European Court of Human Rights

 

 

 

SECOND SECTION

Application no. 4789/10
Nigar GÖZÜM against Turkey
lodged on 12 January 2010

STATEMENT OF FACTS

 

The applicant, Ms Nigar Gözüm, is a Turkish national, who was born in 1966 and lives in Istanbul. She is represented before the Court by Ms H. YılmazKayar, a lawyer practising in Istanbul.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 22 May 2007 the applicant’s request for authorisation to adopt a child was accepted by the Üsküdar Family Court. The decision became final on 20 July 2007.

Following the adoption, the child’s surname was amended in the civil registers and on his identity card; however, the applicant’s request to have her name entered in the “mother’s name” box was rejected by the Civil Registry Office.

On 23 November 2007 the applicant initiated civil proceedings against the Registry Office in the Üsküdar Family Court, seeking the indication of her own name as the mother’s name in the civil registers. She maintained that there was a lacuna in the law that had to be filled by reference to the principles of equality and non-discrimination and that the refusal to update information inscribed on the register of births constituted an undue interference with both the private and family lives of the persons concerned.

On 26 February 2008 the first-instance court dismissed the case. It held that contrary to adoptions by spouses, where a child was adopted by a single person, it was not possible to draw an analogy between biological parents and the adoptive parent as there was either no father or mother.

On 5 November 2009 after having held a hearing the Court of Cassation upheld the decision of the first-instance court.

In a letter dated 25 January 2012 the applicant’s representative informed the Registry that subsequent to an amendment to the directive concerned, the applicant had applied to the Civil Registry Office once again and that her request had finally been admitted in 2011. As a result, the applicant had her name recorded on her child’s birth certificate.

B.  Relevant domestic law

Article 314 of the Turkish Civil Code reads as follows:

“(1)  All rights and responsibilities of the biological parents are transferred to the adoptive parent(s).

(2)  The adopted child becomes an heir of the adoptive parent(s).

(3)  If the adopted child is a minor, he/she takes the adoptive parent(s)’ last name.The adoptive parent(s) may give a new name to the adopted child. If the adopted child is an adult, he/she may take the last name of the adoptive parents during the adoption procedure if he/she wishes.

(4)  If the adopted minor is unable to indicate a preference and if he/she is adopted by both adoptive parents (spouses), the names of the adoptive parents are registered as the names of the parents on the child’s birth records.

(5)  The adopted child’s initial birth records and the adoptive parents’ birth records are kept together in order not to prejudice the adopted child’s inheritance and other rights and also family ties. In addition the final judicial decision on adoption is registered in both families’ birth records/files.

(6)  All records, documents and information concerning adoption shall not be disclosed unless requested by the adopted child or by a court order.”

Paragraph 4 of the Rule 20 of the Directive Regulating Intermediary Services for the Adoption of Minors reads as follows:

“If the adopted minor is unable to indicate a preference and if he/she is adopted by both adoptive parents (spouses), the names of the adoptive parents are recorded on the child’s birth records as the parents’ names. The same applies in the case of adoption by a single parent.”

COMPLAINTS

The applicant alleges that Articles 6, 8 and 14 of the Convention were violated.

She maintains that the State Party failed to take steps to ensure respect for their private and family lives and argues that the distinction made by the domestic courts between adoptive spouses and adoptive singles constituted an undue interference with the private and family lives of the latter. She points out that the interference lacked a legal basis and did not pursue any legitimate aim. In this connection she submits that since her name was not indicated on her son’s identity card and certificate of birth, in enrolling him in the school or when travelling with him, she was obliged to reveal that she had adopted him and to provide, each and every time, all the relevant court decisions in evidence.

The applicant further complains under Article 14 of the Convention that she, together with her son, was discriminated against on the basis of civil status since adoptive spouses were entitled to have their names recorded on the adopted child’s birth records, thus identity card.

She also relies on the Convention on the Rights of the Child, the Universal Declaration of Human Rights, the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption, the International Convention on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women.

 

QUESTIONS

 

 

1.  Was there an interference with the applicant’s right to respect for her private and family life within the meaning of Article 8 § 1 of the Convention on account of the authorities’ refusal to record her as the mother of her child in the civil registers until 2011?

 

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

 

2.  Which changes, if any, have been made in the applicable laws and/or regulations to remedy the situation of the single adoptive mothers and/or fathers?