K.A.B. v. Spain

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 151

April 2012

K.A.B. v. Spain - 59819/08

Judgment 10.4.2012 [Section III]

Article 8

Article 8-1

Respect for private life

Adoption of child following mother’s deportation, despite father’s opposition: violation

Facts – The applicant is a Nigerian national. He emigrated in 2001 to Spain with his partner and their one-year-old son. Later that year the partner was deported from Spain and barred from returning for ten years. Her lawyer had pleaded before the investigating judge that her thirteen-month-old baby was in Spain but the deportation nevertheless went ahead on 24 October 2001. The child was taken in by friends of the couple, as the applicant was in another city for work-related reasons. Eight days later an investigation was opened by the prosecutor responsible for minors. The child was declared abandoned on 16 November 2001 and placed in a children’s home. On 30 November 2001 the applicant went to the Child Protection Department and, claiming to be the child’s biological father, said that he disagreed with the placement. He expressed his intention to undergo a paternity test. However, the test did not take place as the applicant could not pay for it. In the absence of further news from the applicant, the child was placed in a foster family and an adoption procedure was initiated. However, the applicant successfully brought an action to establish paternity, which was recognised in 2005, and he then started proceedings to challenge the adoption. In 2006 his challenge was rejected on the ground that he had justifiably been deprived of parental authority and therefore his agreement to the adoption was not required. The court relied in particular on the fact that the applicant had lived only briefly with the child, that he had not taken any action since 2001 to prove that he showed any interest in the child’s welfare and that he had waited for two years before claiming paternity. That judgment was upheld on appeal and the applicant’s amparo appeal was declared inadmissible. The adoption of the applicant’s son by his foster family was authorised by the Family Court. Appeals by the applicant were dismissed.

Law – Article 8: The present case was about the relationship between a child born out of wedlock and the biological father. The lack of family ties between the applicant and his son was not entirely attributable to the applicant himself, considering that he had not seen his son since the mother’s deportation. The formalities undertaken by the applicant, bearing in mind his precarious situation, were sufficient to show that he wished to recover the child. It could not be excluded that the applicant’s intention to regain contact with his son was covered by the protection of “family life”. In any event, the decisions of the Spanish courts, refusing any contact or possibility of reunion with his son, had constituted interference with his right to respect for, at least, his private life.

The Court examined the case from the perspective of the State’s positive obligations under Article 8. In view of the child’s age, the Court found particularly serious the fact that, between his mother’s deportation and the declaration of his abandonment, the child had remained for almost one month in a state of legal limbo. The declaration of abandonment had triggered the subsequent proceedings leading to the child’s adoption by the Spanish couple, who had initially received him on a pre-adoption basis. However, the situation of abandonment had at least partly been caused by the authorities themselves, as they had deported the mother without prior verification and without taking into account the information provided to the judge about the existence of her baby. No satisfactory explanation had been forthcoming to justify the urgency of the deportation. Nevertheless, at no point in the proceedings had the authorities’ responsibility been invoked. In particular, the Family Court, without taking into account the applicant’s vulnerability in 2001, had found that the applicant was himself fully responsible for the loss of contact with his son. In reality, the applicant had not been informed of the payment that he was supposed to make for the paternity test, nor of the fact that the test could be covered by the State under the legal-aid scheme. Lastly, despite the fact that the Child Protection Department had the applicant’s name and address, they had not tried to make contact with him, allegedly because his paternity had not been established. Even after the applicant had gone to the relevant family authority in 2003, the adoption procedure was nevertheless pursued for one year before being suspended on account of the application to establish paternity.

Thus, the passage of time – resulting from the authorities’ inaction –, the deportation of the child’s mother without the necessary prior verification, the failure to assist the applicant when his social and financial situation was most fragile at the earlier stage, together with the failure of the courts to give weight to any other responsibility for the child’s abandonment and the finding that the applicant had lost interest in his son’s welfare, had decisively contributed to preventing the possibility of reunion between father and son. The national authorities had therefore failed in their duty to act particularly swiftly in such matters and had not made appropriate or sufficient efforts to ensure respect for the applicant’s right to be reunited with his son.

Conclusion: violation (six votes to one).

Article 41: EUR 8,000 in respect of non-pecuniary damage.

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