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KEARNS v. FRANCE - 35991/04 [2008] ECHR 1 (10 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1.html
Cite as:
[2008] 1 FLR 888,
50 EHRR 33,
[2008] 2 FCR 19,
(2010) 50 EHRR 33,
[2008] Fam Law 309,
24 BHRC 49,
[2008] ECHR 1
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THIRD
SECTION
CASE OF
KEARNS v. FRANCE
(Application
no. 35991/04)
JUDGMENT
STRASBOURG
10
January 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kearns v. France,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Boštjan M. Zupančič,
President,
Jean-Paul Costa,
Elisabet
Fura-Sandström,
Alvina Gyulumyan,
Egbert
Myjer,
David Thór Björgvinsson,
Isabelle
Berro-Lefèvre, judges,
and Santiago Quesada, Section
Registrar,
Having
deliberated in private on 6 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35991/04) against the French
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Irish national, Ms Karen Kearns (“the
applicant”), on 6 October 2004.
The
applicant was represented by Mr T. Haas, of the Conseil d’Etat
and Court of Cassation Bar. The French Government (“the
Government”) were represented by their Agent, Mrs E. Belliard,
Director of Legal Affairs at the Ministry of Foreign Affairs.
On
7 February 2006 the Court decided to give priority to the application
and to give notice to the Government of the applicant’s
complaint under Article 8 of the Convention. Under Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
In
a letter of 7 April 2006 the Irish Government indicated that they did
not intend to exercise their right to intervene in the proceedings.
On
12 September 2006 the President granted a request by Mr Byrski for
leave to intervene in the proceedings. His observations were
submitted on 24 October 2006.
On
20 September 2006 the President decided to invite the adoptive
parents to submit written comments. No reply has been received to the
letter they were sent to that effect on 25 September 2006.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1966 and lives in Dublin. She is married to T.
On
8 February 2002 she went to Seclin Hospital, in France, together with
her mother and a French lawyer, to request anonymous registration of
the forthcoming birth of her child (accouchement sous X).
She
was admitted to the maternity ward on 17 February 2002, and on 18
February 2002 she gave birth to a girl, K., from an extramarital
relationship with Mr Byrski.
On
19 February 2002 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 the child’s placement in State care in
accordance with Article L. 224-5 of the Social Action and
Families Code, handing over a folder intended for the child, which
contained a letter, photographs and administrative documents.
In
the record she indicated that she wished to have the child taken into
State care, to request secrecy and to give her consent to adoption
under Article 348-3 of the Civil Code. She stated that the child was
born out of wedlock and was not recognised by the father.
The
section entitled “Reasons for the placement” contained
the following details:
“[The applicant] wishes to keep secret the reasons
why she is giving her child up for adoption. She would prefer to hand
us the attached documents, which will be released to the child at her
request on reaching the age of majority (letter, photos, official
documents). Secrecy has been requested purely to ‘protect her
baby’ from the violent and unbalanced biological father.”
The
section entitled “Information on the placement” stated:
“We have informed her of the following: ...
(3) Time-limits and conditions for return of
the child:
– a child who is claimed back within
a period of two months by the parent who entrusted the child to
the Child Welfare Service will be returned to that parent without any
further formalities (Article L. 224-6, paragraph 2, of the Social
Action and Families Code).
– if the child has a second parent who
did not entrust him or her to the service and who claims the
child back within a period of six months, the child will be
returned to that parent without any further formalities (same
Article).
– once these periods have expired
(two months if the sole parent or both parents entrusted the
child to the service; six months if the second parent did not
entrust the child to the service), an application for judicial review
of the child’s placement in State care may be lodged, within
thirty days from the date of the formal registration, with the
tribunal de grande instance (Article L. 224-8 of the Social
Action and Families Code).
– beyond these time-limits:
* if the child has been placed for adoption,
any application to have the child returned will be inadmissible
(Article 352 of the Civil Code) ...
(6) Conditions for withdrawal of consent
to adoption (Article 348-3, paragraphs 2 and 3, of the Civil
Code)
We have given her the following:
– a notice setting out the effects of
placement in State care and of consent to adoption and the conditions
for recovery of the child and withdrawal of consent;
– a model letter requesting the return
of the child and/or withdrawing consent to adoption, if consent has
been given.”
On
the same day (19 February 2002) the applicant gave her consent to the
child’s adoption. The form of consent stated, inter alia:
“I ... certify that I have been informed:
...
2. about the effects of consent to adoption,
namely:
– that the placement is secret,
– that I forfeit all my rights over the
child,
– that placement for adoption
constitutes a bar to any recognition, declaration of filiation or
application for recovery.
3. that this document will become FINAL after
a period of TWO MONTHS, on 20 April 2002, and that during this
period the child may be returned to me in accordance with the
prescribed procedures for withdrawal of consent (Article 348-3,
paragraphs 2 and 3, of the Civil Code).
I hereby declare that I formally consent to the adoption
of my child ..., leaving the choice of the adopter to the Child
Welfare Service.
I acknowledge that I have received:
– a notice setting out the time-limits
and conditions for the return of my child,
– a model letter for withdrawal of
consent to adoption and to the record of the child’s placement
in State care.”
On
20 February 2002 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, at her request, various matters
relating to the record signed the previous day were discussed.
On
7 May 2002, after approval had been given by the Family Council, the
chairman of the Nord département council, as the
official guardian of children in State care, placed K. in the care of
Mr and Mrs L.-B. with effect from that date with a view to her full
adoption.
In
the meantime, Mr Byrski, the child’s biological father, had
applied to the Dublin Circuit Family Court for recognition of his
rights over the child. In decisions of 19 July and 14 and 28 August
2002 the Circuit Family Court directed that the adoption process in
France should not proceed any further, that the name and a photograph
of the child were to be sent to Mr Byrski and that its decisions were
to be forwarded to the Nord département council and the
French social services.
On
25 and 26 July 2002 the applicant went to the hospital’s
maternity ward and subsequently to the French social services,
seeking the return of the child. According to a note drawn up by the
social services, her request was based on two reasons: firstly, the
biological father had learned of the child’s birth in the
meantime and had brought an action in Ireland, and secondly, she had
managed to persuade her husband to recognise the child. Her request
was refused because the two-month time-limit for withdrawing consent
had expired.
The
applicant then applied to the Lille tribunal de grande instance,
seeking the annulment of the decision to give the child up and an
order for her return. She submitted that the consent she had given on
19 February 2002 had been invalid on account of the family
pressure exerted on her and because she had not realised the
consequences of registering the birth anonymously, since the process
had been explained to her without an interpreter being present. She
argued that French law contravened Articles 13 and 14 of the
Convention.
The
child’s biological father, Mr Byrski, intervened in the
proceedings.
In
a judgment of 31 October 2002 the court dismissed the applicant’s
claims, holding as follows:
“In support of her application for the annulment
of the decision to give up the child born on 18 February 2002 and for
the child’s return, Ms Kearns alleges that an error was
committed as to the meaning and scope of the document of 19 February
2002.
Ms Kearns, an Irish national living and working in
Dublin, came to the maternity ward in Seclin to give birth on 18
February 2002. On that occasion she expressed the wish for her
admission and her identity to be kept secret.
The exercise by any woman of this right, which is
enshrined in Article 341-1 of the Civil Code and which the
legislature has to date had no intention of reconsidering, is
governed by the provisions of Article L. 222-6 of the Social Action
and Families Code, as amended by the Act of 22 January 2002.
It appears from the evidence before the court ... that
at least two lengthy interviews were held in order to explain to this
woman the conditions and effects of anonymous registration of a
birth. These interviews took place in the presence of English
speakers, and Ms Kearns, who chose to come to France to give birth,
cannot expect the social services to have offered anything more in
this respect, particularly not the presence of an official
interpreter, which is not provided for or required by any statutory
instrument. Furthermore, it appears from the proceedings ... and from
the written submissions summarising her counsel’s address ...
that Ms Kearns was taken to hospital by a lawyer; she had therefore
clearly sought legal advice prior to the birth.
Accordingly, no matter what psychological state the
applicant may have been in, like any woman opting to give birth in
these circumstances, it appears that Ms Kearns was nevertheless fully
aware of both the immediate and the future implications of her
actions and decisions. She thus acted quite consciously in having the
birth registered anonymously and giving the child up to the social
services to be taken into State care, and there are no grounds for
arguing that her intellectual faculties were impaired or that the
consent was invalid in any way; moreover, the question of consent is
not applicable from a civil-status perspective.
In addition, as regards the formal propriety of the
document of 19 February 2002, once a child is entrusted to the social
services, the latter assume a number of obligations, including the
provision of information ... It appears from the record of the
child’s placement, which contains entries whose existence is
not disputed, that the social services fulfilled their obligation to
provide information on a child’s placement in State care and
the ensuing legal effects. Such information was, moreover, provided
in English, and the notice and model letter requesting the return of
the child were indeed given to Ms Kearns. Furthermore, Ms Kearns
fully understood the meaning and scope of this information since she
left documents for the child in the event that the latter expressed
the wish to discover her origins at a future date.
Ms Kearns clearly expressed her wish that the child
should never be able to have legal ties to her. Moreover, she did not
withdraw her consent within the two-month period. It should be noted
in this connection that this right is strictly personal; accordingly,
no action by a third person may be treated as an action to withdraw
consent, that being the sole prerogative of the mother, or interrupt
the relevant period.
Accordingly, there are no grounds for declaring null and
void the record of 19 February 2002, which served as an entirely
valid basis for the placement in State care (first provisionally and
later with final effect) of the child born on 18 February 2002 with
no established parentage ...
Since the mother did not apply for the return of the
child within two months after giving her up, the child, who has no
legally established parentage, was able to be placed with foster
parents by the State authorities with a view to her adoption under
Article 351 of the Civil Code.
Such placement for adoption, by virtue of the provisions
of Article 352 of the Civil Code, constitutes a bar not only to the
return of the child to the mother but also to any declaration of
filiation or recognition. The first ground of appeal must therefore
be declared ineffective.
Ms Kearns further alleges a violation of Articles 13 and
14 of the European Convention on Human Rights.
As stated above, Ms Kearns gave birth ... while wishing
to keep the birth and her identity secret, a right enshrined in
Article 341-1 of the Civil Code and given effect by the Social Action
and Families Code.
More generally, these Articles govern the conditions for
giving up a child, for consent to adoption or for anonymous
registration of a birth, as well as the conditions and procedures
applicable in the event of repudiation and/or withdrawal of any of
these measures.
They strike a delicate balance between the rights of a
mother, which the legislature has to date had no intention of
reconsidering, to give birth anonymously with the consequences that
entails, and the rights of the foster parents and of the child, whose
rights are now framed in such a way as to allow him or her access to
more information, if he or she so desires, but in whose interests
stability and certainty, both psychological and legal, must be
sought, if only through the shortness of the time within which the
natural parents may avail themselves of the appropriate procedures.
The instant case thus cannot be said to involve any
discrimination or deprivation of the enjoyment of a right secured to
the mother or the child by the European Convention on Human Rights,
or indeed our national law, within the meaning of Article 14 of the
Convention. Similarly, no matter how short they are, time-limits do
exist in French law for bringing an action in the ordinary courts,
constituting, within the meaning of Article 13 of the Convention ...,
an effective remedy before a national authority independent of the
administrative authority that may be required to rule on an
application for the return of a child or to approve an adoption.”
The
applicant appealed. In a judgment of 22 September 2003 the Douai
Court of Appeal set aside the first-instance judgment. After
reiterating the content of the record of 19 February 2002, and in
particular the information it provided, the court held:
“Paragraph 3 of the section on information thus
expressly mentions the existence of two time-limits for the child’s
return without any further formalities, one being two months (the
only possible limit that could apply in the instant case), the other
being six months, where the second parent has not entrusted the child
to the social services.
This six-month time-limit is mentioned on two further
occasions, firstly in relation to the right to have the child
returned to the second parent and secondly in indicating that even
after the expiry of the two-month and six-month periods, a court
action may still be brought.
This information could have misled Ms Kearns ... since
in reality the six-month time-limit applicable under Article L. 224-6
of the Social Action and Families Code in the circumstances referred
to in Article L. 224-4 did not apply in the instant case, there being
no established paternity as the mother had registered the birth
anonymously, and the placement therefore came under point (1) of
Article L. 224-4.
Ms Kearns, an Irish national who is a native English
speaker and does not speak French, could not have known the
consequences in French law of anonymous registration of the birth, in
terms of her rights and those of the biological father, and the
information given was in no way capable of enlightening her in a
clear and precise manner.
Having been informed of the existence of a six-month
time-limit where ‘the child has a second parent who did not
entrust him or her to the service’, she may legitimately have
thought, in the light of the information set out in the record, that
this time-limit was applicable in her case since she had on several
occasions notified the local health and social services department of
the existence of a biological father who had not been informed of the
placement procedure.
It will be observed that there is no mention in the
record that an interpreter was present when it was signed and that it
has not been disputed that a member of the maternity ward staff
assisted with the translation and the explanation in English of the
information given in French to Ms Kearns ... However, a translation
of this nature, which was provided by a person who used English only
occasionally and did not have specific legal knowledge, and which,
moreover, was based on particularly ambiguous information as to the
time-limits, did not enable Ms Kearns ... to have access to proper
information about her rights regarding the procedures for withdrawing
consent.
It therefore appears that the information provided to
the appellant concerning the right to have the child returned was
inaccurate or at least particularly ambiguous, and was set out in a
pre-printed document not specially adapted to the procedure of
anonymous birth registration but designed for use in any of the
circumstances covered by Article L. 224-4 of the Social Action and
Families Code for the taking of a child into State care; that
reference was made to a six-month time-limit not applicable in her
case; and that, moreover, being an native English speaker, the mother
was not effectively informed of the procedures for the return of her
child and of the strict two-month time-limit that applied in her
case.
Furthermore, it has not been shown in any way that Ms
Kearns ... otherwise received any clear information before the record
was signed as to her right to recover the child.
The note by Ms F. – who also drew up the record in
issue – besides having no evidential value, since it was
written by a party to the proceedings, does not contain any
clarification as to the information given to Ms Kearns ... about the
time-limit for withdrawing consent.
Similarly, the fact that Ms Kearns ... was in contact
with a French lawyer prior to the birth does not mean that she
received precise information from him about the exclusive nature of
the two-month time-limit ...
Ms Kearns’ belief ... in the possibility of
recovering the child within a six-month period is corroborated by the
request she made in person on 25 and 26 July 2002 to the Nord health
and social services department, citing this time-limit, and by the
subsequent letters from her lawyer, which also state that his client
thought that she could take her child back within such a period.
Having regard to all these considerations, it appears
that Ms Kearns ... placed her child in State care while believing –
legitimately, in view of the ambiguous information she had received
when signing the record of the placement – that she could take
her back within a period of six months and that this time-limit also
applied to Mr B., who had, moreover, instituted proceedings in
Ireland on 9 April 2002.
This error as to the time-limit for the return of the
child concerns a significant element of her consent to the child’s
placement in State care, especially as the provisions of Article L.
224-5 of the Social Action and Families Code require precise
information on the subject to be given to the mother.
In these circumstances, the application for the record
of the child’s placement of 19 February 2002 to be
declared null and void must be allowed.
... seeing that the handing over of the child to the
State authorities was rendered void by a lack of true consent
affecting the validity of the record drawn up on 19 February
2002, the child’s placement in State care is to be
retrospectively annulled and cannot therefore have any legal effect.
Accordingly, the application for the child to be
returned to Ms Kearns ... should be allowed, without there being any
need to address the subsidiary arguments she submitted in support of
that application.
Pursuant to Article 334-8 of the Civil Code, parental
ties shall be established between Ms Kearns ... and the child to whom
she gave birth in the maternity ward of Seclin Hospital on 18
February 2002 and a reference to this judgment shall be entered in
the register of births, deaths and marriages for the town of Seclin.”
In
a letter of 24 September 2003 the applicant’s lawyer asked the
prefect to enforce the judgment and to return the child to her
mother. No action was taken on this request.
The
prefect for the département of Nord appealed on points
of law, arguing that in the absence of recognition by the mother of
the child to whom she had given birth anonymously, it was not
necessary to obtain her consent for the child to be taken into State
care.
In
a judgment of 6 April 2004 the Court of Cassation allowed the appeal,
holding as follows:
“[Article L. 224-4, point (1), of the Social
Action and Families Code] provides that children whose parentage has
not been established or is unknown and who have been entrusted to the
Child Welfare Service for more than two months are deemed to have
been taken into State care.
On 18 February 2002 Mrs T. (née Kearns) gave
birth anonymously. On 19 February 2002 a record of the child’s
placement in State care with the Child Welfare Service was drawn up
in accordance with Article L. 224-5 of the Social Action and Families
Code. On 7 May 2002 the child was placed for adoption after the
Family Council for Children in State Care had given its approval on
25 April 2002. On 25 July 2002 Mrs T. unsuccessfully sought to
have the child returned to her. In applications of 22 August and
10 September 2002 she brought proceedings against the prefect of
the département of Nord, seeking the return of the
child.
In allowing her claim, the Court of Appeal held that the
child’s placement with the State authorities was rendered void
by a lack of true consent affecting the validity of the record drawn
up on 19 February 2002, seeing that when the record was signed Mrs T.
had received only ambiguous information about the period within which
she could take her child back.
In so holding, despite the fact that in the absence of
recognition, the child’s parentage was not established, such
that Mrs T.’s consent was not required when the child was taken
into care ..., the Court of Appeal breached the provision cited
above.”
The
Court of Cassation therefore quashed and annulled the Court of
Appeal’s judgment in its entirety and, applying Article 627,
paragraph 2, of the New Code of Civil Procedure (by which it may put
an end to the dispute by applying the appropriate legal rule),
dismissed the applicant’s claims.
The
full adoption procedure, which had been suspended, was resumed by Mr
and Mrs L.-B. In a judgment of 17 June 2004 the Lille tribunal de
grande instance allowed their application and made a full
adoption order in respect of the child.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Domestic law
1. Legislation
The
history and development of the system of anonymous registration of
births in France is set out in Odièvre v. France ([GC],
no. 42326/98, §§ 15-16, ECHR 2003 III).
Social Action and Families Code (as resulting from
Law no. 2002-93 of 22 January 2002)
The
following provisions of the Social Action and Families Code are
relevant to the present case:
Article L. 224-4
“The following shall be taken into State care:
(1) children whose parentage is not
established or is uncertain and who have been entrusted to the Child
Welfare Service for more than two months; ...”
Article L. 224-5
“Where a child is entrusted to the Child Welfare
Service in the circumstances referred to in Article L. 224-4, points
(1), (2), (3) and (4), a record shall be drawn up.
It shall mention that the parents in respect of whom the
child’s filiation has been established, the child’s
natural mother or natural father or the person handing the child over
have been informed about:
(1) the measures introduced, in particular by
the State, the local authorities and the social-security bodies, to
help parents to raise their children themselves;
(2) the rules governing placement in State
care in accordance with this Chapter;
(3) the time-limits and conditions subject to
which the child may be taken back by the father or mother;
(4) the possibility of leaving behind any
information concerning the health of the father and mother, the
child’s origins and the reasons for which and circumstances in
which the child was placed with the Child Welfare Service.
Furthermore, where the child is entrusted to the service
by the father or mother in accordance with points (2) or (3) of
Article L. 224-4, the parent or parents concerned must be asked to
consent to the child’s adoption; such consent shall be noted in
the record, which must also mention that the parents have been
informed of the time-limits and conditions in which they may withdraw
their consent, in accordance with the second and third paragraphs of
Article 348-3 of the Civil Code.”
Article L. 224-6
“The child shall be deemed to have been
provisionally taken into State care on the date on which the record
referred to in Article L. 224-5 is drawn up. Guardianship
arrangements shall be made with effect from the date of such
declaration.
However, within a period of two months from the date of
the provisional placement in State care, the child may be returned
immediately and without any further formalities to whichever of the
parents entrusted him or her to the service. This period shall be
extended to six months, in the circumstances specified in Article L.
224-4, point (3), for whichever parent did not entrust the child to
the service.
Beyond these periods, the decision to agree to or refuse
the return of a child in State care shall, subject to the provisions
of Article 352 of the Civil Code, be taken by the official guardian,
with the agreement of the Family Council. In the event of a refusal,
the persons concerned may apply to the tribunal de grande
instance.”
(b) Civil Code
The
relevant provisions of the Civil Code are worded as follows:
Article 347
“The following may be adopted:
(1) children in respect of whom the mother
and father or the Family Council have validly consented to adoption;
(2) children in State care;
(3) children declared abandoned in the
circumstances provided in Article 350.”
Article 348-3
“Consent to adoption shall be given before the
senior registrar of the district court within whose jurisdiction the
home or place of residence of the person giving the consent is
situated, or before a French or a foreign notary, or before French
diplomatic or consular officials. It may also be received by the
Child Welfare Service if the child has been entrusted to the service.
Consent to adoption may be withdrawn within a period of
two months. Withdrawal of consent shall be effected by means of a
registered letter with recorded delivery, addressed to the person or
the service that received the consent. The handing over of the child
to the parents on request, even a verbal request, shall also be
treated as proof that consent has been withdrawn.
If, on the expiry of the two-month period, consent has
not been withdrawn, the parents may still request the return of the
child, provided that the child has not been placed for adoption. If
the person who has received the child refuses to give him or her
back, the parents may apply to the court, which shall determine,
having regard to the child’s interests, whether the return of
the child should be ordered. The child’s return shall
invalidate the consent to adoption.”
2. Case-law
The
Court of Cassation takes the position that, where a mother gives
birth anonymously, there are no established parental ties between her
and the child and that, accordingly, her consent to adoption is not
required.
Thus,
in a judgment of 5 November 1996 (Bulletin 1996 I no.
368, p. 259) in a case concerning a request for the return
of an anonymously registered child born to a minor, the Court of
Cassation quashed the judgment of the Court of Appeal, which had
annulled the record of the child’s placement with the social
services on the ground that the mother was under age and had not been
assisted by a person exercising parental responsibility. It held as
follows:
“In so holding, despite the fact that in the
absence of recognition, parental ties had not been established, so
that it was not necessary to obtain Ms Y’s consent when the
child was entrusted to the Child Welfare Service, the Court of Appeal
breached the provision cited above [Article 61, point (1), of the
Family and Welfare Code].”
Conversely,
in a recent case in which the mother had given birth anonymously but
the biological father had recognised the child before the birth, the
Court of Cassation, relying in particular on the New York Convention
on the Rights of the Child, quashed and annulled the judgment of the
Court of Appeal, which had declared inadmissible the father’s
application for the return of the child. It gave the following
reasons:
“... in so holding, despite the fact that, since
the child had been identified by Mr X ... on a date prior to the
consent to adoption, the child’s paternity had been established
with effect from the date of the birth as a result of this prenatal
recognition, so that the Family Council for Children in State Care,
which had been informed of the recognition, could no longer ...
validly consent to the child’s adoption, consent being the sole
prerogative of the biological father, the Court of Appeal,
disregarding the child’s right to know its declared father,
breached the provisions cited above.” (Court of Cassation,
First Civil Division, 7 April 2006, Petites affiches 14-17
July 2006)
B. International and comparative law
1. International and European law
(a) United Nations Convention on the
Rights of the Child
34. Article
21 of this Convention provides:
“States Parties that recognize and/or permit the
system of adoption shall ensure that the best interests of the child
shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is
authorized only by competent authorities who determine, in accordance
with applicable law and procedures and on the basis of all pertinent
and reliable information, that the adoption is permissible in view of
the child’s status concerning parents, relatives and legal
guardians and that, if required, the persons concerned have given
their informed consent to the adoption on the basis of such
counselling as may be necessary;
(b) Recognize that inter-country adoption may
be considered as an alternative means of childcare, if the child
cannot be placed in a foster or an adoptive family or cannot in any
suitable manner be cared for in the child’s country of origin;
(c) Ensure that the child concerned by
inter-country adoption enjoys safeguards and standards equivalent to
those existing in the case of national adoption;
(d) Take all appropriate measures to ensure
that, in inter-country adoption, the placement does not result in
improper financial gain for those involved in it;
(e) Promote, where appropriate, the
objectives of the present Article by concluding bilateral or
multilateral arrangements or agreements, and endeavour, within this
framework, to ensure that the placement of the child in another
country is carried out by competent authorities or organs.”
(b) Convention of 29 May 1993 on
Protection of Children and Cooperation in respect of Intercountry
Adoption
This
convention, which is not directly applicable to the present case
since it concerns inter-country adoption, provides in Article 4 that
the persons whose consent is necessary for adoption must “have
been counselled as may be necessary and duly informed of the effects
of their consent”, and that such consent must have been given
freely and expressed or evidenced in writing and must not have been
withdrawn. In addition, the consent of the mother, where required,
must have been given only after the birth of the child.
(c) European Convention on the Adoption of
Children
36. This
Council of Europe convention came into force on 24 April 1968.
France has signed it but has not ratified it. Article 5 provides:
“1. Subject to paragraphs 2 to 4 of
this article, an adoption shall not be granted unless at least the
following consents to the adoption have been given and not withdrawn:
(a) the consent of the mother ...
4. A mother’s consent to the adoption
of her child shall not be accepted unless it is given at such time
after the birth of the child, not being less than six weeks, as may
be prescribed by law, or, if no such time has been prescribed, at
such time as, in the opinion of the competent authority, will have
enabled her to recover sufficiently from the effects of giving birth
to the child.”
According
to the explanatory report, the object of paragraph 4 is to avoid
premature adoptions to which mothers give their consent as a result
of pressure exerted before the birth of the child or before their
physical health and psychological balance have been restored.
The
convention is currently undergoing a revision. Article 5 of the draft
revised convention is worded as follows:
“1. Subject to paragraphs 2 to 5 of
this article, an adoption shall not be granted unless at least the
following consents to the adoption have been given and not withdrawn:
a. the
consent of the mother and the father; or if there is neither father
nor mother to consent, the consent of any person or body who is
entitled to consent in their place; ...
2. The persons whose consent is
required for adoption must have been counselled as may be necessary
and duly informed of the effects of their consent, in particular
whether or not an adoption will result in the termination of the
legal relationship between the child and his or her family of origin.
The consent must have been given freely, in the
required legal form, and expressed or evidenced in writing.
...
5. A mother’s consent to
the adoption of her child shall be valid when it is given at such
time after the birth of the child, not being less than six weeks, as
may be prescribed by law, or, if no such time has been prescribed, at
such time as, in the opinion of the competent authority, will have
enabled her to recover sufficiently from the effects of giving birth
to the child.”
The
explanatory report
states the following:
“33. Paragraph 2
emphasises that it is essential that the person giving consent has
been well informed in advance of the consequences of doing so and
that consent is given freely and in writing. ...
38. The object of paragraph 5
is to avoid premature adoptions to which mothers give their consent
as a result of pressure exerted before the birth of the child or
before their physical health and psychological balance have been
restored after the child’s birth.
39. Paragraph 6 contains a
definition of the terms ‘father’ and ‘mother’.
Given this definition, the consent provided for in this
article does not apply to parents of origin when legal affiliation
has not been established.”
2. Comparative law
(a) Procedures for obtaining the
biological parents’ consent
Most
European legal systems provide that consent must be obtained by a
judge or notary independently of the placement process. Some
countries allow the parents’ consent to be obtained by the
social services responsible for the child,
by the director of the institution in whose care the child is placed
or by the supervisory authority.
As
regards the provision of information to the biological parents, some
national regulations require adoption agencies to provide information
on the legal effects of adoption, the adoption process and the other
means of assistance available to them.
In other countries
this obligation falls directly to the judge, who must inform the
parents of the legal effects of adoption and of their right to
withdraw consent.
(b) Time at which the biological parents’
consent is obtained
(i) Period of
reflection
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 systems
envisage a period of not less than six weeks, sometimes extending to
as much as three months.
Some
countries simply make the validity of consent subject to “the
recovery of the mother after giving birth”
or to the condition that it is given after the birth.
Lastly, the legislation in other countries
makes no provision for a period of reflection, but “prenatal”
consent remains prohibited by law in the vast majority of legal
systems.
(ii) Time-limit for withdrawing consent
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 issued
and others until the adoption process has been initiated,
whereas others lay down fixed periods whose length varies from
country to country.
Lastly, in some countries
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 LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant alleged a breach of her right to respect for her private
and family life as enshrined in 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.”
The
Government contested that view.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
(i) Length of the period allowed for
withdrawing consent
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 birth
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.
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.
(ii) Information provided to the applicant
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.
(b) The Government
As
a preliminary remark, the Government stated that they did not dispute
the applicability of Article 8 of the Convention to the present case,
at least with regard to the right to respect for private life. They
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 parent could
no longer seek the return of a child whose placement in State care he
or she had requested – satisfied the requirements of
foreseeability, legitimacy and necessity for the purposes of Article
8.
(i) Length of the period allowed for
withdrawing consent
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.
(ii) Information provided to the applicant
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.
2. The third party’s submissions
Mr
Byrski is the child’s biological father. As to the facts, he
stated that he had had a relationship with Ms Kearns in 2001, during
which time the child had been conceived, and that, having had no
further contact with her after the relationship had ended in
September 2001, he had made numerous approaches to the Irish
administrative and judicial authorities (including his application to
the Dublin Circuit Family Court), in the belief that the child would
be born in Ireland. Having learned in July 2002 that Ms Kearns
had given birth in France, he had obtained an order from the Dublin
court for the discontinuation of the adoption procedure and the
return of the child to Ireland. From July 2002 he had contacted the
French authorities, informing them that he was the child’s
father and that he wanted the adoption procedure to be halted and the
child returned to him. He outlined all the steps he had taken with
the administrative and judicial authorities to that end (see
paragraphs 17 and 20 above).
Mr
Byrski submitted that his intention had always been to be a good
father to his daughter and to look after her, but that the French
authorities’ interference had prevented him from having a
normal family life with her.
3. The Court’s assessment
The
Court considers in the first place that the relationship between the
applicant and her child comes within the sphere of family life under
Article 8 of the Convention (see V.S. v. Germany (dec.),
no. 4261/02, 22 May 2007).
The
Court further considers that the authorities’ refusal of the
request for the child’s return had a basis in law, namely
Article 348-3 of the Civil Code and Article L. 224-6 of the Social
Action and Families Code, and pursued the legitimate aim of
protecting the rights and freedoms of others, in this instance the
child.
The
Court reiterates that although the object of Article 8 is essentially
that of protecting the individual against arbitrary interference by
the public authorities, it does not merely compel the State to
abstain from such interference: in addition to this primarily
negative undertaking, there may be positive obligations inherent in
effective respect for family life. These obligations may involve the
adoption of measures designed to secure respect for private life even
in the sphere of the relations of individuals between themselves. The
boundaries between the State’s positive and negative
obligations under Article 8 do not lend themselves to precise
definition. The applicable principles are nonetheless similar. In
particular, in both instances regard must be had to the fair balance
which has to be struck between the competing interests; and in both
contexts the State enjoys a certain margin of appreciation (see
Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290,
p. 19, § 49; Odièvre, cited above, § 40;
and Evans v. the United Kingdom [GC], no. 6339/05,
§ 75, ECHR 2007-...). The Contracting States will usually
enjoy a wide margin of appreciation if the public authorities are
required to strike a balance between competing private and public
interests or Convention rights. This applies all the more where there
is no consensus within the member States of the Council of Europe as
to the relative importance of the interest at stake or as to the best
means of protecting it (see Evans, cited above, §§
77-81).
The
Court further reiterates that its task is not to substitute itself
for the domestic authorities, but rather to review under the
Convention the decisions taken by those authorities in the exercise
of their power of appreciation. The Court will therefore examine
whether France, in handling the applicant’s action for recovery
of her child, acted in breach of its positive obligations under
Article 8 of the Convention (see Hokkanen v. Finland,
judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55;
Mikulić v. Croatia, no. 53176/99, § 59, ECHR
2002 I; and P., C. and S. v. the United Kingdom, no.
56547/00, § 122, ECHR 2002 VI).
(a) Length of the period allowed for
withdrawing consent
The
applicant complained of the shortness of the two-month time-limit
provided for in the second paragraph of Article L. 224-6 of the
Social Action and Families Code for withdrawing consent to adoption.
As
noted in paragraphs 39-44 above, the Court observes that there is no
consensus among the member States of the Council of Europe 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 is considerable
diversity in the legislation of the member States that have provided
for this possibility; some legal systems allow consent to be
withdrawn until the adoption order is issued, whereas in others, by
contrast, consent is irrevocable. In the States that have a fixed
time-limit for withdrawing consent, it varies from ten days to three
months. It cannot therefore be said that there is common ground in
the member States’ legislation and practice.
As
regards the time-limit prescribed by French law, the Government
pointed out that it had been reduced from three to two months by the
Act of 5 July 1996, so that the child could quickly enjoy stable
emotional relations within a new family and have the benefit of
parental ties.
As
it found in Odièvre (cited above, § 44), the Court
observes that it is confronted in the present case with interests
that are not easily reconciled: those of the biological mother, the
child and the adoptive family. There is also a general interest at
stake (ibid., § 45). In striking a balance between these
different interests, the child’s best interests should be
paramount.
In
this connection, the Court accepts the relevance of the arguments put
forward by the Government on the basis of studies by child-welfare
professionals, which have stressed that it is in the child’s
interests to enjoy stable emotional relations within a new family as
quickly as possible. It further observes that the tribunal de
grande instance held that psychological and legal stability
should be sought for the child, “if only through the shortness
of the time within which the natural parents may avail themselves of
the appropriate procedures”.
Furthermore,
while the two-month time-limit may seem brief, it nevertheless
appears sufficient to allow the biological mother time to reflect and
to reconsider her decision to give the child up. The Court is mindful
of the psychological distress which the applicant must have
experienced, but observes that she was 36 years old at the time, was
accompanied by her mother and had two lengthy interviews with the
social services after giving birth (see paragraphs 86-87 below).
The
Court lastly notes that in a recent case (V.S. v. Germany,
cited above), concerning a minor who had consented to the adoption of
her child, it found that the German authorities had not overstepped
their margin of appreciation, although under German law, consent to
adoption is irrevocable except in the event of a declaration of
nullity, which had not been sought in that particular case.
Having
regard to the margin of appreciation which States must be afforded in
view of the diversity in legal systems and traditions and in practice
(see Odièvre, cited above, § 49, and Evans,
cited above, § 77), the Court considers that the time-limit
prescribed by the French legislation seeks to strike a balance and to
ensure sufficient proportion between the competing interests (ibid.;
see also, conversely and mutatis mutandis, Mizzi v. Malta,
no. 26111/02, ECHR 2006 ...).
Moreover,
in the circumstances of the case, the action brought by the third
party before the Irish authorities has no bearing on the conclusion
reached by the Court.
(b) Information provided to the applicant
The
applicant submitted 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
Court observes that the applicant, an Irish national resident in
Dublin, chose to give birth in France in order to take advantage of
the possibility of registering the birth anonymously, which does not
exist in Irish law. As is shown by the documents produced to the
Court, she visited the maternity ward in the week prior to the birth,
assisted by a lawyer and her mother. The presence of a legal
specialist creates a presumption that the applicant was provided with
legal information even before the birth.
On
the two days following the birth, the applicant, accompanied by her
mother, had two lengthy interviews (each lasting half a day) with the
social services, in the presence of, respectively, a nurse and a
doctor with knowledge of English, who had been made available by the
hospital to act as interpreters. In this connection, the Court
considers that Article 8 cannot be construed as requiring the
authorities to ensure the presence of a qualified interpreter in such
cases.
With
regard in particular to the information received by the applicant
about the time-limit for withdrawing consent, the Court observes that
the record of K.’s placement in State care mentioned two
periods (two months and six months), which, as the Court of Appeal
found, could have given rise to confusion. However, the form of
consent to adoption signed by the applicant on the same day expressly
stated:
“I ... certify that I have been informed: ... that
this document will become FINAL after a period of TWO MONTHS, that
is, on 20 April 2002, and that during this period, the child may be
returned to me in accordance with the prescribed procedures for
withdrawal of consent (Article 348-3, paragraphs 2 and 3, of the
Civil Code).”
Accordingly,
no ambiguity could have persisted in the applicant’s mind as to
the period within which she could seek the return of her child.
Lastly,
it appears from the relevant documents that the applicant was given a
notice outlining the time-limits and conditions for the return of the
child, and a model letter for withdrawal of consent.
Having
regard to the foregoing, the Court considers that in the present case
the French authorities 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.
The
Court therefore concludes that the State has not breached its
positive obligations under Article 8 of the Convention in relation to
the applicant.
There
has therefore been no violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS TO THE LACK OF AN EFFECTIVE REMEDY
The
applicant submitted that she had been denied the right to an
effective remedy, on account of the shortness of the time-limit for
withdrawing consent and the insufficiently precise information she
had been given about the time-limit. She relied on Article 6 § 1
of the Convention, the relevant parts of which provide:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
In
so far as this complaint is indissociable from the complaint under
Article 8 of the Convention, which it has examined above, the Court
considers that it should be declared admissible and that no separate
issue arises under Article 6 § 1.
III. OTHER ALLEGED VIOLATIONS
A. Fairness of the proceedings
The
applicant also complained, under Article 6 § 1 of the
Convention, that the proceedings in the Court of Cassation had not
been fair in that the advocate-general, who had not attended the
hearing, had filed written submissions to which her lawyer had been
unable to reply. Furthermore, in quashing the judgment in her case
without remitting it to the court below, the Court of Cassation had
ignored an entire section of her arguments as to the incompatibility
of French law with the Convention and had wrongly declared one of the
prefect’s grounds of appeal admissible.
As
to the first point, the Court observes that the applicant was
represented in the Court of Cassation by a member of the Conseil
d’Etat and Court of Cassation Bar. Her lawyer was thus able
to make use of the practice outlined in Reinhardt and Slimane-Kaïd
v. France (judgment of 31 March 1998, Reports of
Judgments and Decisions 1998-II, p. 666, §§ 106 107),
whereby the advocate-general informed him prior to the hearing of the
tenor of his submissions, thus giving him the opportunity to reply by
means of oral submissions at the hearing or a note sent to the court
in deliberations. The Court found in Reinhardt and Slimane-Kaïd
that this practice satisfied the requirements of Article 6 § 1
of the Convention and sees no reason to depart from that approach in
the instant case.
As
to the second and third points, the Court observes that it has
already had occasion to rule on the practice whereby the Court of
Cassation quashes a judgment without remitting it to the court below
(see, for example, Riha v. France (dec.), no. 71443/01,
24 June 2004). In the instant case the Court observes that the
applicant’s submissions, based, inter alia, on the
Convention, were the subject of detailed argument in the tribunal
de grande instance and the Court of Appeal and considers that
Article 6 § 1 did not entitle her to have them addressed once
again by a court of appeal following the remittal of the case. Nor
can the Court discern any appearance of arbitrariness in the fact
that the Court of Cassation, which determines points of law alone,
declared the ground of appeal by the prefect of the département
of Nord admissible.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
B. Discrimination
The
applicant further complained, under Article 14 of the Convention
taken together with Article 8, that she had been discriminated
against on the ground of language in that she was a native English
speaker.
Article
14 provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
Court considers that the applicant has not shown that she suffered
any discrimination since, as the domestic courts found, she was on
the contrary given linguistic assistance not required by law.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 8 of the
Convention and Article 6 § 1 as to the lack of an effective
remedy admissible and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 8 of the Convention;
Holds that no separate issue arises under
Article 6 § 1 of the Convention.
Done in French, and notified in writing on 10 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
