Recognition of a child abroad and subsequent registration in the civil status register; public policy where recognition is knowingly untrue

Facts

Parties and instances: The appellant ([A.D.] , Swiss citizen, represented by counsel) opposes the subsequent registration of a child recognition made in Brazil. The respondent is the mother [B.D.] -[E.] (Brazilian national, represented by counsel). The affected party is the daughter [C.E.] [D.] (born 2001 in Brazil, Brazilian national). The prior instance was the Obergericht of the Canton of Aargau, Civil Court, 3rd Chamber (decision of 24 August 2020); at first instance, the Department of Economy and Interior, Division of Registers and Civil Status (DVI), ordered the entry in the civil status register on 11 December 2019.

Facts: The parties married in 2008; the marriage was dissolved by divorce on 10 September 2018. The daughter was born before the marriage and was not descended from the appellant. On 23 July 2013 the appellant signed a child recognition (Termo de reconhecimento de filha) in [V.] /Brazil before the civil registry office and notary. A Brazilian birth certificate (second extract) dated 18 July 2017 bearing a Hague Apostille contains a corresponding annotation. The mother reported the recognition in August 2016 to the Municipal Office of the Canton of Zurich, whereupon competence passed to the Canton of Aargau.

Subject matter of the dispute: Before the Federal Supreme Court, the appellant requested the annulment of the decision of the Obergericht, non-entry for lack of a request by the mother, alternatively annulment for lack of subject-matter competence, and subsidiarily dismissal of the request or remittal. He asserted in particular inadequate hearing, lack of competence, incompatibility with public policy, circumvention of adoption law, defects of will, and a violation of Art. 7 para. 1 CRC. No responses were obtained.

Considerations

Admissibility: The civil law appeal is admissible against the decision of the appellate instance on the entry of foreign documents in the civil status register (Art. 32 para. 1 PILA, Art. 72 para. 2 lit. b no. 2 FSCA). The appellant has standing to appeal (Art. 76 para. 1 lit. b FSCA). The Federal Supreme Court is bound by the established facts (Art. 105 para. 1 FSCA); new facts are admissible only to a limited extent (Art. 99 para. 1 FSCA). A complaint under Art. 96 PILA concerning foreign law is possible. The request for non-entry for lack of a request is unfounded and inadmissible, as the requirement of specific complaint was not met (Art. 42 para. 2 FSCA).

Hearing and procedure: The appellant was heard several times before the DVI and expressed his views on multiple occasions, so the right to be heard under Art. 32 para. 3 PILA was sufficiently observed. A violation of the right to be heard in the proceedings before the Obergericht was not substantiated (Art. 29 para. 1 Cst.). The findings of fact regarding the authenticity of the document and the appellant's understanding of the language are findings of fact that were not successfully challenged under Art. 97 para. 1 FSCA. The competence of the supervisory authority under Art. 32 PILA (in conjunction with Art. 42 FSCA) for the subsequent registration was rightly affirmed; a judicial correction under Art. 42 FSCA does not preclude the entry.

Applicable law and validity: Subsequent registration is governed by Art. 32 PILA; entry is to be authorised if the requirements of Art. 25-27 PILA are met. Art. 73 PILA is decisive: the recognition is valid if it is valid under the law of the habitual residence, the national law, the law of the domicile or the national law of a parent. It suffices that it is valid under one of these legal orders (in favorem recognitionis). Under Brazilian law (Art. 1607, 1609 Brazilian CC) the recognition is irrevocable and contestable only for a substantial defect of will. Form is satisfied by the notarial instrument and the registration. The asserted defects of will (comprehension problems, family pressure) and a revocation cannot be considered in the present registration proceedings, since the supervisory authority cannot decide on judicial contestation.

No application of adoption law: A recognition that occurs despite the absence of biological paternity is not treated as an adoption within the meaning of Art. 78 PILA, but is to be assessed as a recognition under Art. 73 para. 1 PILA.

Public policy: Entry is not to be authorised if the recognition would be manifestly incompatible with Swiss public…