Identity-determination of fatherhood for illegitimate children

Even though this is not covered by the law yet, the court pronounced a legal identity determination of fatherhood this week.

It concerns a Curaçao and an Aruban appeal where it has now been officially determined that three young females are the daughters of their biological father. The court directly based the determination on article 8 of the European Treaty for human protection and fundamental liberties (EVRM- Europese Verdrag tot bescherming van de mens en de fundamentele vrijheden) in connection with a judgment of the European Court. It concerns illegitimate children who are not acknowledged. If they have a close bond with their father, then they can lodge an appeal for protection of their family life. If this close bond is lacking, then their right for protection of their private life stems from the determination of legal connection with their father, according to the European Court.

The Fatherhood law was submitted to the Advisory Council in September last year, but has not been dealt with within the States yet. Last year, Court president Lisbeth Hoefdraad once again emphasized the importance of the implementation hereof so that children could experience additional protection of their rights.

After the legal determination of the fatherhood, the name of the father should be included on the child’s birth certificate.
The determination is retroactive from the child’s birth. In addition to the name of the father, the child will be recognized as heir on the same terms as those children who the father has acknowledged or those born in wedlock of the father, according to the court.

The court was confronted with the question whether it had to wait for the legislator. From a judgment from the Supreme Court in 1999, it appears that an interest consideration is determined. If the father has already passed away, then the judge must mark time in anticipation of the legislator. In such a case, legal policy choices must be made through the legislator, according to the law in inheritance on the child’s positions. If the father is still alive, then the judge should honor the child’s rights from the human rights treaty, immediately.

In another case on May 12th of this year, where the father had passed away, the request for legal determination of the fatherhood of the child was denied. However, in that case the Court did consider that unacceptable delay in the current legislation process was not expected.
For that matter, all three cases could lodge an appeal with the Court of Cassation.

(Source: National Newspaper Amigoe)

July 18, 2009

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