Information Note on the Court’s case-law No. 104
January 2008
Kearns v. France - 35991/04
Judgment 10.1.2008 [Section III]
Article 8
Article 8-1
Respect for private life
Two-month time-limit for requesting return of child placed in the care of the State by the mother: no violation
Facts: The Irish applicant went to a hospital with her mother and a lawyer to submit a request to give birth anonymously (accouchement sous X). The following week she gave birth to a baby girl, K. Requesting that the birth be kept secret, the applicant signed a record of the child’s placement in State care and gave her consent to its adoption. The conditions and effects of anonymous registration of a birth were explained to her during two interviews with the social services, particularly as regards the two-month period within which, after handing a child over to the authorities, the mother could request the child’s return. The applicant was assisted at the interviews by her mother and by a nurse and a doctor who spoke English and acted as interpreters. On the same day, with the authorisation of the family council, the president of the council for the department placed the child with a couple with a view to her full adoption. In the meantime the child’s biological father had applied to the Irish Family Court for recognition of his rights over the child. That court barred the continuation of the adoption procedure in France and ordered the name and photograph of the child to be sent to the father and its decisions to be notified to the council for the department and the French social services. The applicant went to the hospital’s maternity ward and subsequently to the French social services, requesting the return of the child, as the biological father had learnt of its birth and taken legal action in Ireland and the applicant had persuaded her husband to recognise the child. Her request was refused, however, because the two-month time-limit for withdrawing consent to adoption had expired. The applicant applied to the tribunal de grande instance to cancel the abandonment order and have the child returned to her, arguing that the consent she had given had been invalid on account of the family pressure exerted on her and because she had not been fully aware of the consequences of registering the birth anonymously, as no interpreter had been present when they were explained to her. She considered that French law was incompatible with Articles 13 and 14 of the Convention. The child’s biological father intervened in the proceedings. The court dismissed their applications. However, the Court of Appeal, considering that the applicant, an Irish national who was a native English speaker and did not speak French, had not been in a position to realise the consequences in French law of anonymous registration of a birth, set aside that judgment. The applicant’s lawyer asked the Prefect to enforce the Appeal Court’s judgment and return the child to her mother, but to no avail. The Prefect lodged an appeal on points of law, arguing that as the applicant had not recognised the child to which she had given birth anonymously, her consent to have the child placed in the care of the State had not been necessary. The Court of Cassation quashed and annulled the Appeal Court decision. An order was made for the child’s full adoption by the foster family.
Law: The authorities’ refusal to accede to the request to return the child had had a basis in law and pursued a legitimate aim, namely to protect the rights and freedoms of others, in this case the child.
(a) The time-limit for withdrawal of consent: There was no consensus among the Council of Europe’s member States in the field of adoption. The interests at issue – those of the biological mother, those of the child, those of the foster family and the public interest – were difficult to reconcile. In seeking a balance between these different interests, the best interests of the child had to be paramount. The Court accepted the arguments put forward by the Government on the basis of studies by child-welfare professionals, which had stressed that it was in the child’s interest to enjoy stable emotional relations within a new family as quickly as possible. It further observed that the tribunal de grande instance had held that psychological and legal stability and certainty had to be sought for the child, even if that meant imposing short time-limits on withdrawal of consent by the interested parties. Furthermore, although two months might seem fairly short, it nevertheless appeared to be long enough to allow the biological mother to reflect and to reconsider her decision to give the child up. The Court was aware of the psychological distress the applicant must have experienced, but noted that she had been 36 years old at the time, had been accompanied by her mother and had had two long interviews with the social services after the birth. Having regard to the latitude States should enjoy in view of the diversity of legal systems and traditions and practices, the reflection period provided for under French law sought to strike a balance and ensure the right proportionality between the conflicting interests.
Conclusion: no violation (unanimously).
(b) The information given to the applicant: The applicant, an Irish national who lived in Dublin, had decided to give birth in France in order to take advantage of the possibility of registering the birth anonymously, which did not exist in Irish law. She had visited the maternity hospital during the week before the birth, accompanied by a lawyer and her mother. The presence of the lawyer suggested that the applicant had been given legal advice even before the birth. On the two days following the birth, the applicant, together with her mother, had had two long interviews with the social services, in the presence first of a nurse, and then of a doctor, who both spoke English and were provided by the hospital to serve as interpreters. In that connection, Article 8 could not be interpreted as requiring the authorities to provide a qualified interpreter in such situations. As to the information the applicant had received concerning the reflection period, the form she had signed consenting to the adoption had explicitly mentioned the two-month time-limit. That being so, there could have been no ambiguity in her mind as to the time-limit for retrieving her child. Lastly, the documents she had been given included a notice stating the time-limits and conditions for the child’s return, plus a standard letter of withdrawal of consent. Thus the French authorities had provided the applicant with sufficient and detailed information, affording her linguistic assistance not required by law and ensuring that she was informed as thoroughly as possible of the consequences of her choice. Accordingly, the State had not failed in its positive obligations towards the applicant under Article 8 of the Convention.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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