Published on 28 February 2022

THIRD SECTION

Application no. 37031/21 I.V. against Estonia lodged on 19 July 2021 communicated on 10 February 2022

STATEMENT OF FACTS

1. The applicant is a Latvian national who was born in 1965 and lives in R., Latvia.

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

3. The applicant had a relationship with A.Z. In April 2006 A.Z. gave birth to a son, A.E.Z. On an unspecified date the applicant suggested to A.Z. that they officially register A.E.Z.’s birth and record the applicant’s paternity in the register of births. A.Z. refused and explained that a certain “H” would be registered as the father.

4. Starting from 13 January 2007 A.Z. no longer permitted the applicant to meet the child.

5. On 18 January 2007 the applicant found out that on the previous day, a certain A.L. had voluntarily acknowledged paternity and had been registered as A.E.Z.’s father. According to the applicant, he did not know who A.L. was.

6. On 8 February 2007 the applicant lodged an application with the Riga City Zemgale District Court (later named Pardaugava District Court). He asked the court to order forensic testing in order to establish the child’s descent, to strike out the record of A.L. as father of the child and to record himself, the applicant, as the child’s father instead.

7. During the proceedings the Riga City Zemgale District Court ordered forensic genetic testing. On 13 October 2010 the testing laboratory issued a report, finding that the probability that the applicant was A.E.Z.’s father was 99.9999141% and that it was impossible that A.L. was the father.

8. On 25 November 2010 the Riga City Zemgale District Court adopted a judgment by which it rejected the remainder of the applicant’s claims. The court held that, even though the applicant was the child’s biological father, Civil Law did not give him the right to contest a voluntary acknowledgement of paternity. This judgment was upheld by the Riga Regional Court on 26 May 2011. The applicant lodged an appeal on points of law.

9. On 16 May 2012 the Senate of the Supreme Court decided that the appeal court had erred in deciding that the applicant lacked standing to contest the acknowledgement of paternity. However, referring to the unreasonable length of proceedings, it nonetheless decided to uphold the appeal court judgment.

10. On 23 November 2012 the applicant requested the Supreme Court to reopen the proceedings in the light of the newly discovered facts.

11. On 12 June 2013 the Senate of the Supreme Court examined the applicant’s request on the merits and upheld it. The case was sent for fresh examination to the Riga City Zemgale District Court.

12. On 6 June 2016 the Riga City Zemgale District Court granted an interim measure, determining the applicant`s contact rights with the child.

13. On 4 March 2017 A.Z. informed the Latvian courts that on 13 January 2017 she had married H.V. and that she and A.E.Z. were now living in Estonia.

14. On 3 January 2018 the Latvian Guardianship Tribunal submitted a judicial cooperation request to the Harju County Court for the collection of evidence concerning A.E.Z.’s living conditions and his opinion regarding contact with the applicant. In these proceedings the Harju County Court collected opinions from the local guardianship authority as well as A.E.Z.’s guardian ad litem ( määratud esindaja ). Both concluded, after having talked to A.E.Z., that he did not want to have any contact with the applicant and that forcing him to do so would not be in the child’s best interests.

15. On 8 May 2018 A.Z. informed the Latvian courts that A.E.Z. had been adopted by H.V. (see paragraph 18 below).

16. It appears that the Riga Regional Court submitted a second judicial cooperation request to the Harju County Court on 6 October 2020. The opinions provided by the local guardianship authority, as well as A.E.Z.’s guardian ad litem in these proceedings, again suggested that forcing A.E.Z. to have contact with the applicant would not be in his best interests.

17 . On 4 February 2021 the Riga Regional Court struck out the record of A.L. as the father of A.E.Z. and registered the applicant as A.E.Z.’s father from his birth until 26 April 2018, that is to say until the date of A.E.Z.’s adoption by H.V. This judgment entered into force on 20 April 2021.

18 . On 25 April 2018 the Harju County Court allowed the application lodged by H.V. to adopt A.E.Z. The court noted that it had heard A.E.Z., A.Z., A.L. and H.V., who had all consented to the adoption. The court also noted that it had interviewed H.V. and had collected background information on him. The court noted that H.V. was married to A.Z., had been raising A.E.Z. for one and half years and that he and A.E.Z. had developed a parent-child relationship. This decision was not amenable to appeal.

19. During these proceedings the participants did not inform the Harju County Court about the ongoing proceedings in the Latvian Courts.

20. After having found out about the adoption decision of 25 April 2018 (see paragraph 18 above), the applicant lodged an application with the Harju County Court on 31 July 2018, asking for its annulment. He asserted that both parents’ approval was required for the adoption to be valid, but that he, as the biological father of the child, had not given his consent.

21. On 31 October 2019 the Harju County Court decided to stay the proceedings pending the outcome of the court proceedings in Latvia. The Tallinn Court of Appeal quashed this decision and remitted the case to the Harju County Court.

22. On 28 January 2020 the Harju County Court dismissed the applicant’s claim. It noted that at the time when the adoption decision had been taken, A.L. had been A.E.Z.’s lawful father according to the birth certificate. As both he and A.Z. had given their consent to adoption, the statutory requirement of having both parents’ approval had been met.

23. Following the applicant’s appeal, the Tallinn Court of Appeal upheld the decision of the first-instance court on 1 September 2020. The applicant lodged an appeal on points of law with the Supreme Court.

24. On 10 February 2021 the Supreme Court dismissed his appeal. The Supreme Court explained that, under the domestic law, the applicant had not been the person (the father) who could challenge the adoption decision, as the Latvian court had not yet made a final decision on the recognition of the applicant’s paternity (see paragraph 17 above). Therefore, the lower-instance courts had mistakenly examined his application for annulment of the decision on the merits whereas it should have been rejected from the outset. Apart from this finding the Supreme Court explained that it was not to be ruled out that the applicant’s paternity would be recognised as a result of the court proceedings in Latvia. However, this did not mean that the applicant’s potential subsequent application for the annulment of the adoption decision would automatically have to be allowed. Even if the applicant’s paternity was later recognised, that would not render the “legal father’s” consent (that is to say the person who was registered as the child’s father at the time of the adoption) to the adoption retroactively invalid.

The Supreme Court added that in the event that a court learned during the adoption proceedings that the child’s paternity had already been challenged in another set of court proceedings, it would normally have to stay the adoption proceedings, unless waiting for the outcome of the paternity dispute was not in the best interests of the child. If, however, it was revealed only after the adoption decision had been taken that the person who had been registered as the child’s father and who had consented to the adoption was not actually the child’s biological father, the person who had been identified as the child’s biological father would not have the right to apply for the annulment of the adoption decision.

25. Article 564 1 the Code of Civil Procedure ( tsiviilkohtumenetluse seadustik ) concerns petitions for adoption. Article 564 §§ 1 and 2 read as follows:

“(1) The court decides on an adoption only on the basis of the application of a person wishing to adopt.

(2) The name of the person whom the petitioner wants to adopt, the year, month and day of such person’s birth, and any known data concerning such person’s parents must be set out in the petition. ...”

26. Article 568 § 2 provides that a decision on adoption enters into force as of its service on the adoptive parent. This decision is not subject to appeal or amendment.

27. Article 569 concerns annulment of adoption decisions and provides as follows:

“(1) In proceedings for annulment of adoption, the court hears the Social Insurance Board. If possible, the adoptive parent is also heard.

(2) In proceedings for annulment of adoption, the court appoints a representative for the adopted child.

(3) A decision on annulment of adoption enters into force and is subject to enforcement after it is no longer subject to appeal.”

28. Section 152 (1) of the Family Law Act ( perekonnaseadus ) provides that a child may be adopted only with the consent of his or her parents.

29. Section 166 (1) provides that a court can declare an adoption invalid if the adoption took place without the petition of the adoptive parent or without the consent of one of the parents.

30. Section 167 (5) provides that adoption will not be declared invalid if it damages materially the interests of a child unless declaration of invalidity is justified having regards to weighty interests of an adoptive parent.

31. The first phrase of section 168 (1) states that petition for declaration of invalidity of an adoption can be lodged only by a person without whose petition or consent the child was adopted.

COMPLAINTS

The applicant complains under Article 6 § 1 and Article 8 about the course and the outcome of the adoption proceedings and the proceedings concerning the annulment of the adoption decision.

The applicant asserts that the adoption, which took place at the time when the proceedings in Latvia were still pending, should never have proceeded without his consent as the biological father. Furthermore, his role as biological father should not have been ignored in the subsequent annulment proceedings. The domestic courts did not clarify and take into account the circumstances as a whole and did not verify what was in the best interests of the child. The participants in the adoption proceedings had acted mala fide in not informing the Harju County Court about the ongoing proceedings in Latvia. In any event the Harju County Court had been contacted by the Latvian courts in the context of a judicial cooperation request before the same court took the adoption decision.

The domestic courts did not take into account the applicant’s interest in maintaining contact with his biological child and failed to balance fairly all the various interests at stake.

The applicant noted that despite the eventual ruling of the Latvian courts confirming his biological paternity, according to the Estonian Supreme Court’s decision he still cannot contest the adoption decision.

QUESTIONS TO THE PARTIES

1. Considering that the proceedings concerning the adoption of the child ended on 25 April 2018 and that, in so far as can be understood from the case file, the applicant learned about these proceedings relatively soon after that, did he comply with the six-month time-limit laid down in Article 35 § 1 of the Convention as regards the part of his complaint that addresses particularly the adoption proceedings?

In replying to this question the parties are asked to specify if, in the case at hand, the annulment proceedings can be considered as an effective domestic remedy against the adoption decision.

2. Has the applicant’s right to have access to a court for the determination of his civil rights and obligations been respected (taking note of, inter alia , the Supreme Court’s judgment of 10 February 2021) and did he have a fair hearing in respect of these rights and obligations, in accordance with Article 6 § 1 of the Convention?

3. Can the applicant’s link with the child be considered sufficient to bring the alleged relationship within the scope of family or private life within the meaning of Article 8 § 1 of the Convention (see Uzbyakov v. Russia , no. 71160/13, §§ 79-81, 5 May 2020; and Różański v. Poland , no. 55339/00, §§ 63-64, 18 May 2006; compare with Krisztián Barnabás Tóth v. Hungary , no. 48494/06, §§ 27-28, 12 February 2013)?

4. Has there been a violation of the applicant’s right to respect for his family or private life, contrary to Article 8 of the Convention? Did the domestic authorities take all the necessary steps during the adoption and/or annulment proceedings that could reasonably have been demanded in the specific circumstances of the case (see Uzbyakov , §§ 113-129, and Różański , §§ 75-78; compare with Krisztián Barnabás Tóth , §§ 33-38, all three cited above)?

In answering the questions above, the parties are asked to clarify:

(a) to what extent was the Harju County Court aware of the ongoing dispute in Latvia concerning the applicant’s registration as father of the child when taking a decision with respect to the adoption request on 25 April 2018;

(b) what procedural measures were available under domestic law for the Harju County Court in the course of adoption proceedings and subsequent annulment proceedings to enquire about the ongoing proceedings in Latvia and to take into account the progress and outcome of such related parallel proceedings.