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FIRST
SECTION
CASE OF
ESKI v. AUSTRIA
(Application
no. 21949/03)
JUDGMENT
STRASBOURG
25
January 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Eski v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 4 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21949/03) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Austrian national, Mr Refet Eski (“the
applicant”), on 10 July 2003.
- The
applicant, who had been granted legal aid, was represented by
Mr L. Binder, a lawyer practising in Vienna. The Austrian
Government (“the Government”) were represented by their
Agent, Mr F. Trauttmansdorff, Head of the International Law
Department at the Federal Ministry for Foreign Affairs.
- The
applicant complained, in particular, about the Austrian courts'
decision to grant, without his consent, permission to adopt his
daughter.
- By
a decision of 2 March 2006 the Court declared the application partly
admissible.
-
The Chamber having decided, after consulting the parties, that no
hearing on the merits was required (Rule 59 § 3 in fine),
the parties replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1963 and lives in Vienna.
Between 1987 and 1995 he lived together with J.W. On 9 April 1993
J.W. gave birth to a daughter M. to whom the applicant is the father.
- In
March 1995 the couple split up, J.W. went to live with her daughter
in Linz. The applicant stayed in Linz during summer and autumn 1995,
and then returned to Vienna.
- On
25 December 1996 the applicant, when visiting his daughter,
threatened and injured J.W. who subsequently refused the applicant
access to M.
- On
3 July 1997 the applicant filed a request for a right to visit his
daughter with the Linz-Land District Court (Bezirksgericht).
On 19 August 1997 the District Court heard the applicant
and J.W. On 24 October 1997 a visit took place. On 26
February 1998 the applicant and J.W. concluded a visit agreement,
according to which visits should take place at the premises of a
youth centre in the presence of J.W.
- On
26 June 1998, upon J.W.'s request and with the approval of the Youth
Welfare Office (Jugendwohlfahrtsträger) at the Linz–Land
District Administrative Authority (Bezirkshauptmannschaft),
the Linz-Land District Court withdrew the applicant's right to visit.
It noted that, at the first arranged visit on 9 March 1998, the
applicant had insulted J.W. and told M. that her mother was a bad
witch and a whore. M. had subsequently suffered from anxiety, sleep
and gastro-intestinal disturbances and pneumonia. The court further
noted that even before the visit arrangement had been concluded, the
arrangement and exercise of the applicant's right to visit were
complicated by the fact that the applicant could not avoid conflicts
with J.W. The constant threat against her mother constituted a
serious danger for M.'s mental development. Therefore, the
applicant's right of visit was not in the best interest of the child,
but, on the contrary, harmful to its mental integrity and health.
- On
14 January 1999 the Linz Regional Court (Landesgericht)
confirmed this decision.
- In
June 1999 J.W. started cohabiting with her new partner A.F. They
married in September 1999.
- Another
visit contact between the applicant and his daughter took place at
Christmas 2000.
- On
26 June 2001 and on 4 July 2001 the applicant again filed requests to
visit M. with the Linz-Land District Court. He further stated that he
objected to the possible adoption of M. by A.F.
- On
16 July 2001 the Linz District Court dismissed the applicant's
requests. It noted that the applicant's right of visit had been
withdrawn and the applicant had not submitted any arguments as to why
the facts upon which this decision had been based should have
changed. This decision became final.
- On
27 July 2001 A.F. instituted proceedings with the Linz-Land District
Court, seeking adoption of M. He requested the replacement of the
necessary consent of the applicant to the adoption with a decision of
the court.
- The
District Court summoned the applicant to a hearing scheduled for 2
October 2001. In written submissions of 13 September 2001 the
applicant informed the court that he had not changed his attitude
towards the adoption request and still objected to adoption. A
hearing was, therefore, not necessary. It added that this present
letter should be regarded as his submissions in the case. In further
submissions with the Linz Court of Appeal, the applicant filed a
motion for bias against the competent judge V. with the
Linz-Land District Court and reiterated his request for a right of
visit.
- The
District Court subsequently informed the applicant that a hearing in
the adoption proceedings was necessary and that an unexcused absence
was punishable by a pecuniary penalty (Ordnungsstrafe). On
23 September 2001 the applicant informed the court that he was
not able to attend the hearing scheduled for 2 October 2001 as he
attended lectures at the Vienna University. He further referred to
his motion of bias against V. and submitted that there would be no
objective consideration of his case. He would, however, approve
another date under other circumstances.
- On
12 October 2001 the president (Vorsteher) of the Linz-Land
District Court dismissed the applicant's motion of bias against V. On
7 January 2002 the Linz Regional Court confirmed this decision.
It noted that the applicant referred to a statement judge V. had made
during a hearing in August 1997 in the proceedings concerning the
withdrawal of his right of access to M. The applicant had not
complained about an alleged bias of the judge V. at that time. The
motion for bias had, therefore, been submitted out of time. On 14 May
2002 the president of the Linz-Land District Court rejected the
applicant's further motion of bias against the judge V. for the
same reasons.
- Meanwhile,
on 12 March 2002 the applicant was heard by way of letters rogatory
before the Josefstadt District Court in Vienna. At this hearing he
argued that he had developed a close relationship with his daughter
in her first two years. He had not lost interest in his daughter and
still wished to obtain a right of visit. However, J.W. had hindered
any contacts. In further written submissions with the court he argued
that he did not know A.F who had no family liens with his daughter.
Alleged mental disturbances of his daughter were caused by her mother
who suffered herself from such disturbances.
- On
17 September 2002 the Linz-Land District Court heard A.F., M. and
J.W. On 16 October 2002 the court, with the approval of the Youth
Welfare Office at the Linz-Land District Administrative Authority,
replaced the applicant's consent and granted A.F. permission to adopt
M. It noted that A.F had developed a close relationship with M. who
had declared to be in favour of the adoption as she considered A.F.
as her father. The adoption would secure M.'s position within the
family and also be a material safeguard as A.F. was able to support
her financially. As regards the applicant, the court found that the
alleged close relationship with M. did not correspond to reality. The
last visit contact, at Christmas 2000, had been disappointing for the
child as the applicant had taken no initiatives, had not complied
with the child's wishes for a special Christmas present and, during
dinner, had not spoken for three quarters of an hour with the child.
In the past the applicant had repeatedly tried to interfere with the
relationship between M. and her mother and had thereby provoked
mental and physical disturbances to M. He had not made any efforts to
prove his feelings for M. in reality. Furthermore, he had not been
making maintenance payments for the last five years. The court,
therefore, considered that the applicant's objection to the adoption
was abusive.
- The
applicant appealed against this decision. He complained that the lack
of a public oral hearing in the presence of his daughter, A.F and J.W
was contrary to Article 6 of the Convention. He had not been able to
put questions to A. F. and J. W. and challenge the reproaches made to
him in several reports of the social authorities. In particular, he
had not been heard concerning the reproach that he had told M. that
her mother was a bad witch and a whore. He further complained that
the court had not instructed him to request an expert opinion on
child psychology. He was of Turkish origin and an adoption was equal
to a denial of half of the child's genetic background. Furthermore,
without an expert opinion there was no proof of the courts' findings
that he had caused the mental and physical disturbances of M. The
court should further have instructed him to request a hearing of the
social workers who had submitted negative reports about him. Instead,
it had based its findings on their written submissions. The applicant
finally contended that there was no sufficient reason for the
adoption of M. A.F could instead request joint custody with the
child's mother and engage himself in maintenance payments on a
contractual basis. His right of visit had only been withdrawn
temporarily and he had not failed to make efforts to keep in contact
with M. He had been paying maintenance for M. for the last two years.
- On
25 February 2003 the Linz Regional Court dismissed the applicant's
appeal. It found that even in the absence of an oral hearing in the
presence of all parties, which in the proceedings at issue was not
obligatory, the applicant had been properly heard within the meaning
of Article 6 of the Convention. In this regard it noted in particular
that the Linz-Land District Court had made several attempts to hear
the applicant, which finally had only been possible by way of letters
rogatory before another court. The applicant had declared at the
beginning of the adoption proceedings that he did not wish to
participate further in the proceedings and, furthermore, that his
personal appearance before the District Court was not necessary and
that the letter to that effect should be regarded as his personal
statement. Moreover, the applicant had had sufficient opportunity to
comment in written submissions, namely in the appeal proceedings on
the reproaches made against him. The court further considered that it
was not necessary to seek an expert opinion or to hear the social
workers concerned. In this regard it noted that the Regional Court
had already confirmed the applicant's aggressive behaviour and its
consequences in its decision of 14 January 1999 and had
dismissed the applicant's statements to the contrary. Nor could the
applicant, in his present appeal, satisfactorily show that his
conduct had not been the reason for the child's disturbances. The
District Court had given sufficient and extensive reasons why the
adoption should be granted, namely by referring to the applicant's
conduct. It finally noted that the fact that A. F. was in a
financially better position than the applicant had not been a reason
for granting the adoption. Therefore, it did not go into the
applicant's arguments as regards the maintenance payments. It did not
allow the ordinary appeal to the Supreme Court (Oberster
Gerichtshof). This decision was served on the applicant's counsel
on 18 April 2003.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW
- Section
179a of the Civil Code (Allgemeines Bürgerliches Gesetzbuch)
provides that an adoption needs a written contract between the person
seeking the adoption and the person who is going to be adopted as
well as a permission by court.
- Pursuant
to section 181 § 1 the court may not permit an adoption when the
parents of a minor child do not give their consent to the adoption.
- Section
181 § 3 provides that, upon request of one of the contracting
parties, the court has to replace the consent of a parent of a minor
child when this person has not given justifiable reasons for his/her
refusal.
27. Article
5 of the European Convention on Adoption of 1967, which is binding on
several of the Council of Europe's Member States including Austria,
provides as follows:
- Subject
to paragraphs 2 to 4 of this article, an adoption shall not be
granted unless at least the following consents to the adoption have
been given and not withdrawn:
(a) the
consent of the mother and, where the child is legitimate, the father;
or if there is neither father nor mother to consent, the consent of
any person or body who may be entitled in their place to exercise
their parental rights in that respect;
(b) the
consent of the spouse of the adopter.
2. The competent authority shall not:
a) dispense
with the consent of any person mentioned in paragraph 1 of this
article, or
b) overrule
the refusal to consent of any person or body mentioned in the said
paragraph 1, save on exceptional grounds determined by law.
- If
the father or mother is deprived of his or her parental rights in
respect of the child, or at least of the right to consent to an
adoption, the law may provide that it shall not be necessary to
obtain his or her consent.”
-
The White Paper on principles concerning the establishment and legal
consequences of parentage of 15 January 2002 of the European
Council's Committee of Experts on Family Law states as follows:
Principle 15:
“1. An adoption shall not be granted
unless at least the following consents to the adoption has been given
and not withdrawn: the consent of the mother the consent
of the father.
States may also require the consent of the child
considered by the internal law as having sufficient understanding.
2. The law may dispense with the consent of
the father or of the mother or of both if they are not holders of
parental responsibilities or if this consent cannot be obtained, in
particular if the whereabouts of the mother or of the father or of
both is unknown and they cannot be found or are dead.
3. The competent authority may overrule the
refusal to consent of any person mentioned in paragraph 1 only on
exceptional grounds determined by law.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained about the Austrian courts' decision to grant,
without his consent, A.F. permission to adopt his daughter. The Court
considers that this issue should be considered under Article 8 of the
Convention, which, as far as relevant, reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The
applicant submitted in this regard that the change of fatherhood also
affected his child's right to her biological father. He further
contended that the reasons given by the domestic courts did not
justify the interference with his rights to a family. A good
relationship between the child and the husband of her mother was not
in contradiction to the relationship between the child and her
father. There were ways to circumvent the problems between the
parents during the exercise of visit rights which did not break the
relationship between the child and her father.
- The
Austrian courts had not taken any measures to reach an agreement
between the parties.
- The Government argued that while the adoption of M.
constituted an interference with the applicant's right to respect for
family under Article 8 of the Convention, this interference was
justified under § 2 of Article 8. It had a legal basis, namely
Section 181 § 3 of the Civil Code, and pursued the legitimate
aim of protecting the rights of the applicant's minor daughter,
namely by protecting her health, including her psychological
well-being, and, furthermore, her legal interest in consolidating and
formalising de facto family ties with her adoptive father.
According to the jurisprudence of the Austrian courts the well-being
of the concerned child was, in itself, not sufficient to justify the
replacement of a parent's consent under Section 181 § 3.
Only a parent's tenacious conduct absolutely contrary to family
values could justify such decision. In the present case, the
applicant had shown such conduct in that he repeatedly threatened and
grossly insulted the child's mother in the presence of the child, at
that time very young, during previous contacts. As result, the child
had suffered from anxiety and severe somatic disorders. The applicant
had acted as the child's father only in the first months of her life.
After the breakdown of his relationship, the applicant, by his
conduct towards the child's mother entitled to care for the child,
made the exercise of his rights and duties as a father impossible.
His refusal to consent to the adoption prevented the husband of the
child's mother to take over a role which he himself could no longer
fulfil. Furthermore, he had discontinued maintenance payments for the
child already five years prior to the adoption authorisation and,
thereby, left it to others to care for his daughter. When requested
about the reasons of his refusal to consent, the applicant merely
stated that he wished to visit his daughter and that her mother
prevented him from doing so. Such submissions cannot be regarded as
decisive reasons. Furthermore, the applicant insisted on the child
being heard in his own and the other parties' presence, apparently
without caring much about the stress that would invariably have been
caused to the child. The applicant had been sufficiently involved in
the decision-making process. As it turned out after several
unsuccessful attempts that the applicant, for personal reasons, was
not able to attend a hearing by the court competent to deal with the
case, he was heard by letters rogatory by another court. Moreover, he
had expressly noted at the beginning of the proceedings that he did
not wish to be further involved in the proceedings and that his
written submissions could be regarded as his statements.
- The
District Court could not make a reasonable attempt to reach a
settlement because the applicant was not prepared to enter into such
talks. The Austrian courts in principle try to carry out adoptions
with the consent of all those involved and do their best to reach
such an agreement. In the present case this was, however,
unsuccessful because of the applicant's conduct.
- The
Court notes that is undisputed that the adoption of the applicant's
child without his consent amounted to an interference with his right
to respect for family life under § 1 of Article 8 of the
Convention. It had a legal basis, namely Section 181 § 3 of the
Austrian Civil Code, and pursued the legitimate aim of protecting the
rights of the child. It remains to be examined whether the decision
allowing the adoption without the applicant's consent was “necessary
in a democratic society”.
35. In
this respect, the Court recalls in first place that in cases of this
kind the national authorities have the benefit of direct contact with
all the persons concerned. It is not the Court's tasks to substitute
itself for the domestic authorities, but rather to review, in the
light of the Convention, the decision taken by those authorities in
the exercise of their power of appreciation (see Kuijper v.
the Netherlands (dec.), no. 64848/01, 3 March 2005). However, the
margin of appreciation to be accorded to the competent national
authorities will vary in accordance with the nature of the issues and
the importance of the interests at stake. While the Court has
recognised that the authorities enjoy a wide margin of appreciation
in particular when deciding on custody, a stricter scrutiny is called
for as regards any further limitations and as regards any legal
safeguards designed to secure an effective protection of the right of
parents and children to respect for their family life. Article 8
requires that the domestic authorities strike a fair balance between
the interests involved and that, in the balancing process, particular
importance should be attached to the best interests of the child,
which, depending on their nature and seriousness, may override those
of the parents (see, mutatis mutandis, Sommerfeld v.
Germany [GC], no. 31871/96, §§ 62-64, ECHR
2003 VIII (extracts))
36.
The Court recalls that legislation
permitting the placing for adoption of a child by a mother shortly
after the child's birth without the natural father's knowledge or
consent may be in breach of Article 8 of the Convention (Keegan
v. Ireland, judgment of 26 May 1994, Series A no. 290,
p. 16). In another case, concerning the deprivation of a mother's
parental rights and access in the context of compulsory and permanent
placement of her daughter in a foster home with a view to adoption by
foster parents, the Court stressed that such particularly
far-reaching measure should only be applied in exceptional
circumstances and be motivated by an overriding requirement
pertaining to the child's best interests (Johansen v. Norway,
judgment of 7 August 1996, Reports of Judgments and Decisions
1996 III, p. 30). In two more recent cases (Söderbäck v. Sweden,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998-VII; Kuijper v. the Netherlands, cited above), in finding
no violation of the Convention, the Court noted in particular that
the natural parent concerned had not had custody over the child and
contacts with the child were very limited. The adoptions served to
consolidate and formalise de facto family ties and the natural
parent opposing adoption had been given opportunity to state his/her
case. In the Kuijper case the Court had regard also to the
fact that the request for adoption was fully supported by the child
who had nearly come of age.
37.
In this context, reference should also be made to the European
Convention on the Adoption of Children, which is binding on several
of the Council of Europe's Member States including Austria. This text
requires in principle the consent of the mother and, where the child
is legitimate, of the father to their child's adoption save for
exceptional reasons determined by law. If the father or
mother is deprived of his or her parental rights in respect of the
child, the law provides that it may not be necessary to obtain his or
her consent. Likewise, the White Paper on principles concerning the
establishment and legal consequences of parentage of 15 January 2002
of the European Council's Committee of Experts on Family Law
recommends that an
adoption shall not be granted unless the mother's and the father's
consents have been given. The competent authority shall overrule the
refusal of these consents only on exceptional grounds determined by
law. However, the consent of the father or of the mother or of both
may be dispensed with by law if they are not holders of parental
responsibilities (see paragraphs 27
and 28 above).
38. In
the present case, the adoption of M. by the husband of
the applicant's former partner had the legal effect of totally
depriving the applicant of further family life with his daughter.
This was certainly a far- reaching measure and the Court will,
therefore, carefully examine the grounds given by the domestic courts
for replacing the applicant's consent.
- The
Court notes that an important reason given by the domestic courts
when replacing the applicant's consent was their argument that the
applicant's alleged close relationship with his daughter did not
correspond to reality. The Court notes that the child, aged some nine
and a half years at the time of the adoption, had been living
exclusively with her mother since she was two years old. The
applicant had no had custody, nor had he apparently assisted in any
other capacity in the upbringing of the child. Furthermore, his
contacts which the child were, at least from 25 December 1996
onwards infrequent and limited in character. In June 1998 the
District Court withdrew his right to visit as it found that the
applicant's conflicts with the child's mother were harmful to the
child's integrity and health. Thereafter, only one further visit
contact, at Christmas 2000, took place. On the other hand, the
child had been living with her adoptive father since she was six
years old. Thus, when the adoption was granted, de facto
family ties existed between the adopter and the child for more than
three years. The adoption, therefore, did not set in motion the
bonding of the child with the adopter (see mutatis mutandis
Keegan v. Ireland, cited above, § 55) but, on the
contrary, consolidated and formalised already existing ties like in
the above cited cases of Söderbäck and Kuijper.
- The
Court further observes that the District Court granted the adoption
after having heard the child, her adoptive father and the child's
mother. On this occasion the child, then aged nine and a half years,
stated that she considered her adoptive father as her father and
supported the adoption. The District Court also obtained the opinion
of the competent Youth Welfare Office which approved the proposed
adoption.
- The
Court finally notes that the applicant, contrary to his statements,
was given the opportunity to state his case before the competent
court. He, however, refused to do so and was subsequently heard by
ways of letters rogatory before another court in the town where he
was living.
- Against
this background, the Court considers that the domestic courts were in
a better position in striking a fair balance between the interests
involved. Having regard in particular to their assessment of the
child's best interests as well as to the limited relations that the
applicant had with his child at the relevant time, the Court finds
that their decision to grant adoption fell within their margin of
appreciation. Given the aims sought to be achieved by allowing the
adoption to go ahead, it cannot be said that the adverse effects it
had on the applicant's relations with the child were disproportionate
(see mutatis mutandis Söderbäck v. Sweden and
Kuijper v. the Netherlands, cited above).
- There
has, accordingly, been no violation of Article 8 of the Convention in
the present case.
FOR THESE REASONS, THE COURT
Holds by five votes to two that there has been no violation of
Article 8 of the Convention;
Done in English, and notified in writing on 25 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following joint dissenting
opinion of Mrs Tulkens and Mr Spielmann is annexed to this
judgment.
C.L.R.
S.N.
JOINT DISSENTING OPINION OF JUDGES TULKENS AND SPIELMANN
(Translation)
For
several reasons which we will set out below, we do not share the
majority's opinion that there has been no violation of Article 8 of
the Convention in this sensitive case, which raises the question of
adoption without the consent of a child's father.
- From
a legal perspective, adoption remains an “essentially
consensual institution” in Europe.
It follows that the adoption of a child without the consent of one of
his or her biological parents may occur only in exceptional
circumstances. The international law texts cited in the judgment are
clear on this point and, in our opinion, it is important to draw the
appropriate conclusions from them. Thus, the European Convention on
the Adoption of Children of 24 April 1967 specifically states that
the competent authority may not dispense with consent “save on
exceptional grounds determined by law” (Art. 5 § 2, (b)).
Equally, principle 15 of the White Paper on principles relating to
the establishment and legal consequences of parentage, dated
15 January 2002 and drawn up by the Committee of Experts on
Family Law, specifies that “the competent authority may
overrule the refusal to consent only on exceptional grounds
determined by law”(§ 3). In domestic law, the legislation
of the Council of Europe's member States also provides, in
exceptional circumstances, for the possibility of a child being
adopted without the consent of at least one of his or her biological
parents. Whilst, in the majority of countries, waiving of the consent
requirement is determined on the basis of objective circumstances
(death, uncertain paternity, deprivation of parental authority,
etc.), in other countries subjective circumstances are also taken
into consideration when permitting the authorities to overrule a
refusal to grant consent. This is the situation in the instant case
in so far as Article 181 § 3 of the Austrian Civil Code
(Allgemeines bürgerliches Gesetzbuch) provides that “at
the request of one of the Contracting Parties, the court must replace
the consent of a parent of a minor child when this person fails to
provide justifiable reasons for his/her refusal”. Thus, it is
the scenario of an unjustified refusal which is at issue here and
constitutes a reason for depriving the father and mother of the right
to consent to the adoption.
- Under
the Convention, the right to consent or disagree to the adoption of a
child may be considered an element of the father's and mother's right
to respect for private and family life, guaranteed by Article 8 §
1, and even that of the child itself. Admittedly, this right is not
absolute and is subject to
limitations. In accordance with Article 8 § 2, there may be an
interference by a public authority justified, inter alia, by
the protection of health or morals or the protection of the rights
and freedoms of others. The Court must therefore engage in a careful
examination of the interests at stake in order to determine whether,
exceptionally, a decision on adoption taken without the consent of
the biological parent may be justified under the Convention.
- In
the present case, the Linz-Land District Court held on
16 October 2002 that it could overrule the applicant's
refusal to grant consent and authorise his daughter's adoption by her
mother's new partner. On the one hand, the district court noted that
the child had developed a close relationship with her mother's new
partner and that adoption would secure her position in the family and
be a material safeguard. At the same time, it considered that the
applicant's allegedly close relations with his daughter did not
correspond to reality. In those circumstances, the refusal of consent
was considered abusive (§ 21). The Linz Regional Court
dismissed the applicant's appeal on 25 February 2003. The
regional court held that it was not necessary to request an expert
opinion or to hear the social workers concerned. It considered that
the reasons given by the lower court were sufficient, particularly in
relation to the applicant's conduct; nonetheless, it minimised the
argument concerning the adoptive father's financially more
advantageous position, stating the fact that A.F. was in a
financially better position than the applicant had not been a reason
for granting the adoption” (§ 23 in fine).
- We
do not find that these reasons were, in the circumstances of this
case, relevant and sufficient to justify the adoption of the
applicant's daughter against his will.
We
note, firstly, that the applicant's contacts with his daughter were
certainly limited at the time of the adoption. However, this was not
due to the applicant's lack of interest but a consequence of the fact
that, following his aggression towards his former partner, the latter
refused him access to the child and the courts subsequently withdrew
his right to visit. Prior to these events, the applicant had been
living with his daughter for some two years and had maintained
visiting contact for another year and some nine months.
Furthermore,
the applicant had constantly expressed his wish to visit his child.
He had applied to the courts after his former partner refused him
access, had appealed against the withdrawal of his right to visit and
had filed further repeated requests for visiting rights in the
subsequent years. The present case, therefore, falls to be
distinguished from other cases before the Court (see Söderbäck
v. Sweden, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998-VII and Kuijper v. the Netherlands
(dec.), no. 64848/01, 3 March 2005) which also concerned the
adoption of a child against the biological parent's wishes but where
the parent in question had accepted the lack of contact with his/her
child for several years.
We
further observe that the domestic courts referred to the fact that
the applicant had repeatedly interfered in the relationship between
the child and her mother and had thereby provoked mental and physical
disturbance to the child. The applicant had threatened and injured
the child's mother in December 1996. Some two years later, in March
1998, he had insulted the child's mother and informed the child that
her mother was a bad witch and a whore, thus causing distress to the
child. Whilst we agree with the domestic courts' finding that in
behaving in such a manner the applicant had acted contrary to family
values, we nevertheless find it difficult to accept that this conduct
must be considered of such seriousness as to justify the severing of
the applicant's bonds with his child against his will. This opinion
is strengthened if we note that, at the time of the adoption, the
impugned events dated back more than four years and three years
respectively and that a later visit contact in December 2000 had
passed without similar incident. 5. While not overlooking
the domestic courts' reasoning that the adoption was in the child's
best interest, we find that, in view of its far-reaching impact on
the relationship between the applicant and his child and its
irrevocable character, such a measure presupposed a particularly
careful investigation and consideration of other possible solutions.
On
the one hand, we cannot find that the procedure applied by the courts
in the present case met these requirements. We note, in particular,
that the child's overriding interest was found to be established on
the basis of the above-cited facts without any further investigation
into the matter such as, for instance, the taking of an expert
opinion on child psychology.
On
the other hand, the courts overruled the applicant's lack of consent
without a prior attempt to reach an agreement between the parties. We
do not believe that the child's real interests lie in depriving her
biological father or mother of their right to consent to her
adoption. Such an extreme situation, which may only occur in duly
established exceptional circumstances, is one of failure, and
potentially a source of deep suffering for the child. In the area of
adoption, it is for the State to take all possible measures to ensure
a balance, within the adoption triangle, of the rights of the
biological parents, the candidates for adoptive parenthood and
children themselves.
- Against
this background, we find that the fact of permitting the adoption of
the applicant's child without his consent represented an interference
with his right to family life which has not been shown to be
necessary in a democratic society. There has therefore been a
violation of Article 8 of the Convention.
