Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lacuna in Turkish law on the replacement of the first name of the biological mother of one of the unmarried adoptive mother on personal documents of the adopted child: violation
In fact – In May 2007 the applicant, single adoptive mother, could not register his name in place of that of the biological mother of the paperwork for her child.
In November 2007, the district court dismissed the action on the basis of its in part that his request had no legal basis. She appealed on points of law. In March 2009, while his appeal was pending, legislative reform opened the possibility for an adoptive single mother to have his name in the place of that of the biological mother. In November 2009, the Supreme Court nevertheless upheld the first instance judgment by a judgment which remained silent on this reform.
In November 2010, the applicant obtained the formalization of his name as the mother of the child.
Law – Article 8: This case concerns an aspect of the problems encountered by those who wish to achieve a single-parent adoption and, given the particular judicial response to this problem, the Court considers it appropriate to analyze it as a case concerning the positive obligations of the State to ensure effective respect for private and family life through its legislative, executive and judicial.
At the relevant time, the Turkish civil law recognized these people the right to give their family name to their adopted child, but provided no legal framework regarding the recognition of the first name of the adoptive parent as the natural parent.
In the search for balance between the different interests of the biological mother of the child and the adoptive family, and the general interest, the State enjoys a certain margin of appreciation, but in all assumptions, the best interests of the child must come first. The margin of appreciation coincides with the discretion that was allegedly given to the civil courts in the reconciliation of different personal interests underlying the parent adoptions. But neither the trial judges nor those of Cassation did not it would be noted the way that the applicant had drawn interpretative standards under Article 1 st of the Civil Code, which commanded them to fill this failure in the law, it was, to protect competing interests related to the adoption of the child. In addition, there are in the contested decisions any evidence that would convince that in this case the said judges are employed to conduct an assessment focused on the particular circumstances of this case, much less concerned with the preservation the best interests of the child in question.
The balance that the Turkish legislature intended household demanded that we should grant special importance to the positive obligations under Article 8. To this end, to be effective, would have had the protection referred be placed in a frame clearly established in the domestic legal order, to enable to assess the proportionality of restrictions to fundamental rights or order ‘intimate’ which were recognized on the applicant by Article 8 knowing that the incomplete and non motivated the appreciation of the domestic courts on the exercise of these rights – as in this case – could not meet an acceptable margin of appreciation.
So in terms of single-parent adoptions, the Turkish civil law legal loophole that had touched the people in the situation of the applicant whose application was part of a legal sphere that the Turkish Parliament did certainly not planned and supervised so as to strike a fair balance between the general interest and the competing interests of individuals.
Therefore the protection of civil law, as it was designed at the relevant time, could not be considered adequate in relation to the positive obligations to be contributed by the respondent State under Article 8 of the Convention.
Conclusion : violation (unanimously).
4789/10 – Legal Summary, [2015] ECHR 184
Bailii
European Convention on Human Rights 8
Human Rights, Family
Updated: 28 December 2021; Ref: scu.542943