Emonet and Others v. Switzerland

Information Note on the Court’s case-law No. 103

December 2007

Emonet and Others v. Switzerland - 39051/03

Judgment 13.12.2007 [Section I]

Article 8

Article 8-1

Respect for family life

Effects of adoption of an adult by the mother’s partner: violation

Facts: The application was lodged by Isabelle Emonet, her mother Mariannick Faucherre and the mother’s partner Roland Emonet, all Swiss nationals.

Mariannick Faucherre and Isabelle Emonet’s father divorced in 1985 and the father died in 1994. Since 1986 Mariannick Faucherre has been living with Roland Emonet, who is divorced and has no children. The three applicants lived together between 1986 and 1992. In March 2000 a serious illness left Isabelle Emonet paraplegic. She kept her own home, but needed to be cared for by her mother and Roland Emonet, whom she regards as her father. The three applicants agreed that Roland Emonet should adopt Isabelle Emonet so that they could become a real family in the eyes of the law. In March 2001 the Court of Justice of the Canton of Geneva made the adoption order. However, the cantonal civil status authority informed Mariannick Faucherre that the adoption effectively terminated her legal mother-daughter relationship with Isabelle Emonet, who would take on her adoptive father’s surname, as she was henceforth his daughter. The first two applicants objected to the termination of the mother-daughter relationship between them and requested that it be restored. The cantonal authority stood by its decision, referring to Article 267 paragraph 2 of the Swiss Civil Code, according to which previously existing parental ties were severed on adoption, except in respect of the spouse of the adoptive parent; Mariannick Faucherre and Roland Emonet, however, were simply cohabiting. The administrative authorities formally rejected the request for restoration of the parental tie. The applicants applied to the administrative courts to have that decision quashed and instituted parallel proceedings to have the adoption order set aside. The latter proceedings were suspended pending the outcome of the application in Strasbourg. The administrative court quashed the administrative decisions severing the mother-daughter relationship and ordered the cantonal civil status authority to restore that relationship. However, on an appeal from the Federal Office of Justice, the Federal Court requested the cantonal civil status authority to enter the adoption in the civil status register.

Law: Article 8 – The severing of the legal mother-daughter relationship between Isabelle Emonet and her mother as a result of the adoption constituted an interference with the applicants’ right to respect for their family life, and that interference was “in accordance with the law”. Whether or not severing the existing parental tie was likely to serve the interests of the adopted daughter’s welfare in a practical, effective manner was closely linked here to the question whether the impugned measure was “necessary in a democratic society”.

The reasoning that adoption severed existing parental ties between the person adopted and his or her natural parent was valid for minors and was indeed the solution adopted by a large majority of the Council of Europe’s member States for this type of adoption. The Court did not consider, however, that the same reasoning could be applied to the particular circumstances of the present case, which concerned an adult with a serious disability, to whose adoption all the interested parties had given their free and informed consent. Although Isabelle Emonet was an adult, she needed care and affection. The other two applicants, who provided that care and affection, had intended the adoption to make their de facto family a family in the eyes of the law. That being so, the Court considered that this was a situation involving “the existence of additional factors of dependence other than normal ties of affection” which exceptionally brought into play the guarantees afforded by Article 8 between adults

With regard to the Swiss Government’s argument that the two older applicants could have avoided this loss of the parental tie by marrying each other, the Court considered that it was not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wished to adopt. It pointed out that the concept of “family” under Article 8 was not confined to marriage-based relationships and could encompass other “family” ties. In the instant case, as the Court found that a “family” life existed, it was the duty of the national authorities to act in such a manner as to allow that family tie to develop.

The 1967 European Convention on the Adoption of Children provided that the rights and obligations existing between adopted persons and their fathers or mothers should cease to exist on adoption. However, the Court noted that only 18 member States of the Council of Europe had ratified that Convention, and that under the draft revised Convention legal provision could be made for there to be no loss of the original parental ties in the event of adoption by the spouse or registered partner of the child’s parent. In the Court’s opinion, that indicated a growing recognition in the Council of Europe’s member States for adoptions such as that at the origin of the case.

Moreover, the Court considered that the applicants, who had been represented by counsel before the domestic courts, could not be criticised for not realising how far-reaching the consequences of their adoption request would be, resulting as they did in a severing of the parental relationship between the mother and daughter. In those circumstances “respect” for the applicants’ family life would have required both the biological and the social realities to be taken into account, in order to avoid the blindly automatic application of legal provisions to the applicants’ very particular situation, which had clearly not been foreseen in the law. That failure to take the realities into account had flown in the face of the wishes of the individuals concerned, without actually benefiting anyone.

Conclusion: violation (unanimously).

Article 12 – As to the right to “found a family”, Article 12 could not be considered to give the applicants, as an unmarried couple, any right to adopt which was not provided for by law: inadmissible.

Article 41 – The applicants would be able, based on a new law which entered into force on 1 January 2007, to submit a request for revision of the impugned judgment of the Federal Court and seek to have the relationship between the mother and daughter restored, without that severing the parental tie between the adoptive father and daughter, which had been protected by Article 8 since the Federal Court endorsed the adoption. In spite of that possibility, however, the Court considered that the applicants had suffered frustrations from the time when they were informed of the impugned measure. It accordingly awarded them jointly EUR 5,000 in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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