Information Note on the Court’s case-law 65

June 2004

Pini and Others v. Romania - 78028/01 and 78030/01

Judgment 22.6.2004 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Refusal of a private children’s home to hand children over to adoptive parents, notwithstanding final and binding court decisions: violation

Article 8

Article 8-1

Respect for family life

Adoptive parents without any close link with the children whom they adopted abroad and who remained in a children’s home after the adoption: Article 8 applicable

Article 8

Positive obligations

Failure to hand over legally adopted children to adoptive parents: no violation

Facts : The applicants, two Italian couples, had each received authorisation, by final judicial decision, to adopt a Romanian child; the children in question had lived in a Romanian private residential home since being abandoned. The decisions, delivered in Roma nia on 28 September 2000, ordered the amendment of the minors’ birth certificates and the issuing of new certificates. The adoptions were declared to be compatible with the national legislation in force and with the Hague Convention of 29 May 1993 on Prote ction of Children and Cooperation in respect of Intercountry Adoption. By final judicial decisions of June and August 2001 the residential home was ordered to hand over the children and their birth certificates to the applicants. The adopted children did n ot leave the residential home. The home repeatedly challenged the execution of the decisions and, after its objections had been dismissed, attempted enforcement by bailiffs failed. In the course of 2002 and 2003, the residential home obtained stays of exec ution of the adoption orders. The applicants made various unsuccessful applications to enforce the adoption orders. At the same time, the residential home applied to have the adoption orders for the minors set aside. The application was dismissed for failu re to comply with the formal requirements. The two minors brought proceedings to have their adoption orders quashed.  One of them won her case. Recent information submitted to the Court indicated that the children enjoyed good living conditions, in every s ense, in the residential home. They did not wish to leave in order to join the applicants, whom they knew only vaguely, and preferred to remain in the centre, where they seemed to have established social and emotional ties with the other children and with the “substitute” “mothers” and “aunts”.

Law : Article 8 – As to the existence of a bond amounting to “family life” : Although the applicants had had contact with their adopted daughters, they did not have de facto family relationships with them. The Court took various factors into account in finding that there was a relationship protected by Article 8. The relationship between the adopted children and the parents, declared adoptive parents by final and irrevocable decisions, had arisen from lawful adoptions that were not shams, which had ended the rights and obligations existing between the adopted children and their progenitors and with any other entity. The adoptions had complied both with the national legislation and with international conventions. Admittedly, the adopted minors’ consent to their adoption had not been sought, since they had been under the statutory minimum age, namely 10 years old, when the courts had ruled on the adoption applications, but this t hreshold had not been unreasonable, given the discretion left to States in this area under international conventions. Whilst, in the instant case, there had not yet been cohabitation or sufficiently close de facto ties between the adoptive parents and thei r adopted daughters, not only was prospective family life or a potential relationship not outside the ambit of Article 8, but this circumstance was not attributable to the applicants, who had merely followed the procedure put in place by the respondent Sta te in this area (selection of the child on the basis of photographs, without preparatory contact). In addition, the applicants had always viewed themselves as the minors’ parents and had behaved accordingly, through the only means open to them, namely by s ending letters written in Romanian. Article 8 was applicable.

Compliance with Article 8 (the State’s positive obligations): In the instant case, the respective interests of the adoptive parents and the adopted children had been in conflict. The applicants ’ legitimate aspirations to found a family had been in conflict with the adopted minors’ wish to remain in the socio-family environment in which they had been raised. The applicants’ legitimate desire could not enjoy absolute protection under the Conventio n in so far as it conflicted with the minors’ refusal to be adopted by a foreign family. The Court attached particular importance to the best interests of the child, which could take priority over those of the parent. It was even more important to give the child’s interests precedence in the case of relationships based on adoption. The applicants’ interest was considered weaker than that of the adopted minors. The applicants had been formally recognised as adoptive parents in the absence of any specific pre -existing ties with the children, who were already nine and a half years of age, whom they had never really known and with whom they had no emotional ties. At the time of their adoption, the adopted children had been very close to the age from which their consent would have been obligatory. They had not accepted the new family relationship and had objected to it, even in the courts, where one of them had been successful. The minors’ refusal had carried a certain weight since it had been consistently express ed ever since they had attained the necessary maturity to give an opinion on their adoption, and this opposition had made the minors’ harmonious integration into their new adoptive family unlikely. Given the children’s interest, the Romanian authorities ha d had no absolute obligation to ensure that the children left the country against their will and to ignore the legal proceedings pending at the time in which the lawfulness and merits of the initial adoption orders had been challenged.

Conclusion : no viola tion (six votes to one).

Article 6 § 1 – Although the adoption orders were final and irrevocable, they had not been enforced. This situation had not been attributable to the applicants or to the court bailiffs, but to the residential home in which the chil dren had been living. Although the State could not be blamed for the actions of this private establishment, it was necessary to go beyond appearances and examine whether the State could be held responsible for the situation complained of. For more than thr ee years, the State had failed to take effective measures to enable the bailiffs to carry out their task effectively and enforce the decisions with regard to the establishment in question, inter alia through police assistance, and had taken no measures aga inst the establishment or its director, despite the range of measures available under domestic law. By failing to take effective measures to ensure compliance with enforceable decisions, the national authorities had created a situation which undermined the rule of law and the principle of legal certainty. In addition, the passing of time in the present case had resulted in potentially irreversible consequences for the applicants. The provisions of Article 6 § 1 had thus been rendered nugatory.

Conclusion : v iolation (four votes to three).

The Court held unanimously that there had been no violation of Article 2 § 2 of Protocol No. 4.

Article 41 – The Court awarded each of the applicant couples a sum for pecuniary and non-pecuniary damage. It made awards to eac h of them in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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