swarb.co.uk - law index
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Adoption - From: 2004 To: 2004
This page lists 9 cases, and was prepared on 02 April 2018.
P, Re Freeing Without Consent [2004] NIFam 6
11 Feb 2004
FdNI
Northern Ireland, Adoption
[ Bailii ]
B v Birmingham City Council and others (Construction of S20, 55 and 56 of the Adoption Act 1976) [2004] EWCA Civ 515
28 Apr 2004
CA
Adoption
Adoption Act 1976 20 55 56
[ Bailii ]
Biddulph v Birmingham City Council, Biddulph B (Children) Mr and Mrs A [2004] EWCA (Civ) 515; Times, 10 June 2004
28 Apr 2004
CA
Lord Justice Thorpe Lord Justice Neuberger
Adoption
The children had been subject to an adoption order. They had been placed outside the jurisdiction for adoption. The parents appealed refusal of their application for revocation of the order. Initially places had been found for the four children together, and an urgent request made for permission. The judge had said that since they were not in care, no application was required. A placement together failed, and the authority had made other arrangements. That placement was and remained lawful. Section 20 was not to be read as restricted to a lawful placement.
Adoption Act 1976 20(1)(b) 55 56
K and Others, Re Revocation of Freeing Order [2004] NIFam 8
21 May 2004
FdNI
Northern Ireland, Adoption
[ Bailii ]
Cases of Pini And Bertani And Manera And Atripaldi v Romania; ECHR 22-Jun-2004 - 78030/01; [2004] ECHR 275; 78028/01; [2005] Fam Law 697; 40 EHRR 13; (2005) 40 EHRR 13; [2005] 2 FLR 596
Pla and Puncernau v Andorra 69498/01; [2004] ECHR 334; (2006) 42 EHRR 25; [2004] 2 FCR 630
13 Jul 2004
ECHR
Human Rights, Wills and Probate, Adoption
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to pass to the children and grandchildren of the testatrix's daughters. She died in 1949. In 1995 Francesc-Xavier made a will in favour of his wife, but in a codicil he left the assets inherited under his mother's will to his wife for life and then to their adopted son Antoni, who was born in 1966 and adopted by them, in Spain, in 1969. The assets were described in the report as real estate. Francesc-Xavier died in 1996.
Two great-granddaughters of the testatrix applied to the Tribunal des Batlles to have the codicil declared void. That Tribunal dismissed the application on the basis that the case was governed by the testatrix's intention determined by the terms of her will, that there was no statutory or constitutional provision relating to adopted children at that time in Andorra, that customary law was derived partly from Roman law under which adopted children ranked equally with natural-born children, and accordingly the testatrix, by making no express exclusion of adopted children, should not be taken to have excluded them by implication. I understand that legislation was introduced in 1958 putting adopted children on an equality, but that this did not affect the matter.
The great-granddaughters appealed, and in 2000 the High Court of Justice allowed the appeal and set aside the codicil in its entirety. It agreed that the matter was governed by the testatrix's expressed intention when she made her will, and that Antoni could not rely on the legislation of 1958. But it was significant that in the first half of the 20th century adoption was virtually unknown in Andorra, that provisions of Roman law 'could not easily be transposed' to Andorran families living at that time, that in any event the relevant Spanish legislation (under which Antoni had been adopted) gave an adopted child rights of inheritance from his or her adoptive parents but not from more remote family members; so that, by not explicitly including adopted children, the testatrix should not be taken to have intended to include her son's adopted son.
Antoni and his mother made two attempts to have this ruling annulled by the national courts in Andorra, but those attempts failed. They then brought the claim in the ECHR, saying that the appeal court had acted in breach of articles 8 and 14 by allowing the appeal from the decision of the Tribunal, and they maintained that the case should be governed by private law in the light of Andorran law in force in 1996, when Francesc-Xavier died, and the Convention. The ECHR took the relevant national legislation to be that in force in 1939 and 1949 (rather than 1996).
The government of Andorra took a preliminary point that no relevant 'family life' was affected because Antoni had been adopted 20 years after the testatrix had died, but the ECHR ruled unanimously that inheritance by children and grandchildren does fall within the scope of article 8, The Court was divided on the main issue, with a majority concluding that Antoni's rights under articles 8 and 14 had been infringed, but with two members of the court, namely Judge Bratza and Judge Garlicki, dissenting. The majority began by pointing out that previous cases of this kind before the ECHR had concerned the discriminatory effect of statutes in various member states, whereas the instant case related to the interpretation or construction of a testamentary disposition. They went on to record the principle that domestic law should normally be determined by the domestic courts, all the more so with a disposition such as a will. 'Accordingly . . an issue of interference with private and family life could only arise under the Convention if the national courts' assessment of the facts or domestic law were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention.'
The majority went on to find that the decision of the appeal court was blatantly inconsistent with the Convention: 'In the present case the Court observes that the legitimate and canonical nature of the marriage contracted by the first applicant's father [Francesc-Xavier] is indisputable. The sole remaining question is therefore whether the notion of 'son' in [the testatrix's] will extended only, as the [appeal court] maintained, to biological sons. The Court cannot agree with that conclusion of the Andorran appellate court. There is nothing in the will to suggest that the testatrix intended to exclude adopted grandsons. The Court understands that she could have done so, but as she did not the only possible and logical conclusion is that this was not her intention.
'The [appeal court's] interpretation of the testamentary disposition, which consisted in inferring a negative intention on the part of the testatrix and concluding that since she did not expressly state that she was not excluding adopted sons this meant that she did intend to exclude them, appears over contrived and contrary to the general legal principle that where a statement is unambiguous there is no need to examine the intention of the person who made it.
Admittedly, the Court is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court's interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by Article 14 and more broadly with the principles underlying the Convention.
In the present case the [appeal court's] interpretation of the testamentary disposition in question had the effect of depriving the first applicant [Antoni] of his right to inherit under his grandmother's estate and benefiting his cousin's daughters in this regard. Furthermore, the setting aside of the codicil of 3 July 1995 also resulted in the second applicant [Antoni's mother] losing her right to the life tenancy of the estate assets left her by her late husband.
Since the testamentary disposition, as worded by [the testatrix], made no distinction between biological and adopted children it was not necessary to interpret it in that way. Such an interpretation therefore amounts to the judicial deprivation of an adopted child's inheritance rights.'
'The Court reiterates that the Convention, which is a dynamic text and entails positive obligations for states, is a living instrument, to be interpreted in the light of present-day conditions and that great importance is attached today in the Member States of the Council of Europe to the question of equality between children born in and children born out of wedlock as regards their civil rights. Thus, even supposing that the testamentary disposition in question did require an interpretation by the domestic courts, that interpretation could not be made exclusively in the light of the social conditions existing when the will was made or at the time of the testatrix's death, namely in 1939 and 1949, particularly where a period of 57 years had elapsed between the date when the will was made and the date on which the estate passed to the heirs. Where such a long period has elapsed, during which profound social, economic and legal changes have occurred, the courts cannot ignore these new realities. The same is true with regard to wills : any interpretation should endeavour to ascertain the testator's intention and render the will effective, while bearing in mind that "the testator cannot be presumed to have meant what he did not say" and without overlooking the importance of interpreting the testamentary disposition in the manner that most closely corresponds to domestic law and to the Convention as interpreted in the Court's case law.'
European Convention on Human Rights
1 Cites
1 Citers
[ Worldlii ] - [ Bailii ]
Re S (Care: Parenting Skills: Personality Tests) [2004] EWCA Civ 1029; [2005] 2 FLR 658; [2005] Fam Law 452
30 Jul 2004
CA
Adoption
[ Bailii ]
L-P, Re an Application By [2004] NICA 35
30 Sep 2004
CANI
Kerr LCJ, Campbell LJ and Sheil LJ
Northern Ireland, Children, Adoption
Appeal by adoptive parents against order for contact between natural grandparents
[ Bailii ]
Norfolk County Council v Webster and Others [2004] EW Misc 3
24 Nov 2004
Misc
Adoption
[ Bailii ]