The court considered provisions allowing the adoption of a child against the wishes of the parents. The parents complained that the procedure was not in accordance with law because it lacked legal certainty.
Held: The claim failed. A measure of vagueness in the law is inevitable if excessive rigidity is to be avoided, and legislation may have to avoid excessive rigidity if it is to keep pace with changing circumstances.
‘As regards the applicant’s argument that the Arts 1:228 and 3.13 of the Civil Code and their application in practice fell short of the requirement of foreseeability, the Court considers that it is a logical consequence of the principle that laws must be of general application that the wording of statutory provisions is not always precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. However clearly drafted a legal provision may be, its application in practice involves an inevitable element of judicial interpretation and assessment of facts, which do not by itself make a legal provision unforeseeable in its application. On many occasions and in very different spheres the Court has held that it is in the first place for the national authorities, and in particular the courts, to construe and apply the domestic law (see, for example, Winterwerp v Netherlands (1979) 2 EHRR 387 at [46]; Iglesias Gil v Spain (2005) 40 EHRR 3 at [61]; and Slivenko v Latvia: (2004) 39 EHRR 24 at [105]).
Accordingly, an issue of foreseeability could only arise under the Convention if the national courts’ assessment of the facts or domestic law was manifestly unreasonable or arbitrary.’
Citations:
(2005) 41 EHRR SE 266, 64848/01
Jurisdiction:
England and Wales
Cited by:
Cited – ANS and Another v ML SC 11-Jul-2012
The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Lists of cited by and citing cases may be incomplete.
Human Rights, Adoption
Updated: 01 May 2022; Ref: scu.240052
