Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 12/13/2007

Subject: The Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The applicants alleged that the effects of the adoption of Isabelle Emonet by Roland Emonet had breached their right to respect for their family life under Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Article 8 The Court considered that the severing of the parental tie between Isabelle Emonet and her mother, as a result of the adoption, represented an interference in the applicants’ right to respect for their family life, and found that that interference was provided for by the Swiss Civil Code. The question before the Court was therefore whether that interference pursued a legitimate aim and was “necessary in a democratic society”. With regard to the Swiss Government’s argument that the two older applicants could have avoided this loss of the parental tie by marrying each other, the Court considered that it was not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wished to adopt. It pointed out that the concept of “family” under Article 8 was not confined to marriage-based relationships and could encompass other “family” ties. The Court noted that the 1967 European Convention on the Adoption of Children provided that the rights and obligations existing between adopted persons and their fathers or mothers should cease to exist on adoption. However, the Court noted that only 18 member States of the Council of Europe had ratified that Convention, and that there existed a draft revised Convention which provided that there could be no loss of the original parental ties in the event of adoption by the spouse or registered partner of the child’s parent. In the Court’s opinion, that indicated a growing recognition in the Council of Europe’s member States for adoptions such as that at the origin of the case. Moreover, the Court considered that the applicants could not be reproached for having been unaware of the extent of the consequences arising from their request for adoption, which resulted in a severing of the parental tie between Isabelle Emonet and her mother. In those circumstances, the Court considered that “respect” for the applicants’ family life would have required that both the biological and social realities were taken into account, in order to avoid application of legal provisions to the applicants’ very particular situation, which had clearly not been foreseen in the law. That failure to take the realities into account had flown in the face of the wishes of the individuals concerned, without actually benefiting anyone. Accordingly, the Court concluded that there had been a violation of Article 8.

Parties: Emonet et autres c/ Svizzera

Classification: Freedoms - Art. 7 Privacy