EHRM, 10-01-2008, nr. 35991/04

In order to ensure that the biological parents give their free and informed consent, most European legal systems have introduced a statutory period of reflection after the birth. In a similar manner to Article 5 § 4 of the European Convention on the Adoption of Children (see paragraphs 30–32 above), most legal systems6. envisage a period of not less than six weeks, sometimes extending to as much as three months.7.

Some countries simply make the validity of consent subject to ‘the recovery of the mother after giving birth’8. or to the condition that it is given after the birth.9. Lastly, the legislation in other countries1. makes no provision for a period of reflection, but ‘prenatal’ consent remains prohibited by law in the vast majority of legal systems.

Some countries have instituted a period within which the biological parents may revoke their consent. There is considerable diversity in the legislation of the member States that have provided for this possibility; some systems allow consent to be withdrawn until the adoption order is issued2. and others until the adoption process has been initiated,3. whereas others lay down fixed periods whose length varies from country to country.4. Lastly, in some countries5. the biological parents' consent is irrevocable.

The effects of withdrawal of consent likewise vary from one State to another. In countries such as France or Switzerland, where consent may be revoked during a specified period, the withdrawal has an absolute effect in that it puts an end to the adoption process and opens up the possibility of the child's return. Conversely, in systems where consent may be withdrawn until the adoption order is issued, the withdrawal does not automatically end the process and the courts are required to make a decision on the child's return on the basis of the child's best interests.

The applicant submitted that the period of two months within which consent could be withdrawn under the second paragraph of Article L. 224-6 of the Social Action and Families Code was too short and constituted disproportionate interference with the right of the parents and children to be together in a family environment. She contended that the Government's arguments on this point were unconvincing.

Although it was in the interests of the child and the child's future adoptive family that the uncertainty surrounding the planned adoption should not persist, the fact remained that an excessively short period for withdrawing consent was harmful both to the child and to the parents. With regard to the child, the painful psychological effects of adoption should not be overlooked, seeing that before reaching adulthood, many children or adolescents experienced the suffering of being abandoned and pursued the aim of restoring contact with their biological parents. Such suffering could only be exacerbated if the child discovered that, a few months after the birth, the natural mother had unsuccessfully sought to take him or her back.

With regard to the parents, the state of psychological distress affecting a mother who was compelled to give her child up to the social services for adoption had to be taken into consideration. The applicant pointed out in that connection that commentaries on the Court of Cassation's judgment of 6 April 2004 had, to varying degrees, highlighted the insufficient length of the relevant period. Professor Monéger, for example, had argued that French legislation did not take sufficient account of the situation of the woman who had given birth1. and Professor Bicheron had proposed that, without calling the two-month time-limit into question, the legislation should envisage the possibility of allowing consent to be withdrawn outside this time-limit where there had been exceptional circumstances surrounding the pregnancy or birth, provided that this was done within a reasonable period which would have to be defined.2.

The applicant submitted in conclusion that the two-month period in which she had been entitled to claim her child back could not be regarded as sufficiently long to guarantee her right to respect for her family life.

In the applicant's submission, the positive measures which the State authorities had to take for the rights guaranteed under Article 8 of the Convention 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. It was therefore unacceptable for the mother not to be given a clear and accurate translation of the legal provisions concerning her, a requirement made even more essential by the technical nature of the legislation.

With regard to the present case, she contended that the Government were incapable of proving that she had received sufficient information from the social services. Although the Government had asserted that a welfare officer had translated the gist of the information that should have been provided to her, that in itself was insufficient, seeing that French legislation was anything but straightforward as regards the period within which the biological mother could withdraw consent, as was underlined by Professor Murat's commentary on the Court of Cassation's judgment of 6 April 2004.

That being so, the applicant contended that the task of providing information to a foreign mother could not be left to a welfare officer with no indication of possessing the necessary legal knowledge to understand the subtleties of the French legislation himself or herself or sufficient knowledge of English to translate complex legal notions with the clarity and accuracy required to avoid any misunderstanding or ambiguity.

Ultimately, the applicant argued, the Government had entirely failed to show that she had been provided with sufficient linguistic assistance to enable her to understand the procedures and time-limits for claiming her child back. Full compliance with this duty to impart information had been particularly essential since the French legislation, as construed by the Court of Cassation, made no provision for any means of redressing a breach of that duty. In that connection she cited a number of articles on legal theory and commentaries on the Court of Cassation's judgment that were critical of the legislation in question.

The applicant submitted that, since there was a consensus that the legislation as it currently stood was flawed, the French authorities should have been particularly attentive to the need to do everything possible to ensure that a foreign, non-French-speaking mother was able to understand precisely her rights and obligations vis-à-vis her child once the child had been entrusted to the social services; she concluded that that had not been so in her case, as indeed the Court of Appeal had acknowledged.

The Government submitted that the interference in issue was prescribed by law. It followed from Articles L. 224-4 to L. 224-6 of the Social Action and Families Code, taken together, that a child whose birth was registered anonymously was provisionally taken into State care on being entrusted to the Child Welfare Service, and could be taken back by the mother without any further formalities during a period of two months. Once that period expired, a full adoption order could be made in respect of the child.

The Government emphasised that the interference had pursued the legitimate aim of protecting the rights and freedoms of others, and more specifically had been in the child's best interests. The provisions cited were intended to ensure stability for the child, both legally and psychologically, within a foster home. The child's interests dictated that he or she should quickly be able to enjoy stable emotional relations in a new family and should have the benefit of parental ties, the main reason why the Adoption Reform Act of 5 July 1996 had reduced the time-limit for withdrawing consent from three to two months.

The Government submitted that where legal or biological parents relinquished their rights, they forfeited their family life with the child they had abandoned, and where the child was given up the day after being born, as in the instant case, no family life had been established. The child-welfare professionals interviewed in the context of the 1995 report on adoption by Professor Mattei had pointed out that it was in the interests of an abandoned child to enjoy stable emotional relations within a new family as quickly as possible, an observation borne out by subsequent studies on attachment disorders and their damaging consequences for the child.

The legislature had sought to confer on a child's placement for adoption (the point from which the biological parents could no longer claim the child back) the same legal effects as adoption itself in order to make the child's position more stable. The child's right to family life therefore dictated that the time-limit for withdrawing consent should not be excessive. The relevant provisions also sought to protect the right of the adoptive family to lead a stable family life (they referred to Odièvre, cited above, § 44).

The Government further submitted that the interference in issue had been necessary in a democratic society within the meaning of Article 8 § 2. Citing the Court's case-law (in particular, Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, and Odièvre, cited above), they observed that, in striking a fair balance between competing interests, the Court afforded States a certain margin of appreciation and that, in assessing whether or not they had overstepped that margin, it took particular care to ensure that the child's best interests were preserved. In the instant case the Government submitted that, in such a delicate situation as the abandonment of a child by a mother who wished the birth to be registered anonymously, the French legislation attempted to square the various interests at stake: those of the child, the mother and the adoptive family.

In assessing the two-month time-limit for withdrawing consent, regard should therefore be had to the absence of pre-existing family life with the biological mother, who had voluntarily given up all family life with her child, to the child's physical and psychological well-being and to the legal and emotional stability desired by the adoptive parents. The time-limit appeared sufficient to enable parents to reflect and to revise their decision if they so desired, especially as the social services provided them with detailed and accurate information about the implications of their actions. The social services had also noted that consent was generally withdrawn either in the first few or in the last few days of the period in question, and that this would remain the case if the period were shortened or extended.

Arguing in addition that the period within which consent could be withdrawn under French law was somewhat longer than the period provided for in other legal systems (for example, in Spain, Portugal, Poland, Quebec, Great Britain and Switzerland), the Government concluded that the time-limit satisfied the requirements of Article 8 of the Convention.

The Government submitted that the applicant, who lived in Ireland and had no ties in France, had made a free and informed choice to go to France to take advantage of the national legislation on anonymous registration of births and adoption. In Irish law, the principle mater semper certa est applied; affiliation was established by the fact of the child's birth. If the applicant had given birth in Ireland, she would have been the child's legal mother without having to recognise her, and the biological father would have been able to assert his rights without any difficulty. It was precisely to avoid that scenario that she had wanted to come to France, in order to keep secret the birth of a child resulting from adultery and to keep her marriage intact, while at the same time excluding the biological father, who was described as ‘violent and unbalanced’ in the record of the child's placement of 19 February 2002.

The Government submitted that, contrary to what she had alleged, the applicant, who had been 36 years old at the time, had been entirely aware of the meaning and implications of her actions. She had also been fully informed about the anonymous registration procedure and its practical details. The allegation that the decision had merely been provisional, giving her the chance to overcome temporary problems, was contradicted, in the Government's view, by the fact that, prior to giving birth, she had sought advice from a lawyer, who had taken her to hospital, and that she had taken care to bring documents with her to be handed over to her daughter on reaching the age of majority if she ever wished to know her origins.

The Government submitted that, even supposing that the applicant had not been fully aware of her actions before arriving in France, she had in any event received clear and extensive information after the birth about the procedure provided for in Articles L. 224-4 to L. 224-6 of the Social Action and Families Code. That was attested, firstly, by the record of the child's placement in State care and, secondly, by the judgment of the Lille tribunal de grande instance, which noted that the applicant had had at least two lengthy interviews with the social services, during which she had been told about the conditions and effects of anonymous registration of the birth. Although she had not had access to an official interpreter, which was not required by French law, she had been assisted by English-speaking staff during the interviews. Furthermore, in his submissions to the Court of Appeal, the prefect of the département of Nord had referred to the observation by the social services that the applicant ‘had difficulty in accepting the idea that her daughter would not be placed with adoptive parents immediately after leaving the maternity ward but would be placed temporarily in a foster home or a nursery for two months. In that connection, it was explained to her at length that the purpose of this procedure was to ensure the best possible preparation for the planned adoption, and also to comply with the statutory two-month time-limit for withdrawing consent, which in her case would expire on 20 April 2002.’

In the Government's submission, the applicant could not maintain that the social services had failed in their duty to provide information, or that the information imparted, particularly as regards the time-limit for withdrawing consent, had been ambiguous. Lastly, the Government observed that during the two-month period in question, the social services had not been made aware of any incidents suggesting that the applicant wished to or was going to revise her decision. Nothing had been heard from her until 26 July 2002, several days after the Dublin Circuit Family Court's initial decision of 19 July 2002, on an application by the biological father, ordering the applicant to take all necessary steps to ensure that the adoption procedure was suspended.

In those circumstances, the Government 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.