Kearns v France
| Judge | JUDGES ZUPANCIC (PRESIDENT),COSTA,FURA-SANDSTROM,GYULUMYAN,MYJER,THOR BJORGVINSSON,BERRO-LEFEVRE |
| Judgment Date | 10 January 2008 |
Human rights – Private and family life – Birth – Adoption – Applicant travelling from Ireland to France to take advantage of national legislation on anonymous registration of births and adoption – Applicant requesting anonymous registration of birth of her child from extramarital relationship – Applicant placing child in state care and consenting to child’s adoption – After expiry of two-month period for withdrawing consent to adoption applicant seeking return of her child – State authorities refusing to return applicant’s child – Whether two-month time limit sufficiently long to guarantee applicant’s right to respect for her family life – Whether information provided by French authorities to applicant on precise implications of her actions capable of affording effective protection of her right to private and family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant was 36 years old and lived in Ireland. She did not speak French and had no ties with France. She went to a hospital in France, together with her mother and a French lawyer, to take advantage of the national legislation on anonymous registration of births and adoption. She requested anonymous registration of the forthcoming birth of her child from an extramarital relationship with B. She was admitted to the maternity ward where she gave birth to K. She had an interview lasting half a day with the social services, in the presence of her mother and a nurse, who had been asked to act as an interpreter by the hospital. On the same day she signed a record of K’s placement in state care and gave her consent to K’s adoption. The following day the applicant had a further interview lasting half a day with the social services, in the presence of a doctor acting as an interpreter, during which various matters relating to the record signed the previous day were discussed. Subsequently the chairman of the N departement council, as the official guardian of children in state care, placed K in the care of a family with a view to her full adoption. In the meantime, B had applied to a court in Ireland for recognition of his rights over K. The court directed inter alia that the adoption process in France should not proceed any further. Subsequently, the applicant went to the hospital’s maternity ward and to the French social services, seeking the return of K. Her request was refused because the period of two months within which consent could be withdrawn under the Social Action and Families Code had expired. The applicant then applied to the tribunal de grande instance seeking the annulment of the
decision to give K up and an order for her return. B intervened in the proceedings. The court dismissed the applicant’s claims. The applicant appealed. Thereafter the Court of Appeal set aside the first-instance judgment. The applicant’s lawyer asked the prefect to enforce the judgment and to return K to her mother. No action was taken on that request. The prefect for the N departement appealed on points of law, arguing that in the absence of recognition by the mother of K, to whom she had given birth anonymously, it was not necessary to obtain her consent for K to be taken into state care. The Court of Cassation allowed the appeal. The adoption procedure, which had been suspended, was resumed and the tribunal de grande instance made a full adoption order in respect of K. The applicant complained to the European Court of Human Rights that the two-month period for withdrawing consent to adoption could not be regarded as sufficiently long to guarantee her right to respect for her family life under art 8 (set out at para 45, below) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention). She also submitted that the positive measures which the state authorities had to take for the rights guaranteed under art 8 to be effective included making all the necessary arrangements to ensure that a non-French-speaking mother registering a birth anonymously understood the precise implications of her actions and she contended that the French authorities had not taken all the necessary steps to ensure that she understood the precise implications of her actions. She argued, in particular, that she had not been provided with sufficient linguistic assistance to be able to understand the procedures and time limits subject to which she could take her child back. The respondent state did not dispute the applicability of art 8, at least with regard to the right to respect for private life. It also accepted that there had been interference with the applicant’s rights, but contended that the interference—in particular, the existence of a two-month time-limit beyond which the applicant could no longer seek the return of K whose placement in state care she had requested—satisfied the requirements of foreseeability, legitimacy and necessity for the purposes of art 8. It further submitted that the information provided to the applicant in accordance with French legislation was capable of affording effective protection of her right to private and family life.
Held – In the instant case, the relationship between the applicant and K came within the sphere of family life under art 8 of the Convention. Moreover, the authorities’ refusal of the request for K’s return had a basis in law and pursued the legitimate aim of protecting the rights and freedoms of the child. The object of art 8 was essentially that of protecting the individual against arbitrary interference by the public authorities. It did not merely compel the state to abstain from such interference; in addition there might be positive obligations inherent in effective respect for family life. Those obligations might involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals
between themselves. Both the state’s positive and negative obligations required regard to be had to the fair balance which had to be struck between the competing interests. The state would usually enjoy a wide margin of appreciation if the public authorities were required to strike a balance between competing private and public interests or Convention rights. That applied all the more where there was no European consensus as to the relative importance of the interest at stake or as to the best means of protecting it. There was no such consensus regarding adoption, provision being made for a period of reflection in some countries but not in others, such as France. Similarly, as regards the time limit for withdrawing consent, there was considerable diversity in the legislation of the member states that had provided for that possibility. As regards the time limit prescribed by French law, it had been reduced to two months so that the child could quickly enjoy stable emotional relations within a new family and have the benefit of parental ties. The interests of the biological mother, the child and the adoptive family were not easily reconciled. There was also a general interest at stake. In striking a balance between those interests, the child’s best interests should be paramount. It was in the child’s interests to enjoy stable emotional relations within a new family as quickly as possible. Furthermore, while the two-month time limit might seem brief, it nevertheless appeared sufficient to allow the biological mother time to reflect and to reconsider her decision to give the child up. Moreover, the applicant was 36 years old at the time, was accompanied by her mother and had two lengthy interviews with the social services after giving birth. Having regard to the margin of appreciation which states had to be afforded in view of the diversity in legal systems and traditions, in practice the time limit prescribed by the French legislation sought to strike a balance and to ensure sufficient proportion between the competing interests. In addition the French authorities had provided the applicant with sufficient and detailed information, affording her linguistic assistance not required by law and ensuring that she was informed as thoroughly as possible of the implications of her choice and of the time limits and procedures for withdrawing consent. Accordingly the respondent state had not breached its positive obligations under art 8 of the Convention in relation to the applicant. It followed that there had been no violation of that provision; Keegan v Ireland [1994] ECHR 16969/90, Odievre v France (2003) 14 BHRC 526 and Evans v UK[2007] 2 FCR 5 considered.
Cases referred to in judgmentEvans v UK[2007] 2 FCR 5, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, ECt HR.
Keegan v Ireland [1994] ECHR 16969/90, (1994) 18 EHRR 342, ECt HR.
Mikulic v Croatia[2002] 1 FCR 720, ECt HR.
Mizzi v Malta[2006] 1 FCR 256, ECt HR.
Odievre v France[2003] 1 FCR 621, ECt HR.
Olsson v Sweden (No 1) [1988] ECHR 10465/83, (1988) 11 EHRR 259, ECt HR.
P, C and S v UK[2002] 3 FCR 1, ECt HR.
Reinhardt v France (1998) 28 EHRR 59, ECt HR.
Riha v France (App no 71443/01) (admissibility decision, 24 June 2004), ECt HR.
VS v Germany (App no 4261/02) (admissibility decision, 22 May 2007), ECt HR.
ApplicationIn an application (no 35991/04) against the French Republic Karen Kearns, an Irish national, complained under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 that the period of two months within which consent to adoption could be withdrawn was too short and constituted disproportionate interference with the right of the parents and children to be together in a family environment. The facts are set out in the judgment of the court.
10 January 2008. The EUROPEAN COURT OF HUMAN RIGHTS (THIRD SECTION) delivered the following judgment.
PROCEDURE1. The case originated in an application (no 35991/04) against the French Republic lodged with the court under art 34 of the Convention for the Protection of Human...
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Re B (A Child) (Care Order: Proportionality: Criterion for Review)
...KD (A Minor) (Ward: Termination of Access), Re [1988] FCR 657, [1988] 1 All ER 577, [1988] AC 806, [1988] 2 WLR 398, HL. Kearns v France[2008] 2 FCR 19, ECt HR. Kutzner v Germany[2003] 1 FCR 249, (2002) 35 EHRR 653, ECt HR. L (Care: Threshold Criteria), Re [2007] 1 FLR 2050. L (children) (c......