a child’s identity is at stake, 2 rogatory

commissions, rather than 13, would have been sufficient to continue with the proceedings

and, once they had been resolved, to proceed immediately to the issuance of the judgment.

She also states that, since G.G. has not yet been notified of the judgment, his son still does

not have a birth certificate showing his identity and his father’s name and she is therefore not

yet able to file a claim for child maintenance.

5.6

The author reiterates that no action has yet been taken to determine the responsibility

of the judges and officials who delayed the processing of the applications and the trial at all

levels. The author requests the Committee to find that the State party should bear the costs

and expenses of the proceedings, while reserving the right to seek reimbursement from the

authorities of the country where the defendant resides. Lastly, the author is seeking a

declaration of international responsibility from the State party.

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Additional observations by the parties

6.1

On 9 November 2021, the State party submitted a response to the author’s comments.

With regard to the power of attorney, the State party considers that the omission of the

requirement established in article 5 (2) of the Optional Protocol has been remedied.

6.2

The State party stresses that the author’s claims were remedied by the judgment of

1 September 2020, which recognized G.G.P.’s filiation. However, the author has broadened

her claims by identifying the non-registration of the judgment as constituting a new ground

of violation of her rights, given that it results, among other things, in her inability to file a

claim for child maintenance.

6.3

The State party argues that, on 23 October 2020, the Court sent an official letter to the

Directorate of International Affairs of the Supreme Court of Justice and enquired about the

most effective means of notifying the French authorities of the judgment. The author

appealed against this decision and requested that the defendant be notified by WhatsApp.

However, when a defendant resides abroad, notifications by this means have no legal basis

in the State party, so the judicial authority decided to reject the appeal for annulment filed by

the author and to send a diplomatic rogatory commission to the French courts in order to

notify G.G.

6.4

With regard to the author’s arguments on the merits, the State party affirms that the

execution of several rogatory commissions was unavoidable in order for the filiation

proceedings to be carried out in strict compliance with domestic procedural rules, the purpose

of which was to obtain recognition of the child’s filiation and to guarantee G.G.’s right to a

defence. The State party adds that the alleged delay by the Court has not prevented G.G.P.

from interacting with his father, who became aware of the situation on 18 November 2014,

when he was notified of the initiation of the filiation proceedings by the author. G.G.’s

evasiveness and reluctance to be served with a copy of the claim, and his constant refusal to

appear and participate in the proceedings, show that the State party took all reasonable steps.

6.5

With regard to the possibility of claiming child maintenance during the years that the

proceedings lasted, the State party argues that, under its legislation,6 the validity of an

applicant’s claim for child maintenance must be proven, and this validity was not recognized

until the judgment of 1 September 2020. However, it is necessary for G.G. to be aware of the

content of the final judgment and, once it is enforceable, to assume the obligations arising

from it.

6.6

With regard to the sanctions against judges referred to by the author, the State party

alleges that domestic complaint mechanisms are available that she has not used.

6.7

With respect to the costs of the filiation proceedings, the State party argues that this

issue was addressed by final judgment No. 188 and that the mere fact that a person has

incurred costs does not constitute a violation of his or her rights. With regard to financial

compensation, the State party maintains that it did not violate any of G.G.P.’s rights and that

the author does not provide details of the specific harm caused by the State party to the child’s

overall development.

6.8

Lastly, the State party rejects the author’s request for the publication of the judgment

and an apology as inadmissible, and argues that it did not violate G.G.P.’s rights but took

every legal step to ensure recognition of his filiation and his right to an identity.

7.

On 17 February 2022, the author submitted her comments on the State party’s

additional observations, by which she informed the Committee that, despite the judgment

issued, G.G.P. still did not have a birth certificate bearing his father’s surname. She also

claimed that she had repeatedly requested the Court and the Juvenile Appeal Court to issue

the corresponding order and that, by way of response, she had been informed that the rogatory

commission had to be executed. The author reports that she sent the communication directly

to the defendant by email.

8.

In its additional observations of 11 July 2022, the State party affirms that, with regard

to the failure to enter the child’s filiation in the Directorate General of the Civil Registry, the

6 Code on Children and Adolescents, art. 187.

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final judgment is not yet enforceable as the defendant has not yet been notified of it, and the

only means of notification provided for is by rogatory commission. It also claims that the

author herself is continuing to delay the proceedings since, after having requested the

rogatory commission, she filed a motion for annulment and an appeal requesting an electronic

means of notification that would be a faster and more effective way of notifying the French

authorities. The State party adds that the time required to resolve the author’s appeals added

to the already considerable time that it takes to execute a rogatory commission. The appeals

were all rejected, and it was confirmed that the only means by which to notify a judicial

decision establishing filiation, when the person concerned resides abroad, is by diplomatic

rogatory commission. It should also be noted that it was the author who delayed the execution

of the aforementioned rogatory commission.

9.1

By means of comments dated 29 December 2022, 29 March 2023 and 17 April 2023,

the author informed the Committee that, eight years after the start of the filiation proceedings,

the Juvenile Court ordered the Directorate General of the Civil Registry to comply with the

judgment and record that G.G.P. is G.G.’s son. Although the judgment is final and

enforceable and has been notified by rogatory commission, the Directorate General made an

error in transcribing the name in the record, omitting one of the letters of the child’s surname.

9.2

In addition, the author reported that, on 7 November 2022, Act No. 7016/2022 on the

adoption of the Convention on the Service Abroad of Judicial and Extrajudicial Documents

in Civil or Commercial Matters was promulgated. This Convention provides that States are

free to effect service of judicial documents upon persons abroad, without application of any

compulsion, directly through their diplomatic or consular agents. In this regard, the author

requested the Court to send, by note or mail, an order for the prompt notification of the final

judgment to the State party’s embassy in France, stating that the notification could be realized

by registered mail with acknowledgement of receipt, accompanied by a copy of the

translation.

9.3

With regard to the information submitted by the State party, the author states that her

request for notification by electronic means is based on Act No. 6822/2021 on trust services

for electronic transactions, electronic documents and electronic transferable documents,

pursuant to which the Court could have used these means to request international assistance

for swift communication but failed to do so. The author reiterates that her request for the use

of electronic means was routinely rejected by the State party’s judicial authorities, who are

required to ensure swift due process in matters relating to children and adolescents and to

ensure that G.G.P. may obtain a birth certificate bearing his father’s name and that a related

claim for child maintenance may be filed.

9.4

The author reiterates that she had to incur additional costs for the translations and that

the delay in receiving a response to the executed rogatory commission cannot be attributable

to her.

10.

On 30 May 2023, the State party reiterated that the communication should be declared

inadmissible on the grounds that G.G.P.’s filiation had been established, the registration of

the decision taken in the proceedings had been ordered and the corresponding notifications

had been realized. On 17 August 2022, the French judicial authorities notified the defendant,

who rejected the document. The author was informed on 12 December 2022 and the Juvenile

Court requested that the judgment be entered in the register on 26 December 2022. The State

party argues that the error in the transcription of the child’s surnames was noted by the Court,

which, on 18 April 2023, issued an order for the issuance of a new official communication

that the author was responsible for executing.

11.

On 2 June 2023, the author referred again to the delay incurred by the State party and

its refusal to use technological means. She also stated that the problems relating to her son’s

identity and the initiation of the child maintenance proceedings persist and that G.G.P. still

receives no child maintenance, either from his father or from the State party in his father’s

stead. The author also alleges that, although the error in the transcription of G.G.P.’s surname

was rectified, his name did not include the father’s surname, as had been requested. The

author adds that she must file a claim for an order to have the judgment recognized by the

French courts but that the judgment is not yet final and enforceable; the defendant is still

pending notification of the child maintenance proceedings initiated to claim the amount owed

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GE.24-04532

since the start of the filiation proceedings; and the judicial authorities continue to avoid using

expedited means of communication, or any means other than traditional rogatory

commissions.

Issues and proceedings before the Committee

Consideration of admissibility

12.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol to

the Convention, whether the communication is admissible.

12.2

The Committee notes the State party’s argument that the communication should be

declared inadmissible because: (a) when the complaint was submitted, the complainant had

not exhausted all the available domestic remedies, of which filiation proceedings were the

most appropriate; (b) the complainant had not specifically invoked the Convention at the

domestic level; and (c) the author’s complaint had been remedied by judgment No. 188 of

1 September 2020, which recognized G.G.P.’s filiation, and the complainant’s other

arguments concerning the failure to register her son’s filiation relate to new claims, including

the impossibility of filing a claim for child maintenance.

12.3

The Committee recalls that the purpose of the rule on the exhaustion of domestic

remedies is to allow national authorities to rule on authors’ claims7 and to give them the

opportunity to remedy alleged violations. The Committee also recalls that authors must make

use of all judicial or administrative avenues that may offer them a reasonable prospect of

redress.8 Where allegations that the rule on the exhaustion of domestic remedies has been

satisfied appear prima facie to have been substantiated, the State party should indicate the

specific remedies that the authors failed to pursue and that would be available and effective

to address the violations alleged before the Committee.9

12.4

The Committee notes the author’s allegations that the filiation proceedings were

unjustifiably prolonged for more than six years, and that the judgment of 1 September 2020,

which finally determined G.G.P.’s filiation, did not fully remedy the violations alleged before

the Committee, since the judgment has not yet been registered or enforced and G.G.P. has

not been able to enforce his right to obtain assistance and child maintenance from his father.

The Committee considers that this latter issue is closely related to the merits of the case and

will now examine it. The Committee also notes that, during the domestic filiation proceedings,

the author raised complaints essentially concerning the impact that the delays in the filiation

proceedings had on G.G.P.’s rights invoked before the Committee and considers that

article 7 (e) of the Optional Protocol does not constitute an obstacle to the admissibility of

the present communication.10

12.5

The Committee considers that the author’s claims under articles 4, 5 and 19 of the

Convention have not been sufficiently substantiated for the purposes of admissibility and

finds them inadmissible under article 7 (f) of the Optional Protocol.

12.6

However, the Committee considers that, for the purposes of admissibility, the

complainant has sufficiently substantiated her allegations under articles 3, 8 and 18 of the

Convention, relating to violations of G.G.P.’s right to an identity and recognition of his

father’s responsibility for his upbringing and development, and to the failure to take his best

interests into account in the filiation proceedings. The Committee also notes that, due to the

delay in the filiation proceedings, G.G.P. has not been able to obtain the payment of child

7 See, inter alia, the Committee’s Views in E.H. et al. v. Belgium (CRC/C/89/D/55/2018), para. 12.2;

A.M.K. and S.K. v. Belgium (CRC/C/89/D/73/2019), para. 9.3. and Camila v. Peru

(CRC/C/93/D/136/2021), para. 7.2.

8 D.C. v. Germany (CRC/C/83/D/60/2018), para. 6.5; Sacchi et al. v. Argentina

(CRC/C/88/D/104/2019), para. 10.17; W.W. and S.W. v. Ireland (CRC/C/91/D/94/2019), para. 11.4;

and Camila v. Peru, para. 7.2.

9 L.H.A.N. v. Finland (CRC/C/85/D/98/2019), para. 7.3; D.K.N. v. Spain (CRC/C/80/D/15/2017),

para. 11.4; and Camila v. Peru, para. 7.2.

10 M.K.A.H. v. Switzerland (CRC/C/88/D/95/2019), para. 9.5; and C.R. v. Paraguay

(CRC/C/83/D/30/2017).

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GE.24-04532

11

maintenance, nor have the State party’s authorities put in place the appropriate international

arrangements to ensure such payment.11 It therefore concludes that, in the circumstances of

the case, the complaint has been sufficiently substantiated with respect to article 27 (4) of the

Convention.12 The Committee therefore declares the complaint admissible in respect of the

aforementioned articles and proceeds with its consideration of the merits.

Consideration of the merits

13.1

The Committee has considered the communication in the light of all the information

made available to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

13.2

The key question facing the Committee is whether, in the circumstances of the present

case, the State party has taken effective measures to ensure G.G.P.’s right to the

determination of his identity through the recognition of his filiation, and to benefit from

appropriate measures to ensure recognition of his father’s responsibility for his upbringing

and development, including through the provision of child maintenance.

13.3

The Committee recalls that the right to an identity is essential to the development of

every child and should therefore be a primary consideration in national proceedings.13 The

determination of every person’s filiation undoubtedly contributes to his or her personal

development and right to an identity, considered as the set of attributes and characteristics

that allow the person to be identified as an individual in society.14 In this regard, the right to

a name constitutes a basic and indispensable element of each person’s identity, without which

he or she cannot be recognized by society or registered with the State. Likewise, names and

surnames are essential to the formal establishment of the links between different members of

a family.15 Where children are concerned, the Committee considers that the determination of

filiation affects not only their right to an identity under article 8 of the Convention but also

their right to recognition of their parents’ responsibility for their upbringing and development,

including through the provision of child maintenance, under articles 18 and 27 (4) of the

Convention. The Committee must therefore determine whether the State party’s authorities

have taken effective measures to guarantee G.G.P.’s rights in the filiation proceedings.16

13.4

The Committee considers that, while a system that does not provide for a means of

compelling an alleged father to submit to DNA testing might be compatible with the

Convention, such compatibility requires that the system in question take the action that

follows from the alleged father’s refusal and promptly resolve the paternity suit.17

13.5

The Committee notes in particular the arguments put forward by the author that:

(a) the State party had not guaranteed G.G.P.’s right to an identity and the fact that the

biological father was a foreign national should not have been an impediment to speedily

guaranteeing this right; (b) the authorities had sufficient evidence, including the father’s

repeated refusals, to establish filiation, even without a DNA test, such as the witnesses and

evidence presented by the author, including G.G.’s failure to appear in court, his being found

in contempt of court and his refusal to be served with documents on numerous occasions;

and (c) the defendant had permanent resident status in the State party and the court did not

take the necessary steps to expedite the proceedings, issuing numerous rogatory commissions

that excessively delayed the proceedings. The Committee notes the State party’s argument

that the proceedings were prolonged because it was necessary to notify the defendant, who

11 The Committee notes, in this regard, that on 23 June 2023, the State party ratified the Convention on

the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of

15 November 1965.

12 S. M. A. v. Spain (CRC/C/85/D/40/2018), para. 7.4.

13 Committee’s general comment No. 14 (2013), paras. 55–57.

14 Inter-American Court of Human Rights, Gelman v. Uruguay, judgment of 24 February 2011,

paras. 122–123.

15 Ibid, para. 127. See also the case of the Girls Yean and Bosico v. Dominican Republic, judgment of

8 September 2005, para. 184, and the case of the “Las Dos Erres” Massacre v. Guatemala, judgment

of 24 November 2009, para. 192.

16 Committee’s general comment No. 14 (2013).

17 European Court of Human Rights, Mikulić v. Croatia, application No. 53176/99, judgment of

7 February 2002, para. 64.

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12

GE.24-04532

lived abroad, through the formal channels required by domestic law. However, the

Committee notes that: (a) the defendant had permanent resident status in the State party

throughout the filiation proceedings; (b) several of the notifications were issued only after

repeated requests by the author and contained errors that had to be corrected later, resulting

in further delays to the proceedings; and (c) domestic law provided for the possibility of

determining filiation based on the defendant’s proven reluctance, despite which the judge in

charge chose to insist on DNA testing (see para. 2.19). The Committee also notes that, despite

the fact that the French authorities had recommended that a DNA sample kit be sent, there is

no record in the case file of a request for such a kit being made. The Committee also notes

that the author filed complaints about the delays in the judicial proceedings and that,

throughout the proceedings, the Office of the Public Defender for Children and Adolescents

issued at least three reports ordering provisional measures and recommending the adoption

of measures to speed up the proceedings.

13.6

The Committee has repeatedly ruled on the obligations of States parties to establish

in their legislation expeditious mechanisms to determine filiation and identity in cases

involving children.18 These types of procedure have a differentiated impact on mothers’

access to justice, and consequently on their children, who suffer irreparable harm owing to

the justice system’s delays and failures to promptly resolve filiation proceedings. It is

therefore necessary for States parties to include in their legislation mechanisms to facilitate

the determination of the filiation of children born to unmarried parents, including free

procedures, free DNA tests, the provisional payment of child maintenance, exemption from

court costs in filiation proceedings and the recognition of inheritance rights for such

children.19

13.7

The Committee considers that the determination of whether the duration of the

proceedings is reasonable should be based on the circumstances of each case, taking into

account primarily the complexity of the case, the conduct of the accused and the manner in

which the administrative and judicial authorities have dealt with the matter.20 The Committee

recalls that the passing of time is not perceived in the same way by children and adults. Delays

in or prolonged decision-making have particularly adverse effects on children as they

evolve.21 In this regard, it also considers that legal proceedings to determine a child’s filiation

must be undertaken particularly swiftly, as the passage of time may have irreparable

consequences for the development of the child’s identity and the forging of parent-child

bonds.22 This includes the rapid enforcement of decisions resulting from those procedures.23

In this regard, the Committee considers that it is incumbent on States parties to organize their

justice systems in such a way that their courts can guarantee that all persons have the right to

obtain, within a reasonable time frame, a final judgment in disputes concerning their rights

and obligations in a suit at law. 24 The fact that the judicial authorities are not directly

responsible for the execution of rogatory commissions cannot exempt the State from its

responsibility insofar as the State is responsible for all its services and not only for its judicial

bodies.25 The State party should also ensure, where necessary, adequate cooperation on

international legal assistance and reduce procedural formalities that may result in undue

delays.

13.8

The Committee also recalls that it is for the authorities to examine the facts and

evidence and to interpret domestic law, unless their assessment has been clearly arbitrary or

18 CRC/C/CPV/CO/2, para. 33; CRC/C/ATG/CO/2-4 paras. 26–27; and CRC/C/HTI/CO/2-3 para. 23.

19 CEDAW/C/PER/CO/9, para. 49.

20 CRC/C/83/D/48/2018, para. 8.2.

21 Committee’s general comment No. 14 (2013), para. 93.

22 See also, mutatis mutandis, Inter-American Court of Human Rights, Córdova v. Paraguay, judgment

of 4 September 2023, para. 89.

23 Ibid., para. 88.

24 European Court of Human Rights, Ebru and Tayfun Egín Çolak v. Turkey, application No. 60176/00,

para. 77; Comingersoll S.A. v. Portugal, application No. 35382/97, para. 24; and Mikulić v. Croatia,

para. 45.

25 European Court of Human Rights, Ebru and Tayfun Egín Çolak v. Turkey, para. 78; Moreira de

Azevedo v. Portugal, judgment of 23 October 1990, para. 73. See also Jäggi v. Switzerland,

application No. 58757/00.

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GE.24-04532

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amounts to a denial of justice.26 It is therefore not for the Committee to interpret domestic

law or to assess the facts of the case and the evidence in place of the national authorities but

to ensure that their assessment was not arbitrary or tantamount to a denial of justice and that

the best interests of the child were a primary consideration in that assessment.27

13.9

In the present case, the Committee notes that, although many measures were taken,

numerous requests were made by the author, and the case had particular features that may

have complicated the proceedings, the State party did not justify to what extent it took

appropriate measures to expedite the proceedings. In view of this situation, the Committee

considers that the authorities did not take sufficient measures in a timely manner to guarantee

G.G.P.’s rights. In particular, the Committee notes that the judge presiding over the filiation

proceedings did not use the available procedural means to prevent G.G. from obstructing the

proceedings, from the point when G.G. refused the notification of the claim in 2014,

including by considering his reluctance28 as proof of paternity, in accordance with domestic

law. On the contrary, the judge prioritized DNA testing and it was not until six years had

passed, and 13 rogatory commissions had been issued, that the judge finally determined

G.G.P.’s filiation by applying the presumption of paternity. In the absence of any explanation

from the State party that might justify this delay, which, given the circumstances of the case,

is considerable, the Committee considers that the lack of promptness in resolving G.G.P.’s

filiation left him in a state of prolonged uncertainty as to his identity and made it impossible

for him to claim the corresponding child maintenance,29 which he has not been able to claim

to this day. The Committee also notes that, in the filiation proceedings, the author requested

a temporary measure to provisionally determine child maintenance and/or to provisionally

attach sufficient of the defendant’s assets and that, despite the defendant’s lack of cooperation,

the judge denied the request for the temporary measure until the biological link between the

defendant and the child had been proven in order to avoid subsequent petitions for annulment

(see para. 2.1). In view of the above, the Committee considers that the authorities did not take

sufficient measures in a timely manner to ensure the prompt determination of G.G.P.’s

filiation, in violation of his right to an identity and to recognition of his father’s responsibility

for his upbringing and development, including through the provision of child maintenance,

as established in articles 8, 18 and 27 (4) of the Convention.

13.10 The Committee also notes that the judge presiding over the filiation proceedings did

not consider G.G.P.’s best interests in his handling of the proceedings, including in the

processing of the author’s request for a temporary measure to provisionally determine child

maintenance and/or to provisionally attach sufficient of the defendant’s assets. In this regard,

the judge did not take into consideration the considerable impact of the procedural delays on

G.G.P., particularly their impact on such essential rights as the right to an identity, in violation

of article 3 of the Convention.

13.11 The Committee, acting under article 10 (5) of the Optional Protocol to the Convention

on the Rights of the Child on a communications procedure, is of the view that the facts before

it reveal violations of articles 3, 8, 18 and 27 (4) of the Convention.

14.1

Accordingly, the State party should:

(a)

Provide G.G.P. with an effective remedy for the violations suffered, including

adequate compensation;

(b)

Adopt the necessary measures to ensure the prompt enforcement of the

judgment in the filiation proceedings to ensure that G.G.P. has access to child maintenance

in a timely manner;

(c)

Reimburse the author for the legal expenses incurred during the proceedings,

and for the expenses incurred to pay the experts in connection with the various summonses

for DNA testing.

26 U.A.I. v. Spain (CRC/C/73/D/2/2015), para. 4.2; and A.Y. v. Denmark (CRC/C/78/D/7/2016),

para. 8.8.

27 C.E. v. Belgium (CRC/C/79/D/12/2017), para. 8.4.

28 Mikulić v. Croatia, para. 65.

29 Ibid, para. 66.

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14.2

The State party is also under an obligation to prevent similar violations in the future.

In this regard, the Committee recommends that the State party:

(a)

Promote access to justice through the adoption of effective mechanisms to

facilitate the prompt determination of the filiation of children born to unmarried parents, such

as the establishment of expedited procedures, prompt and timely notifications, free DNA

testing, and exemption from court costs;

(b)

Ensure the due provision of international judicial assistance in order to reduce

contingencies and procedural formalities required by the use of rogatory commissions;

(c)

Ensure the prompt enforcement of judgments in filiation proceedings in order

to ensure, inter alia, the payment of child maintenance, in accordance with articles 18 and

27 (4) of the Convention.

(d)

Provide training for, and evaluate the understanding of, judges and other

judicial officials for children and adolescents and relevant professionals working in child

protection regarding the Committee’s general comment No. 14 (2013) and the present Views.

15.

In accordance with article 11 of the Optional Protocol, the Committee wishes to

receive from the State party, as soon as possible and within 180 days, information about the

measures it has taken to give effect to the present Views. The State party is requested to

include information about any such measures in its reports to the Committee under article 44

of the Convention. The State party is also requested to publish the present Views and to

disseminate them widely.

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15

Annex

[Original: English]

Joint opinion of Committee members Mary Beloff, Philip Jaffé and

Benyam Dawit Mezmur (partly dissenting)

1.

The main finding of a violation, made by the majority of the Committee, is agreeable

to us.

2.

We take exception to one seemingly minor but important aspect of the

recommendations that the majority of the Committee proffers, where the State party is being

asked to provide training for, and evaluate the understanding of, judges and other judicial

officials for children and adolescents and relevant professionals working in child protection

regarding the Committee’s general comment No. 14 (2013) and the present Views

(para. 14.2 (d)).

3.

Nothing in the documentation has convinced us that there is a systemic lack of training

or awareness among judges and other judicial officials for children and adolescents and

relevant professionals working in child protection in the State party about the best interests

of the child, which is the focus of general comment No. 14 (2013) of the Committee. To

identify the limitations manifested in handling the current case by a judge or a few judicial

officials that has led to the violation of the child’s rights as a systemic issue, which the

recommendation seems to suggest, is, in our view, not appropriate.