Applicant name X.
Applicant type Natural person
Country UK
Decision no.7626/76
Institution Commission
Type Decision
Outcome Art. 8 Inadmissible
Reason Manifestly ill-founded (health and interests of third parties)
Type of privacy Family privacy
Keywords Adoption without formal consent
Facts of the case Mother of 18 is pregnant; father has recently died. She decides to opt for abortion, but is convinced by the doctor to opt for adoption. Child is adopted, but when later, she appears no longer to be able to beget children of her own, she refuses to give formal consent to the adoption.
Analysis There is an interesting tension in the Commission’s jurisprudence on the existence of family ties. It does not accept that such only exist when there are biological ties, but rather finds that the existence of family ties is dependent on factual ties. This means, for example, that adoptive or stepparents can also be considered to have a family life with their child, as well as others, as long as close and real ties exist between them. On the other hand, the Commission still finds the existence of biological ties of the utmost importance, which is also evidenced by this case. Although the biological mother had not seen her child after the moment she gave birth, the Commission is unwilling to accept that consequently, no family ties exist. ‘In the present case it is true that the applicant had from its birth handed over her child for adoption by third parties. She has not seen it since By virtue of her own decision there was no family life between herself and her son during the first months . However, when she did show a desire to lake back her child, or to reserve the right to do so, she was deprived for the future of all possibility of establishing family relations with him by a court decision.’

This case is difficult for two reasons, first because it is primarily a conflict between horizontal parties and because the state had not actively interfered with the applicant’s right to privacy. The Commission, referring to apl.no. 6577/74, indeed underlines that Article 8 does not oblige the state to take positive action to restore family life when it has been upset through the actions of the persons concerned; in principle it affords protection against any action by a public authority which adversely affects or makes impossible in future the resumption of family life. ‘Admittedly the action taken by the public authorities was brought about by the conduct of the applicant who, finding herself in a tragic situation, wanted to take her child back after having confided it to third parties for adoption The action taken was necessary to settle the conflict between her interests and those of the child in its new family.’

The Commission finds that there has been an interference with applicant’s rights, and one which it finds grave, but at the same time admits that under exceptional circumstances, adoption without the mother’s consent may be legitimate. In this case, there was, because the child had been living for almost two years with the adoptive parents and consequently, it was in her best interest to stay with them. The Commission refers both to the protection of health and to the protection of the interests of the child.

Finally, there is a remarkable claim which the Commission does not reject right away, namely that there was a violation of Article 2 of the First Protocol. The Commission stresses that the adoptive parents seemed not to have imposed on the child any religious or philosophical convictions yet. It adopts an ‘even if’ type of reasoning. ‘Assuming therefore that it is possible to deduce from Article 2 of the First Protocol an obligation on the public authorities not to transfer parental authority over a child to persons who do not share the convictions of its original parents in the matter of education, an examination of the file does not reveal any failure to comply with this negative obligation in the instant case.’ Even more interesting is that the Commission stresses that although the applicant still had a family life with her biological child, ‘the adoption order conferred on the adopters the same rights and obligations with regard to the child as up to that moment has existed between the applicant and the child . The applicant can accordingly no longer be considered with respect to Article 2 of the First Protocol as a parent enjoying the right to ensure the education of the child in accordance with her religious and philosophical convictions.’
Documents Decision