Best interest of the child: important decisions from the Supreme Court

1. In the first case (“P. of the S. v. P., G.E.”, August 10, 2010) the issue was raised in a divorce proceedings. To prove adultery as a ground for the divorce, the husband requested a DNA test of the child who was registered as the daughter of the couple. The mother of the child resisted this proof of paternity and the Supreme Court agreed. The Court held that “before the existence of conflicting interests of adults that are bound to a child’s interest, it is the Court’s obligation to grant a solution that satisfies the needs of the child in the best way for the development of the child’s personality”.

In order to reach this conclusion, the Court took into account that the result of the DNA test could not modify the child’s filiation status, because the father had not disputed his paternity timely. Under these circumstances, the right of the husband to know the biological information should not be privileged if that would not result in a benefit, but rather a prejudice, for the child.

The Court also assessed that the child –who is currently 14 years old - had not been heard in court nor had her opinion been requested. Thus, the child should have been informed of the effects implied from the hypothesis where she was not the daughter of the man registered as her father.

2. In the second case (“A.M., M.A. and A.C., C on special protection”, judgment of August 31, 2010) the Supreme Court confirmed a decision of the Civil Court of Appeals that had declared that two sisters were in a situation of subjective abandonment and ready for adoption.

The Court took into account that one of the children had been subject to mistreatment when she was ten months old. Both this child and her younger sister had been admitted to a maternal assistance program in 2003. After that, authorities had attempted to establish a relationship between the children and their mother, but with no positive outcome.

During all the years that the authorities had tried to involve the mother more actively, she repeatedly said that she loved her daughters. However her behavior was contradictory and denoted neglect in the care of the underage children (absences, non-compliance with schedules and feeding routines, hygiene, health care, and in general, concern for her personal interests in detriment of the maternal care that her daughters needed).

The Court considered the effective protection of the best interest of the children could only be implemented by providing figures who could offer emotional and affective security to the children, to counteract the psychological damage of traumatic experiences, loss and abandonment. Under these circumstances, adoption was considered the most convenient option, for the mother of the children had no capacity to exercise her role as a mother in an adult and responsible manner and could not provide the support required by the psycho-emotional needs of the children.