DISSENTING OPINION OF JUDGE POWER-FORDE JOINED BY JUDGE ZUPANČIČ

I accept that the respondent State is entitled, in principle, to make provision within its legislation for the lawful adoption of children. I take no issue with the permanent effects of adoption as set out in §1754 and §1755 of the German Civil Code. Pursuant to those provisions, adoption changes the legal status of the child vis-à-vis his or her adoptive parents. Further, the relationship of a child to his or her birth mother and the rights and duties arising therefrom are extinguished upon the making of an adoption order.

My difficulties in this case relate to the State ’ s positive obligations under Article 8. My concerns are somewhat accentuated by the very proactive role taken by the authorities in encouraging the applicant to have her children adopted. Though, clearly, overwhelmed by the situation in which she found herself, it would appear that she was, to say the least, discouraged from exploring alternatives to adoption. This can be seen in the fact that notwithstanding their knowledge of her obvious personal and financial difficulties, the applicant was advised by the authorities that she would have to pay for foster care in the event that she pursued that option.

My difficulties with the State ’ s discharge of its positive obligations are two-fold. They concern, firstly, the State ’ s failure to provide clear legal principles governing the operation of so-call ‘ half-open ’ adoptions and, secondly, its failure to ensure that independent evidence of the applicant ’ s capacity to consent to adoption was available having regard to her particular vulnerability at the time of the events in question.

The Absence of Legal Clarity in Relation to ‘ Half-open ’ Adoption

The government acknowledges that German law permits of such an arrangement as a ‘ half-open ’ form of adoption. [1] This, depending on the circumstances, may involve some contact between the birth mother and her child post adoption and may be mediated by the Youth Welfare Office. The government cites Section 1626 (1) of the Civil Code as the legal basis to such half-open adoptions. In addition to this acknowledgment, it is clear that the domestic courts in Germany also recognise the concept of ‘ half-open ’ adoption. The Reinbek District Court which, on 21 June 2001, made the adoption order in this case confirmed that ‘ a half-open adoption was agreed on. ’ It further confirmed that arrangements made between the applicant, the adoptive parents and the Youth Welfare Office in this case ‘ remain valid. ’

Despite such confirmation from the respondent State, the majority notes that the term ‘ half-open adoption ’ is not to be found in the German Civil Code. The uncertainty thus begins. Further, notwithstanding the fact that the validity of the tri-partite agreement was noted by the domestic court that made the adoption order in this case, it appears that this ‘ valid ’ agreement was entirely incapable of being enforced if the adoptive parents choose not to honour its terms.

It is not entirely correct to assert (as does the majority) that the applicant ceded her rights at the moment she signed her consent to adoption on 9 November 2000. Under domestic law, her right to parental custody was ‘ suspended ’ at that stage. Her consent only became effective and thus, irrevocable, on the date it was ‘ received by the family court ’ . No other court date being mentioned in the judgment such receipt, it may be assumed, became effective on 21 June 2001 when the Court took judicial notice of the decision of the applicant together with the half-open nature of the adoption agreed upon between the three parties. It then made the adoption order, accordingly. It was only at that point that the applicant ’ s rights which, previously had been suspended, were now extinguished.

Importantly, during that six month period and before the adoption order was made, the Adoption and Special Care Department stated in an expert report that an agreement had been reached in November 2000 (that is, just two weeks after consent had been declared but six months prior to the making of the adoption order) - that the adoptive parents would, once a year, send photographs and a report. [2] This agreement, to which the authorities were party, clearly, led the applicant to believe that she would continue to receive information about her children after they had been adopted. Whilst the district court recognised that photographs would be sent to her, annually, this did not transpire after the adoption order was made. The adoptive parents retained the exclusive power to decide whether or not such an agreement was to be honoured and the applicant was left without recourse. The fact that statutory bodies can enter into ‘ half-open ’ adoption agreements with birth mothers before an adoption order is made creates, unfortunately, the entirely false and misleading impression that such agreements can have a binding effect upon the subsequent adoption that follows.

There can be few, if any, decisions of greater magnitude in a person ’ s private or family life than the decision to allow one ’ s children to be adopted. Given the gravity of what is issue, there ought to be no room for the kind of vagueness and uncertainty that prevailed in this case. There is, to my mind, a positive obligation on a State that permits of such ‘ half-open ’ adoptions to ensure that legal clarity is unequivocally available to a vulnerable birth mother who enters into such a pre-adoption arrangement. Where the State is party to or involved in the making of such an agreement with a birth mother, it is incumbent upon the authorities to ensure that she is left in no doubt as to its utter worthlessness in the event that adoptive parents withdraw therefrom after an adoption order is made. To my mind, the State should not be complicit in a situation where vulnerable mothers take such a vital decision concerning their private and family life based on agreements that are entirely unenforceable. The general lack of clarity and the failure to provide the applicant with any procedures whereby the validity of the ‘ half ‑ open ’ adoption agreement could have been tested and, if necessary, enforced demonstrates a failure on the part of the respondent State to have clear and unambiguous legal principles regulating such a vital area of the applicant ’ s private and family life.

The Absence of Evidence of Capacity to Consent

There is clear evidence before the Court that the applicant was psychologically traumatised at the time when she made her decision to consent to adoption. The domestic authorities were aware of the fact that the applicant had been suffering from ‘ depression ’ , ‘ panic attacks ’ and ‘ suicidal tendencies ’ (§ 11 ). It is common knowledge that such conditions may have an impact upon a person ’ s capacity to make a free and informed decision. Given the obvious psychological difficulties under which the applicant laboured shortly after having given birth, it seems to me that the authorities were obliged to dispel any doubts as to her capacity to make a free and informed consent prior to encouraging and facilitating the adoption of her children. Despite earlier diagnoses of ‘ depression ’ , ‘ panic attacks ’ and ‘ suicidal tendencies ’ , no objective psychiatric assessment of the applicant ’ s capacity to consent was made at the relevant time. A belated examination of her earlier capacity cannot replace the need for such an assessment to be made at the time when her decision was taken. To my mind, once on notice of such clear vulnerability on the part of the applicant, the authorities were obliged to ensure that it had independent expert evidence of capacity to consent prior to its facilitation and encouragement of adoption in this case. I do not suggest that in every case of adoption the authorities are obliged to obtain independent expert evidence of capacity to consent. However, where there are clear indications that questions arise in relation to such capacity then, in my view, such an obligation arises.

For the reasons set out herein, I find that the State failed to discharge its positive obligations under Article 8 of the Convention and that there has therefore been a violation of that provision in this case.

[1] 1. See in i ts submissions of 13 June 2012 at § 23.

[2] 1. W hilst the judgment notes that the agreement was reached ‘ in the presence of ’ the authorities, it is clear from the submissions received that their role was a good deal more proact ive than that of passive observers . The Government accepts that a written agreement was reached about the photographs and repo rts prior to the adoption order being made. It points to a letter sent by the adoptive parents to the applicant in March 2001 which refers to their ‘agreement reached with the mother and the Youth Welfare Officer’ .