The claimant, whilst pregnant, travelled from Ireland to, and gave birth in France, to use their system of anonymous registration. She wanted the child adopted, and, following the birth, the system whereby she could request the return of the child within a two month period was twice explained to her. She was told that, after this period, the child would be available for adoption. She duly signed the relevant documents, and did not seek the return of the child within the two month period. However, some five months after she had signed the documents, she sought the return of the child. The child’s father had also begun proceedings in Ireland. The French Cour de Cassassion, overruling the local appeal court, made a full adoption order.
Held: There no breach of the mother’s rights under ECHR Article 8. The principal argument centred on the short time-scale for any change of mind permitted by the French legislation. As to this, the ECtHR said: ‘As regards the time limit prescribed by French law, the government pointed out that it had been reduced from three to two months by the Act of 5 July 1996, so that the child could quickly enjoy stable emotional relations within a new family and have the benefit of parental ties.
As it found in Odievre v France [2003] 1 FCR 621 at para 44, the court observes that it is confronted in the present case with interests that are not easily reconciled: those of the biological mother, the child and the adoptive family. There is also a general interest at stake (at para 45). In striking a balance between these different interests, the child’s best interests should be paramount.
In this connection, the court accepts the relevance of the arguments put forward by the government on the basis of studies by child-welfare professionals, which have stressed that it is in the child’s interests to enjoy stable emotional relations within a new family as quickly as possible. It further observes that the tribunal de grande instance held that psychological and legal stability should be sought for the child, ‘if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures’.
Furthermore, while the two-month time limit may seem brief, it nevertheless appears sufficient to allow the biological mother time to reflect and to reconsider her decision to give the child up. The court is mindful of the psychological distress which the applicant must have experienced, but observes that she was 36 years old at the time, was accompanied by her mother and had two lengthy interviews with the social services after giving birth.
The court lastly notes that in a recent case (VS v Germany (App no 4261/02) (admissibility decision, 22 May 2007)), concerning a minor who had consented to the adoption of her child, it found that the German authorities had not overstepped their margin of appreciation, although under German law, consent to adoption is irrevocable except in the event of a declaration of nullity, which had not been sought in that particular case.
Having regard to the margin of appreciation which states must be afforded in view of the diversity in legal systems and traditions and in practice (see Odievre v France [2003] 1 FCR 621 at para 49, and Evans v UK [2007] 2 FCR 5 at para 77), the court considers that the time limit prescribed by the French legislation seeks to strike a balance and to ensure sufficient proportion between the competing interests (ibid; see also, conversely and mutatis mutandis, Mizzi v Malta [2006] 1 FCR 256).
Moreover, in the circumstances of the case, the action brought by the third party before the Irish authorities has no bearing on the conclusion reached by the court.
Judges:
Bostjan M. Zupancic, P
Citations:
35991/04, [2008] ECHR 1, [2008] 2 FCR 19, 24 BHRC 49, (2010) 50 EHRR 33, [2008] Fam Law 309, [2008] 1 FLR 888
Links:
Statutes:
European Convention on Human Rights
Cited by:
Cited – YC v The United Kingdom ECHR 13-Mar-2012
The court spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Adoption
Updated: 13 July 2022; Ref: scu.264340