Biological Expertise in Filiation Matters: Conditions and Limits Under French Law

Extract

[...] Biological expertise of right in the matter of contesting filiation The Court of Cassation states in the present judgment that biological expertise is a matter of right in contesting filiation, which allows the biological truth to be reconstituted. The balance that the legislator has retained then passes through the primacy of biological truth constrained by the stability to be offered to filiation. It is in this dynamic that the legislator in 2005 combined the reality of filiations experienced by those concerned and biological truth. But the biological proof of filiation can only be provided within the framework of a court action. [...]

[...] To do this, the Court of Cassation had to answer the following legal problem: under what conditions and within what limits is biological expertise in the matter of filiation legitimate? After having retained that the Paris Court of Appeal has violated Articles 339 and 311-12 of the Civil Code as well as Article 146 of the new Civil Procedure Code, the Court of Cassation states that biological expertise is of right in the matter of filiation, except if there is a legitimate reason not to proceed ». [...]

[...] Moreover, if the interested party has died, biological expertise is only permitted if they had expressly consented to it during their lifetime, resulting from The Yves Montand case, where a judge had authorized the exhumation of Yves Montand's body to determine whether or not he was the father of the woman who claimed to be his daughter, whereas he had always refused to undergo biological expertise. Ultimately, the expertise carried out on his cadaver allowed the conclusion that he was not the father. Thus, in reaction to this case, which had shocked public opinion, the 2004 legislator provided for in Article 16-11, paragraph that "except with the express agreement of the person given during their lifetime, no identification by genetic fingerprints may be carried out after their death". [...]

[...] Biological Analysis, a Justice of Exception In many respects, biological truth does not reflect the sociological reality experienced by the child. In this regard, the French justice system practices a justice of exception for which the legitimate reason is assessed differently depending on whether the action is a contestation of filiation or a search for filiation. The Cour de cassation attributed, in its judgment of September to legitimate reasons, a broad scope for extensive jurisprudence: it indirectly reiterates two essential grounds for not ordering biological expertise, namely will, here linked to financial interest, and time, since it concerns a contestation of filiation dating back more than 64 years. [...]

[...] The Cour de cassation reaffirms this principle in its judgment of February according to which the superior interest of the child is to benefit from a stable and constant filiation bond. In addition to the well-foundedness of the action in contestation, the legislator provides for a limitation period of 10 years for it, following the case of the alleged parent according to Article 330 of the Civil Code, from the birth of the child. If it is the child himself who contests the filiation bond, this period begins from the day he becomes of age. Beyond this limitation period, no action in contestation of filiation can be invoked. [...]