Women and Justice: Keywords

The applicant’s child was adopted without his consent, but with the permission of the mother. After two years of domestic litigation and in consideration of his daughter’s best interests, he no longer sought to overturn the adoption, but requested damages from the government for the violation of his rights. The European Court of Human Rights found that the adoption of a child of unmarried parents without the father’s knowledge or consent was in accordance with Irish law and pursued the legitimate aim of protecting the rights and freedoms of the child. However, the Court found that the law violated the European Convention on Human Rights because it interfered with the applicant’s right to family life under Article 8(1), which would be permissible only if the interference were “necessary in a democratic society.” The Court found that the Irish Government had advanced no reasons relevant to the welfare of the child to justify such a departure from the principles governing respect for family ties. The Court also considered that Article 8 was not restricted to families based on marriage. Finally, because the applicant had no rights under Irish law to challenge the adoption decision either before the Adoption Board or in court, there was a violation of his right to a fair and public hearing by an independent and impartial tribunal under Article 6(1) of the Convention. The Court awarded pecuniary and non-pecuniary damages as well as legal costs and expenses.

A mother, on behalf of her infant child, filed a lawsuit for a declaratory judgment for absence of parent-child relationship with the appellant––a man to whom the mother was married when the child was born. The request for the judgment was based on the fact that a DNA test result showed that, with 99.99 percent probability, the infant was a child of a different man, with whom the mother was having an affair. By the time of the trial, the wife and the child had left the appellant to live with the child’s biological father. Article 772 of the Japanese Civil Code, in general, presumes a man to be the father of a child if the man is married to the mother of the child at the time of conception. While Article 774 allows the husband to file a proceeding to rebut such a presumption, the wife or the child does not have standing to initiate such a proceeding. The Supreme Court, stressing the importance of maintaining legal stability pertaining to familial status, found that the facts that (i) there was scientific evidence that clearly denied a biological father-child relationship and that (ii) the child was currently raised––without any problem––by the biological father does not negate the presumption of the father-child relationship under Article 772 of Japanese Civil Code, as the importance of maintaining the legal stability pertaining to familial status would not be undermined by such factors. Therefore, the Supreme Court found that there was no legal ground to deliver the requested declaratory judgment.

本件は、母親が子供を代理して、子供が生まれたときに母親が結婚していた男性である上告人に対して、親子関係不存在の確認の訴えを提起した事件である。本件において、DNA鑑定の結果、99.99％の確率で子供が上告人の生物学上の子ではないことは明白であった。裁判当時までに、母親と子供は上告人の下で監護されておらず、生物学上の父の下で成長していた。民法772条では、妻が婚姻中に懐胎した子は、夫の子と推定するとしている。また、同774条は、夫が父子関係の推定を覆すための手続きを行うことを認めているが、妻や子にこのような手続きを開始する資格を認めていない。最高裁は、家族的地位に係る法的安定性を維持することの重要性を強調した上で、（1）生物学的な父子関係を明らかに否定する科学的証拠があり、（2）子が現在何の問題もなく生物学上の父に育てられているという事実があっても、そのような要因によって家族的地位に係る法的安定性を維持することの重要性が損なわれることはないとして、民法772条の父子関係の推定を否定するものではないとした。