Decision on the Appointment of a Guardian for a Child Born out of Wedlock and Recognized before Birth

Facts

On March 2, 1981, the Guardianship Authority of the District of Val-de-Ruz appointed a guardian for the child Emilie X., daughter of Catherine X. and Eric Y., born on May 12, 1980 in Neuchâtel. Catherine X. opposed this decision, arguing that she was living in the same household with the father, who had recognized the child on April 28, 1980, and that they were both raising their first child born on October 24, 1978, for whom no guardian had been appointed. She believed she did not need any assistance or advice.

Catherine X. appealed to the Supervisory Guardianship Authority of the Canton of Neuchâtel, which rejected the appeal on May 1, 1981. She then appealed for reform to the Federal Tribunal, requesting the annulment of the decision of the cantonal authority and that no guardianship be instituted.

Considerations

The Federal Tribunal upheld the appeal. It considered that the cantonal authority had made a false application of Art. 309 para. 1 CC. According to the Court, when a child born out of wedlock has been recognized before or at the time of birth, there is no need to appoint a guardian for the child.

Indeed, under the former law, the appointment of a guardian was no longer justified when the deadline for bringing a paternity action had expired or when the child had been recognized or legitimized. Although Art. 309 para. 1 CC provides that the guardian is responsible for advising and assisting the mother, his main role is to establish paternal filiation. However, this task is no longer necessary if the filiation has already been established by recognition.