Communicated on 21 May 2015
FIFTH SECTION
Application no. 24705/14
Adem KESKIN and others
against Germany
lodged on 25 March 2014
STATEMENT OF FACTS
The first applicant, Mr Adem Keskin and the second applicant, Mrs Akgül Keskin, are both Turkish nationals who were born in Turkey in 1970. The third applicant, Mr Ömar Faruk Karanfil, is a Turkish national who was born in Turkey in 2003. All three applicants live together in Mannheim, Germany.
They are represented before the Court by H. Salan, a lawyer practising in Mannheim.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background of the case
The first and the second applicants have been living in Germany since 1985 and hold a permanent residence permit. They have been married since 1987. Their marriage remained childless for medical reasons. In 2002 the younger sister of the second applicant, who lives in Turkey, became pregnant with the third applicant. She and her husband, with whom she already had two children, did not wish to have a third child because of their difficult financial situation. They therefore agreed with the first and the second applicants that the latter couple would adopt the third applicant.
The third applicant was born in Turkey on 26 June 2003. He started living with the first and second applicants from babyhood. He first lived in the house of other family members of the second applicant in Turkey. The second applicant commuted between Germany and Turkey. She frequently stayed with the third applicant for a few months and then returned to Germany for a few months, sometimes taking the third applicant with her. The first applicant continued working in Germany and came to visit the third applicant in Turkey when possible.
2. The adoption order by the Samsun Family Court in Turkey
On 11 October 2004 the Samsun Family Court in Turkey granted the third applicant’s adoption by the first and the second applicants. The adoption became final on 12 October 2004.
The Samsun Family Court noted in its decision that the third applicant had already been in the care of the first and the second applicants for one year, that the third applicant’s biological parents agreed to the adoption and that there was no impediment to the adoption with regard to the state of health of the first and the second applicants.
Following the adoption decision the third applicant remained in Turkey and the first and second applicants continued to commute between Germany and Turkey.
3. The proceedings at issue
(a) The proceedings before the Karlsruhe District Court
On 22 December 2004 the first and the second applicants applied for recognition of the Samsun Family Court’s adoption order in Germany before the Karlsruhe District Court.
On 18 June 2006, while the proceedings were still pending, the first and the second applicants obtained a visa for the third applicant, initially for six months, and took the child with them to Germany, where he has been living ever since.
On 7 February 2007 the Istanbul Social Security Office issued a social report on the third applicant’s situation in Turkey. It appears that this report was established for Familie International Frankfurt e.V., an association specialised in international adoptions, inter alia, from Turkey to Germany, which the District Court had requested on 11 August 2006 to submit a report. A Turkish social worker had visited the third applicant’s biological parents on 1 February 2007 at their home in Istanbul where she had interviewed them. The second and the third applicants had also been present.
The Istanbul Social Security Office established that the third applicant’s biological mother had basic school education and worked as a cleaning lady. His biological father held a university degree and worked as an assistant store manager. They lived in a flat with their two children. The flat was equipped with basic furniture and met common hygiene standards.
The biological parents of the third applicant had explained that they had not wanted a third child, when the biological mother became pregnant with the third applicant, as their financial situation was precarious. When they had talked about this situation with the second applicant, the latter had suggested adopting the new baby. They had agreed as they had been, and still were, convinced that such adoption was in the best interest of the child. The baby had been given to the second applicant when he was two or three weeks old and had subsequently mainly stayed with the second applicant in Turkey. They had not regretted their decision. They only saw the third applicant once or twice a year. They had no problems with the first and the second applicants.
The Istanbul Social Security Office further established that the second applicant had a basic school education and worked as a cleaning lady. Her husband worked as a driver. Her marriage had remained childless because of her husband’s medical problems. The third applicant had started living with the second applicant at the age of two or three months. The second applicant had claimed that she could no longer imagine living without the third applicant.
The Istanbul Social Security Office came to the conclusion that the biological parents lived an orderly life in an orderly social environment. They absolutely agreed with the third applicant’s adoption and did not want the child back. The third applicant had no strong bond with his biological parents. The relationship between the adoptive parents and the biological parents was good.
On 8 August 2007 the Mannheim Youth Office delivered its report in accordance with the District Court’s request of 22 September 2006 on the question of whether the first and second applicants were suitable adoptive parents for the third applicant. A social worker had three interviews with the first and the second applicants in her office and visited the applicants three times in their home.
The Youth Office’s report established that the motivation for the adoption had been the fact that the first and the second applicants’ marriage had remained childless. It found that, had the first and second applicants applied for the adoption of a baby before they had adopted the third applicant, and had their circumstances been the same as at the time the report was delivered, they would have been certified as suitable adoptive parents. The third applicant, who was well developed, had become their child over the previous three years. There was a clear family bond between the applicants. The third applicant had no strong bond with his biological parents, whom he knew as his uncle and aunt. Considering all the circumstances, the recognition of the adoption would be in the best interest of the child.
On 29 November 2007 the Karlsruhe District Court dismissed the application to recognise the Turkish adoption order. Having regard to section 16a no. 4 of the Act on Non-Contentious Proceedings (see ‘Relevant domestic law’ below), it ruled that the recognition of the Turkish adoption decision would violate the German ordre public as the adoption had not been taken having regard to the best interest of the child.
According to the District Court, which had regard to the reports issued by the Istanbul Social Security Office and the Mannheim Youth Office, there had been no need for adoption. Although the biological parents’ financial situation had been difficult, there had been no financial emergency situation. The biological parents had been psychologically healthy and their family had been intact. The third applicant had been given to the first and the second applicants simply because they had been childless. In any event, there had been no need for adoption into a foreign country. The possibility of placing the applicant in a foster family had not been considered, nor had the possibility been taken into account that the third applicant could be accommodated with some other relative of his large family living in Turkey.
The fact that the applicant only had sporadic contact with his biological parents and had developed a strong bond with the first and second applicants could not justify changing the third applicant’s parentage.
(b) The proceedings before the Karlsruhe Regional Court
On 28 December 2007 the applicants appealed against the decision of the Karlsruhe District Court before the Karlsruhe Regional Court.
The applicants presented two reports by the Mannheim Youth Office of 28 February 2008 and of 11 February 2009 which had been drafted for the Karlsruhe Regional Council and the Mannheim Immigration Office respectively as a basis for the decision on whether the third applicant should remain with the first and the second applicants while the proceedings concerning the recognition of the Turkish adoption order were still pending. On 20 May 2009 the Karlsruhe Regional Court also requested the Mannheim Youth Office to issue a social report on the current situation of the applicants.
The Youth Office reports established that the third applicant had attended kindergarten regularly since 1 September 2007. He had started to speak German, had found friends and was well integrated. His bond with the first and second applicants remained strong. The two reports of 2009 explained that the first and second applicants’ economic situation had changed as the first applicant had had to have one of his legs amputated and had therefore, for the moment, only been able to find work as a temporary assistant with a bus company. The second applicant continued working as a cleaning lady. The applicants could not live on their earnings and therefore received additional social benefits. The change in their financial situation limited the suitability of the first and the second applicants as adoptive parents. In the Youth Office’s view it would not, however, be compatible with the best interest of the third applicant to be separated from the first and second applicants, who had become his social parents. A return to his biological parents in Turkey would cause a severe breakdown of his social bonds and would severely unsettle the third applicant in his further development.
On 20 September 2009 the Karlsruhe Regional Court dismissed the applicant’s appeal. Endorsing the reasons given by the District Court, the Regional Court was of the view that recognising the adoption decision of the Samsun Family Court would infringe the German ordre public. The Turkish Court had neither established whether the adoption was in the best interest of the child nor was there a real need for adoption. The Samsun Family Court had not questioned whether the adoptive parents met the needs of the child to be adopted. Furthermore it had not examined the living conditions of the adopting couple at their home. The possibility of placing the child in a foster family had not been considered.
The Regional Court was further of the view that it was not called upon to consider whether the adoption was now in the best interest of the child as such consideration could not be made in proceedings concerning the recognition of a foreign adoption. It was not the purpose of such proceedings to replace proper adoption proceedings and it was not the court’s task to deliver its own adoption decision. The court only had to consider the circumstances that had been taken into account by the Turkish court at the time of the adoption.
However, the Regional Court emphasised that the first and the second applicants were free to apply for the adoption of the third applicant in new adoption proceedings before the competent German courts (Wiederholungsadoption).
(c) The proceedings before the Karlsruhe Court of Appeal
On 22 October 2009 the applicant lodged a further appeal against the decision of the Regional Court. This further appeal was dismissed by the Karlsruhe Court of Appeal on 8 July 2010. Just like the District Court and the Regional Court, the Court of Appeal was of the view that the Turkish adoption decision was incompatible with the German ordre public.
The Court of Appeal found that the Turkish court had not focused on whether the adoption of the third applicant by the first and the second applicants was in the best interest of the child. When examining whether the first and the second applicants were suitable adoptive parents for the third applicant, that court had only investigated the financial situation and the state of health of the first and second applicants but had not established their living circumstances in Germany. Furthermore, it had not addressed the question of whether an adoption by relatives could be problematic while the biological parents were still alive. Moreover, with regard to whether there had been a need for adoption, the Turkish court had not considered any aspects other than the better economic conditions of the adoptive parents. Such lack of consideration of a real need for adoption infringed the fundamental right of the child to his own parents.
The strong bond that had meanwhile been established between the third applicant and his adoptive parents could not justify the recognition of the Turkish adoption decision. According to the Court of Appeal it was arguable whether, in the proceedings concerning the recognition of a foreign adoption decision, further factual developments during the time following the foreign adoption decision could be taken into consideration, so that certain aspects concerning the best interest of the child, like the question of whether the adoptive parents were suitable to adopt the child, could still be examined by the German courts at the time of the recognition proceedings.
The court was, however, of the view that this dispute could remain open as the question was not decisive in the present case. Even assuming that the first and the second applicants were now suitable to adopt and even assuming that it was now in the best interest of the third applicant to remain with the first and the second applicants, this would still not change the fact that the Turkish Family Court had not established whether there had been a need at all for the third applicant to be adopted. Such violation of the German ordre public could not be remedied in the proceedings concerning the recognition of the adoption before the German courts. The first and the second applicants remained, however, free to apply to adopt the third applicant in proper adoption proceedings before the German courts.
(d) The proceedings before the Federal Constitutional Court
On 20 August 2010 the applicants lodged a constitutional complaint with the Federal Constitutional Court claiming that their constitutional right to respect for their family life and their right to free development of their personalities were infringed by the refusal of the German civil courts to recognise the Turkish adoption decision.
On 18 September 2013 the Federal Constitutional Court dismissed the complaint without giving any reasons (file no. 1 BvR 2186/10). The decision was served on the applicant’s counsel on 1 October 2013.
B. Relevant domestic law
At the relevant time, adoptions before a Turkish court were not automatically recognised in Germany. The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 29 May 1993, which regulates the recognition of international adoptions, was not yet in force with regard to German-Turkish adoption cases. An adoption ordered by a Turkish court therefore had to be recognised by a German guardianship court pursuant to section 2 § 2, of the Act on the Effects of the Adoption According to Foreign Law (Gesetz über die Wirkungen der Annahme als Kind nach ausländischem Recht).
At the relevant time the rules for such recognition proceedings were set out in the Act on Non-Contentious Proceedings (Gesetz über die freiwillige Gerichtsbarkeit). Section 16a no. 4 of this Act states that foreign decisions cannot be recognised by German courts if the recognition would lead to a legal result which was manifestly incompatible with the essential principles of German law, in particular with constitutional rights.
COMPLAINT
The applicants complain under Article 8 of the Convention that the refusal of the German courts to recognise the Turkish adoption decision violated their right to respect for their family life. The domestic courts’ decision led to a so-called “limping adoption” (hinkende Adoption) as a result of which the third applicant had different legal parents in Turkey and in Germany. The German courts’ decisions had created an unbearable uncertainty about their family’s legal position which alone infringed their rights under Article 8 of the Convention.
In the applicants’ submission, their rights under Article 8 were further breached in that the third applicant’s right of residence in Germany remained unclear as his residence permit was granted under the condition that it would be reassessed depending on the outcome of the proceedings concerning the recognition of the adoption. If the third applicant had to return to Turkey, the first and second applicants would have to live apart as they could not imagine being separated from the third applicant. The second applicant would have to go to Turkey with the third applicant and the first applicant would have to remain in Germany to earn their living. Moreover, the third applicant was deprived of any statutory entitlement to maintenance and statutory inheritance rights in Germany.
QUESTIONS TO THE PARTIES
Has there been an interference with the three applicants’ right to respect for their family life and/or their private life within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
Full & Egal Universal Law Academy