Court/Judicial body: European Court of Human Rights
Date: June 22, 2004 CRC
Provisions: Article 21: Adoption
Other international provisions:European Convention on Human Rights (Articles 6.1 and 8);The Hague Convention of May 29, 1993 on the protection of Children and co-operation in respect of intercountry adoption;European Convention on the Adoption of Children of April 24, 1967
Domestic provisions: Government Emergency Ordinance No.25 of June 9, 1997 relating to adoption; Government Emergency Ordinance No.26 of June 9, 1997 relating to children in difficulty; Government Emergency Ordinance No.121 of October 8, 2001 on the temporary suspension of all intercountry adoption proceedings
Background: Two adopted children refused to leave the private educational institution where they lived in Romania to follow their adoptive parents to Italy and sought to have their adoptions revoked on the ground that they did not know their adoptive parents and did not wish to leave the educational institution. The adoptive parents complained that the Romanian authorities’ failure to enforce the adoption orders was a violation of their right to respect of family life as it deprived them of contact with the adopted children.
Issue and resolution: International adoption. The Court did not find that the adoptive parents’ right to family life had been violated, but did agree that the government’s failure to enforce the adoption orders breached the parents’ right to a fair hearing.
Court reasoning: The Court considered that where there is a relationship arising from a lawful and genuine adoption, although family life might not yet be fully established, that relationship should be protected under the European Convention. However, in this case, considering the children’s refusal to be adopted by a foreign family and the absence of effective ties with the adoptive parents, the applicants’ right to create ties with their adopted children could not take priority over the children’s interests. The court also rules that by refraining from taking the effective steps required to comply with final and enforceable judicial decisions, the Romanian authorities violated the adoptive parents’ right to a fair hearing.
Dissenting opinion:Judge Lucaides: The failure to implement the adoption orders is an automatic violation of the right to respect for family life.Judge Bîrsan: The evidence of the children’s refusal to be adopted by a foreign family and the absence of effective ties with the adoptive parents means that there has not been a violation of the right to a fair hearing.Judge Thomassen: No family life within the meaning of the European Convention ever existed between the adoptive parents and their adoptive children and accordingly the notion of “family life” does not apply.
Excerpt citing CRC and other relevant human rights 100. The relevant provisions of international law are worded as follows… 1. United Nations Convention on the Rights of the Child of November 20, 1989 Article 21 “States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of the child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible 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 on the basis of such counselling as may be necessary. (b) Recognise that intercountry adoption may be considered as an alternative means of the child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (…)” … 139. The particular obligations that Art.8 of the Convention imposes on Contracting States in relation to adoption and the effects of adoption on the relationship between adopters and the persons adopted have to be interpreted in the light of the Hague Convention of May 29, 1993 on Protection of Children and Co-operation in respect of Intercountry Adoption , the United Nations Convention on the Rights of the Child of November 20, 1989 and the European Convention on the Adoption of Children signed in Strasbourg on April 24, 1967.
CRIN comments: CRIN believes that this decision is consistent with the CRC. Taking into account the evolving capacities of children and their different levels of understanding, children involved in adoption proceedings should always have the opportunity to express their views and – where possible – to give their consent in the matter, especially where the proposed adoption is of an international nature.
Citation: (2005) 40 EHRR 13
Link to full judgement: http://hudoc.echr.coe.int/eng?i=001-61837