No contestation of paternity if there is a risk to the child's mother for religious and cultural reasons

OLG Karlsruhe, decision of 6 May 2025 - 2 WF 62/24

Initial situation

A husband is automatically considered the father of a child born to his wife. However, if there is no genetic relationship, he can contest paternity. For this purpose, the genetic parentage is verified by an expert opinion. The mother and child must generally tolerate the necessary sample collection - unless the examination is unreasonable for them.

It was questionable whether such unreasonableness also exists if in a certain cultural environment - here: Iraq, Yazidi faith - carrying out the examination alone could be associated with exclusion from the religious community and a threat to life and limb. This is countered by the right of the legal, non-biological father to contest and the child's interest in truthfulness of status and identity.

Facts of the case

The marriage of two Iraqi nationals resulted in two children. After the divorce, the mother was granted custody. The husband contested his paternity with regard to one child, as he was not the biological father.

The family court ordered a parentage report. The mother, a follower of the Yazidi faith, refused to co-operate on the grounds that she feared exclusion from the religious community and sanctions from her family, including being killed. Her brother confirmed this.

The child's father then spoke to the mother's family. They explained that the matter should be resolved in accordance with German law. The child's mother's father also assured her that no acts of revenge were to be expected.

Decision

The family court nevertheless followed the mother's arguments and the Karlsruhe Higher Regional Court confirmed this decision.

An examination is unreasonable if it could lead to serious harm to the person concerned. Although the type of sample collection itself does not usually justify unreasonableness, it can be assumed here that the procedure could be life-threatening for the mother due to the cultural-religious background.

Her father's assurances did not change this, as possible acts of revenge could not be ruled out. The mother's right to physical integrity therefore took precedence over the father's interest in clarifying the parentage.

Classification

As a matter of principle, genetic tests must be carried out in the interests of the child to ensure that its origins are known. Religious or cultural considerations alone do not justify a refusal. The father's right to object may only be overridden in exceptional cases - namely if co-operation is unreasonable.

While previous case law has always denied unreasonableness with regard to possible criminal consequences for men, it was recognised here for the first time due to the threat of religiously motivated violence. Although such acts are punishable in Germany, the alleged dangers alone were sufficient to rule out the mother's duty to co-operate.

However, the court did not examine the possibilities of protection for the mother or the likelihood of such sanctions. The possibility that the father deliberately intended to cause harm with his application was also not taken into account.

The Higher Regional Court did not comprehensively weigh up the conflicting interests. Despite the mother's burden of proof and establishment, the decision does not explain why her information was considered sufficient. The consequences of unresolved paternity for the child were not taken into account. The decision therefore appears questionable in the light of the case law of the Federal Constitutional Court.

The legal father remains bound in all duties, the genetic parentage of the child remains unclear. The child grows up - at least until it reaches the age of majority - without knowledge of its biological origins and thus loses a significant part of its identity.

This decision effectively rules out the possibility of a challenge even before the sample is taken, as soon as there is a risk of sanctions such as threats or violence in certain cultural contexts. While the interest of men in protection from criminal prosecution is not sufficient, the risk of violence within the family is recognised as a priority. As a result, both the right of the legal, non-biological father to contest and the child's right to identity must take a back seat.

 

Dr Marko Oldenburger

Specialist lawyer for family law and medical law