DISSENTING OPINION OF JUDGE THOMASSEN JOINED BY JUDGE JUNGWIERT

(Translation)

I agree with the conclusion of the majority that there has been no violation of Article 8 of the Convention in the present case . However, unlike the majority , I consider that no family life within the meaning of Article 8 of the Convention ever existed between the applicant s and their adopted children. Nor do I share the majority ’ s opinion that the Romanian authorities ’ failure to execute the adoption orders infringed the applicants ’ rights under A rticle 6 of the Convention.

The applicants are two Italian couples who, under Romanian law, had each adopted a child in Romania . At the time when the adoption orders were made , the children, Florentina and Mariana , were both nine and a half years old and had never seen their adoptive parents . They did not wish to move to Italy with the applicants. The order for Mariana ’ s adoption was subsequently revoked at her request, while a similar application was pending in respect of Florentina. The adoption orders were not executed by the Romanian authorities because of uncertainties as to whether the proper procedure had been followed ( see also the opinion of the majority as set out in paragraphs 161 and 162 of the judgment ).

The applicants complained of the failure to execute the decisions in question, submitting that this amounted to a breach of their right to respect for their family life as guaranteed by A rticle 8 of the Convention .

The first issue which the Court had to address was whether there were family ties between the applicants and the children.

In my opinion, that was not the case . The Court ’ s case-law concerning the bonds between adult s and children as protected by A rticle 8 has always emphasised the actual existence of family life, normally based on biological ties . R elations hips between adoptive parents and their children deserve the same protection, precisely because of the existence of this genuine family life . The Commission decision s cit ed in paragraph 140 concern genuine ties of this kind, contrary to the relationship between the applicants and the two children in the present case . In X v. France (n o. 9993/82, Commission decision of 5 October 1982, Decision s and Reports (DR) 31) the adoptive father had lived with the child for seven years, and in X v. Belgium and the Netherlands (n o. 6482/74, Commission decision of 10 July 1975, DR 7) the applicant had for several years looked after the child whom he wished to adopt.

To my mind, therefore, what deserves protection under Article 8 is not simply the adoption order itself but what it represents in terms of social reality . To hold otherwise would produce a surprising, and in my view un acceptable , result, namely that the relationship between a biological father and his child , without any additional factors, would not automatically give rise to family life ( see L. v. the Netherlands , n o. 45582/99, ECHR 2004-IV), whereas family life would, on the contrary, be created by an adoption order, irrespective of the manner in which adoption had taken place and of the relations between those concerned .

I consider that in the present case there were no additional factors to warrant affording the protection of A rticle 8 to the legal relationship between the applicants and the children . At the time when the adoption orders were made, the children had never seen the applicants or had the slightest direct contact with them . It does not appear from the evidence that they were ever asked for their opinion, either directly in an interview with a judge or a counsellor or indirect ly through expert assessments which would have provided an opportunity to ascertain their views and feelings about the adoption in practical terms . The centre where the children had lived for approximately five and six years respective ly at the time of the adoption orders , and where they had been looked after and brought up , had no means of conveying its opinion, based on its knowledge of them, during the proceedings . Once this became possible, the children themselves instituted proceedings to have the adoption orders revoked , thereby finally being able to express the view that they did not wish to move to Italy to live with the applicants . In short , there were no emotional or de facto ties that would have allowed the children to feel close to the applicant s and would have provided the legal fiction of the adoption order with some substance that could be held to constitute family life .

I will readily admit that the manner in which the adoption proceedings were conducted must have been hard for the applicants to endure . But the fact that the proceedings in their case were not conducted properly cannot in my opinion be decisive for determining whether family life existed between them and the children . Nor, to my mind, is the existence of family life sufficiently established by the fact that the applicants always viewed themselves as the girls ’ parents and behaved as such towards them through the only means open to them , namely by sending them letters written in Romanian . That would imply that, in this context, the position of children aged nearly 10 should be completely disregarded .

Admittedly, intercountry adoption proceedings that have clearly been conducted in a scrupulous manner, and even those concerning very young children, often raise delicate issues both for the parents and for the children . In this connection, the need for the child to move to the country where the parents live can play a significant role . I am not saying that this factor in itself constitutes a reason to abandon efforts to find a family to provide a loving environment for a child, even if this has to be in another country . However , the very delicate position in which such children find themselves certainly requires special protection. In the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption , such protection is afforded, for example, by the obligation on States to give due consideration to the possibilities for plac ing the child within the State of origin (A rticle 4 (b)) and to ensure, having regard to the age and degree of maturity of the child, that he or she has been counselled and duly informed of the effects of the adoption and that consideration has been given to the child ’ s wishes and opinions ( A rticle 4 ( d)).

I consider that in this case there are serious doubts as to whether those requirements have been complied with .

Accepting the existence of family life in the circumstances of the present case would afford insufficient protection to children involved in intercountry adoptions who have reached an age at which their wishes and opinions should be taken seriously before a final order is made for their adoption, in view of the consequences of such an order ( see, for example, paragraph 152 of the judgment ).

The Court examined of its own motion the question whether the non-enforcement of the adoption orders constituted a violation of Article 6. The majority consider that “s uch a situation contravenes the principles of the rule of law and of legal certainty, notwithstanding the existence of special reasons potentially justifying it ” ( see paragraph 187 of the judgment ). I cannot endorse such an interpretation of Artic le 6, which amounts to acknowledging the absolute pre-eminence of every legal rule . In my opinion , Artic le 6 cannot justify the execution of a judicial decision whose application infringes the fundamental rights of others . In the present case the execution of the decisions in question would have forced the children to leave their country against their will to live with parents whom they had never met . I do not believe that the Romanian authorities should have enforced such decision s. To do so would in my view have constituted an act of State raising serious problems as to the respect due for the children ’ s rights under Artic le 8. For that reason, I consider that there was no violation of Artic le 6.