THE PRACTICAL IMPLEMENTATION OF THE PROVISIONS ON THE COMPETENCE TO SETTLE PARENTS AND CHILD IDENTIC

I. VIETNAMESE CURRENT LAW PROVISIONS ON THE COMPETENCE TO SETTLE PARENTS AND CHILD IDENTIFICATION

According to Article 101, Law on Marriage and Family 2014, there are 2 government authorities competent to settle identification of parents and children:  

Firstly, it’s Civil Status Registration Department[1], which is Commune-level People's Committees of places of residence of recognizing or recognized parents or children shall register parents and child recognition.

Secondly, Competent Court[2] settles the identification of parents and children in the following cases:

• There are disputes;
• The person requested for being identified as parents or child has died;
• When a person who requests identification of his/her parents or child dies, his/her next of kin has the right to request a court to identify the parents or child for him/her;
• A person who is not recognized as the parents of a person may request a court to identify that the latter is his/her child.
• A person who is recognized as the parents of a person may request a court to identify that the latter is not his/her child.

On the other hand, it is stipulated in Article 28 and Article 29 of Civil Procedure Code 2015 on the disputes falling under the courts' jurisdiction as follows:

• “Disputes over determination of fathers or mothers for children; or determination of children for fathers or mothers” is one of the marriage and family-related disputes falling under the courts' jurisdiction; and
• “The petition for determination of fathers or mothers for children; or determination of children for fathers or mothers according to legislation on marriage and family” is one of the marriage-and family-related petitions falling under the courts' jurisdiction.

Currently, under the Article 16 of the Circular No. 04/2020/TT-BTP dated May 28, 2020 of Minisrtry of Justice on elaborating a number of Articles of Law on Civil status and Government’s Decree No. 123/2015/ND-CP dated November 15, 2015 on guidelines for Law on Civil status taking effect from July 16, 2020, parents-child relationship recognition and civil status revision in some special cases are as follows:

“People’s Courts shall decide cases where the wife gives birth or is pregnant during the marriage period but the wife or husband does not recognize the child as their common child or another person wishes to recognize the child as their own as per the law.

If the People’s Court rejects such a case, the civil registration authority shall receive and handle the application for registration of the birth of a child with unknown father or application for father-child relationship recognition, which shall include a written rejection from the Court and proof of the father-child relationship mentioned in Clause 1 Article 14 of this Circular.”

Thus, there is one more case falling under the courts' jurisdiction: “the wife gives birth or is pregnant during the marriage period but the wife or husband does not recognize the child as their common child or another person wishes to recognize the child”. However, the decision for this case can be transferred to the Civil Status Registration Agencies if the Court rejects it.  

II. SOME LEGAL QUESTIONS CALLED RELATED THE COMPETENCE TO SETTLE PARENTS AND CHILD IDENTIFICATION

1. What is the dispute related to the parents and child identification?

Until now, there is no regulation on the definition of “dispute” related to the parents and child identification, which leads to the confusion of the Courts and Civil Status Agencies about the competent to settle when being requested.

To undertand more about the consfusing competence to settle these cases, we will analyze the practical case:

Due to unhappy common life, Ms.  Phan Thi Thanh T and her husband Mr. Duong Van H, from 2010, have been living separately. Then, Ms. T and Mr. Vu Trung TH have a relationship. They have a common child who was born at Hai Phong Maternity hospital on June 09, 2014. His name is Vu Hai PH. Whereby, Ms. T and her husband have not divorced.

Mr. TH and Ms. T have come to the Commune-level People’s Committee where Ms. H resides several times to apply for their child’s birth certificate whose family name is passed from Mr. TH. However, their application was rejected and they were advised by the Civil Status Officers to file a lawsuit at a competent court because there was a dispute arising from their case.  

Not understanding the law provisions and avoiding filing a lawsuit, they agreed that there was no dispute between them. It was determined that PH is their common child and Mr. H had no opinion. In February 2020, Mr. Vu Trung TH filed a lawsuit to the Court to settle this issue so that he could apply for his child’s admission at school.

On March 03, 2020, People’s Court in H.A District, Hai Phong City accepted the case which was “dispute on father identification” in which the status of the involved parties was determined as follows[3]:

• Plaintiff: Mr. Vu Trung TH;
• Defendant: Ms. Phan Thi Thanh T.;
• The person with related interests and obligations: Mr. Duong Van H.

Considering the case of Mr. Vu Trung TH and Ms. Phan Thi Thanh T., the People's Court of H.A District, Hai Phong City determined that Mr. TH was the plaintiff and Ms. T was the defendant. Compared to the Article 68 of Civil Procedure Code 2015, the involved parties in civil lawsuits are agencies, organizations and individuals, including the plaintiffs, the defendants and the persons with related interests and obligations, in which:

• The plaintiff in a civil lawsuit is the person that initiates lawsuit or the person for whom the other agencies, organizations and individuals prescribed by this Code initiates the lawsuit to request the Court to resolve the civil lawsuit when he/she holds that the legitimate rights and interests of that person have been infringed upon.
• The defendant in a civil lawsuit is the person against whom the plaintiff initiates a lawsuit or the other agencies, organizations and individuals prescribed by this Code initiates a lawsuit to request the Court to resolve the civil lawsuit when they holds that the legitimate rights and interests of the plaintiff have been infringed upon by such person.

Thereto, we can understand from the determination of the People’s Court in H.A District, Hai Phong City about the status of the involved parties compared to the spirit of Article 68 of Civil Procedure Code 2015 was as follows: “Mr. Vu Trung H files a lawsuit to ask the Court to protect his legitimate rights and interests as he holds that his rights and interest have been infringed by Ms. T”. However, in reality, Mr. TH did not want to file this case as his rights and interests were not infringed by Ms. T. Ms. T agreed that PH is their common child. The question called is that why the competent did not consider Mr. Duong Van H. (Ms. T’s husband) as the defendant while their aim was to determine the father of the child.

This situation calls the issue that it is necessary to define the "dispute" in order to determine the competent to settle; ensure consistency in the legal documents, avoid the inadequacies and confusion caused by the unclear determination of the status of the involved parties and establishment of the legal relationship between the parties when putting the law provisions into practice.

2. Is parents and child identification without dispute under the Court's jurisdiction for a petition or under the competence of Civil Status Agency?

As cited in the competence to identify parents and children in Part 1, “The petition for determination of fathers or mothers for children; or determination of children for fathers or mothers” is a civil matter under the jurisdiction of the Court, according to the Civil Procedure Code 2015. It is clearly understood that these are non-dispute requests because the civil matter is a situation where agencies, organizations, or individuals have no disputes but request Courts to recognize or not to recognize a legal event.[4]. 

 According to Law on Marriage and Family 2014, the situation of parents and child identification without dispute is under the competence of Civil Status Agency. It is stipulated in the Civil Procedure Code 2015 that the petition for determination of fathers or mothers for children; or determination of children for fathers or mothers according to legislation on marriage and family is under the jurisdiction of Court. Thus, there are 02 competent authorities to settle the parents and child identification as follows:

• Civil Status Agency by recording in the civil status book ;[5]
• Competent People’s Court by settling a civil case and sending the decision to resolve this civil matter to the Civil Status Agency for issuing an extract to the persons requesting [6].

The final result of parents and child identification without dispute is the record in the civil status book for issuing an extract to the persons requesting.

Should the competent People’s Court or the Civil Status Agency be chosen?

Empowering two agencies to deal with the identification of parents and children leads to the reduction of workload in People's Courts. However, there are many differences in the procedures and order for determining parents and child between the People's Court and the Civil Status Agency, specifically:

2.1. Regarding the petition:

i. When filing at the People's Court, the petitioner must submit the application with the prescribed contents and clearly state the request for settlement, the reasons, purposes and grounds for requesting the Court to resolve the civil matter. Enclosed to the petition, the petitioner must send documents and evidence to prove his/her claim is grounded and legal[7]. Evidences in civil cases are factual things which are handed to Courts by involved parties, agencies, organizations or individuals or gathered by Courts according to the order and procedures prescribed by this Code and are used by Courts as bases to determine objective details of the cases as well as to determine whether the involved parties' claims or protests are well grounded and lawful or not.^[8]

ii. Requesters for registration of parents and child recognition shall submit declarations, made according to a set form, and evidence proving father and child or mother and child relationship to the civil status registration agency. Proof of parents-child relationship is the written confirmation of the father-child or mother-child relationship from a competent domestic or foreign regulatory body, organization, health authority or testing authority. In case there is no proof of the parents-child relationship the parents and child shall draw up a confirmation of their parents-child relationship with at least 2 witness of their parents-child relationship.[9]

Therefore, the first difference is that the Court accepts the factual evidences for determine the grounds and regularity of the petitioner’s request while the Civil Status Agency bases on the confirmation of the parents-child relationship when there is no proof. It is clear that the Courts are more objective than Civil Status Agency in settling the civil case of parents and child identification because the confirmation comes from the will of the requester and does not reflect the factual blood relationship. There are also the disadvatages in case the Civil Status Officers conduct the verification because the blood relationship between parents and children is best reflected by the written confirmation of medical and the assessment agency.

2.2. Settlement order:

1.  The People's Court must carry out the first-instance civil matter settlement procedures in accordance with the Civil Procedure Code 2015 as follows: receive and process petitions, notify the acceptance of petitions, open the meetings to settle the civil cases.[10]
2. The Civil Status Agency shall carry out the procedures for registration of parents and child recognition in the following order: Receiving dossiers, conducting the verification if necessary, (a) if it is true and there is no dispute, civil status officers record in the civil status book and report to the President of the commune-level People's Committee to issue the excerpts to the requester.[11]

There are more procedures at the Court than at the Civil Status Agency.

2.3. Time for settlement:

1.  Time for settlement a civil matter in the People’s Courts is at least a month and 23 days in which it takes 23 days for the acceptance of the Court and 1 month for considering the petition.
2. It takes 03 days for the Civil Status Agencies to resolve the request, from the date of receiving the valid dossiers. If it’s necessary for the verification, it will take 05 days more.

It takes more time for identification of parents and child at the Courts than registration of parents and child recognition at the Civil Status Agencies.

2.4. State fees:

i. Instance court fee is VND 300.000 paid by the petitioner;

ii. Requesting at the Civil Status Registration Agency, the requester must pay a fee based on socio-economic conditions in the locality where the service provision arises, the collection of fees and charges. Provincial-level People's Councils shall prescribe the appropriate rates of fees and charges.

The fee for the identification of parents and child in localities is almost lower than the fee for settlement at the People's Court.

It is found that the People's Court and the Civil Status Registration Agency both have the right to resolve a request to identify a parents and child without a dispute, except for the cases specified by the Marriage and Family Law which must be settled by the People's Court. Although there are many differences in the order, procedures, settlement directions, time limit and fees when being processed at these two agencies, the results are recorded in the civil status book at Civil Status Registration Agency for issuing an extract to the persons requesting.

If I had a request on the identification of parents and child without a dispute, I would carry out the procedure at Civil Status Registration Agency because its procedures are simpler and faster and the fee is lower than the Courts’. In the author’s opinion, the identification of parents and child without a dispute (excluding the cases under the Court’s jurisdiction) should be solved by the Civil Status Registration Agency. However, to ensure the objectivity of the identification, “the comfirmation of the parents-child relationship drafted by the requestors” should be canceled to avoid the mistakes and ensure the moral rights of the parties involved.

3. When does the Court reject to settle the request of identification of parents and child?

Before the Circular No. 04/2020/TT-BTP took effect, there had been several situations where “A person not recognized as the other's parent wanting to identify the other as his/her child” or “A person recognized as the other's parent wanting to identify the other as his/her child” files a lawsuit at the Court under the Law on Marriage and Family but the Court rejects the case or issues the decision on suspension it (because there is no dispute). Thus, on November 06, 2014, Department of Civil Status, Nationality, Authentication issues the Official Letter No. 5577/HTQTCT-HT on guilding the Civil Status issues. Accordingly, “The legal provisions on identification of parents and child must be strictly complied with for ensuring the objectivity and accuracy, avoiding taking advantage of the identification for self-interest, immigration purposes and human trafficking. A dossier of request for identification of parents and child must consist of the court's document to suspend the resolution of the case or refuse to resolve the identification of parents and child due to the absence of a dispute, and at the same time there must be an evidence, proof of parent- child relationship (AND test results)”.

On July 16, 2020, Circular No. 04/2020/TT-BTP took effect. There is a provision that People’s Courts shall decide cases where the wife gives birth or is pregnant during the marriage period but the wife or husband does not recognize the child as their common child or another person wishes to recognize the child as their own as per the law. If the People’s Court rejects such a case, the civil registration authority shall receive and handle the application for registration of the birth of a child with unknown father or application for father-child relationship recognition, which shall include a written rejection from the Court and proof of the father-child relationship

This provision aims to protect people’s legitimate rights and interests. However, it may lead to the Courts shifting their responsibilities onto the Civil Status Agencies because the Court's rejection right in the cases of identification of parents and child is not explicitly stated.

Besides, the Court’s rejection in the cases of identification of parents and child is contrary to the provisions of the Article 89 of Law on Marriage and Family 2014, specifically:

 “1. A person who is not recognized as the parent of a person may request a court to identify that the latter is his/her child.

2. A person who is recognized as the parent of a person may request a court to identify that the latter is not his/her child.”

It can be concluded that there is an inconsistency between the law on civil status and the law on marriage and family in the identification of parents and child, which call a question to the lawmakers in terms of the specification and clarity of the provisions so that the citizens can exercise their rights and interests quickly and conveniently.

III. RECOMMENDATIONS:

Firstly, it is necessary to issue a legal document clearly stating the “dispute arising from the identification of parents and child” to avoid the responsibility shifting among the competent agencies and ensure the quick and convenient procedures for the requested settlement.

Secondly, the unity and linkage among legal documents should be created in the regulations on the identification of parents and child as well as relevant regulations to avoid the inconsistency.

Thirdly, the cases of identification of parents and child without a dispute should be solved by the Civil Status Registration Agency with quick and convenient procedures; factual and objective evidence instead of the requestors’ confirmation.

Nguyen Thi Suong - FDVN Law firm