Court/Judicial body: European Court of Human Rights
Date: April 19, 1994 CRC
Provisions: Article 7: Name and Nationality
Other international provisions:European Convention on Human Rights (Articles 6, 8, 14, 26 and 50)
Domestic provisions: Adoption Act 1952 (Sections 8, 10, 14, 16, 20, 34 and 39) Constitution (Articles 40 and 41) Guardianship of Infants Act 1964 (Sections 2, 6A and 11) Status of Children Act 1987 (Section 12)
Case summary
Background: A couple had lived together in a relationship and decided to have a child. Shortly after the woman became pregnant, the relationship broke down, and she arranged for the child to be adopted without informing the child’s father of this intention until after the child had been placed with a new family. The father then sued the Government for violating his right to respect for family life by facilitating the adoption without his knowledge.
Issue and resolution: Adoption. The Court agreed that the Government’s facilitation of the adoption without the father’s knowledge violated the father’s right to respect for family life, and awarded damages to compensate for the violation.
Court reasoning: There is a family bond between a child and both of his or her parents even if, by the time of the child’s birth, the parents’ relationship has ended. Because of the Government’s involvement in adoption proceedings and the fact that Irish law allowed for the secret placement of the child without the father’s knowledge or consent, the Court found that the Government had violated this bond and the father’s right to respect for family life without justification. The Court also noted that children, as a general rule, have the right to be cared for by their parents as far as possible under the Convention on the Rights of the Child.
Excerpt citing CRC and other relevant human rights 50. According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be created that render possible as from the moment of birth the child’s integration in his family (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31, and the above-mentioned Johnston and Others judgment, p. 29, para. 72). In this context reference may be made to the principle laid down in Article 7 of the United Nations Convention on the Rights of the Child of 20 November 1989 that a child has, as far as possible, the right to be cared for by his or her parents. It is, moreover, appropriate to recall that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see, inter alia, the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, para. 58).
Follow up: The Irish Government now offers fathers of children to be adopted an opportunity to appear before the Adoption Board before any decision on the adoption application is made.
CRIN comments: CRIN believes this decision is consistent with the CRC. As recognised by the Court, Article 7 of the Convention gives a child, “as far as possible, the right to know and be cared for by his or her parents.” Article 21 further elaborates that adoption procedures should be conducted “in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption.” In these circumstances, it would seem important that both parents of a child to be placed for adoption be given an opportunity to express their opinion as a part of the proceedings.
Citation: 18 EHRR 342 [1994]
Link to full judgement: http://hudoc.echr.coe.int/eng?i=001-57881