This article analyses the judgment of the European Court of Human Rights given in the case Mandet v. France, relating to the “best interest of the child” in challenging legal father’s paternity by the presumed biological father and against the child’s wishes. First, the article stresses a peculiarity of the decision commented on: different from such previous in which the applicant was the biological father, in this case the applicant is the child; that circumstance led the Court to qualify the best interest of the child not – as normal – as a legitimate aim pursued with the interference, but as an element justifying the interference was necessary: the Court thereby excludes the possibility to strike a balance between different rights of the child, taking the view that only a balance between child’s right and those of a different subject is possible. Then, the articles criticizes the type of control carried out by the Court over the assessment of the child’s best interest made by national authorities, both with regard to procedure and the outcome of that assessment. Lastly, the article points out how, unlike what the Court said, the interference put in place by the national authorities was not suitable, so not necessary, in order to pursue the legitimate aim to which it have been achieved. In conclusion, the control carried out by the Court in the judgment commented on does not appear adequate to ensure an effective protection to the “best interest of the child”.

Le problematiche concernenti la garanzia del preminente interesse del minore in un caso di bilanciamento tra diritti diversi del minore stesso (e non già di bilanciamento tra i suoi diritti e quelli di altri soggetti)

Francesca Colombi
2016-01-01

Abstract

This article analyses the judgment of the European Court of Human Rights given in the case Mandet v. France, relating to the “best interest of the child” in challenging legal father’s paternity by the presumed biological father and against the child’s wishes. First, the article stresses a peculiarity of the decision commented on: different from such previous in which the applicant was the biological father, in this case the applicant is the child; that circumstance led the Court to qualify the best interest of the child not – as normal – as a legitimate aim pursued with the interference, but as an element justifying the interference was necessary: the Court thereby excludes the possibility to strike a balance between different rights of the child, taking the view that only a balance between child’s right and those of a different subject is possible. Then, the articles criticizes the type of control carried out by the Court over the assessment of the child’s best interest made by national authorities, both with regard to procedure and the outcome of that assessment. Lastly, the article points out how, unlike what the Court said, the interference put in place by the national authorities was not suitable, so not necessary, in order to pursue the legitimate aim to which it have been achieved. In conclusion, the control carried out by the Court in the judgment commented on does not appear adequate to ensure an effective protection to the “best interest of the child”.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11568/1029372
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