7.  The applicant was born in 1925 and at the time of the introduction of the application lived in Dublin.
8.  On 20 December 2012 X. (around 55 years old) instituted an action before the Civil Court (Family Section) requesting the court to declare the applicant to be her biological father and to order this to be reflected on her birth certificate.
9.  On 11 February 2013 the Director of the Public Registry (also defendant in the proceedings) requested the court to order that the parties submit themselves to the genetic tests as provided by Article 100A of the Civil Code, and for the applicant to submit his details, which would be required to make the relevant changes to X.’s birth certificate, if the court had to find in X.’s favour.
10.  On 11 February 2013 the applicant filed written submissions in reply, denying that he had been involved in the applicant’s conception and raising the plea of execeptio plurium concubentium (defence of several lovers) on the basis that X.’s mother had had various partners.
11.  On 7 May 2013 X. filed her written statement confirmed on oath (affidavit), as well as that of her mother. In her affidavit X. claimed that she had been born in London of a relationship between her mother (Y.) and the applicant, and that as of her young age she had always been told that the applicant was her father. After her sixteenth birthday she had sent a letter to him, which remained unanswered. She claimed that in 1978 on having knowledge that the applicant was going to be in Malta she went to meet him at the airport – on that day she had seen him arrive with his family, and noted the resemblance between herself and one of the applicant’s daughters. On that occasion she had not approached him, but they met some time later before a lawyer. She stated that the applicant greeted her warmly and that, after that, they met various times. She also met the applicant’s wife. According to X. the applicant had told her that he would not inform his children about her in order not to disrupt their schooling and she agreed. X. stated that the applicant started visiting Malta regularly on his own and when she had become pregnant he had offered her one of his properties to live in, and in this way they lived there together on his visits to the island. On the birth of X.’s daughter in 1979, the applicant had been the latter’s god parent as shown by relevant certification. She claimed that upon the applicant’s suggestion she moved to the U.K. only to return sixteen months later because she missed Malta. At that stage the applicant had given her the keys to another property for her to reside in. She remained in close contact with him until 1985. In 1998 she was evicted from the property and thereafter their relationship deteriorated. X. explained that during the eviction proceedings the applicant had promised her a sum of money to leave the premises peacefully, she accepted the deal but he never paid up. Subsequently, she successfully issued proceedings against him to recover the mentioned sum (the relevant court judgments were also submitted).
12.  According to Y.’s affidavit, Y. had had a relationship with the applicant, for whom she worked, and had become pregnant. She claimed that the applicant had wanted to interrupt the pregnancy and brought a person home to give her an injection. She later miscarried. The applicant had bought her a place where to stay and they used to meet there, since he was married. Y. claimed that she had always been faithful to him as she feared him, given that he was a powerful man involved in criminal activities. Y. stated that she later gave birth to a child she had with him (X.) and thereafter their relationship had deteriorated, to the extent that he had also wanted her to prostitute herself. She finally plucked up courage, left him, and returned to Malta with X.
13.  On 13 May 2013, relying on Article 100A of the Civil Code (see Relevant Domestic Law), X. requested the court to order that genetic tests be undertaken by her and the applicant. Save for her own affidavit and that of her mother she declared to have no further evidence to adduce. On 4 June 2013 the applicant cross-examined Y. The cross‑examination was to continue on a later date. It is unclear whether this occurred.
14.  On 22 May 2013 the applicant objected to the tests on the basis that such an order would breach his human rights. In particular, he argued that Article 100A of the Civil Code (which referred back to Article 70A of the same code) breached his rights under Article 8 of the Convention, and requested the court to refer the matter to the constitutional jurisdictions. He further questioned why the request had been lodged fifty‑three years after X.’s birth and noted his advanced age, arguing that any intervention could have negative medical implications for him.
15.  After hearing submissions from the parties on the matter, on 23 October 2013 the court referred the applicant’s claim to the constitutional jurisdictions.
16.  In his submissions before the constitutional jurisdictions the applicant claimed that none of the aims mentioned in sub‑paragraph two of Article 8 applied in his case, and the law in force did not allow for a fair balance of the competing interests at play. It also imposed an excessive burden in so far as it impeded his possibility of contesting a claim. Moreover, everyone was entitled to institute such proceedings without a shred of evidence, and an alleged father would be bound to submit to the test, with all its consequences, even if he were sure that he was not the father. He claimed that a positive result of the test would disrupt and create havoc in his life after so many years of silence [he was 88 years old]. He requested the court to balance X.’s right (if any) to know who was her father, and his right to respect for his private and family life.
17.  By a judgment of 30 October 2014 the Civil Court (First Hall) in its constitutional competence found that there would be no violation of Article 8 if the Civil Court (in its ordinary competence) were to order the applicant to undergo a genetic test, for the specific purposes of that suit.
18.  The court considered that the enactment of the impugned provisions reflected the State’s action in accordance with its positive obligations in respect of a person’s right to know one’s parentage in the context of a judicial procedure. Citing Pascaud v. France (no. 19535/08, § 64, 16 June 2011) the court reiterated that “the interest of a presumed father was not, alone, a sufficient argument to deprive the applicant [a person seeking to establish paternity] of her Article 8 rights”. According to the court, disproportionality would result had the person seeking paternity acted negligently, by not requesting the test, or not availing him or herself of an available remedy, or had renounced such right, but this was not the case at hand. Referring to the ECtHR case‑law the court noted that while it was true that the absence of an obligatory test did not necessarily entail a violation, it could not be said that making it obligatory was in violation of Article 8 because it was not proportionate.
19.  Furthermore, the age of X. was irrelevant to her quest to discover her genetic parent. This was even more so given that she had been trying to establish paternity over the years and that the applicant had been part of her life for a period of time. In that light the applicant could not claim that his family life would now be in havoc.
20.  Lastly, referring to Jäggi v. Switzerland (no. 58757/00, ECHR 2006‑X) which concerned the same circumstances save that the putative father in that case was deceased – the court confirmed that a particularly rigorous scrutiny was necessary in weighing competing interests in cases of ascertaining parentage, and that a person’s right to ascertain parentage was a vital interest protected by the Convention.
21.  On 10 November 2014 the applicant appealed. He argued, in particular, that by assessing the case under positive obligations, the first‑instance court had failed to assess proportionality. Neither had it looked at the lawfulness of the measure and the legitimate aim – in this connection he contended that since the requirement to order the test was mandatory (unless it concerned a minor), it deprived the judge making such order of any possibility to balance out the interests at play and to decide according to his or her discretion. Further, the impugned law impinged on the equality of arms principle and was contrary to procedural rules (specifically Article 562 of the Civil Code – see Relevant Domestic Law).
22.  By a judgment of 26 June 2015, the Constitutional Court rejected the appeal and confirmed the first‑instance judgment.
23.  The Constitutional Court considered that, as was clear from the first‑instance judgment, that court had looked into the proportionality of the measure. While it had focused mostly on the legal aspects of the case, it did not mean that it had not considered the factual elements pertinent to the case, and indeed its conclusions had specifically referred to the case at issue and were not general.
24.  As had been noted by the first-instance court, the Constitutional Court referred to the fact that X. wished for a number of years to find the truth about an important aspect of her personal identity; she also wished to amend her birth certificate which read “unknown father” (and was thus, in her view, incorrect) to avoid further humiliation every time she had to present such certification. She also wanted to establish a claim over the applicant’s property after his death, according to law. Thus, her impelling interest in determining paternity was clear. On the other hand, save for his old age, the humiliation of undergoing the test [a buccal swab], and the havoc the confirmation of such paternity would cause, the applicant had not referred to any further negative effects.
25.  The Constitutional Court recognised the right of X. to have her paternity established for the reasons adduced by her, namely moral and patrimonial interests. On the other hand the applicant had not put forward reasons which were sufficiently valid to find that the application in his case of Article 100A would breach his rights under Article 8. Reiterating the findings in Pascaud (cited above), the Constitutional Court emphasized that the interest of a presumed father was not, alone, a sufficient argument to deprive the applicant [a person seeking to establish paternity] of her Article 8 rights. Indeed, Article 8 paragraph 2 expressly allowed for a legitimate interference with a person’s private life in the case that such interference was “for the protection and rights of others”. This was precisely the case at hand. Thus, the application of the relevant law to the applicant’s case would be justified given that the aim was precisely to establish the identity of the X. and safeguard her patrimonial interest, if it were to be found that she was the applicant’s daughter.
26.  In that light and bearing in mind the applicant’s submissions that Article 70A(2) of the Civil Code excluded any exercise of discretion by the court ordering the test, the Constitutional Court considered that while it was not excluded that there might be cases where the necessary application (applikazzjoni tassativa) of Article 70A(2) of the Civil Code may result in a breach of Article 8, namely where a fair balance has not been reached between the interests at play, in the present case it was not so, given the factual circumstances of the present case. In the Constitutional Court’s view the applicant would not have suffered any humiliation in having to undergo a buccal swab which was not an invasive action, and any turbulence which could be caused to his private and family life did not outweigh X.’s interests.
27.  Lastly, the complaint about equality of arms was frivolous in so far as the test was available to both parties, and also because the fact that a piece of evidence was conclusive evidence in favour of one party did not mean that it should be discarded.
28.  Following the above‑mentioned Constitutional Court judgment, on 18 October 2015 the Civil Court (Family Section) ordered that the proceedings be continued and that the applicant undergo the genetic test. It appointed an expert to conduct such an examination and requested her to submit a report by 28 January 2016.
29.  On 24 May 2016 counsel for the applicant informed the court that inquiries were to be made with the applicant concerning the possibility of him tendering evidence by video conferencing given that he was residing abroad. On 6 October 2016 counsel informed the court that it was likely that the applicant would file an affidavit with his own evidence. However, no such written testimony was submitted.
30.  The applicant submitted to the test and according to a report of the expert issued on 21 February 2017 (submitted to the ECtHR) the probability of paternity, namely of the applicant being X.’s father, was 99.9998%.
31.  From the minutes of the hearing of 6 April 2017, it appears that the expert could not attend that hearing, so the court authorised her to submit the report, and confirm it on oath, at the court’s registry; the court also solicited the applicant’s details. The case was adjourned for judgment. On the same day a note was filed by the applicant indicating his personal details.
32.  On 21 June 2017 Civil Court (Family Section) declared that X. was the biological child of the applicant and ordered the Director for Public Registry to make the necessary changes in the act of birth of X. so to include the details of the applicant. The court judgment referred to the sworn statements of X. and Y. as well as to the DNA report, and the failure of the applicant to make submissions, opting to limit himself to submitting his personal details. The court noted that X. and Y.’s testimony had not been rebutted as the applicant failed to submit his testimony, and the applicant’s initial objection had been contradicted by the result of the DNA test, which corroborated the witness testimony, particularly that of Y.