Information Note on the Court’s case-law No. 175
June 2014
I.S. v. Germany - 31021/08
Judgment 5.6.2014 [Section V]
Article 8
Article 8-1
Respect for private life
Refusal of contact and right to information for biological mother of children given up for adoption: no violation
Facts – German law permits “open” and “half-open” forms of adoption. Under such an agreement there can be contact of a greater or lesser degree of intensity – either direct or mediated by the Youth Office – between the adoptive parents, the child and the biological parents. Such forms of adoption are, however, dependent on the consent of the adoptive parents.
In the present case, the applicant, a married mother, became pregnant with twins after an extra-marital affair. Her husband moved out of the matrimonial home saying he would only move back if she gave away the twins. About a month after the birth, in view of her difficult family and financial situation, the applicant, who was being treated for depression, consented to the twins’ placement in provisional care with a view to their later adoption. She subsequently met the future adoptive parents and some six months after the birth formally consented to the adoption of the children by deed signed before a notary in which she acknowledged the legal consequences of the adoption, in particular the fact that her kinship and all her rights and duties in respect of the twins would cease. Shortly afterwards she made an oral agreement with the adoptive parents that they would send her a short report with photographs of the children once a year through the Youth Office. The question whether the agreement laid down any rules regarding regular meetings between the children and the applicant is disputed. After a failed attempt to obtain an order to declare her consent to the adoption void, the applicant made an application for contact. This was dismissed by the domestic courts on the grounds that she did not belong to the circle of people who had lived in “domestic community” with the child for a long period of time, as required by the legislation. As to her claim for the right to receive information about the children, this was strictly limited to parents and the applicant had ceased to be a parent at the moment of adoption.
In her application to the European Court, the applicant complained that the decisions of the domestic courts denying her the right to have contact with and receive information about the twins had violated her right to respect for her family and private life under Article 8 of the Convention.
Law – Article 8: Although the existing family relationship had been intentionally severed by the applicant, the determination of remaining or newly established rights between the applicant, the adoptive parents and her biological children, even if they fell outside the scope of “family life”, concerned an important part of the applicant’s identity as a biological mother and thus her “private life” within the meaning of Article 8 § 1.
The impugned decisions were “in accordance with the law” and pursued the legitimate aim of protecting the rights and freedoms of others.
The oral arrangements between the applicant and the adoptive parents were concluded after the applicant had been informed by an independent lawyer of the legal consequences of her intention to declare her irrevocable consent to the adoption. The requirement for formal legal advice by an independent lawyer was an essential safeguard against misunderstandings of the nature of the deed, which could not be revoked or have conditions attached to it later. This clearly indicated that the applicant understood the “arrangements” as a declaration of intent in the context of a prospective voluntary setting aside of anonymity by the adoptive parents. This was also made clear by the specific circumstances of the conclusion of the agreement which was only made orally and did not contain any details on the right to information and the right to contact.
The adoption process, seen as a whole and including the court proceedings, had been fair and ensured the requisite protection of the applicant’s rights. The legal rights of the applicant with regard to her biological children had been severed as a result of acts she had taken in full knowledge of the legal and factual consequences. In view of this, the decision of the German authorities to attach greater weight to the privacy and family interests of the adoptive family was proportionate. As the children were adopted as newborns and were still very young at the time of the domestic proceedings, the interests of the adoptive family to enjoy and build a family life together with the children undisturbed by attempts by the children’s biological parent to re-establish contact prevailed.
Conclusion: no violation (five votes to two).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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