JOINT DISSENTING OPINION OF JUDGES LAZAROVA TRAJKOVSKA, BIANKU, LAFFRANQUE, LEMMENS AND GROZEV

1. We regret that we cannot share the view of the majority that there has been no violation of Article 8 of the Convention. In our opinion, there has been an interference with the applicants’ right to respect for their family life. We are further of the opinion that in the specific circumstances of the present case that right has been violated.

Existence of a family life

2. The majority examine the applicants’ complaint from the perspective of the right to respect for their private life. They hold explicitly that no family life existed (see paragraphs 140-158 of the judgment).

We prefer the approach adopted by the Chamber, which held that there had been an interference with the applicants’ right to respect for their family life.

3. Our starting point, like the majority’s (see paragraph 140 of the judgment), is that the existence or non-existence of “family life” is essentially a question of fact depending upon the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII, and Åžerife YiÄŸit v. Turkey [GC], no. 3976/05, § 93, 2 November 2010). Article 8 of the Convention makes no distinction between the “legitimate” and the “illegitimate” family (see Marckx v. Belgium , 13 June 1979, § 31, Series A no. 31). The notion of “family” in Article 8 is therefore not confined solely to, for instance, marriage-based relationships, and may encompass other de facto “family ties” where the parties are living together, outside marriage, and their relationship has sufficient constancy (see, among other authorities, Kroon and Others v. the Netherlands , 27 October 1994, § 30, Series A no. 297 ‑ C, and Mikulić v. Croatia , no. 53176/99, § 51, ECHR 2002 ‑ I).

While biological ties between those who act as parents and a child may be a very important indication of the existence of family life, the absence of such ties does not necessarily mean that there is no family life. The Court has thus accepted, for example, that the relationship between a man and a child, who had very close personal ties between them and who believed for many years that they were father and daughter, until it was eventually revealed that the man was not the child’s biological father, amounted to family life (see Nazarenko v. Russia , no. 39438/13, § 58, ECHR 2015 (extracts)). The majority further refer, quite rightly, to a number of other cases illustrating that it is the existence of genuine personal ties that is important, not the existence of biological ties or of a recognised legal tie (see paragraphs 148-150 of the judgment, referring to Wagner and J.M.W.L. v. Luxembourg , no. 76240/01, § 117, 28 June 2007; Moretti and Benedetti v. Italy , no. 16318/07, §§ 49-52, 27 April 2010; and Kopf and Liberda v. Austria , no. 1598/06, § 37, 17 January 2012).

4. As to the de facto family ties in the present case, we note, with the majority, that the applicants and the child lived together for six months in Italy, preceded by a period of about two months’ shared life between the first applicant and the child in Russia (see paragraph 152 of the judgment). Moreover, and more importantly, the applicants had forged closed bonds with the child in the first stages of his life, the strength of which was recognised by a team of social workers (see paragraph 151 of the judgment). In short, there was a genuine parental project, based on high-quality emotional bonds (see paragraph 157 of the judgment).

The majority nevertheless consider that the duration of the cohabitation between the applicants and the child was too short for the cohabitation to be sufficient to establish a de facto family life (see paragraphs 152-154 of the judgment). We respectfully disagree. For us it is important that the cohabitation started from the very day the child was born, lasted until the child was removed from the applicants, and would have continued indefinitely if the authorities had not intervened to bring it to an end. The majority dismiss this argument on the ground that the intervention was the consequence of the legal uncertainty created by the applicants themselves “by engaging in conduct that was contrary to Italian law and by coming to settle in Italy with the child” (see paragraph 156 of the judgment). We fear that the majority thus make a distinction between a “legitimate” and an “illegitimate” family, a distinction that was rejected by the Court many years ago (see paragraph 3 above), and do not give full weight to the long-established principle that the existence or non-existence of “family life” is essentially a question of fact ( ibid. ).

5. Although the period of cohabitation was in itself relatively short, we consider that the applicants had acted as parents towards the child and conclude that there existed, in the particular circumstances of the present case, a de facto family life between the applicants and the child (see the Chamber judgment, § 69).

Whether the interference with the right to respect for family life was justified

6. At the outset, we would like to draw attention to some general principles as they result from the Court’s case-law.

In cases concerning the placement of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway , 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III; Kearns v. France , no. 35991/04, § 79, 10 January 2008; R. and H. v. the United Kingdom , no. 35348/06, §§ 73 and 81, 31 May 2011; and Y.C. v. the United Kingdom , no. 4547/10, § 134, 13 March 2012).

In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 136, ECHR 2010; and R. and H. v. the United Kingdom , cited above, §§ 73-74).

While it is not for the Court to substitute its own assessment for that of the domestic courts with respect to measures concerning children, it must satisfy itself that the decision-making process leading to the adoption of such measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (see Neulinger and Shuruk , cited above, § 139, and X v. Latvia [GC], no. 27853/09, § 102, ECHR 2013). We consider that when assessing an application for a child’s placement for adoption, the courts must not only examine whether the removal of the child from the persons acting as his or her parents would be in his or her best interests, but must also make a ruling giving specific reasons in the light of the circumstances of the case (see, mutatis mutandis , with respect to the decision on an application for a child’s return under the Hague Convention on the Civil Aspects of International Child Abduction, X v. Latvia , cited above, § 107).

7. In order to verify whether the interference with the applicants’ right to respect for their family life, that is, the removal of the child from them, is compatible with Article 8 of the Convention, it is important to note which justification was actually given by the domestic authorities for the interference in question.

In this respect, we note a significant difference between the reasons given by the Campobasso Minors Court and the Campobasso Court of Appeal.

The Minors Court, acting upon an application for urgent measures by the Public Prosecutor, based its decision of 20 October 2011 on the need to prevent an unlawful situation from continuing. The unlawfulness consisted in the breach of two laws. Firstly, by bringing a baby to Italy and passing him off as their own son, the applicants had blatantly infringed the provisions of the Adoption Act (Law no. 184 of 4 May 1983) governing inter-country adoption of children; in any event, the applicants had intentionally evaded the provisions of that Law which provided that the intended adoptive parents had to apply to an authorised body (section 31) and which provided for the involvement of the Commission for Inter-country Adoption (section 38). Secondly, in so far as the agreement entered into between the first applicant and the company Rosjurconsulting provided for the delivery of the second applicant’s genetic material for the fertilisation of another woman’s ovules, it was in breach on the ban on the use of assisted reproductive technology of a heterologous type laid down by section 4 of the Medically Assisted Reproduction Act (Law no. 40 of 19 February 2004). The reaction to this unlawful situation was twofold: removal of the child from the applicants and the child’s placement in an appropriate structure with a view to identifying a suitable foster couple (see paragraph 37 of the present judgment).

The Court of Appeal dismissed the applicants’ appeal on 28 February 2012, but on the basis of a different reasoning. It did not state that the applicants had been in an unlawful situation and that there had been a need to put an end to it. Rather, it held that the child was in a “state of abandonment” in the sense of section 8 of Law no. 184 of 4 May 1983, since he did not receive moral and physical care from his “natural family”. This state of abandonment justified the measures taken by the Minors Court, which were of an interlocutory and urgent nature. The Court of Appeal noted that these measures were in line with what would appear to be the outcome of the proceedings on the merits of the Public Prosecutor’s application, namely a declaration to make the child eventually available for adoption (see paragraph 40 of the present judgment).

In our opinion, it is primarily, if not exclusively, the reasoning of the Court of Appeal that should be taken into account when examining the justification for the removal of the child from the applicants. Indeed, it is the Court of Appeal that took the final decision, thereby substituting its reasons for those of the Minors Court. Moreover, while the Minors Court first and foremost disapproved the conduct of the applicants and therefore sanctioned them, the Court of Appeal started its analysis on the basis of an assessment of the interests of the child, which is as such the correct approach in cases like the present one (see paragraph 6 above).

Finally, we observe that the majority in their examination of the justification of the interference do not explicitly refer to the decisions taken by the courts in the proceedings relating to the applicants’ challenge against the Registry Office’s refusal to enter the Russian birth certificate in the civil-status register, in particular the judgment of the Court of Appeal of Campobasso of 3 April 2013 (see paragraphs 47-48 of the present judgment). For that reason, we will also refrain from including the reasoning of the latter court in our analysis.

8. The first question to be examined is whether the interference, that is the removal of the child from the applicants, was in accordance with the law.

Having regard to the reasons given by the Court of Appeal in its judgment of 28 February 2012, we conclude that the removal was based on section 8 of the Adoption Act, which provides that a minor can be declared available for adoption if he or she is in a state of abandonment in the sense of being deprived of all emotional or material support from the parents or the members of his or her family. Since the applicants were not considered by the court to be the parents, the child was considered to be in a state of abandonment, and therefore declared available for adoption.

We are aware that it is for the domestic courts to interpret and apply domestic law (see paragraph 169 of the judgment). Nevertheless, we cannot but express our surprise as to the finding that the child, who was cared for by a couple that fully assumed the role of parents, was declared to be in a state of “abandonment”. If the only reason for such a finding was that the applicants were not, legally speaking, the parents, then we wonder whether the domestic courts’ reasoning is not excessively formal, in a manner that is incompatible with the requirements stemming from Article 8 of the Convention in such cases (see paragraph 6 above).

We will not, however, develop this argument further. Even assuming that the interference was in accordance with the law, it cannot, in our opinion, be justified, for the reasons developed below.

9. The next question is whether the interference pursued a legitimate aim.

We note that the Court of Appeal based its decision on the child’s removal on the state of abandonment in which the child allegedly found himself. It can be argued that it thus took the impugned measure in order to protect “the rights and freedoms of others”, namely the rights of the child.

The majority accept that the measure also pursued another aim, namely that of “preventing disorder”. They, like the Chamber, refer to the fact that the applicants’ conduct ran counter to the Adoption Act and the Italian prohibition on heterologous artificial reproduction techniques (see paragraph 177 of the judgment). We respectfully disagree. It was only the Minors Court, that is, the first-instance court, which relied on the parents’ unlawful conduct; the Court of Appeal refrained from using the possibility of declaring a child available for adoption as a sanction against the applicants.

10. Finally, the question has to be answered whether the interference was necessary, in a democratic society, in order to achieve the aim pursued.

We agree with the majority that this requirement implies, first, that the reasons adduced to justify the impugned measure were relevant and sufficient (see paragraph 179 of the judgment), and secondly, that the measure was proportionate to the aim pursued or that a fair balance was struck between the competing interests (see paragraph 181 of the judgment).

11. Our disagreement with the majority relates to the application of the principles to the facts of the present case.

It is obvious that the assessment of the necessity condition depends largely on which specific legitimate aims are identified as those being pursued by the relevant authorities. As indicated above, we believe that the Court of Appeal’s justification for the child’s removal was the situation of that child. By contrast, the majority not only take into account the reasons given by the Minors Court (the illegal situation created by the applicants), but even, following the Government’s argument, consider the wider context of the prohibition on surrogacy arrangements under Italian law (on the latter point, see paragraph 203 of the judgment). We believe that the specific facts of the present case, and in particular the judgments handed down by the domestic authorities, do not warrant such a broad approach, in which sensitive policy considerations may play an important role.

We do not intend to express any opinion on the prohibition of surrogacy arrangements under Italian law. It is for the Italian legislature to state the Italian policy on this matter. However, Italian law does not have extraterritorial effects. Where a couple has managed to enter into a surrogacy agreement abroad and to obtain from a mother living abroad a baby, which subsequently is brought legally into Italy, it is the factual situation in Italy stemming from these earlier events in another country that should guide the relevant Italian authorities in their reaction to that situation. In this respect, we have some difficulty with the majority’s view that the legislature’s reasons for prohibiting surrogacy arrangements are of relevance in respect of measures taken to discourage Italian citizens from having recourse abroad to practices which are forbidden on Italian territory (see paragraph 203 of the judgment). In our opinion, the relevance of these reasons becomes less clear when a situation has been created abroad which, as such, cannot have violated Italian law. In this respect, it is also important to note that the situation created by the applicants in Russia was initially recognised and formalised by the Italian authorities through the consulate in Moscow (see paragraph 17 of the judgment).

12. Whatever the reasons advanced to justify the removal of the child from the applicants, we cannot agree with the majority’s conclusion that the Italian courts struck a fair balance between the various interests at stake.

With respect to the public interests at stake, we have already explained that, in our opinion, too much weight has been attached to the need to put an end to an illegal situation (in view of the laws on inter-country child adoption and on the use of assisted reproductive technology) and the need to discourage Italian citizens from having recourse abroad to practices which are forbidden in Italy. These interests were simply not those that the Court of Appeal sought to pursue.

With respect to the interest of the child, we have already noted that we are surprised by the characterisation given to the child’s situation as one of being in a “state of abandonment”. At no point did the courts ask themselves whether it would have been in the child’s interest to remain with the persons who had assumed the role of his parents. The removal was based on purely legal grounds. Facts came into play only to assess whether the consequences of the removal, once decided, would not be too harsh for the child. We consider that in these circumstances it cannot be said that the domestic courts sufficiently addressed the impact that the removal would have on the child’s well-being. This is a serious omission, given that any such measure should take the best interest of the child into account (see paragraph 6 above).

With regard to the interests of the applicants, we believe that their interest in continuing to develop their relationship with a child whose parents they wished to be (see paragraph 211 of the judgment) has not been sufficiently taken into account. This is particularly true for the Minors Court. We cannot agree with the majority’s accommodating reference to that court’s suggestion that the applicants were fulfilling a “narcissistic desire” or “exorcising an individual or joint problem”, and to its doubts about the applicants’ “genuine affective and educational abilities” and “instinct of human solidarity” (see paragraph 207 of the judgment). We find that such assessments were of a speculative nature and should not have guided the Minors Court in its examination of the Public Prosecutor’s request for urgent measures.

Apart from this treatment by the Minors Court, which seems to have been corrected by the more neutral approach of the Court of Appeal, we would like to recall that the applicants had been assessed as fit to adopt on 7 December 2006, when they received the authorisation to adopt from the Minors Court (see paragraph 10 of the judgment), and that a court-appointed team of social workers in a report of 18 May 2011 had found that the applicants cared for the child “to the highest standards” (see paragraph 25 of the judgment). These positive assessments were not contradicted on the basis of a serious assessment of the best interests of the child, but rather swept away in the light of more abstract and general considerations.

Moreover, as the majority admit, the courts did not address the impact which the immediate and irreversible separation from the child would have on the applicants (see paragraph 211 of the judgment). We find this a serious shortcoming, which cannot be justified by the majority’s consideration that the applicants’ conduct was illegal and their relationship with the child precarious (ibid.). The mere fact that the domestic courts did not find it necessary to discuss the impact on the applicants of the removal of a child who was the specific subject of their parental project demonstrates, in our opinion, that they were not really seeking to strike a fair balance between the applicants’ interests and any opposing interests, whatever these might have been.

13. Having regard to the above, we are therefore, like the Chamber, not convinced that the elements on which the courts relied in concluding that the child ought to be removed from the applicants and taken into the care of the social services were sufficient to conclude that these measures were not disproportionate (see the judgment of the Chamber, § 86).

In our opinion, it has not been shown that the Italian authorities struck the fair balance that had to be maintained between the competing interests at stake.