JOINT PARTLY DISSENTING OPINION OF JUDGES RAIMONDI AND SPANO

1. With due respect to our colleagues in the majority, we are unable to share their opinion that there has been a violation of Article 8 of the Convention in this case.

2. We can accept, albeit with some hesitation and subject to the comments set out below, the majority ’ s conclusions that Article 8 of the Convention is applicable in this case (see paragraph 69 of the judgment) and that there has been interference in the applicants ’ rights.

3. In reality, the applicants ’ de facto family life (or private life) with the child was based on a tenuous link, especially if one takes into consideration the very short period during which he resided with them. We consider that the Court, in situations such as that before it in the present case, ought to take account of the circumstances in which the child was placed in the custody of the individuals concerned when examining whether or not a de facto family life had been developed. We would emphasise that Article 8 § 1 cannot, in our opinion, be interpreted as enshrining “family life” between a child and persons who have no biological relationship with him or her, where the facts, reasonably clarified, suggest that the origin of the custody is based on an illegal act, in breach of public order. In any event, we consider that the factors related to possible illegal conduct at the origin of the establishment of a de facto family life must be taken into account in the analysis of proportionality required in the context of Article 8.

4. That being stated, it must be noted that the applicants were prevented, both by the Campobasso Youth Court and by the civil-status registry office and the Campobasso Court of Appeal, from obtaining recognition of the birth certificate issued by the competent Russian authorities, and were affected by the judicial decisions which resulted in the child ’ s removal and his placement in care. This situation amounts to an interference in the rights guaranteed by Article 8 of the Convention (see Wagner and J.M.W.L. v. Luxembourg , no. 76240/01, 28 June 2007, § 123).

5. In our opinion, this interference was in accordance with the law, pursued a legitimate aim and was necessary in a democratic society.

6. As to whether this interference was “in accordance with the law” and pursued a “legitimate aim”, we agree with the majority ’ s analysis (see paragraphs 72-73 of the judgment).

7. In addition, in our opinion, the application of the legislative provisions in this case struck a fair balance between the competing public and private interests at stake, based on the right to respect for private and family life.

8. In this case, there is, firstly, the established lack of genetic links between the child and the applicants. Further, the Russian legislation does not specify whether a biological link must exist between the future parents and the child to be born. In addition, the applicants did not argue before the domestic courts that it was unnecessary under Russian law to have a genetic link with at least one of the future parents in order to be able to refer to gestational surrogacy. In the light of these elements, we consider that it is not necessary to compare the legislation of the Member States in order to establish whether, in the area of gestational surrogacy, there exists extensive harmonisation in Europe. In fact, we are faced with a case in which a Russian company – which employs the lawyer representing the applicants in Strasbourg – accepted a sum of money from the applicants; it purchased gametes form unknown donors; it found a surrogate mother and implanted the embryos in her; it handed the child over to the applicants; it assisted them in obtaining the birth certificate. To explain this process more clearly, the lawyer in question indicated that it was entirely possible to circumvent the requirement to have a genetic link with one of the future parents by purchasing the embryos, which thus became “their own” embryos.

9. The application of national law resulted in non-recognition of the legal parent–child relationship established abroad, on the ground that the applicants had no genetic relationship to the child. We do not overlook the emotional aspects of this case, in which the applicants were required to face their inability to procreate; to apply for the authorisation to adopt; having obtained that authorisation in December 2006, to wait for years in order to be able to adopt, given the shortage of children eligible for adoption; to nurture hope until 2010, when they decided to conclude a contract with Rosjurconsulting and when they learned about the child ’ s birth; and, lastly, to experience despair when they learned that the second applicant was not the child ’ s biological father.

10. The national courts examined the second applicant ’ s argument that an error had occurred in the Russian clinic in that his seminal fluid had not been used. They considered, however, that his good faith could not give rise to the missing biological link. In our opinion, the national courts did not act unreasonably in applying the national law strictly in order to determine paternity and in ignoring the legal status established abroad (see, a contrario, Wagner and J.M.W.L . cited above, § 135).

11. The Campobasso Youth Court considered that the child was without a satisfactory family environment for the purposes of the International Adoption Act. The domestic courts took into consideration the fact that the child had been born to unknown biological parents and that the surrogate mother had relinquished him. They further attached great importance to the unlawful situation in which the applicants found themselves: the latter had brought the child to Italy by passing him off as their son and had thus breached Italian law, in particular the International Adoption Act and the Assisted Procreation Act. They also inferred from the fact that the applicants had contacted Rosjurconsulting a wish on their part to circumvent the adoption legislation, in spite of the fact that they had obtained an authorisation to adopt, and considered that this situation resulted from a narcissistic desire on the part of the parents, or that the child was intended to resolve problems in their relationship. In consequence, doubt could be cast on their emotional and child-raising capacities, and it was therefore necessary to end this situation by removing the child from the applicants ’ home and ending any possibility of contact with him.

12. We note at the outset that the applicants, who had been assessed as fit to adopt in December 2006 when they received the authorisation to adopt, were found to be incapable of bringing up and loving the child on the basis of presumptions and inferences, without any expert report having been ordered by the courts. Nonetheless, we recognise that the situation facing the national courts was sensitive and urgent. We do not have grounds for considering arbitrary the position of the domestic courts, which held that the suspicions hanging over the applicants were serious and that it was essential to remove the child and to ensure his safety, without allowing the applicants to contact him. When the youth court decided to remove the child from the applicants, it took into account the harm that he would undoubtedly sustain but, given the short period that he had spent with them and his young age, it considered that the child would surmount this difficult stage in his life. Having regard to those factors, we have no grounds to doubt the adequacy of the elements on which the authorities relied in concluding that the child ought to be taken into the care of the social services. It follows that the Italian authorities acted in accordance with the law, with a view to preventing disorder and protecting the rights and health of the child, and maintained the fair balance that should be struck between the interests at stake.

13. In our opinion, there are no grounds for calling into question the assessment made by the Italian courts. The majority is substituting its own assessment for that of the domestic authorities, and thus overruling the principle of subsidiarity and the “fourth-instance” doctrine.

14. In this type of case, in which the national courts are faced with difficult questions whereby they must balance, on the one hand, the child ’ s interests, and, on other, the requirements of public order, the Court ought, in our opinion, to show restraint and confine itself to ensuring that the domestic courts ’ assessment is not flawed by arbitrariness. The arguments developed by the majority (see paragraphs 82-84 of the judgment) are not convincing. In particular, we consider that the issue of establishing the child ’ s identity did not have an impact on the 2011 decision to separate him from the applicants, and could, at a pinch, be the subject-matter of a complaint by the child himself.

15. In addition, the majority ’ s position amounts, in substance, to denying the legitimacy of the State ’ s choice not to recognise gestational surrogacy. If it suffices to create, illegally, a link with the child abroad in order for the national authorities to be obliged to recognise the existence of “family life”, then it is clear that the States ’ freedom not to give legal effect to gestational surrogacy, a freedom that has nonetheless been acknowledged by the Court ’ s case-law (see Mennesson v. France , no. 65192/11, 26 June 2014, § 79, and Labassee v. France , (no. 65941/11), 2 June 2014, § 58), is reduced to nought.