Court/Judicial body: Constitutional Court of Ukraine
Date: 3 February 2009 CRC
Provisions: Article 3: Best interests of the child
Other international provisions: Article 10.3 of the International Covenant on Economic, Social and Cultural Rights 1966: Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions Principle 2, Declaration of the Rights of the Child 1959: The child shall enjoy special protection and the best interests of the child shall be the paramount consideration
Domestic provisions: Article 211.2 of the Family Code: The age difference between an adoptive parent and a child may not exceed 45 years Article 52.3 of the Constitution: The State is obliged to take care of orphan children and children deprived of parental care
Background: The Authorised Human Rights Representative of the Verkhovna Rada (parliament) of Ukraine submitted an appeal to the Constitutional Court arguing that Article 211.2 of the Family Code, which states that the age difference between an adoptive parent and a child may not exceed 45 years, infringes on the constitutional rights of Ukrainian citizens. Specifically, it argued that the provision is discriminatory on the grounds of age, restricting a citizen’s right to adopt a child and the child’s right to be adopted, and violates the constitutional principle of equality of human rights.
Issue and resolution: Adoption; discrimination. The Constitutional Court held that the age restriction on an individual’s right to adopt a child is constitutional.
Court reasoning: The Court recognised that the State has a duty to take care of orphan children and children deprived of parental care. This is in line with its international obligations in respect of Article 3 of the CRC and also set out in Articles 51 and 52 of the Constitution. In implementing an adoption process and policy, the best interest of the child (as promulgated by Article 3 of the CRC and Principle 2 of the Declaration of the Rights of the Child) shall be of paramount consideration. The consideration of a potential adoptive parent’s age is relevant to whether such adoption is in the best interest of the child. As the age criteria is also uniformly applicable to all potential adoptive parents, it does not constitute discrimination or unequal treatment, and is therefore constitutional.
Excerpt citing CRC and other relevant human rights From Court
The State is obliged to take care of orphan children and children deprived of parental care, including support and upbringing ( Article 52.3 of the Constitution). The State’s duty to ensure protection and care of a child necessary for his/her wellbeing is in line with the provisions of international legal acts recognised by Ukraine, namely in the 1966 International Covenant on Economic, Social and Cultural Rights ( Article 10.3) and the 1989 Convention on the Rights of the Child ( Article 3). Legal relations pertaining to adoption are not subject to the direct constitutional regulation. However, in order to ensure implementation of provisions of Articles 51 and 52 of the Constitution and international legal acts the State taking care of orphan children and children deprived of parental care determines the procedure for adoption. In this way, it controls this procedure by adopting norms that regulate the aforementioned social relations. According to the provisions of Principle 2 of the 1959 Declaration of the Rights of the Child, at adopting laws for this purpose, the best interests of the child shall be of paramount consideration. The European Court of Human Rights also gives special consideration to the priority of the principle of the child’s interests when deciding on adoption cases (Judgment in the case of Pini and Bertani & Manera and Atripaldi v. Romania dated June 22, 2004).
Follow up: Commentary on the recent upheavals in Ukraine has suggested that amendments to the Ukrainian Constitution and laws relating to the balance of political power will unlikely affect the provisions and laws relating to child rights and protections.
CRIN comments: CRIN believes this decision is not consistent with the CRC. While there is no right to adopt or to be adopted, States that provide for these arrangements should not be permitted to discriminate against applicants on the basis of their age or other status. Rather, the focus of all adoption systems and procedures should be the best interests of the child, in line with Articles 3 and 21 of the CRC.
Citation: Decision of the Constitutional Court of Ukraine no.3-rp/2009 dated February 3, 2009 Link to Full Judgment: Court summary only available: http://www.ccu.gov.ua/doccatalog/document?id=39676