Instantie

Europees Hof voor de rechten van de mens

Samenvatting

Er bestaat ‘family life’ tussen de verwekker en zijn
kind, ook al is de relatie met de moeder reeds voor de
geboorte verbroken. Deze vaststelling wordt gebaseerd op het
gegeven van de relatie tussen de verwekker en de moeder in het
verleden en het feit dat het kind het resultaat is van een
bewuste keuze van hen beiden.
Na de geboorte heeft de moeder het kind bij pleegouders
geplaatst voor adoptie. De vader had het kind slechts eenmaal
gezien. Zijn verzoek om met het gezag te worden belast,
waardoor hij in staat zou zijn de adoptie aan te vechten,
wordt afgewezen aangezien dit niet in het belang voor het kind
wordt geacht.
De Ierse wet maakt adoptie mogelijk zonder medeweten of
toestemming van de verwekker. Dit betekent, volgens het Hof,
een ongeoorloofde inbreuk op het ‘family life’.

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(…)
Proceedings before the Commission

31. Mr Keegan applied to the Commission on 1 May 1990. He
complained that there had been a violation of his right to
‘respect’ for ‘family life’ (Article 8 of the Convention) in
that his child had been placed for adoption without his
knowledge or consent and that national law did not afford him
even a defeasible right to be appointed guardian. He further
complained of a denial of his right of access to court
(Article 6 1) in that he had no locus standi in the
proceedings before the Adoption Board. He also alleged that,
as the natural father, he had been discriminated against in
the exercise of the above-mentioned rights (Article 14 taken
in conjunction with Article 6 and/or Article 8) when his
position was compared to that of a married father.
32. The application (no. 16969/90) was declared admissible on
13 February 1992. In its report of 17 February 1993 (Article
31), the Commission expressed the opinion that there had been
a violation of Article 8 and of Article 6 1 (unanimously)
and that it was nog necessary to examine whether there had
been a violation of Article 14 taken in conjunction with
Article 6 and/or Article 8 (by eleven votes to one).
(…)

II Alleged violation of Article 8

41. The applicant alleged a violation of his right to
‘respect’ for ‘family life’ contrary to Article 8 of the
Convention which provides: ‘1. Everyone has the right to
respect for his private and family life, his home and his
correspondence. 2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public safety
or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.’

A. Applicability of Article 8

42. The Government maintained that the sporadic and unstable
relationship between the applicant and the mother had come to
an end before the birth of the child and did not have the
minimal levels of seriousness, depth and commitment to cross
the threshold into ‘family life’ within the meaning of Article
8. Moreover, there was no period during the life of the child
in which a recognised ‘family life’ involving her had been in
existence. In their view neither a mere blood link nor a
sincere and heartfelt desire for ‘family life’ were enough to
create it.
43. For both the applicant and the Commission, on the other
hand, his links with the child were sufficient to establish
‘family life’. They stressed that his daughter was the fruit
of a planned decision taken in the context of a loving
relationship.
44. The Court recalls that the notion of the ‘family’ in this
provision is not confined solely to marriage-based
relationships and may encompass other de facto ‘family’ ties
where the parties are living together outside of marriage
(see, inter alia, the Johnston and Others v. Ireland judgment
of 18 December 1986, Series A no. 112, p. 25, 55). A child
born out of such a relationship is ipso iure part of that
‘family’ unit from the moment of his birth and by the very
fact of it. There thus exists between the child and his
parents a bond amounting to ‘family life’ even if at the time
of his or her birth the parents are no longer co-habiting or
if their relationship has then ended (see, mutatis mutandis,
the Berrehab v. the Netherlands judgment of 21 June 1988,
Series A no. 138, p. 14, 21).
45. In the present case, the relationship between the
applicant and the child’s mother lasted for two years during
one of which they co-habited. Moreover, the conception of
their child was the result of a deliberate decision and they
had also planned to get married (see paragraph 6 above). Their
relationship at this time had thus the hallmark of ‘family
life’ for the purposes of Article 8. The fact that it
subsequently broke down does not alter this conclusion any
more than it would for a couple who were lawfully married and
in a similar situation. It follows that from the moment of the
child’s birth there existed between the applicant and his
daughter a bond amounting to ‘family life’.

B. Compliance with Article 8

1. Paragraph 1 of Article 8
46. The applicant maintained that the State failed to
‘respect’ his ‘family life’ by facilitating the secret
placement of his daughter for adoption without his knowlegde
or consent and by failing to create a legal nexus between
himself and his daughter from the moment of birth. Moreover,
the test applied by the Supreme Court to determine the
question of custody placed him at a considerable disadvantage
vis-a-vis the adoptive parents by requiring him to show that
any advantages that they had to offer the child were not
important for her welfare. In his submission, to be consistent
with Article 8 the law ought to have conferred on him a
defeasible right to guardianship and, in any competition for
custody with strangers, there ought to have existed a
rebuttable legal presumption that the child’s welfare was best
served by being in his care and custody. He stressed, however,
that he was not seeking to overturn the adoption order that
had been made in respect of his child.
47. For the Government, Contracting States enjoy a wide margin
of appreciation in the area of adoption. The right to
‘respect’ for ‘family life’ cannot be interpreted so broadly
as to embrace a right to impose the wishes of the natural
father over the interests of the child in disregard of the
findings of fact made by the courts. The applicant, as the
Supreme Court had held, had a right to apply to be made a
guardian, which right he had exercised. Furthermore, the
Supreme Court took into account the blood link between him and
his daughter as one of the factors to be weighed in the
balance in assessing the child’s welfare. In addition, the
applicant had every opportunity to present his case and to
have his interests considered by the courts. However, in this
process the rights and interests of the mother, who had wanted
her child to be adopted, had also to be taken into account. In
particular, the Government emphasised that to grant a natural
father a defeasible right to guardianship could rise to
complications, anguish and hardship in other cases and
concerned a matter of social policy on which the European
Court should be reluctant to intervene.
48. In the Commission’s view the obstacles under Irish law to
the applicant establishing a relationship with his daughter
constituted a lack of respect for his ‘family life’ in breach
of a positive obligation imposed by Article 8.
49. The Court recalls that the essential object of Article 8
is to protect the individual against arbitrary action by the
public authorities. There may in addition be positive
obligations inherent in an effective ‘respect’ for ‘family
life’. However, the boundaries between the State’s positive
and negative obligations under this provision do not lend
themselves to precise definition. The applicable principles
are, nonetheless, similar. In both contexts regard must be had
to the fair balance that has to be struck between the
competing interests of the individual and of the community as
a whole; and in both contexts the State enjoys a certain
margin of appreciation (see, for example, the Powell and
Rayner v. United Kingdom judgment of 21 February 1990, Series
A no. 172, p. 18, 41 and the above-mentioned Johnston and
Others v. Ireland judgment, p. 25, 55).
50. According to the principles set out by the Court in its
case-law, where the existence of a family tie with a child has
been establised, the State must act in a manner calculated to
enable that tie to be developed and legal safeguards must be
created that render possible as frommoment of birth the
child’s integration in his family (see, mutatis mutandis, the
Marckx v. Belgium judgment of 13 June 1979, Series A, no. 31,
p. 15, 31 and the above-mentioned Johnston and Others v.
Ireland judgment, p. 29, 72). In this context reference may
be made to the principle laid down in Article 7 of the United
Nations Convention on the rights of the child of 20 November
1989 that a child has, as far as possible, the right to be
cared for by his or her parents. It is, moreover, appropriate
to recall that the mutual enjoyment by parent and child of
each other’s company constitutes a fundamental element of
‘family life’ even when the relationship between the parents
has been broken down (see, inter alia, the Eriksson v. Sweden
judgment of 22 June 1989, Series A no. 156, p.24, 58).
51. In the present case the obligations inherent in Article 8
are closely intertwined, bearing in mind State’s involvement
in the adoption process. The fact that Irish law permitted the
secret placement of the child for adoption without the
applicant’s knowledge or consent, leading to the bonding of
the child with the proposed adopters anto the subsequent
making of an adoption order, amounted to an interference with
his right to respect for ‘family life’. Such interference is
permissible only if the conditions set out in paragraph 2 of
Article 8 are satisfied.
52. In view of this finding, it is not necessary to examine
whether Article 8 imposed a positive obligation on Ireland to
confer an automatic but defeasible right to guardianship on
natural fathers such as the applicant.

2. Paragraph 2 of Article 8

(a) ‘In accordance with the law’ and legitimate aim
53. It is clear that the decision to place the child for
adoption without the father’s knowlegde or consent was in
accordance with Irish law as were the decisions taken by the
courts concerning the welfare of the child. That they pursued
legitimate aim of protecting the rights and freedoms of the
child is evident from the judgments of the High Court and the
Supreme Court in this case (see paragraphs 10-14 above).

(b) Necessity in a democratic society
54. For the Government, the interference was proportionate to
the protection of the child’s health as well as of her rights
and freedoms. The interpretation of Irish law by the Supreme
Court took proper account of the paramount interests of the
child. It remained open to the natural father to apply to the
courts to be appointed, where appropriate, the guardian and/or
custodian of the child. They contended that it was fair and
wholly consistent with the Convention that special regulations
be enforced to protect the interests of a child born out of
wedlock. Indeed it would be impractical and potentially
harmful to the interests of such a child to grant the natural
father rights that extended beyond a right to apply for
guardianship. In any event the Adoption Board may, in its
discretion, decide to hear the natural father.
55. The Court notes that the applicant was afforded an
opportunity under Irish law to claim the guardianship and
custody of his daughter and that his interests were fairly
weighed in the balance by the High Court in its evaluation of
her welfare. However, the essential problem in the present
case is not with this assessment but rather with the fact that
Irish law permitted the applicant’s child to have been placed
for adoption shortly after her birth without his knowledge or
consent. As has been observed in a similar context, where a
child is placed with alternative carers he or she may in the
course of time establish with them new bonds which it might
not be in his or her interests to disturb or interrupt by
reversing a previous decision as to care (see, inter alia, the
W. v. United Kingdom judgment of 8 July 1987, Series A no.
121, p. 28, 62). Such a state of affairs not only
jeopardised the proper development of the applicant’s ties
with the child but also set in motion a process which was
likely to prove to be irreversible, thereby putting the
applicant at a significant disadvantage in his contest with
the prospective adopters for the custody of the child. The
Government have advanced no reasons relevant to the welfare of
the applicant’s daughter to justify such a departure from the
principles that govern ‘respect’ for family ties. That being
so, the Court cannot consider that the interference which it
has found with the apllicant’s right to ‘respect’ for ‘family
life’, encompassing the fulle scope of the State’s
obligations, was necessary in a democratic society. There has
thus been a violation of Article 8.
(…)

Rechters

Mrs Ryssdal, De Meyer, Martens, Palm, Pekkanen, Loizou,Morenilla, Makarczyk, Blayney