Adoption, the Conventions and the Impact of the European Court of Human Rights

O’Halloran, Kerry

doi:10.1007/978-94-017-9777-1_4

Kerry O’Halloran⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 41))

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Abstract

This chapter is concerned with examining how the development of modern adoption policy, law and practice has been influenced by the Convention of 1950 and the decisions of the ECtHR. It builds in much recent case law—up to and including 2014—to update the picture of emerging adoption law principles. It examines the growing weight given to the principle that the welfare of the child is paramount as opposed to countervailing parental rights and considers the judicial pronouncements concerning a child’s right to give or withhold consent to their adoption and which emphasise their rights to the information necessary for affirming an authentic identity and sense of cultural belonging.

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Notes

1.
See, further, http://www.unicef.org/crc/ and http://www.echr.coe.int respectively. Also, note that the Council of Europe, on 03.05.02, adopted the Convention on Contact concerning Children; see, http://convention.coe.int
2.
The U.S. has signed the Convention but has not yet ratified it.
3.
See, Office of the United Nations High Commissioner for Human Rights, Committee on the Rights of the Child: Monitoring Children’s Rights.
4.
The UK Government made its first report to the Committee on the Rights of the Child in January 1995 and submitted its consolidated third and fourth report to on 15 July 2007. The U.K. entered reservations when it ratified the Convention and has not ratified the optional protocol on the sale of children, child prostitution and child pornography.
5.
See, Adoption and Children (Scotland) Act 2007, s 32.
6.
See, Waterhouse, R. 2000. Report of the tribunal of inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974. London: The Stationery Office.
7.
See, for example, the 2014 statement by Oxfam that the “U.K. is the world’s six largest economy, yet 1 in 5 of the U.K. population live below our official poverty line”. See, further, at: http://policy-practice.oxfam.org.uk/our-work/poverty-in-the-uk
8.
See, e.g. The United Kingdom’s first report to the UN Committee on the rights of the child. HMSO, 1994. The second report was published in September 1999 and the consolidated third and fourth reports were submitted on 15 July 2007. See, further, at www.everychildmatters.gov.uk/strategy/uncrc/ukreport
9.
The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a Commission and Court. For judgments of the ECtHR, see http://www.echr.coe.int
10.
No. 39948/06, (18 December 2008), at para 49. See also: Kutzner v. Germany no. 46544/99, (26 February 2002), at paras 67 and 81; Moser v. Austria no. 12643/02, (21 September 2006); Kurochkin v. Ukraine no. 42276/08, (20 May 2010); Schalk and Kopf v. Austria, no. 30141/04, (24 June 2010); and Burden v. the United Kingdom [GC], no. 13378/05, (60, ECHR 2008).
11.
See, Daniels v. Walker (Practice Note) [2000] 1 WLR 1382 at p. 1387.
12.
See Glasser v. United Kingdom [2001] 1 FLR 153 where the court recognised that the complexities arising from the case being transferred between jurisdictions required additional reports to ensure that the eventual decision affecting the welfare interests of the child was based on a thorough investigation.
13.
See Glasser (ibid), and Hokkanen v. Finland [1944] 19 EHRR 139, [1996] 1 FLR 289, where, in both cases, the delay was attributable to the party awarded custody refusing to comply with the terms of contact orders. More recently, in Pini and Others v. Romania [2004] EHRR 275, the ECtHR found that the Romanian authorities, by failing for more than 3 years to take effective measures to comply with final and enforceable judicial decisions, had rendered nugatory the provisions of Article 6.
14.
See Bock v. Germany [1990] 12 EHRR 247, where the court held that there had been a breach of Article 6 by the delay resulting from domestic courts seeking an unnecessary number of reports.
15.
See H v. United Kingdom [1988] 10 EHRR 95, where the court noted that the irreversibility of adoption proceedings was a factor in the adopters’ failure to apply promptly. Also, see, Mikulic v. Croatia, Application No 53176/99, ECtHR, 07.02.02 where the court ruled that, given what was at stake for the applicant, the 4 year delay before hearing did not satisfy the obligation to act with particular diligence to progress the proceedings.
16.
Ibid. See, also, Paulsen-Medalen and Svenson v. Sweden (1998) 26 EHRR 260 and Z.M. and K.P. v. Slovakia, Application No. 50232/99, 11.05.2005.
17.
(1979) 2 EHRR 305.
18.
(2002) 35 EHRR 31; [2002] 2 FLR 631.
19.
[2002] 2 FCR 673.
20.
See P, C and S v. United Kingdom, op cit.
21.
[2002] EWHC 1379, [2002] 2 FLR 730.
22.
[2001] 2 FLR 1300.
23.
See O v. United Kingdom, B v. United Kingdom, H v. United Kingdom, R v. United Kingdom and W v. United Kingdom (1987) 10 EHRR 29.
24.
See, W v. United Kingdom (1987) 10 EHRR 29.
25.
See, for example, Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 and C v. Bury Metropolitan Borough Council [2002] 2 FLR 868.
26.
See Airey v. Ireland (1979) Series A No 32, 2 EHRR 305.
27.
See, Olson v. Sweden (No 1) (1988) 11 EHRR 299 where it is explained that to be justifiable such interference must be “relevant and sufficient; it must meet a pressing social need; and it must be proportionate to the need”. Advice subsequently echoed in Johansen v. Norway (1997) 23 EHRR 33 where it was observed, that “the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportional to the legitimate aim pursued”.
28.
(1974) (Application No. 6753/74) (1975–76) 1–3 DR 118.
29.
(1990) 12 EHRR 36.
30.
[2002] EWHC 1593 (Admin), [2002] 2 FLR 962.
31.
Op cit, where the ECtHR recognised that the identity of a child’s parents is integral to the private life of that child under Article 8. The failure, therefore, to provide a procedure whereby a putative father could be compelled to undergo DNA testing to clarify his possible paternity was in breach of the child’s rights under that Article.
32.
Application No. 39393/98, ECtHR, September 24, 2002.
33.
The introduction in March 2000 of the Data Protection Act 1998, c 29, provides such an opportunity.
34.
ECtHR, 13.02.2003. This was most recently endorsed in the U.K. by the decision of the House of Lords in In re P and others (AP) (Appellants) (Northern Ireland) [2008] UKHL 38.
35.
Keegan v. Ireland: Application No. 16969/90 (1994) Series A No. 290, 18 EHRR 342, at para. 44.
36.
Marckx v. Belgium (1979) Series A No 31, 2 EHRR 330, at para. 31.
37.
See, Kilkelly, U. 2004. Child and family law. In ECHR and Irish law, ed. U. Kilkelly. Bristol: Jordans, at p. 112.
38.
See, Marckx v. Belgium ibid, (unmarried mother and her child); Johnston v. Ireland, no 9697/92, Series A no 12, (1987) 9 EHRR 203 (unmarried parents and their child).
39.
See, Berrehab v. Netherlands, no 10730/84, Series A no 138, (1988) 11 EHRR 322.
40.
See, C v. Belgium, no 21794/93, Reports 1996—III, no. 12, p. 915 and Ahmut v. Netherlands, no 21702/93, Reports 1996—VI, no. 24, p. 2017, 24 EHRR 62. See, also, Söderbäck v. Sweden, no 24484/94, Reports 1998—VII, no. 94. However, purely genetic relationships—such as the relationship between a sperm donor and the child born as a result—are unlikely to constitute family life. See, G v. Netherlands, no 16944/90, Dec. 8.2.93, 16 EHRR 38.
41.
See, E.B. v. France, op cit, at p. 18.
42.
See, for example: O v. the United Kingdom, no 9276/81, 8 July 1987; H v. the United Kingdom, 9580/81, 8 July 1987; W v. the United Kingdom, 9749/82, 8 July 1987; and B v. the United Kingdom, 9840/82, 8 July 1987.
43.
Application No 21949/03, 25 January 2007.
44.
See, also, Emonet and Others v. Switzerland (Application No 39051/03, ECtHR, 13.12.2003).
45.
[1997] 2 FLR 892.
46.
Application No 35582/99, ECtHR, 01.06.2004.
47.
Application No. 16318/07, ECtHR, 27.04.2010.
48.
See, Kilkelly, U., Child and family law. In ECHR and Irish law, ed. U. Kilkelly. op cit, at p. 113.
49.
See, Marckx v. Belgium, op cit, at para 45.
50.
See, Olsson v. Sweden, no 10465/83, Series A no 130, 11 EHRR 259. See also Boughanemi v. France, no 22070/93, Reports 1996—II, no 8, p. 593, 22 EHRR 228.
51.
See, Boyle v. UK, No 16580/90, Comm Rep, 9.2.93.
52.
See, Jolie & Lebrun v. Belgium, No. 11418/85, Dec. 14.5.86, DR 47, p. 243.
53.
See, Kerkhoven, Hinke & Hinke v. the Netherlands, No. 15666/89, Dec. 19.5.92, unreported.
54.
No 21830/93, Reports 1997—II no 35, p. 619, 24 EHRR 143.
55.
[2001] 1 FCR 653.
56.
No 10828/97, [2003] 2 FLR 9.
57.
Application No. 43546/02, 22 January 2008.
58.
Application No. 19010/07, 19 February 2013. Also, note, S.H. and Others v. Austria, Application No. 57813/00, 3 November 2011.
59.
See, also, Council of Europe, above.
60.
The X and Others v. Austria, op cit, at para 95.
61.
Citing Schalk and Kopf v. Austria, (Application No 30141/04, ECtHR 24.06.2010).
62.
Application No. 25951/07, ECtHR 31.08.2010.
63.
X and Others v. Austria, op cit, at para 99.
64.
Citing E.B. v. France (Application No. 43546/02, ECtHR 22.01.2008) and Salgueiro da Silva Mouta (Application No. 33290/96, ECtHR 1999—IX).
65.
Ibid at para 153.
66.
See Johansen v. Norway (1996) 23 EHRR 33 and Rieme v. Sweden (1993) 16 EHRR 155. Note that in B. v. United Kingdom [2000] 1 FLR 1 the court found against an unmarried father without parental responsibility and held that the U.K. court had been justifiably discriminatory between his standing and that of a married father as he had no custody rights in respect of the child.
67.
[1999] 1 FLR 250.
68.
(1995) Fam Law 478. See also B v. United Kingdom [2000] 1 FLR 1.
69.
[2000] 2 FLR 486. But see also Sahin v. Germany; Sommerfeld v. Germany; Hoffman v. Germany, [2002] 1 FLR 119.
70.
Keegan v. Ireland: Application No. 16969/90 (1994) Series A No. 290, 18 EHRR 342, at para. 44.
71.
Application No. 22028/04, §§ 61–63, 3 December 2009.
72.
Application No. 35637/03 §§ 88–90, 3 February 2011.
73.
[2011]
74.
[2000] 2 FCR 614 at 625. See also, Kutzner v. Germany [2003] 1 FCR 249, where the court emphasised that any interference with this right will entail a violation of Article 8 unless the three requirements are satisfied. The element of “necessity” implies that the interference must correspond to a pressing social need and in particular be proportionate to the legitimate aim being pursued. An applicant local authority, in such circumstances, must inquire as to what additional measures of support can be given as an alternative to the extreme measure of separating a child from his or her parents.
75.
[2001] EWCA Civ 757, [2001] 2 FLR 582.
76.
(2003) 1 FCR 201.
77.
(2003) 1 FCR 249.
78.
[2004] 2 FLR 39, at para 95.
79.
Application No. 7075/10, 18 April 2013.
80.
[2013] ECHR 1131.
81.
The ECtHR had earlier ruled that a relationship arising from lawful adoption may be deemed sufficient to engage Article 8 and that parental leave and related allowances promote family life and therefore come within the scope of Article 8: see, Markin v. Russia [2010] ECHR 1435.
82.
(1996) 23 EHRR 33.
83.
See, Hansard, Lords, 16.10.02, col 929.
84.
[2004] EHRR 275.
85.
Application No. 3414/96, May 30, 2006. See, also, HK v. Finland (Application No 36065/97), 26 September 2006, which concerned a father separated for 4 years from his child and denied access, which he was given no opportunity to contest, following unfounded accusations of sexual abuse.
86.
See, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, (6 July 2010).
87.
(2012) 55 EHRR 967.
88.
Ibid at para 134.
89.
Application No. 32899/96, December 20, 2001. See, also, Re B (A Child: Non-accidental Injury) unreported, Court of Appeal, April 24, 2002, where it was held that the judge at first instance had erred in refusing to order disclosure of documents to a sibling of B, the subject of proceedings. The disclosure, if made, would have had a direct bearing on the outcome of the proceedings.
90.
[2001] 2 FLR 549. Also, see, Re M (Care: challenging decision by local authority) [2002] FLR 1300.
91.
Application No. 4261/02, ECHR, 22.05.07.
92.
Application No. 35991/04, ECHR, 10.01.08.
93.
ECHR, 13.02.2003.
94.
Mikulic v. Croatia, Application No 53176/99, ECHR, 07.02.02.
95.
(1982) 5 EHRR 223. See also Kroon v. The Netherlands (1994) Series A No. 297–C, 19 EHRR 263 where the court commented that it was a principle of good law to hold that the interests of the child were paramount.
96.
[2002] 1 FLR 119; at time of publication the subject of appeal to the Grand Chamber. See, also, Scott v. UK [2000] 1 FLR 958 where the ECtHR upheld the decision of the court at first instance to dispense with the consent of an alcoholic mother and free her child for adoption because there was no evidence that she would ever be alcohol free and “what is in the best interests of the child is always of crucial importance”.
97.
[1988] 2 FLR 445.
98.
[2000] 2 FLR 79.
99.
[2003] 1 FLR 210.
100.
Ibid at para 73. Also, see: R and H v. United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236.
101.
[2004] EHRR 275. The above account is taken from the press release issued by the Registrar of the European Court of Human Rights on 22.6.2004 and available at http://www.echr.coe.int/Eng/Press/2004/June/ChamberjudgmentPini&Bertini220604.htm
102.
See, further, at: http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{“display”:[“1”],“dmdocnumber”:[“801296”]}
103.
See, e.g. Re O (A Child) (Supervision Order) [2001] 1 FLR 923.
104.
See: Johansen v. Norway (1996) 23 EHRR 33; K and T v. Finland (2001) 36 EHRR 18; R and H v. United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236; YC v. United Kingdom (2012) 55 EHRR 33.
105.
Re H (Contact Order) [2002] 1 FLR 22 at 37. See also comments of Hale LJ in Re C & B (Care Order: Future Harm) [2001] 1 FLR 611, at paras. 33–34 and 620–621 and in Re O. (Supervision Order) [2001] 1 FLR 923 at paras. 24–28.
106.
[2008] EWCA Civ 535.
107.
Op cit. See, also, the similar case of Venema v. The Netherlands Application No 35137/1977, ECtHR, 17.12.2002.
108.
Ibid at para 116.
109.
(2003) 36 EHRR 255.
110.
Ibid at para 168.
111.
Ibid at para 178.
112.
[2003] 1 FCR 201.
113.
See Re W and B; Re W (Care Plan) [2001] EWCA Civ 757, as reported in 31 Family Law 581.
114.
See Fortin, J. 2002. Children’s rights and the impact of two international conventions: The UNCR and the ECtHR. In Delight and dole: The Children Act 10 years on, ed. L.J. Thorpe and C. Cowton. Bristol: Family Law.
115.
Application No. 6482/147 (1975) 7 DR 75.
116.
[2004] EHRR 275.
117.
A marital child cannot be accorded prior legal rights over a non-marital child: Inze v. Austria (1988) Series A No. 126, 10 EHRR 394. See also Marckx v. Belgium (1979) Series A No. 31, 2 EHRR 330.
118.
[2002] EWCA Civ 1138, [2002] 1 WLR 1537.
119.
Citing Kjeldsen, Busk Madsen and Pedersen v. Denmark (1976) 1 EHRR 711 at para 56.
120.
[2001] 1 FLR 43.
121.
[2013] ECHR 1131.
122.
Application No 3651/97.

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Queensland University of Technology, Australian Centre for Philanthropy and Nonprofit Studies, Brisbane, QLD, Australia
Kerry O’Halloran

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O’Halloran, K. (2015). Adoption, the Conventions and the Impact of the European Court of Human Rights. In: The Politics of Adoption. Ius Gentium: Comparative Perspectives on Law and Justice, vol 41. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9777-1_4

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