JOINT DISSENTING OPINION OF JUDGES WILDHABER, Sir Nicolas BRATZA, BONELLO, LOUCAIDES, CABRAL BARRETO, TULKENS AND PELLONPÄÄ

(Translation)

We disagree with the majority's opinion that there has been no violation of Article 8 of the Convention and wish to explain our reasons for so doing.

1. In the instant case, without calling into question her relationship with her adoptive parents, the applicant complained that she had been unable to obtain disclosure of identifying information about her natural family and had thereby been prevented from finding out her personal history. After dismissing the Government's preliminary objection on the ground that any domestic remedy was bound to fail as a result of the statutory right to total confidentiality (see paragraph 23 of the judgment), the Court proceeded to examine, firstly, whether Article 8 of the Convention was applicable and, secondly, whether it had been complied with.

2. As regards the applicability of Article 8, the Court decided, firstly, that it was “necessary to examine the case from the perspective of private life, not family life ”, since the applicant's purpose was “not to call into question her relationship with her adoptive parents but to discover the circumstances in which she [had been] born and abandoned, including the identity of her natural parents and brothers” (see paragraph 28 of the judgment). While we regard the majority's conception of family life by reference to filiation as being too narrow, we agree that the Court did not need to examine whether there had been a breach of the applicant's right to respect for her family life in the present case, as in any event the facts clearly disclosed an issue over her right to respect for her private life.

3. As regards the issue of private life , which was, therefore, the only one to be found applicable by the Court, we entirely agree with the majority's statement in accordance, inter alia , with Mikulić v. Croatia (no. 53176/99, §§ 54 and 64, ECHR 2002-I): “Birth, and in particular the circumstances in which a child is born, form part of a child's, and subsequently the adult's, private life guaranteed by Article 8 of the Convention” (see paragraph 29 of the judgment, in fine ). As the Court has previously acknowledged, the right to respect for family life includes the right to personal development and to self-fulfilment. Since the issue of access to information about one's origins concerns the essence of a person's identity, it constitutes an essential feature of private life protected by Article 8 of the Convention; as the Court recognised, that provision is therefore applicable in the present case. Even for adopted children, being given access to information about one's origins and thereby acquiring the ability to retrace one's personal history is a

question of liberty and, therefore, human dignity that lies at the heart of the rights guaranteed by the Convention.

4. As regards compliance with Article 8, this is a situation in which there are competing rights or interests: on the one hand, the child's right to have access to information about its origins and, on the other, the mother's right, for a series of reasons specific to her and concerning her personal autonomy, to keep her identity as the child's mother secret. Other interests may also come into play, such as the need to protect the health of mother and child during pregnancy and at the birth, and the need to prevent abortion or infanticide.

5. In the instant case, while reiterating that Article 8 does not merely compel States to abstain from arbitrary interference but that “in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life” (see paragraph 40 of the judgment), the Court found that the applicant's complaint was not so much that the State had interfered with her rights under the Convention, but that it had not complied with its duty to act. In other words, “the substance of the [applicant's] complaint is not that the State has acted but that it has failed to act” (see Airey v. Ireland , judgment of 9 October 1979, Series A no. 32, p. 17, § 32). In these circumstances, the Court had to examine whether the State was in breach of its positive obligation under Article 8 of the Convention when it turned down the applicant's request for information about her natural mother's identity. Its task was not therefore to verify whether the interference with the applicant's right to respect for her private life was proportionate to the aim pursued but to examine whether the obligation imposed on the State was unreasonable having regard to the individual right to be protected, even if there are similarities between the principles applicable in both cases as regards the balance to be struck between the rights of the individual and of the community (see Keegan v. Ireland , judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Kroon and Others v. the Netherlands , judgment of 27 October 1994, Series A no. 297-C, p. 56, § 31).

6. In order to decide that issue, the Court must examine whether a fair balance has been struck between the competing interests. It is not, therefore, a question of determining which interest must, in a given case, take absolute precedence over others. In more concrete terms, the Court is not required to examine whether the applicant should, by virtue of her rights under Article 8, have been given access to the information regarding her origins, whatever the consequences and regardless of the importance of the competing interests or, conversely, whether a refusal of the applicant's request for the information in question was justified for the protection of the rights of the mother (or, for instance, for the protection of the rights of others or in the interests of public health). It must perform a “balancing of interests” test and examine whether in the present case the French system struck a reasonable balance between the competing rights and interests.

7. That is the nub of the problem. As a result of the domestic law and practice, no balancing of interests was possible in the instant case, either in practice or in law. In practice, French law accepted that the mother's decision constituted an absolute defence to any requests for information by the applicant, irrespective of the reasons for or legitimacy of that decision. In all circumstances, the mother's refusal is definitively binding on the child, who has no legal means at its disposal to challenge the mother's unilateral decision. The mother thus has a discretionary right to bring a suffering child into the world and to condemn it to lifelong ignorance. This, therefore, is not a multilateral system that ensures any balance between the competing rights. The effect of the mother's absolute “right of veto” is that the rights of the child, which are recognised in the general scheme of the Convention (see Johansen v. Norway , judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, and Kutzner v. Germany , no. 46544/99, ECHR 2002-I), are entirely neglected and forgotten. In addition, the mother may also by the same means paralyse the rights of third parties, in particular those of the natural father or the brothers and sisters, who may also find themselves deprived of the rights guaranteed by Article 8 of the Convention. In view of these considerations, we cannot be satisfied by the majority's concession that “the applicant was given access to non-identifying information about her mother and natural family that enabled her to trace some of her roots while ensuring the protection of third-party interests” (see paragraph 48 of the judgment).

8. At various points, the Court seems to regard the fact that the applicant is an adopted child as decisive (see paragraphs 43, 44 and 49 of the judgment), thereby implying that in the circumstances her search for her natural mother – who had abandoned her at birth – was superfluous and even unhelpful. We do not share that view. It has been shown that adopted children often consider it their duty to trace their original parents. Even if it has been adopted, a child who is unable to gain access to any type of information about its family origins is made to endure a form of suffering, and that suffering may leave scars. As to the need to protect the adoptive parents, a factor also relied on by the majority, there is nothing in the case file to suggest that they were opposed to the applicant's actions.

9. As regards the general interest, the Court relied, inter alia , on the need to avoid illegal abortions (see paragraph 45 of the judgment). However, it should be noted that at present there is no reliable data to support the notion that there would be a risk of an increase in abortions, or even of cases of infanticide, if the system of anonymous births was abolished. In addition, that risk has to be assessed in the light of the situation obtaining in countries which do not operate a system of anonymous births. It has not been established, in particular by statistical data, that there has been a rise in the number of abortions or cases of infanticide in the majority of the countries in the Council of Europe that do not have legislation similar to that existing in France. In many countries, and indeed in France, the development of contraception and family planning has played a significant role in raising awareness among prospective parents. As to the “right to respect for life, a higher-ranking value guaranteed by the Convention” relied on by the majority, which they say is “thus one of the aims pursued by the French system” (see paragraph 45, in fine ), we cannot accept the proposition implicit therein, namely that within all the countries in the Council of Europe the French system is the only one that ensures respect for the right to life as guaranteed by Article 2 of the Convention.

10. Lastly, like the Government, the majority advanced the argument that the State enjoyed a margin of appreciation in the choice of the means calculated to secure compliance with Article 8 in the sphere of relations between individuals and that that margin was greater in the instant case in view of the diversity of practice to be found among the legal systems and traditions and the fact that parents were resorting to indirect means of abandoning their children (see paragraphs 46 and 47 of the judgment).

11. Turning, firstly, to the margin of appreciation itself, its extent may depend not only on the right or rights concerned but also, as regards each right, on the very nature of the interest concerned. Thus, certain aspects of the right to private life are peripheral to that right, whereas others form part of its inner core. We are firmly of the opinion that the right to an identity , which is an essential condition of the right to autonomy (see Pretty v. the United Kingdom , no. 2346/02, § 61, ECHR 2002-III) and development (see Bensaid v. the United Kingdom , no. 44599/98, § 47, ECHR 2001-I), is within the inner core of the right to respect for one's private life. Accordingly, the fairest scrutiny was called for when weighing up the competing interests.

12. Secondly, in our view, the suggestion that the States had to be afforded a margin of appreciation owing to the absence of a common denominator between their domestic laws simply does not tally with the extracts of comparative law on which the Court itself relies. Thus, as the Court notes: “It is relatively rare for mothers to be entitled to give birth anonymously under European domestic legislation” (see paragraph 19 of the judgment). Further, it observes that the current trend in certain countries is towards the acceptance “if not of a right to give birth anonymously, then at least of a right to give birth 'discreetly' ”. Those are two entirely different situations.

13. In fact, no other legislative system is so weighted in favour of the protection of maternal anonymity – a birth in secret followed by the abandonment of the child in secret – as that formalised and institutionalised in France by the Civil Code and the Family and Social Welfare Code. As the Government acknowledged (see paragraph 37 of the judgment), only two countries, Italy (Article 73 of the Civil Code) and Luxembourg (Article 57 of the Civil Code) do not make it mandatory for the mother's name to be entered on the birth certificate. In such cases, confidentiality therefore only attaches to the identification appearing on the birth certificate and does not prevent the maternal filiation between the natural mother and the child from being established at a later date. In addition, in Italy the law of 1983 on adoption guarantees confidentiality as regards the child's origins unless the judicial authorities grant express authorisation for disclosure. In Spain section 47 of the Law on civil status, which allowed mothers to have the words “mother unknown” entered in the register of births, deaths and marriages, was declared unconstitutional by the Supreme Court in a judgment of 21 September 1999.

14. In contrast, certain countries expressly recognise the right “to know”. Thus, in Germany the right for everyone to know their origins was established as a fundamental right of the personality, based on the general right to dignity and free development, by the Federal Constitutional Court in a judgment of 31 January 1989. The practice of providing “baby boxes” ( Babyklappe ), to which the Court refers in its judgment (see paragraph 19), which attracted widespread media attention, nonetheless remains a marginal phenomenon and the proposal to legalise them has attracted sharp criticism. In Switzerland, the right for everyone to know their origins has been recognised under the Federal Constitution since 1992 as a right of the personality and, in the event of adoption, Article 138 of the Ordinance on civil status provides that persons with an interest in obtaining information entered on the original birth certificate must obtain authorisation from the cantonal supervisory authority. The same rule applies in the Netherlands, where the Supreme Court, in its Valkenhorst judgment of 15 April 1994, recognised the child's general right to its personality, including the right to know the identity of its natural parents, and opened the door in this sphere to the process of weighing up the various rights and interests at stake.

15. Lastly, the majority argue that there is a lack of consensus, but fail to refer to the various international instruments that play a decisive role in achieving a consensus and which seek to ensure a balance between competing rights in individual cases. Thus, the United Nations Convention on the Rights of the Child of 20 November 1989 provides that a child has from birth “as far as possible, the right to know his or her parents” (Article 7). Likewise, the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, which has been ratified by France, provides that the competent authorities of a Contracting State shall ensure that information held by them concerning a child's origins, in particular information concerning the identity of his or her parents, as well as the child's medical history, shall be preserved. The competent authorities are also required to ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State (Article 30). In Recommendation 1443 (2000) of 26 January 2000 (“International adoption: respecting children's rights”) the Parliamentary Assembly of the Council of Europe invited the States to “ensure the right of adopted children to learn of their origins at the latest on their majority and to eliminate from national legislation any clauses to the contrary”.

16. In these circumstances, by relying on the alleged diversity of practice among the legal systems and traditions (and even going so far as to take into account parliamentary bills that are no more than mere proposals) as justification for the margin of appreciation and for declaring the mother's absolute right to keep her identity secret compatible with the Convention, the majority have stood the argument concerning the European consensus on its head and rendered it meaningless. Instead of permitting the rights guaranteed by the Convention to evolve, taking accepted practice in the vast majority of countries as the starting-point, a consensual interpretation by reference to the virtually isolated practice of one country (see paragraph 47 of the judgment) is used to justify a restriction on those rights.

17. With regard to striking a fair balance between the competing interests, we consider the approach adopted by the Court in Gaskin v. the United Kingdom (judgment of 7 July 1989, Series A no. 160, p. 20, § 49), which it followed in M.G. v. the United Kingdom (no. 39393/98, 24 September 2002) to be relevant.

“In the Court's opinion, persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons. Under the latter aspect, a system like the British one, which makes access to records dependent on the consent of the contributor, can in principle be considered to be compatible with the obligations under Article 8, taking into account the State's margin of appreciation. The Court considers, however, that under such a system the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent. Such a system is only in conformity with the principle of proportionality if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent.”

18. If the system of anonymous births is to be retained, an independent authority of that type should have the power to decide, on the basis of all the factual and legal aspects of the case and following adversarial argument, whether or not to grant access to the information; such access may in appropriate cases be made conditional, or subject to compliance with a set procedure. In the present situation, in the absence of any machinery enabling the applicant's right to find out her origins to be balanced against competing rights and interests, blind preference was inevitably given to the sole interests of the mother. The applicant's request for information was totally and definitively refused, without any balancing of the competing interests or prospect of a remedy.

19. The majority of the Court seek to distinguish Gaskin , as well as Mikulić , on the grounds that the issue of “access to information about one's origins and the identity of one's natural parents” is not of the same nature as that of access to “a case record concerning a child in care” ( Gaskin ) or to “evidence of alleged paternity” ( Mikulić ) (see paragraph 43 of the judgment). We do not find the distinction drawn by the majority between the three cases to be convincing; still less do we consider it to be a distinction which justifies the Court in arriving at a different result in the present case. In particular, to assert that the issue in Gaskin concerned only access to information in care records is in our view seriously to understate what was there at stake, the Court accepting in its judgment that the case file “contained information concerning highly personal aspects of the applicant's childhood, development and history”, which “could constitute his principal source of information about his past and formative years” ( Gaskin , cited above, p. 15, § 36). Moreover, even if the situation in the present case may be regarded as distinct from that in the earlier cases, the interests of the present applicant in discovering her origins appear to us to be at least as strong, and arguably stronger, than those previously considered by the Court and to require to be given correspondingly strong weight in any fair balance of the competing interests.

20. Law no. 2002-93 of 22 January 2002 on access by adopted persons and people in State care to information about their origins, which provides, inter alia , for a National Council for Access to Information about Personal Origins to be set up, clearly recognises the need for the balance between the competing interests to be restored. Although it does not call into question the right to give birth in secret, it does represent a step forward on the issue of access to information about one's origins. As the Court noted in its judgment, that statute, which is of immediate application, may now enable the applicant to request disclosure of her mother's identity, provided – and we consider this point to be capital – her mother's consent is forthcoming (see paragraph 49 of the judgment). It will be noted, firstly, that the mother is merely invited to supply identifying information and is under no obligation to do so (Article L. 222-6 of the Social Action and Families Code, introduced by section 2 of the law of 22 January 2002); secondly, she may at all times refuse to allow her identity to be disclosed, even after her death (Article L. 147-6 of the Social Action and Families Code, introduced by section 1 of the law of 22 January 2002). The new legislation does not vest the National Council it sets up (or any other independent authority) with any power to take a final decision ordering disclosure in the light of the competing interests in the event that the mother continues to withhold her consent, thereby definitively depriving the child of its right to establish the identity of its natural family. The initial imbalance is perpetuated, as the right to access to information about one's personal origins ultimately remains within the mother's sole discretion. Furthermore, although they note that the new legislation was passed four years after the application was lodged with the Commission (see paragraph 23 of the judgment) and that the applicant is now 38 years old, the majority fail to take into account the situation that existed before the enactment of the law of 22 January 2002 and the applicant's inability to make any request whatsoever prior thereto (see, mutatis mutandis , M.G. v. the United Kingdom , cited above, § 31).

21. Unlike the majority, we therefore consider that in the instant case the French legislation has not struck a fair balance between the interests concerned (see paragraph 49, in fine ) and that there has been a violation of Article 8 of the Convention. Accordingly, we find that no separate issue arises under Article 14 of the Convention taken in conjunction with Article 8.