CONCURRING OPINION OF JUDGE COSTA

(Translation)

I agree with the conclusions reached in the judgment. However, it was only after considerable hesitation that I voted in favour of finding that there had been no violation of A rticle 8 of Convention. The two girls, Florentina and Mariana, who had been declared to have been abandoned at the ages of three and seven respective ly , were adopted by the two applicant couples in final judgments when both of them had reached the age of nine . The educational centre which had been their home since they had been abandon ed created numerous obstacles to the execution of the judgments and, to put it mildly, hardly facilitated exchanges and physical meetings between the children and their adoptive parents, who live in Italy . For their part , Florentina and Mariana, who are now 13 years old , have never shown any desire to go and live with their parents, whose language they do not speak, and seem to be enjoying a happy life at the centre and developing their personalities and abilities in a satisfactory way . Furthermore, they have applied to have the adoption orders revoked and we are now faced with a strange situation in which the order for Florentina ’ s adoption has been upheld but the one concerning Mariana has been revoked in a final judgment !

Such circumstances elicit mixed feelings. The Romanian government has scarcely any powers in dealing with a private institution which is , in fact, f unctioning well and offers guarantees as to the quality of education provided . While it is clear that the Government ’ s responsibility is engaged under A rticle 6 in that they have not succeeded in enforcing the relevant judgments and/or have not wished to do so, their responsibility under A rticle 8 is much less evident . It actually relates more to positive obligations than to interference with the right to respect for family life; above all, it is difficult to deny that it is in the best interests of the children ( to which our case-law rightly attaches considerable weight ), who were adopted at a late stage ( perhaps too late ) and have barely formed any ties with their adoptive parents , to remain in the educational centre where they have lived for many years rather than to undergo a complete change of lifestyle, environment, language and culture . Admittedly, it is very irritating that the centre ’ s stubbornness and the public authorities ’ inefficiency have resulted, since time cannot be turned back, in a situation where the teenagers now have little chance of being able to develop a harmonious relationship within their adoptive families. But irritation is a poor counsellor . On reflection , I consider, like the majority of my colleagues, that the violation of the Convention by the respondent State is to be found under Article 6 rather than under A rticle 8.

PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

While I agree with the majority that there has been a violat ion of Article 6 § 1 of the Convention for the reasons set out in the judgment, I do not agree with the finding that there has been no violation of Article 8 of the Convention in this case. In deciding this question, I endorse the following approach set out in paragraph 152 of the judgment:

“ What is decisive in this case is therefore whether the national authorities took the necessary steps to enable the applicants – who had been acknowledged as the adoptive parents of Florentina and Mariana and had in both cases obtained a court order, on an urgent application, requiring the CEPSB, a private institution, to hand over the child to them – to establish family relations with each o f the children they had adopted .”

On the basis of the facts and circumstances of the case I find that the respondent State has failed to discharge its positive obligations under Article 8 of the Convention and this is in substance confirmed by what the majority state in paragraph 163 of the judgment where it is accepted that there has been

“ ... [a] lack of real, effective contact between the interested parties before the adoption, a state of affairs made possible by shortcomings in the relevant domestic legislation at the material time ”

and

“ that the children clearly did not receive any psychological support capable of preparing them for their imminent departure from the centre which had been their home for several years and in which they had established social and emotional ties. Such measures would probably have made it possible for the applicants ’ interests to converge with those of their adopted children, instead of competing with them as occurred in the present case .”

In spite of these findings the majority found that there has been no violation of Article 8 of the Convention taking into account “ the children ’ s consistent refusal, after they had reached the age of ten, to travel to Italy and join their adoptive parents” (see paragraph 164 of the judgment ) and that “ their conscious opposition to adoption would make their harmonious integration into their new adoptive family unlikely ” given also the absence of “ genuine pre-existing ties ” with their adoptive parents (ibid.). The majority found that an “absolute obligation” on the part of the authorities of the respondent State “ to ensure that the children went to Italy against their will and irrespective of the pending judicial proceedings instituted with a view to challenging the lawfulness and well-foundedness of the initial adoption orders ” was not justified (ibid.).

Yet all these problems relied on by the majority (the children ’ s objection after they had reached the age ten , the absence of previous ties with their adoptive parents and the fact that legal proceedings against the adoption were pending) were problems created by the authorities of the respondent State. As the Court points out in finding a violation of Article 6 § 1 of the Convention in this case , “ ... the enforcement of decisions of this kind requires urgent handling as the passage of time can have irremediable consequences for relations between children and parents who do not live with them” (see paragraph 175 of the judgment ).

The failure to execute the relevant decisions concerning the adoptions in this case and the ensuing delay and the negative repercussions it had on the implementation of those decisions were attributable to the authorities of the respondent State.

J udge Costa points out in his concurring opinion that “ a dmittedly, it is very irritating that the centre ’ s stubbornness and the public authorities ’ inefficiency have resulted, since time cannot be turned back, in a situation where the teenagers now have little chance of being able to develop a harmonious relationship within their adoptive families ”.

In the circumstances, I do not see how the respondent State can, on the basis of its own wrongful conduct , be absolved of its responsibility to take the necessary positive measures in time to enable the adoption to proceed. Nobody can take advantage of his own wrongdoing to avoid his responsibilities (“ Nullus commodum capere potest de injuria sua propria ”) .

The positive obligations of the respondent State in this case were not confined to ensuring that the children joined their adoptive parents. They included all the preparatory acts which would make that result possible ( see Kosmopoulou v. Greece , no. 60457/00, § 45 , 5 February 2004 ). In my opinion, a failure to carry out those acts amounts by itself to a violation of the right to respect for family life and therefore a breach of Article 8 of the Convention.