ECHR Cases Concerning Children Rights

CONCEPT OF BEST INTERESTS OF THE CHILD................................................................
3
CONCEPT OF FAMILY LIFE.....................................................................................................4
FAMILY TIES.....................................................................................................................................6
RIGHT TO EDUCATION.................................................................................................................7
GENERAL PRINCIPLES................................................................................................................7
CASES..............................................................................................................................................9
Oru and Others v. Croatia..........................................................................................................9
Ali v. the United Kingdom, no. 40385/06, 11 January 2011........................................................9
INHERITANCE AND AFFILIATION...........................................................................................10

GENERAL PRINCIPLES..............................................................................................................10
CASES............................................................................................................................................10
Pla and Puncernau v. Andorra....................................................................................................10
Fabris v. France...........................................................................................................................11
PERSONAL IDENTITY..................................................................................................................11
CASES............................................................................................................................................13
Godelli v. Italy............................................................................................................................13
Odivre v. France,......................................................................................................................13
Jggi v. Switzerland....................................................................................................................14
CITIZENSHIP..................................................................................................................................14
CASES............................................................................................................................................15
Genovese v. Malta......................................................................................................................15
DOMESTIC VIOLENCE ABUSE, SEXUAL ABUSE...............................................................15

CASES............................................................................................................................................16
M.A.K. and R.K. v. United Kingdom.........................................................................................16
M.D. and Others v. Malta...........................................................................................................18
M. and C. v. Romania.................................................................................................................19
Siliadin v. France........................................................................................................................20
Kontrov v. Slovakia..................................................................................................................20
E.S. and Others v. Slovakia........................................................................................................20
C.A.S. and C.S. v. Romania.......................................................................................................21
ILL-TREATMENT BY POLICE....................................................................................................21
CASES............................................................................................................................................21
Stoica v. Romania.......................................................................................................................21
Darraj v. France..........................................................................................................................21
Cierhun ner v. Turkey............................................................................................................22
MINORS IN DETENTION.............................................................................................................22
CASES............................................................................................................................................22
Popov v. France..........................................................................................................................22
Gve v. Turkey.........................................................................................................................24
oelav v. Turkey,......................................................................................................................24
FILIATION.......................................................................................................................................24
CASES............................................................................................................................................26
A.M.M. v. Romania....................................................................................................................27
I.L.V. v. Romania........................................................................................................................28
Chavdarov v. Bulgaria................................................................................................................29
Anayo v. Germany......................................................................................................................30
CONFIDENTIALITY OF BIRTH INFORMATION...................................................................30

CASES............................................................................................................................................31
Odivre v. France.......................................................................................................................31
Godelli v. Italy............................................................................................................................32
CHILD CARE & PLACEMENT TO PUBLIC CARE.................................................................32

CASES............................................................................................................................................35
Scozzari and Giunta v. Italy.......................................................................................................35
ADOPTION......................................................................................................................................35
CASES............................................................................................................................................36
Harroudj v. France......................................................................................................................36
K.A.B. v. Spain...........................................................................................................................37
Y.C. v. the United Kingdom.......................................................................................................38
Moretti and Benedetti v. Italy.....................................................................................................39
Kurochkin v. Ukraine.................................................................................................................41
PARENTAL AUTHORITY, CHILD CUSTODY AND ACCESS RIGHTS................................42

CASES............................................................................................................................................43
A.K. and L. v. Croatia................................................................................................................43
Santos Nunes v. Portugal............................................................................................................44
Schneider v. Germany................................................................................................................45
Gluhakovi v. Croatia.................................................................................................................46
Mihailova v. Bulgaria,................................................................................................................47
Cengiz Kl v. Turkey................................................................................................................48
Mustafa and Armaan Akn v. Turkey........................................................................................49
Macready v. the Czech Republic................................................................................................50
INTERNATIONAL CHILD ABDUCTION...................................................................................51

CASES............................................................................................................................................53
X v. Latvia..................................................................................................................................53
Karrer v. Romania......................................................................................................................54
B. v. Belgium..............................................................................................................................55
neersone and Kampanella........................................................................................................56
Shaw v. Hungary........................................................................................................................57
Neulinger and Shuruk v. Switzerland.........................................................................................58
Serghides v. Poland....................................................................................................................59
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CONCEPT OF BEST INTERESTS OF THE CHILD
Consideration of what lies in the best interest of the child concerned is of paramount importance in
every case of this kind; depending on their nature and seriousness, the childs best interests may
override those of the parents (see Grgl v. Germany, no. 74969/01, 43, 26 February 2004).
Krisztian Barnabas Toth v. Hungary, no. 48494/06, 12 February 2013, 32.
<...> the Court will attach particular importance to the best interests of the child, which, depending
on their nature and seriousness, may override those of the parent. In particular, a parent cannot be
entitled under Article 8 to have such measures taken as would harm the childs health and
development (see, for example, Sommerfeld v. Germany [GC], no. 31871/96, 64, ECHR
2003-VIII (extracts); and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, 134, ECHR
2010).
Qama v. Albania and Italy, no. 4604/09,8 January 2013, 81.
The Court notes that there is currently a broad consensus including in international law in
support of the idea that in all decisions concerning children, their best interests must be paramount
(see the numerous references in paragraphs 49-56 above, and in particular Article 24 2 of the
European Union's Charter of Fundamental Rights). As indicated, for example, in the Charter,
[e]very child shall have the right to maintain on a regular basis a personal relationship and direct
contact with both his or her parents, unless that is contrary to his or her interests.
The child's interest comprises two limbs. On the one hand, it dictates that the child's ties with its
family must be maintained, except in cases where the family has proved particularly unfit. It
follows that family ties may only be severed in very exceptional circumstances and that everything
must be done to preserve personal relations and, if and when appropriate, to rebuild the family.
On the other hand, it is clearly also in the child's interest to ensure its development in a sound
environment, and a parent cannot be entitled under Article 8 to have such measures taken as would
harm the child's health and development.
Neulinger and Shuruk v. Switzerland, no. 41615/07, 6 July 2010, 135136.
In identifying the childs best interests in a particular case, two considerations must be borne in
mind: first, it is in the childs best interests that his ties with his family be maintained except in
cases where the family has proved particularly unfit; and second, it is in the childs best interests to
ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above,
136; and R. and H., cited above, 73-74). It is clear from the foregoing that family ties may only
be severed in very exceptional circumstances and that everything must be done to preserve personal
relations and, where appropriate, to rebuild the family (see Neulinger and Shuruk, cited above,
136; and R. and H., cited above, 73). It is not enough to show that a child could be placed in a
more beneficial environment for his upbringing (see K and T., cited above, 173; and T.S. and
D.S., cited above). However, where the maintenance of family ties would harm the childs health
and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see
Neulinger and Shuruk, cited above, 136; and R. and H., cited above, 73).
The identification of the childs best interests and the assessment of the overall proportionality of
any given measure will require courts to weigh a number of factors in the balance. The Court has
not previously set out an exhaustive list of such factors, which may vary depending on the
circumstances of the case in question. However, it observes that the considerations listed in section
1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in
3
assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it
considers that in seeking to identify the best interests of a child and in assessing the necessity of any
proposed measure in the context of placement proceedings, the domestic court must demonstrate
that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely
effect on the child of ceasing to be a member of his original family and the relationship the child
has with relatives.
Y. C. v. United Kingdom, no. 4547/10, 13 March 2012, 134135.
CONCEPT OF FAMILY LIFE
The Court notes that the mutual enjoyment by parent and child of each others company constitutes
a fundamental element of family life within the meaning of Article 8 of the Convention (see, inter
alia, Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, 125, 1 December 2009).
Qama v. Albania and Italy, no. 4604/09,8 January 2013, 79.
The Court reiterates that the notion of family life under Article 8 of the Convention is not
confined to marriage-based relationships and may encompass other de facto family ties where the
parties are living together out of wedlock. A child born out of such a relationship is ipso jure part of
that family unit from the moment, and by the very fact, of the birth
(see Keegan v. Ireland, 26 May 1994, 44, Series A no. 290; L. v. the Netherlands, no. 45582/99,
35, ECHR 2004-IV; and Znamenskaya v. Russia, no. 77785/01, 26, 2 June 2005).
However, a biological kinship between a natural parent and a child alone, without any further legal
or factual elements indicating the existence of a close personal relationship, is insufficient to attract
the protection of Article 8 (compare L., cited above, 37). As a rule, cohabitation is a requirement
for a relationship amounting to family life. Exceptionally, other factors may also serve to
demonstrate that a relationship has sufficient constancy to create de facto family ties (see Kroon
and Others v. the Netherlands, 27 October 1994, 30, Series A no. 297-C; and L., cited above,
36).
Moreover, the Court has considered that intended family life may, exceptionally, fall within the
ambit of Article 8, notably in cases in which the fact that family life has not yet fully been
established was not attributable to the applicant (compare Pini and Others v. Romania,
nos. 78028/01 and 78030/01, 143 and 146, ECHR 2004-V). In particular, where the
circumstances warrant it, family life must extend to the potential relationship which may develop
between a child born out of wedlock and the natural father. Relevant factors which may determine
the real existence in practice of close personal ties in these cases include the nature of the
relationship between the natural parents and a demonstrable interest in and commitment by the
father to the child both before and after the birth (see Nylund v. Finland (dec.), no. 27110/95, ECHR
1999-VI; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; L., cited above, 36; and
Hlsmann v. Germany (dec.), no. 33375/03, 18 March 2008; compare also Raski v. Poland, no.
55339/00, 64, 18 May 2006).
Anayo v. Germany, no. 20578/07, 21 December 2010, 5557.
The Court first notes that the mutual enjoyment by parent and child of each others company
constitutes a fundamental element of family life and is protected under Article 8 of the Convention
(see Monory v. Romania and Hungary, no. 71099/01, 70, 5 April 2005, Iosub Caras v. Romania,
no. 7198/04, 28-29, 27 July 2006).
4
In the sensitive area of family relations, the State is not only bound to refrain from taking measures
which would hinder the effective enjoyment of family life, but, depending on the circumstances of
each case, should take positive action in order to ensure the effective exercise of such rights. In
this area the decisive issue is whether a fair balance between the competing interests at stake those
of the child, of the two parents, and of public order - was struck, within the margin of appreciation
afforded to States in such matters (see Maumousseau and Washington, cited above, 62), bearing in
mind, however, that the childs best interests must be the primary consideration (see Gnahor v.
France, no. 40031/98, 59, ECHR 2000-IX).
Karrer v. Romania, no. 16965/10, 21 February 2012, 3738.
In this respect the Court reiterates that the notion of family life under Article 8 of the Convention
is not confined to marriage-based relationships and may encompass other de facto family ties (see
Anayo v. Germany, no. 20578/07, 55, 21 December 2010, with further references). The existence
or non-existence of family life for the purposes of Article 8 is essentially a question of fact
depending on the real existence in practice of close personal ties (see K. and T. v. Finland [GC],
no. 25702/94, 150, ECHR 2001-VII). Although, as a rule, cohabitation may be a requirement for
such a relationship, exceptionally other factors may also serve to demonstrate that a relationship has
sufficient constancy to create de facto family ties (see Kroon and Others v. the Netherlands,
27 October 1994, 30, Series A no. 297-C).
Kopf and Liberda v. Austria, no. 1598/06, 17 January 2012, 35.
The Court reiterates that the notion of family life under Article 8 of the Convention is not
confined to marriage-based relationships and may encompass other de facto family ties where the
parties are living together out of wedlock. The Court has further considered that intended family life
may, exceptionally, fall within the ambit of Article 8, notably in cases where the fact that family life
has not yet fully been established is not attributable to the applicant (compare Pini and Others v.
Romania, nos. 78028/01 and 78030/01, 143 and 146, ECHR 2004-V). In particular, where the
1999-VI; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; L. v. the Netherlands, no.
45582/99, 36, ECHR 2004-IV; and Anayo v. Germany, no. 20578/07, 57, 21 December 2010).
Ahrens v. Germany, no. 45071/09, 24 September 2012, 58.
The Court, noting that the applicant based his application on Article 14 of the Convention, taken in
conjunction with Article 8, reiterates that the notion of family life in Article 8 is not confined
solely to marriage-based relationships and may encompass other de facto family ties. The
application of this principle has been found to extend equally to the relationship between natural
fathers and their children born out of wedlock. Further, the Court considers that Article 8 cannot be
interpreted as only protecting family life which has already been established but, where the
circumstances warrant it, must extend to the potential relationship which may develop between a
natural father and a child born out of wedlock. Relevant factors in this regard include the nature of
the relationship between the natural parents and the demonstrable interest in and commitment by the
natural father to the child both before and after the birth (see Nylund v. Finland (dec.), no.
27110/95, ECHR 1999-VI).
Genovese v. Malta, no. 53124/09, 11 October 2011, 29.
5
The Court reiterates that the relationship of a cohabiting same-sex couple living in a stable de facto
relationship falls within the notion of family life just as the relationship of a different-sex couple
in the same situation would (see Schalk and Kopf, cited above, 94). Furthermore, the Court found
in its admissibility decision in Gas and Dubois v. France (no. 25951/07, 31 August 2010) that the
relationship between two women who were living together and had entered into a civil partnership,
and the child conceived by one of them by means of assisted reproduction but being brought up by
both of them, constituted family life within the meaning of Article 8 of the Convention.
The first and third applicants in the present case form a stable same-sex couple. They have been
cohabiting for many years and the second applicant shares their home. His mother and her partner
care for him jointly. The Court therefore finds that the relationship between all three applicants
amounts to family life within the meaning of Article 8 of the Convention.
X and Others v. Austria, 19010/07, 19 February 2013, 95-96.
Inclusion grandparents to the concept of family life see Scozzari and Giunta v. Italy, 2000,
in Family Ties.
FAMILY TIES
According to the principles set out by the Court in its case-law, where the existence of a family tie
with a child has been established, the State must act in a manner calculated to enable that tie to be
developed and establish legal safeguards that render possible the childs integration in his family.
(see Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, 119, 28 June 2007).
Harroudj v. France, no. 43631/09, 4 October 2012, 41.
The only question that the Court may entertain in the present case is whether it was necessary to
replace the foster home arrangement with a more far-reaching type of measure, namely deprivation
of parental responsibilities and authorisation of adoption, with the consequence that the applicant's
legal ties with A would be broken. In examining this question the Court will have regard to its case-
law, namely that such measures should only be applied in exceptional circumstances and could
only be justified if they were motivated by an overriding requirement pertaining to the child's best
interests (see Johansen v. Norway, 7 August 1996, 78, Reports of Judgments and Decisions 1996
III). It should also be reiterated that in Gnahor v. France, no. 40031/98, 59, ECHR 2000 IX; see
also Grgl v. Germany, no. 74969/01, 48, 26 February 2004), the Court held: it is clear that it
is equally in the child's interest for its ties with its family to be maintained, except in cases where
the family has proved particularly unfit, since severing those ties means cutting a child off from its
roots. It follows that the interest of the child dictates that family ties may only be severed in very
exceptional circumstances and that everything must be done to preserve personal relations and, if
and when appropriate, to 'rebuild' the family.
Aune v. Norway, no. 52502/07, 28 October 2010, 66.
The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic
authorities in deciding on placing a child into public care, severing family ties means cutting a child
off from its roots, which can only be justified in very exceptional circumstances (see, for example,
Gnahor v. France, no. 40031/98, 59, ECHR 2000-IX). A relevant decision must therefore be
supported by sufficiently sound and weighty considerations in the interests of the child, and it is for
the respondent State to establish that a careful assessment of the impact of the proposed care
measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy
[GC], nos. 39221/98 and 41963/98, 148, ECHR 2000-VIII).
6
Saviny v. Ukraine, no. 39948/06, 18 December 2008, 49.
It is clear from the foregoing that family ties may only be severed in very exceptional circumstances
and that everything must be done to preserve personal relations and, where appropriate, to rebuild
the family (see Neulinger and Shuruk, cited above, 136; and R. and H., cited above, 73). It is not
enough to show that a child could be placed in a more beneficial environment for his upbringing
(see K and T., cited above, 173; and T.S. and D.S., cited above). However, where the maintenance
of family ties would harm the childs health and development, a parent is not entitled under Article
8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, 136; and R. and
H., cited above, 73).
Y.C. v. the United Kingdom, no. 4547/10, 13 March 2012, 134.
On that subject, it should be borne in mind that there is a significant danger that a prolonged
interruption of contact between parent and child or too great a gap between visits will undermine
any real possibility of their being helped to surmount the difficulties that have arisen within the
family and of the members of the family being reunited. (The danger is even greater for the younger
child, who was very young when the separation occurred.)
Scozzari and Giunta v. Italy, no. 39221/98 & 41963/98, 13 July 2000, 177.
The Court notes, firstly, that it was common ground that issues relating to the relations between the
second applicant and her grandchildren were covered by Article 8 of the Convention. It also points
out in that connection that 'family life', within the meaning of Article 8 includes at least the
ties between near relatives, for instance those between grandparents and grandchildren, since
such relatives may play a considerable part in family life. 'Respect' for a family life so
understood implies an obligation for the State to act in a manner calculated to allow these ties to
develop normally (see the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 21,
45).
Scozzari and Giunta v. Italy, no. 39221/98 & 41963/98, 13 July 2000, 221.
RIGHT TO EDUCATION
Optional Protocol 1 of the European Convention for the Human Rights and Fundamental
Freedoms - Enforcement of certain Rights and Freedoms not included in Section I of the
Convention
Article 2 - Right to education
No person shall be denied the right to education. In the exercise of any functions which it assumes
in relation to education and to teaching, the State shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and philosophical convictions.
+ Article 14 Non-discrimination
GENERAL PRINCIPLES
Article 2 of Protocol No. 1 guarantees, inter alia, a right of access to educational institutions
existing at a given time (see Belgian Linguistics Case, cited above, p. 28, 4 and Kjeldsen, Busk
Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, pp. 25-26, 52).
7
Nevertheless, such access constitutes only a part of the right to education. For the "right to
education" to be effective, it is further necessary that, inter alia, the individual who is the
beneficiary should have the possibility of drawing profit from the education received, that is to say,
the right to obtain, in conformity with the rules in force in each State, and in one form or another,
official recognition of the studies which he has completed (Belgian Linguistics Case, cited above, p.
28, 4).
The Court recognises that in spite of its importance the right to education is not absolute, but may
be subject to limitations. Provided that there is no injury to the substance of the right, these
limitations are permitted by implication since the right of access by its very nature calls for
regulation by the State (Belgian Linguistics Case, cited above, p. 28, 5 and Campbell and Cosans
v. the United Kingdom, 25 February 1982, 41, Series A no. 48).
Admittedly, the regulation of educational institutions may vary in time and in place, inter alia,
according to the needs and resources of the community and the distinctive features of different
levels of education. Consequently, the Contracting States enjoy a certain margin of appreciation in
this sphere, although the final decision as to the observance of the Convention's requirements rests
with the Court. In order to ensure that the restrictions that are imposed do not curtail the right in
question to such an extent as to impair its very essence and deprive it of its effectiveness, the Court
must satisfy itself that they are foreseeable for those concerned and pursue a legitimate aim.
However, unlike the position with respect to Articles 8 to 11 of the Convention, it is not bound by
an exhaustive list of legitimate aims under Article 2 of Protocol No. 1 (see, mutatis mutandis,
Podkolzina v. Latvia, no. 46726/99, 36, ECHR 2002-II). Furthermore, a limitation will only be
compatible with Article 2 of Protocol No. 1 if there is a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved (Leyla ahin v. Turkey [GC], no.
44774/98, 154, ECHR 2005-XI).
Article 2 of Protocol No. 1 does not necessarily entail a right of access to a particular educational
institution (Simpson v the United Kingdom, Application No. 14688/89, 24 February 1998).
Moreover, the right to education does not in principle exclude recourse to disciplinary measures
such as suspension or expulsion from an educational institution in order to ensure compliance with
its internal rules. The imposition of disciplinary penalties is an integral part of the process whereby
a school seeks to achieve the object for which it was established, including the development and
moulding of the character and mental powers of its pupils (see, among other authorities, Campbell
and Cosans v. the United Kingdom, cited above, p. 14, 33; see also, with respect to the expulsion
of a cadet from a military academy, Yanasik, cited above, and the expulsion of a student for fraud,
Sulak v. Turkey, no. 24515/94, Commission decision of 17 January 1996, DR 84-A, p. 98).
Ali v. the United Kingdom, no. 40385/06, 11 January 2011, 5154.
Furthermore, the Court reiterates that the word respect in Article 2 of Protocol No. 1 means more
than acknowledge or take into account; in addition to a primarily negative undertaking, it
implies some positive obligation on the part of the State (see Campbell and Cosans v. the United
Kingdom, 25 February 1982, 37, Series A no. 48). Nevertheless, the requirements of the notion of
respect, which appears also in Article 8 of the Convention, vary considerably from case to case,
given the diversity of the practices followed and the situations obtaining in the Contracting States.
As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to
be taken to ensure compliance with the Convention with due regard to the needs and resources of
the community and of individuals (see Lautsi and Others v. Italy [GC], no. 30814/06, 61, ECHR
2011 (extracts); Leyla ahin v. Turkey [GC], no. 44774/98, 135, ECHR 2005-XI; Case relating
to certain aspects of the laws on the use of languages in education in Belgium (merits),
23 July 1968, pp. 30-31, 3, Series A no. 6).
In the context of the right to education of members of groups which suffered past discrimination in
education with continuing effects, structural deficiencies call for the implementation of positive
8
measures in order, inter alia, to assist the applicants with any difficulties they encountered in
following the school curriculum. These obligations are particularly stringent where there is an
actual history of direct discrimination. Therefore, some additional steps are needed in order to
address these problems, such as active and structured involvement on the part of the relevant social
services (see Oru and Others, cited above, 177).
The Court would note in this context Recommendation no. R(2000)4 of the Committee of Ministers
(see paragraph 72 above) according to which appropriate support structures should be set up in
order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal
opportunities at school.
Horvth and Kiss v. Hungary, no. 11146/11, 29 January 2013, 103-104.
CASES
Oru and Others v. Croatia, no. 15766/03, 16 March 2010 (Grand Chamber).
Fifteen Croatians of Roma origin complained that they were victims of racial discrimination in that
they were segregated into Roma-only classes and consequently suffered educational, psychological
and emotional damage. The Court observed that only Roma children had been placed in the special
classes in the schools concerned. The Government attributed the separation to the pupils lack of
proficiency in Croatian; however, the tests determining their placement in such classes did not focus
specifically on language skills, the educational programme subsequently followed did not target
language problems and the childrens progress was not clearly monitored. The placement of the
applicants in Roma-only classes was therefore unjustified, in violation of Article 2 of Protocol No. 1
and Article 14. Execution of this judgment is ongoing.
Ali v. the United Kingdom, no. 40385/06, 11 January 2011.

The applicant was excluded from school during a police investigation into a fire at his school,
because he had been in the vicinity at the relevant time. He was offered alternative schooling and,
after the criminal proceedings against him were discontinued, his parents were invited to a meeting
with the school to discuss his reintegration. They failed to attend and also delayed deciding on
whether they wanted him to return to the school. His place was given to another child. The Court
noted that the right to education did not necessarily entail the right of Access to a particular school
or exclude disciplinary measures. The applicant had been excluded as part of a criminal
investigation in accordance with the law and only temporarily, with alternative education being
offered. His parents had then failed to attend the meeting about his reintegration or to recontact the
school in time to prevent his expulsion. There had therefore been no violation of Article 2 of
Protocol No. 1.
Horvth and Kiss v. Hungary, no. 11146/11, 29 January 2013.

The case concerned the complaints of two young men of Roma origin that their education in schools
for the mentally disabled had been the result of misplacement and had amounted to discrimination.
Violation of Article 2 of Protocol No. 1 (right to education) read in conjunction with Article 14
(prohibition of discrimination). The Court underlined that there was a long history of misplacement
of Roma children in special schools in Hungary. It found that the applicants schooling arrangement
indicated that the authorities had failed to take into account their special needs as members of a
disadvantaged group. As a result, the applicants had been isolated and had received an education
which made their integration into majority society difficult.
9
INHERITANCE AND AFFILIATION
GENERAL PRINCIPLES
According to the Courts established case-law since Marckx, cited above, the distinction established
for inheritance purposes between children born outside marriage and legitimate children has
raised an issue under Article 8 of the Convention taken alone (see Johnston and Others v. Ireland,
18 December 1986, Series A no. 112) and under Article 14 of the Convention taken in conjunction
with Article 8 (see Vermeire v. Belgium, 29 November 1991, Series A no. 214-C, and Brauer v.
Germany, no. 3545/04, 28 May 2009) and Article 1 of Protocol No. 1 (see Inze v. Austria, 28
October 1987, Series A no. 126; Mazurek, cited above; and Merger and Cros, cited above). The
Court has extended this case-law to voluntary dispositions by confirming the prohibition on
discrimination where testamentary dispositions are concerned (see Pla and Puncernau v. Andorra,
no. 69498/01, ECHR 2004-VIII). Accordingly, as early as 1979, in Marckx, the Court held that
restrictions on childrens inheritance rights on grounds of birth were incompatible with the
Convention. It has constantly reiterated this fundamental principle, establishing the prohibition of
discrimination on grounds of a childs birth outside marriage as a standard of protection of
European public order.
The Court also observes that common ground between the member States of the Council of Europe
regarding the importance of equal treatment of children born within and children born outside
marriage has been established for a long time, which has, moreover, led to a uniform approach
today by the national legislatures on the subject the principle of equality eliminating the very
concepts of legitimate children and children born outside marriage and to social and legal
developments definitively endorsing the objective of achieving equality between children (see
paragraphs 28, 34 and 35 above).
Accordingly, very weighty reasons have to be advanced before a distinction on grounds of birth
outside marriage can be regarded as compatible with the Convention (see Inze, cited above, 41;
Camp and Bourimi v. the Netherlands, no. 28369/95, 38, ECHR 2000-X; and Brauer, cited above,
40).
Fabris v. France, no. 16574/08, 07 February 2013, 57-59.
CASES
Pla and Puncernau v. Andorra, no. 69498/01, 13 July 2004.

Antoni, an adopted child, was disinherited and his mother consequently lost her right to the life
tenancy of the family estate after the Andorran courts interpreted a clause in a will stipulating that
the heir must be born of a legitimate and canonical marriage as referring only to biological
children. The Court noted that Antonis parents had a legitimate and canonical marriage and there
was nothing in the will in question to suggest that adopted children were excluded. The courts
decision amounted to judicial deprivation of an adopted childs inheritance rights which was
blatantly inconsistent with the prohibition of discrimination, in violation of Articles 14 & 8.
Execution of this judgment is ongoing.
10
Fabris v. France, no. 16574/08, 07 February 2013 (Grand Chamber).
The applicant complained that he had been unable to benefit from a law introduced in 2001 (Law of
3 December 2001) granting children born of adultery identical inheritance rights to those of
legitimate children, passed following delivery of the Courts judgment in Mazurek v. France of 1
February 2000 (see this Factsheet, page 4). Violation of Article 14 (prohibition of discrimination)
taken in conjunction with Article 1 of Protocol No. 1 (protection of property). The Court held that
the legitimate aim of protecting the inheritance rights of Mr Fabriss half-brother and half-sister did
not outweigh the applicants claim to a share of his mothers estate and that the difference of
treatment in his regard was discriminatory, as it had no objective and reasonable justification.
PERSONAL IDENTITY
GENERAL PRINCIPLES
In the Court's opinion, people have a vital interest, protected by the Convention, in receiving the
information necessary to know and to understand their childhood and early development. With
regard to an application by Mr Gaskin for access to the case records held on him by the social
services he was suffering from psychological trauma as a result of ill-treatment to which he said
he had been subjected when in State care the Court stated:
... confidentiality of public records is of importance for receiving objective and reliable
information, and ... such confidentiality can also be necessary for the protection of third persons.
Under the latter aspect, a system like the British one, which makes access to records dependent on
the consent of the contributor, can in principle be considered to be compatible with the obligations
under Article 8, taking into account the State's margin of appreciation. The Court considers,
however, that under such a system the interests of the individual seeking access to records relating
to his private and family life must be secured when a contributor to the records either is not
available or improperly refuses consent. Such a system is only in conformity with the principle of
proportionality if it provides that an independent authority finally decides whether access has to be
granted in cases where a contributor fails to answer or withholds consent. (Gaskin, cited above, p.
20, 49; see also M.G. v. the United Kingdom, no. 39393/98, 27, 24 September 2002)
In Mikuli, cited above, the applicant, a 5-year-old girl, complained of the length of a paternity suit
which she had brought with her mother and the lack of procedural means available under Croatian
law to enable the courts to compel the alleged father to comply with a court order for DNA tests to
be carried out. The Court weighed the vital interest of a person in receiving the information
necessary to uncover the truth about an important aspect of his or her personal identity against the
interest of third parties in refusing to be compelled to make themselves available for medical
testing. It found that the State had a duty to establish alternative means to enable an independent
authority to determine the paternity claim speedily. It held that there had been a breach of the
proportionality principle as regards the interests of the applicant, who had been left in a state of
prolonged uncertainty as to her personal identity ( 64-66).
The Court observes that Mr Gaskin and Miss Mikuli were in a different situation to the applicant.
The issue of access to information about one's origins and the identity of one's natural parents is not
of the same nature as that of access to a case record concerning a child in care or to evidence of
alleged paternity. The applicant in the present case is an adopted child who is trying to trace another
person, her natural mother, by whom she was abandoned at birth and who has expressly requested
that information about the birth remain confidential.
The expression everyone in Article 8 of the Convention applies to both the child and the mother.
On the one hand, people have a right to know their origins, that right being derived from a wide
11
interpretation of the scope of the notion of private life. The child's vital interest in its personal
development is also widely recognised in the general scheme of the Convention (see, among many
other authorities, Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, p. 1008, 78;
Mikuli, cited above, 64; and Kutzner v. Germany, no. 46544/99, 66, ECHR 2002-I). On the
other hand, a woman's interest in remaining anonymous in order to protect her health by giving
birth in appropriate medical conditions cannot be denied. In the present case, the applicant's mother
never went to see the baby at the clinic and appears to have greeted their separation with total
indifference (see paragraph 12 above). Nor is it alleged that she subsequently expressed the least
desire to meet her daughter. The Court's task is not to judge that conduct, but merely to take note of
it. The two private interests with which the Court is confronted in the present case are not easily
reconciled; moreover, they do not concern an adult and a child, but two adults, each endowed with
her own free will.
In addition to that conflict of interest, the problem of anonymous births cannot be dealt with in
isolation from the issue of the protection of third parties, essentially the adoptive parents, the father
and the other members of the natural family. The Court notes in that connection that the applicant is
now 38 years old, having been adopted at the age of four, and that non-consensual disclosure could
entail substantial risks, not only for the mother herself, but also for the adoptive family which
brought up the applicant, and her natural father and siblings, each of whom also has a right to
respect for his or her private and family life.
Odivre v. France, no. 42326/98, 13 February 2003 (Grand Chamber), 42-44.
The Court reiterates that the choice of the means calculated to secure compliance with Article 8 of
the Convention in the sphere of the relations of individuals between themselves is in principle a
matter that falls within the Contracting States margin of appreciation. In this connection, there are
different ways of ensuring respect for private life, and the nature of the States obligation will
depend on the particular aspect of private life that is in issue (see Odivre, cited above, 46).
The extent of the States margin of appreciation depends not only on the right or rights concerned
but also, as regards each right, on the very nature of the interest concerned. The Court considers that
the right to an identity, which includes the right to know ones parentage, is an integral part of the
notion of private life. In such cases, particularly rigorous scrutiny is called for when weighing up
the competing interests.
The Court considers that persons seeking to establish the identity of their ascendants have a vital
interest, protected by the Convention, in receiving the information necessary to uncover the truth
about an important aspect of their personal identity. At the same time, it must be borne in mind that
the protection of third persons may preclude their being compelled to make themselves available for
medical testing of any kind, including DNA testing (see Mikuli, cited above, 64). The Court must
examine whether a fair balance was struck between the competing interests in this case.
In weighing up the different interests at stake, consideration should be given, on the one hand, to the
applicants right to establish his parentage and, on the other hand, to the right of third parties to the
inviolability of the deceaseds body, the right to respect for the dead, and the public interest in
preserving legal certainty.
<>
With regard to the deceaseds own right to respect for his private life, the Court would refer to its
position in Estate of Kresten Filtenborg Mortensen v. Denmark ((dec.), no. 1338/03, ECHR 2006-
V), in which it found that the private life of a deceased person from whom a DNA sample was to be
taken could not be adversely affected by a request to that effect made after his death.
Jggi v. Switzerland, no. 58757/00, 13 July 2006, 36-39, 42.
12
CASES
Godelli v. Italy, no. 33783/09, 25 September 2012
Inability of child abandoned at birth to gain access to non-identifying information or to make

request for mother to waive confidentiality: violation
Facts The applicant was abandoned at birth by her mother, who did not consent to being named
on the birth certificate. In 2006 the applicant requested rectification of the birth certificate. The
court refused her request on the ground that, in accordance with Law no. 184/1983, she was
prohibited from gaining access to the information concerning her origins because her mother, at the
time of the birth, had not agreed to have her identity disclosed. That judgment was upheld on
appeal.
Law Article 8: The issue in the present case was whether a fair balance had been struck in
weighing the competing rights and interests at stake, namely the applicants interest in learning
about her origins on the one hand and the mothers interest in not disclosing her identity on the
other. An individuals interest in discovering his or her parentage did not disappear with age, quite
the reverse. In contrast to the French system examined in the Odivre v. France judgment,1 the
Italian legislation did not strive to strike a balance between the competing rights and interests at
stake. The applicants request for access to informatikon concerning her mother and birth family,
enabling her to trace some of her roots while ensuring the protection of third-party interests, had
met with a blanket and final refusal without any possibility of appeal. In the absence of any
mechanism for balancing the applicants right to discover her origins against the mothers rights and
interests in preserving her anonymity, the latter were automatically given preference. Where the
birth mother had opted not to disclose her identity, the Italian legislation did not provide any means
for a child who was adopted and had not been formally recognised at birth to request access to non-
identifying information on his or her origins or the waiver of confidentiality by the mother.
Furthermore, whereas legislative reform in France now made this possible, a bill on reforming the
system had been before the Italian parliament for four years and had still not been passed.
Accordingly, the Court considered that the Italian authorities had not sought to strike a balance and
ensure proportion between the interests of the parties concerned and had therefore overstepped their
margin of appreciation.
The Court held that the Italian system did not take account of the childs interests. It considered that
a fair balance had not been struck between the interests at stake since the legislation, in cases where
the mother had opted not to disclose her identity, did not allow a child who had not been formally
recognised at birth and was subsequently adopted to request either non-identifying information
about his or her origins or the disclosure of the birth mothers identity with the latters consent.
Conclusion: violation (six votes to one).
Article 41: EUR 5,000 in respect of non-pecuniary
damage.
Odivre v. France, no. 42326/98, 13 February 2003 (Grand Chamber).
The applicant, who was adopted, found out that she had three biological brothers. Her request for
access to information to identify them was rejected because she had been born under a special
procedure which allowed mothers to remain anonymous. In addition, she could not inherit from her
natural mother. The Court found that there had been no violation of Articles 8 or 14 in that France
had struck a fair balance between the various competing interests at stake: the public interest (the
prevention of abortions especially illegal abortions and the abandonment of babies); a childs
13
personal development and right to know her/his origins; a mothers right to protect her health by
giving birth in appropriate medical circumstances; and, the protection of other members of the
various families involved. It would also have been possible for the applicant to request disclosure of
her mothers identity with her consent. In addition, the applicant could inherit from her adoptive
parents and was not in the same position as her mothers other natural children.
Jggi v. Switzerland, no. 58757/00, 13 July 2006.
The applicant was not allowed to have DNA tests performed on the body of a deceased man whom
he believed to be his biological father. He was therefore unable to establish paternity. The Court
found that there had been a violation Article 8; the DNA test was not particularly intrusive, the
family had cited no philosophical or religious objections and, if the applicant had not renewed the
lease on the deceased mans tomb, his body would already have been exhumed.
CITIZENSHIP
GENERAL PRINCIPLES
The Court also reiterates that the concept of private life is a broad term not susceptible to
exhaustive definition. It covers the physical and psychological integrity of a person. It can therefore
embrace multiple aspects of the persons physical and social identity (see Dadouch v. Malta, no.
38816/07, 47, ECHR 2010-... (extracts)). The provisions of Article 8 do not, however, guarantee a
right to acquire a particular nationality or citizenship. Nevertheless, the Court has previously stated
that it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise
an issue under Article 8 of the Convention because of the impact of such a denial on the private life
of the individual (see Karassev v. Finland (dec.), no. 31414/96, ECHR 1999-II, and Slivenko
v. Latvia (dec.) [GC], no. 48321/99, 77, ECHR 2002-II).
<>
The applicant argues that the denial of citizenship prevented him from spending an unlimited time
in Malta, which he could have devoted to fostering a relationship with his biological father.
However, the Court notes that there currently exists no family life between the applicant and his
father, who has evinced no wish or intention to acknowledge his son or to build or maintain a
relationship with him. The Court finds that, in these circumstances, the denial of citizenship cannot
be said to have acted as an impediment to establishing family life or otherwise to have had an
impact on the applicants right to respect for family life. However, as the Court has observed above,
even in the absence of family life, the denial of citizenship may raise an issue under Article 8
because of its impact on the private life of an individual, which concept is wide enough to embrace
aspects of a persons social identity. While the right to citizenship is not as such a Convention right
and while its denial in the present case was not such as to give rise to a violation of Article 8, the
Court considers that its impact on the applicants social identity was such as to bring it within the
general scope and ambit of that Article.
Genovese v. Malta, no. 53124/09, 11 October 2011, 30, 33.
14
CASES
Genovese v. Malta, no. 53124/09, 11 October 2011.

The case concerned the refusal to grant Maltese citizenship to the British applicant born in
Scotland (United Kingdom) out-of-wedlock to a British mother and a Maltese father on the
ground that he is was an illegitimate child. A child born in wedlock or to a Maltese mother would
have been entitled to Maltese citizenship. Violation of Article 14 (prohibition of discrimination) of
the Convention, taken in conjunction with Article 8 (right to respect for private life), noting that the
1975. European Convention on the Legal Status of Children Born out of Wedlock was in force in
more than 20 European countries and very weighty reasons were required to justify a difference
in treatment on the ground of birth out of wedlock. In 2007 Maltese law was amended to make
people in the applicants situation eligible for citizenship. The Court pointed out, however, that the
complaint related to Mr Genoveses eligibility for citizenship prior to those amendments, which had
been enacted in 2007.
DOMESTIC VIOLENCE ABUSE, SEXUAL ABUSE
GENERAL PRINCIPLES
The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the
Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the
Convention, taken together with Article 3, requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment
administered by private individuals (see M.C. v. Bulgaria, no. 39272/98, 149, ECHR 2003-XII).
Furthermore, the absence of any direct State responsibility for acts of violence that meet the
condition of severity such as to engage Article 3 of the Convention does not absolve the State from
all obligations under this provision. In such cases, Article 3 requires that the authorities conduct an
effective official investigation into the alleged ill-treatment even if such treatment has been inflicted
by private individuals (see M.C., cited above, 151, and Denis Vasilyev v. Russia, no. 32704/04,
98-99, 17 December 2009).
Even though the scope of the States positive obligations might differ between cases where
treatment contrary to Article 3 has been inflicted through the involvement of State agents and cases
where violence is inflicted by private individuals, the requirements as to an official investigation are
similar. For the investigation to be regarded as effective, it should in principle be capable of
leading to the establishment of the facts of the case and to the identification and punishment of
those responsible. This is not an obligation of result, but one of means. The authorities must have
taken the reasonable steps available to them to secure the evidence concerning the incident,
including, inter alia, eyewitness testimony, forensic evidence, and so on. Any deficiency in the
investigation which undermines its ability to establish the cause of injuries or the identity of the
persons responsible will risk falling foul of this standard, and a requirement of promptness and
reasonable expedition is implicit in this context. In cases under Articles 2 and 3 of the Convention
where the effectiveness of the official investigation has been at issue, the Court has often assessed
whether the authorities reacted promptly to the complaints at the relevant time. Consideration has
been given to the opening of investigations, delays in taking statements and to the length of time
15
taken for the initial investigation (see Denis Vasilyev, cited above, 100 with further references;
and Stoica v. Romania, no. 42722/02, 67, 4 March 2008).
Furthermore, positive obligations on the State are inherent in the right to effective respect for
private life under Article 8; these obligations may involve the adoption of measures even in the
sphere of the relations of individuals between themselves. While the choice of the means to secure
compliance with Article 8 in the sphere of protection against acts of individuals is in principle
within the States margin of appreciation, effective deterrence against serious acts such as rape,
where fundamental values and essential aspects of private life are at stake, requires efficient
criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to
effective protection (see M.C., cited above, 150).
The Court reiterates that it has not excluded the possibility that the States positive obligation under
Article 8 to safeguard the individuals physical integrity may extend to questions relating to the
effectiveness of a criminal investigation (see M.C., cited above, 152).
Lastly, the Court notes that the United Nations Committee on the Rights of the Child has
emphasised that a series of measures must be put in place so as to protect children from all forms of
violence which includes prevention, redress and reparation (see paragraphs 52-53 above).
C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012, 6872.
In this respect, they referred to the Court's case-law, and especially Calvelli and Ciglio v. Italy
([GC], no. 32967/96, ECHR 2002-I); A. v. the United Kingdom, cited above; and Z and Others v.
the United Kingdom ([GC], no. 29392/95, 109, ECHR 2001-V), as well as the decision in G.G. v.
Italy ((dec.), no. 34574/97, 10 October 2002) in which the Court had noted in connection with
Article 3 that criminal proceedings did not represent the only effective remedy in cases of this
kind, but civil proceedings, making it possible to obtain redress for the damage suffered must in
principle be open to children who have been subjected to ill-treatment.
Siliadin v. France, no. 73316/01, 26 July 2005, 74.
CASES
M.A.K. and R.K. v. United Kingdom, No. 45901/05, 40146/06, 23 March 2010.
(The reaction to the information about violence!)
The applicants, M.A.K., and his daughter, R.K., are British nationals who live in Bately (United
Kingdom). RK was born in 1989. On two occasions, in September 1997 and February 1998,
M.A.K. took his daughter to their family doctor because he, his wife and their daughter's swimming
teacher were concerned about what appeared to be bruising on her legs. They followed it up by a
visit, in March 1998, to a paediatrician in a public hospital who had blood samples and pictures of
the girl taken in the absence of either of the parents and despite the father's indication that any tests
should be done in the mother's presence or with her explicit consent. The paediatrician concluded,
after examining the girl's genitalia and legs, that she had been sexually abused and informed the
social workers. When the girl's parents attempted to visit their daughter in hospital later that day, a
nurse prevented the father from seeing the girl referring to orders to that effect. The following day,
hospital staff were informed that there could be no restrictions on visitors. The father was thereafter
permitted to visit his daughter, although all visits were supervised on account of the suspicion that
she had been sexually abused.
On the day after admitting the girl into hospital, her mother remembered and told the paediatrician
of an incident which had happened three days earlier when her daughter had complained that she
16
hurt herself when riding her bike. The doctor ignored that information reiterating that there was no
doubt the girl had been abused. As a result, the social workers instructed the mother to sleep in the
room with her daughter as a precautionary measure.
A few days later, after noticing marks on the girl's hands, her mother arranged for her to be seen by
a dermatologist. Following this, R.K. was diagnosed with a rare skin disease and was discharged
from hospital. The paediatrician wrote a letter stating that as there was insufficient evidence to
consider that the girl had been abused, her father should no longer be considered to be implicated in
the sexual abuse of his daughter. M.A.K. and R.K. complained before the NHS Trust. An
Independent Panel set up by the Trust found that while the paediatrician was not to be blamed for
misdiagnosing the bruises, she should have sought a dermatologist's opinion as a matter of urgency
and the girl should have been interviewed about the marks on her skin. The applicants then brought
proceedings for negligence against the local authority and hospital trust claiming compensation for
personal injury and financial loss. Both M.A.K. and R.K. were legally aided during the first
instance proceedings, but R.K. had her legal aid withdrawn during the subsequent appeals. The final
domestic judicial instance, the House of Lords, found against the applicants.
Relying on Article 3 (prohibition of inhuman or degrading treatment), M.A.K. alleged that he
suffered distress and humiliation as a result of the accusations against him. The applicants also
complained, under Article 8, about the visiting restrictions during the ten days that R.K. was in
hospital and that a blood sample and photographs were taken without parental consent. Further
relying on Article 6 1 (right of access to a court), R.K. complained that legal aid was withdrawn
from her during the appeal proceedings against the local authority and hospital for compensation.
Lastly, M.A.K. complained that, in breach of Article 13 (right to an effective remedy), he could not
claim compensation for damage caused by the local authority's handling of his daughter's case on
account of the domestic courts' finding that there was no common law duty of care owed to parents.
Article 8
The Court noted that the authorities, both medical and social, had duties to protect children
and could not be held liable every time genuine and reasonably held concerns about the safety
of children vis--vis members of their family were proved, retrospectively, to have been
misguided.
In view of the available evidence in this case, it had been reasonable for the paediatrician to suspect
abuse and consequently to contact social services. Moreover, while it must have been frustrating for
the parents that the information about the bicycle accident had been apparently ignored, the Court
found that the continued suspicions of the local authority had been justified in the circumstances. As
the parents had been themselves under suspicion, any explanation that they had provided
understandably had to be treated with caution. In addition, the bicycle accident had only accounted
for one of R.K.'s apparent injuries. Even if the paediatrician had accepted the mother's account, the
bruising had remained unexplained and abuse could therefore not be ruled out.
Concerning the need to interview the girl, as concluded by the Independent Panel, the Court found
that not to have been indispensable: even in the case of denial by the girl of any abuse, it had been
unlikely that abuse could have been excluded as a possible cause of the marks.
However, a dermatologist had been consulted only four days after the girl's admission into hospital,
when the mother had noticed that her daughter had marks also on the hands. Consequently, had the
dermatologist been consulted immediately, as recommended by the Independent Panel, R.K.'s
condition could have been diagnosed some days earlier.
The Court therefore found that while it had been justified for the authorities to suspect abuse at the
time of R.K.'s admission in hospital, the delay in consulting a dermatologist had undermined their
efforts to protect R.K. from harm.
In addition, domestic law and practice clearly required the consent of parents or those exercising
parental responsibility before any medical intervention could take place. There was no evidence to
suggest that R.K.'s condition had been critical, that she had been in any pain or discomfort, or that
17
her situation had been either deteriorating or likely to deteriorate before her mother's arrival.
Finally, there had been no reason to believe that her mother would have withheld consent, and even
if she had, the hospital could have applied to the court for an order requiring the tests to be
conducted. In the circumstances, the Court found no justification for the decision to take a blood
test and intimate photographs of a nine-year old girl, against the express wishes of both her parents,
while she had been alone in the hospital.
Accordingly, there had been a violation of the applicants' right to respect for their family life under
Article 8.
Article 13
M.A.K. should have had available to him a means of claiming that the local authority had been
responsible for any damage which he had suffered and of obtaining compensation for that damage.
As such redress had not been available at the relevant time, the Court held that there had been a
violation of Article 13.
All the other complaints were rejected by the Court.
Article 41
Under Article 41 (just satisfaction), the Court held that the United Kingdom is to pay M.A.K. 2.000
euros (EUR) and R.K. EUR 4.500 in respect of non-pecuniary damage, and to both applicants
jointly EUR 15.000 for costs and expenses.
M.D. and Others v. Malta, no. 64791/10, 17 July 2012.
Automatic and perpetual deprivation of parental rights following criminal conviction for
illtreatment of children: violation.
Facts The first applicant is the mother of two minor children, the second and third applicants. An
investigation by the social services was initiated in respect of the family and in 2005 the competent
authority issued a care order placing the children in an institution. The care order was upheld by the
juvenile court following objections by the first applicant. In parallel, criminal proceedings were
brought against the first applicant and her partner and both were convicted of child cruelty and
neglect. The couple subsequently separated and the first applicant was given supervised contact
with the children before eventually being allowed to spend weekends and public holidays with
them. However, as a result of her conviction she was automatically and perpetually deprived of her
parental rights.
Law Article 6 1: The applicants complained that they had not had access to a court to contest the
care order once it had been confirmed by the juvenile court. The Government did not submit any
evidence to show that such a judicial remedy existed, but argued that the courts would not be the
right venue for challenging a care order that had become final. For the Court, that argument ran
counter to the entire basis of the right of Access to an impartial and independent tribunal for the
determination of civil rights and obligations. It was precisely the role of the courts to supervise
administrative action and guarantee freedom from arbitrariness and any assessment they made
would evidently take into consideration the input given by the relevant actors. The Court could not
accept that a review by social workers reporting to a minister vested with power to revoke a care
order could constitute an independent and impartial tribunal, in particular since there would be no
written public decision and the procedure did not offer the possibility of judicial review.
Conclusion: violation (unanimously). Article 8: Deprivation of parental rights was a particularly far-
reaching measure that should only be applied in exceptional circumstances, when justified by an
overriding equirement pertaining to the best interest of the child. Under the Maltese Criminal Code
only certain offences, such as the ill-treatment and neglect of children, led to the removal of
18
parental rights. Although, in view of the interests at stake, providing for such a measure could not
be considered as exceeding the States argin of appreciation, the automatic application of the
measure, outside the scrutiny of the domestic courts and any examination of whether it was in the
childs best interest or whether the accuseds circumstances had changed, was problematic.
Moreover, the deprivation of parental rights was permanent until the child attained the age of
majority. In such circumstances, the automatic application of the measure, coupled with the lack of
access to court to challenge the deprivation of parental rights at a future date, had failed to strike a
fair balance between the interests of the children, the first applicant and those of society at large.
Conclusion: violation (unanimously). Article 46: The Court had found a violation of Article 8 on
account of the fact that the deprivation of the first applicants parental rights was automatic and
perpetual following her criminal conviction. In order to redress the effects of the breach found, and
without prejudice to the outcome of such future proceedings, the authorities were required to
provide a procedure that would allow the first applicant to request an independent and impartial
tribunal to consider whether the deprivation of her parental authority remained justified. Further, in
order to remedy the Article 6 violation that had been found, the authorities should envisage
appropriate general measures in order to ensure the effective possibility of access to court for
persons affected by a care order.
Article 41: EUR 4,000 each in respect of nonpecuniary damage.
M. and C. v. Romania, no. 29032/04, 27 September 2011.
Failure to effectively apply criminal law mechanisms to protect child from sexual abuse:
violation
Facts The first applicant was awarded custody of her son, the second applicant, after her divorce
from the boys father who was allegedly of a violent temperament. Three years later, shortly after
the father was granted contact rights, the first applicant filed a criminal complaint against him
alleging attempted sexual abuse of their son. The complaint was supported by a medical certificate
issued some days earlier attesting to injuries to the boys anus which could have been produced by a
sexual assault. Several witnesses were heard. Both the first applicant and the boys father sat lie-
detector tests the resultsof which indicated that the first applicant, but not the father, may have been
lying about the alleged sexual assault. Consequently, the authorities decided not to indict the father.
In the interim the first applicant had successfully applied for the boy to be temporarily placed in a
State institution, where he remained for over a year. Both parents were allowed to visit once a week,
but neither were permitted to take him home. At the first applicants request, the boy was returned
to her in October 1999.
In May 2001 the first applicant lodged a civil action seeking to limit the fathers contact with the
child. The court hearing the case concluded that the first applicants intention to completely exclude
the father from her sons life was a result of his exclusion from the Jehovahs Witnesses shortly
before the couples divorce and it did not rule out the possibility that the first applicant had caused
the childs injuries herself and tried to frame the father. Ultimately, the domestic courts dismissed
the first applicants claim, relying, inter alia, on that fact that the authorities had decided not to
bring charges against the father.
Law Articles 3 and 8: The States had a positive obligation under Articles 3 and 8 of the
Convention to enact criminal-law provisions effectively punishing sexual abuse of children and to
apply them in practice through effective investigation and prosecution. It therefore had to be
determined whether there had been such significant flaws in the criminal investigation as to amount
to a breach of Romanias positive obligations in respect of the second applicant. It was true that the
authorities had been faced with a difficult task, as they were confronted with a sensitive situation,
19
conflicting versions of events and little direct evidence. They had diligently reacted to the first
applicants request to temporarily place her son in a State institution in order to protect him.
Witnesses had been heard and forensic and expert evidence obtained, including the results of a lie-
detector test. However, the prosecuting authorities had failed to verify the credibility of all the
witness statements and in the final decision to discontinue the criminal proceedings against the
father had failed to follow the instruction of their superior and relied exclusively on the evidence
collected previously. Most importantly, even though considering it a possibility, the domestic
authorities had failed to examine whether the fathers conduct could have constituted another
criminal offence, such as hitting or other forms of violence. They also failed to examine whether a
criminal investigation should be opened against the first applicant. They had attached little weight
to the particular vulnerability of young persons and the special psychological factor involved in
cases concerning sexual abuse of children. Finally, there had been significant delays in the
investigation. In conclusion, the authorities had not explored all the options for a thorough
investigation of the case and so had failed to comply with their positive obligations to effectively
punish all forms of sexual abuse.
Conclusion: violation in respect of the second applicant (six votes to one).
Article 8: The first applicant also complained that she had been separated from her son as a result of
his placement in a State institution for over a year. The Court observed that the second applicant had
been placed there at the first applicants request with a view to protecting him from the violent
atmosphere in the family. During his stay, he had received regular weekly visits from both parents
and there was no proof or suggestion that the contact with his father had in any way been harmful.
The authorities had shown the degree of prudence and vigilance necessary in the sensitive situation
at issue and their actions had not been to the detriment of the first applicant or the superior interests
of her child.
Conclusion: no violation (unanimously).
Article 41: EUR 13,000 to the second applicant in respect of non-pecuniary damage.
Siliadin v. France, no. 73316/01, 26 July 2005.

A 15-year-old Togolese girl was made to work as a slave; she had her passport removed and was
forced to work 15-hour days doing housework and childcare without pay or holidays. The Court
found that French criminal law did not provide the girl with sufficiently specific or effective
protection, in violation of Article 4 (prohibition of servitude).
Kontrov v. Slovakia, no. 7510/04, 31 May 2007.

On 2 November 2002 the applicant lodged a criminal complaint against her husband, accusing him
of having assaulted and beaten her with an electric cable. She subsequently returned to the police
station with her husband to withdraw the complaint, and the police cooperated. On 31 December
2002 the husband killed their daughter and son, born in 1997 and 2001 respectively. The Court
found a violation of Article 2 (right to life), because of the authorities failure to protect the
childrens lives, and a violation of Article 13, because the mother had been denied the possibility of
seeking compensation.
E.S. and Others v. Slovakia, no. 8227/04, 15 September 2009.

In 2001 the applicant left her husband and lodged a criminal complaint against him for ill-treating
her and her children (born in 1986, 1988 and 1989) and sexually abusing one of their daughters. He
was convicted of violence and sexual abuse two years later. Her request for her husband to be
ordered to leave their home was dismissed, however; the court finding that it did not have the power
to restrict her husbands access to the property (she could only end the tenancy when divorced). The
applicant and her children were therefore forced to move away from their friends and family and
20
two of the children had to change schools. The Court found that Slovakia had failed to provide the
applicant and her children with the immediate protection required against her husbands violence, in
violation of Articles 3 and 8.
C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012.

The case concerned a seven-year-olds complaint that it had taken the authorities five years to
investigate his repeated rape by a man, eventually acquitted, who had forced his way into the family
flat when the boy had come home alone from school in a period from January to April 1998. C.A.S.
alleged in particular that the violent sexual abuse to which he had been subjected was of such
gravity that it had amounted to torture, and that the proceedings had been slanted, the domestic
courts having blamed his parents, and to a certain extent him, for not reacting sooner. Both
applicants further complained that their family life had been destroyed and that they had been
forced to leave the town in which they lived to rebuild a normal life. The Court found a violation of
Article 3 (prohibition of inhuman or degrading treatment and effective investigation) and of Article
8 (right to respect for private and family life and the home). In this judgment, the European Court
clearly recognised that States had an obligation under Articles 3 and 8 to ensure the effective
criminal investigation of cases involving violence against children. It, moreover, specifically
referred to the international obligations1 Romania had undertaken for the protection of children
against any form of abuse, including helping recovery and social reintegration of victims, and
particularly regretted that C.A.S. had never been provided with counselling or been accompanied by
a qualified psychologist during the proceedings concerning his rape or afterwards.
ILL-TREATMENT BY POLICE
CASES
Stoica v. Romania, no. 42722/02, 04 March 2008.

A 14-year-old youth claimed he was beaten up by the police because he was of Roma origin. No
prosecution was brought and the police were not prosecuted. The Court found that the applicants
injuries were the result of inhuman and degrading treatment, that there had been no proper
investigation and that the police officers behaviour had clearly been motivated by racism, in
violation of Articles 3 and 14.
Darraj v. France, no. 34588/07, 04 November 2010.

A 16-year-old youth was taken to hospital with a fractured testicle, numerous cuts on his face and
bruising on his eye, wrist, back and scalp, two hours after being taken to a police station for an
identity check, where he was handcuffed, but not charged with any offence. He then needed an
emergency operation and was declared unfit for work for 21 days. He claimed he had been hit and
kicked in the genitals by police officers; the police officers claimed variously that they had acted in
self-defence and that the youth had fractured his testicle by falling on a sink. The Court noted that
the applicant was in a vulnerable position. He had been handcuffed and had sustained a serious
injury while in the hands of police officers (at least two and of larger build than himself) who were
supposed to protect him. It was also unclear why he had been handcuffed, as he had been calm prior
to his arrival at the police station and had never before been in police custody. Although the Court
found the subsequent investigation into the events to be adequate, no disciplinary proceedings were
taken against those responsible and only minimal fines were imposed. So there was a manifest
21
disproportion between the seriousness of the act and the punishment imposed. There had therefore
been a violation of Article 3 (prohibition of inhuman or degrading treatment).
Cierhun ner v. Turkey (no. 2), no. 2858/07, 23 November 2010.

A 12-year-old boy was ill-treated by police officers while being held in police custody (not
registered), after he refused to give his name in an identity check, leaving him with bruises on his
thigh and near his right eye. The Court found that the boy had been subjected to inhuman and
degrading treatment in violation of Article 3 and that there had been no effective punishment of the
police officer responsible, in further violation of Article 3.
MINORS IN DETENTION
CASES
Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012.
Administrative detention of foreign parents and their infant children for fifteen days, pending
expulsion: violation.
Facts The applicants are a married couple from Kazakhstan who arrived in France in 2002 and
their two young children who were born in France. The parents allege that they were the victims of
recurrent persecution in Kazakhstan because of their Russian origin and Orthodox faith. They
applied for asylum, but their application was rejected, as were their applications for residence
permits. On 27 August 2007 the parents and their children, then aged five months and three years,
were arrested at their home and taken into police custody. Their administrative detention in a hotel
was ordered the same day. The following day they were transferred to an airport to be flown back to
Kazakhstan. The flight was cancelled, however, and they never boarded the plane. The applicants
were then taken to the Rouen-Oissel administrative-detention centre, which was authorised to
accommodate families. On 29 August 2007 the liberties and detention judge ordered a two-week
extension of their detention. The applicants were taken back to the airport on 11 September 2007,
but this second attempt to deport them also failed. Noting that the applicants were not to blame for
that failure, the judge ordered their release. In 2009 the refugee status the applicants had applied for
prior to their arrest was granted, on the grounds that the enquiries the Prefecture had made to the
authorities in Kazakhstan, disregarding the confidentiality of asylum applications, had made it
dangerous for them to return there.
Law Article 3
(a) As regards the children By virtue of a Decree of 2005 the Rouen-Oissel administrative-
detention centre was authorised to accommodate families. However, the Decree merely mentioned
the need to provide specially equipped rooms, and in particular amenities suitable for small
children, without actually explaining exactly what those amenities were. Arrangements at the
different centres were left to the discretion of the head of the establishment and varied considerably
from one centre to another, and there were often no staff specially trained in child welfare. While
families were separated from other detainees at the Rouen-Oissel centre, the only beds available
were iron-frame beds for adults, which were dangerous for children. Nor were there any play areas
or activities for children, and the automatic doors to the rooms were dangerous for them. The
Council of Europes Commissioner for Human Rights and the European Committee for the
22
Prevention of Torture and Inhuman or Degrading Treatment (CPT) also pointed out that the
promiscuity, stress, insecurity and hostile atmosphere in these centres were bad for young children,
in contradiction with international child protection principles according to which the authorities
must do everything in their power to avoid detaining children for lengthy periods. Two weeks
detention, while not in itself excessive, could seem like a very long time to children living in an
environment ill-suited to their age. The conditions in which the applicants children were detained
for two weeks, in an adult environment with a strong police presence, with no activities to keep
them occupied, combined with their parents distress, were clearly ill-suited to their age. The two
children found themselves in a situation of vulnerability heightened by their detention, which was
bound to cause them stress and distress and have serious psychological repercussions. In view of the
childrens young age, and the duration and conditions of their detention, the authorities had not
measured the inevitably harmful effects on the children. The way in which they had treated the
children was incompatible with the provisions of the Convention and exceeded the minimum level
of severity required to fall within the scope of Article 3.
Conclusion: violation (unanimously).
(b) As regards the parents While the parents administrative detention with their children in a
holding centre must have caused them feelings of helplessness, distress and frustration, the fact that
they had not been separated from their children must have somewhat alleviated those feelings, so
the minimum level of severity for a violation of Article 3 was not attained.
Conclusion: no violation (six votes to one).
Article 5 1 (f ): Although the children had been placed with their parents in a wing reserved for
families, their particular situation had not been taken into account and the authorities had not sought
to establish whether any alternative solution, other than administrative detention, could have been
envisaged. The French system had therefore not properly protected the childrens right to liberty.
Article 5 4: The parents had had the possibility to have the lawfulness of their detention examined
by the courts. There had therefore been no violation of Article 5 4 in respect of the parents. The
law made no provision, however, for children to be placed in administrative detention, so children
accompanying their parents found themselves in a legal void, unable to avail themselves of such a
xremedy. In the present case no removal order had been issued against the children that they might
have challenged in court. Nor had their administrative detention been ordered, so the courts had not
been able to examine the lawfulness of their presence in the administrative-detention centre. That
being so, they had not enjoyed the protection required by the Convention.
Article 8: The applicants detention in a holding centre for two weeks, in the prison-like conditions
inherent in that type of establishment, amounted to an interference with their right to respect for
their family life. The measure pursued the legitimate aim of combating illegal immigration and
controlling the entry and residence of foreigners in France. It served, inter alia, to protect national
security, law and order and the countrys economy and to prevent crime. Detention measures,
however, had to be proportionate to the aim pursued by the authorities, which in this case was the
applicants removal. In dealing with families, it was the authorities duty, when considering the
proportionality of the measure, to take the childrens best interests into account. There was a broad
consensus including in international law that all decisions concerning children should protect
their best interests. In this case there had been no particular risk of the applicants absconding that
might have justified their detention. Thus their detention did not appear to have been justified by
any pressing social need, especially considering that their placement in a hotel during their initial
administrative detention did not seem to have caused any problems. The information communicated
by the Government did not indicate that any alternative to detention had been considered, such as
house arrest or placement in a hotel. Lastly, the facts of the case did not show that the authorities
23
had done everything in their power to enforce the expulsion measure promptly and thus limit the
duration of the familys detention. Instead the applicants were held for two weeks without any flight
being organised. The Court was aware that a similar complaint concerning the detention of four
children with their mother for a month had been declared inadmissible, even though no alternative
to detention had been envisaged.1 However, in the light of the above facts and of recent
developments in the case-law concerning the childs best interests in the context of the detention
of migrant children, the Court considered that the childs best interests called not only for families
to be kept together but also for the authorities to do everything in their power to limit the detention
of families with young children and effectively protect their right to respect for their family life. As
there had been no grounds to believe that the family would abscond, two weeks detention in a
closed facility was disproportionate to the aim pursued.
Article 41: EUR 10,000 jointly in respect of non-pecuniary damage.
Gve v. Turkey, no. 70337/01, 20 January 2009.

A 15-year-old minor, tried before an adult court and ultimately found guilty of membership of an
illegal organisation, was held in pre-trial detention for more than four-and-a-half years in an adult
prison, where he did not receive medical care for his psychological problems and made repeated
suicide attempts. He had no legal assistance when being questioned by the police, his prosecutor
and judge and both he and his lawyer were absent for 14 of the 30 hearings concerning his case. The
Court found that the youths detention had undoubtedly caused his psychological problems which
prompted his suicide attempts. The authorities were directly responsible for his problems and failed
to provide adequate medical care. There had been a violation of Article 5 3 (length of detention)
and of Article 3, given the applicants age, the length of his detention with adults and the absence of
medical care or measures taken to prevent his suicide attempts. He had also been unable to
participate in his trial, in violation of various aspects of Article 6.
oelav v. Turkey, no. 1413/07, 09 October 2012.

The case concerned a juveniles suicide in an adult prison. Violation of Article 2 concerning the
suicide. Violation of Article 2 (lack of an effective investigation). The Court found that the Turkish
authorities had not only been indifferent to the applicants sons grave psychological problems but
had been responsible for a deterioration of his state of mind by detaining him in a prison with adults
without providing any medical or specialist care, thus leading to his suicide.
FILIATION
GENERAL PRINCIPLES
Contrary to the Governments arguments, the Court cannot accept that this situation is in the best
interests of either the applicant or the child. In this connection, the Court reiterates that a child born
out of wedlock also has a vital interest in receiving the information necessary to uncover the truth
about an important aspect of their personal identity, that is, the identity of their biological parents
(see Mikuli, cited above, 64).
Kruskovic v. Croatia, no. 46185/08, 21 June 2011, 41.
24
However, a biological kinship between a natural parent and a child alone, without any further legal
the protection of Article 8 (compare L., cited above, 37). As a rule, cohabitation is a requirement
and Others v. the Netherlands, 27 October 1994, 30, Series A no. 297-C; and L., cited above,
36).
ambit of Article 8, notably in cases in which the fact that family life has not yet fully been
established was not attributable to the applicant (compare Pini and Others v. Romania,
nos. 78028/01 and 78030/01, 143 and 146, ECHR 2004-V). In particular, where the
1999-VI; Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003; L., cited above, 36; and
Hlsmann v. Germany (dec.), no. 33375/03, 18 March 2008; compare also Raski v. Poland, no.
55339/00, 64,18 May 2006).
Anayo v. Germany, no. 20578/07, 21 December 2010, 56-57.
According to the principles that emerge from the Court's case-law, where the existence of a family
tie with a child has been established the State must act in a manner calculated to enable that tie to be
developed and legal safeguards must be established that render possible the child's integration in his
family (see, mutatis mutandis, Kroon and Others v. the Netherlands, judgment of 27 October 1994,
Series A no. 297-C, 32, and Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, 119, 28 June
2007).
The Court reiterates that the Convention must be applied in accordance with the general principles
of international law, in particular those concerning the international protection of human rights (see
Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, 90, ECHR
2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, 55, ECHR 2001-XI). As
regards, more specifically, the obligations under which Article 8 of the Convention places the
Contracting States in respect of adoption, they must be interpreted in the light of the United Nations
Convention on the Rights of the Child, of 20 November 1989, and the European Convention on the
Adoption of Children, of 24 April 1967 (see Pini and Others, cited above, 139), especially as
Switzerland is party to both instruments (for the second of the above-mentioned treaties, see
Relevant domestic and international law, paragraphs 23-25).
The Convention and its Protocols must be interpreted in the light of present-day conditions (see
Marckx, cited above, p. 19, 41; Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A
no. 26, p. 15, 31; and Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14 et seq.,
26; case-law confirmed subsequently, in particular, in Vo v. France [GC], no. 53924/00, 82,
ECHR 2004-VIII, and Mamatkoulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99,
121, ECHR 2005-I). However, the Court cannot, by means of an evolutive interpretation, derive
from these instruments a right that was not included therein at the outset (see Johnston and Others,
cited above, 53). In this context the Court reiterates that the right to adoption is not included as
such among the rights guaranteed by the Convention (see Di Lazzaro v. Italy, no. 31924/96,
Commission decision of 10 July 1997, DR 90-B, p. 134; Frett v. France, no. 36515/97, 32,
ECHR 2002-I, and Pini and Others, cited above, 140). However, this does not preclude the
possibility, in certain circumstances, of States Parties to the Convention finding themselves under
25
an obligation to take positive measures to permit the formation and development of legal family ties
(see Keegan, cited above, 50, and Pini and Others, cited above, 150 et seq.).
Emonet and others v. Switzerland, no. 39051/03, 64-66.
CASES
Emonet and others v. Switzerland, no. 39051/03, 13 December 2007.
(Severing of the relationship between mother and now adult daughter following her adoption
by the mother's partner (Article 8 of the ECHR) violation).
The case concerns an application brought by Isabelle Emonet, her mother Mariannick Faucherre
and the latter's partner Roland Emonet, three Swiss nationals who live in Geneva. Mariannick
Faucherre and her husband, Isabelle Emonet's father, divorced in 1985. He died in 1994. Since 1986
Mariannick Faucherre has been living with Roland Emonet, who is divorced and has no children.
The three applicants lived together between 1986 and 1992. In March 2000, a serious illness left
Isabelle Emonet paraplegic. She kept her own home, but needed to be cared for by her mother and
Roland Emonet, whom she regards as her father. By agreement between the three applicants, it was
therefore decided that Roland Emonet should adopt Isabelle Emonet so that they could become a
real family in the eyes of the law. In March 2001 the Court of Justice of the Canton of Geneva made
the adoption order. However, the cantonal civil status authority informed Mariannick Faucherre that
the adoption had the effect of terminating her parental tie with Isabelle Emonet; the latter would
take on her adoptive father's surname, as she was henceforth his daughter.
The first two applicants objected to the termination of the parental tie between them and requested
that it be restored. The cantonal authority stood by its decision, referring to Article 267 of the Swiss
Civil Code, according to which previously existing parental ties were severed on adoption, except in
respect of the spouse of the adoptive parent; Mariannick Faucherre and Roland Emonet, however,
were simply cohabiting. In September 2001 the President of the Geneva Department of Justice,
Police and Transport formally rejected the request for restoration of the parental tie. The applicants
applied to the administrative courts seeking to have that decision quashed and instituted parallel
proceedings to have the adoption order set aside. The administrative court initially allowed the
application and ordered the cantonal civil status authority to restore the parental tie. However, on an
appeal from the Federal Office of Justice, the Federal Court on 28 May 2003 found that the Swiss
Civil Code ruled out the joint adoption of a child by cohabiting partners and the adoption by a
cohabitant of his or her partner's child. Accordingly, the Federal Court requested the cantonal civil
status authority to enter the adoption in the civil status register.
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
26
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.
Article 41. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants
5,000 euros (EUR) in respect of non-pecuniary damage and EUR 12,000 for costs and expenses.
(The judgment is available only in French.)
A.M.M. v. Romania, no. 2151/10, 14 February 2012.
Shortcomings of proceedings to establish paternity of a minor with disabilities: violation.

Facts The applicant is a child who was born in 2001 outside marriage and who has a number of
disabilities. Before the European Court, he was first represented by his mother and subsequently,
since his mother suffered from a serious disability, by his maternal grandmother. He was registered
in his birth certificate as having a father of unknown identity. In 2001 his mother brought paternity
proceedings against Z., claiming that the child had been conceived following a relationship with
him. She relied on a handwritten statement signed by Z. in which he recognised paternity of the
child and promised to pay maintenance. The court ordered forensic medical tests, but Z. did not
report to the Institute of Forensic Medicine and did not attend the court hearings. In 2003 the court
noted that the applicants mother had decided to forego the forensic tests and the taking of witness
evidence, and dismissed her claims as unsubstantiated. She lodged an appeal against that decision,
which was declared inadmissible for lack of reasons. Despite being given notice to appear, the
representative of the municipal guardianship office did not attend the court hearings.
Law Article 8: The Court had to ascertain whether the respondent State, in its conduct of the
proceedings to establish the applicants paternity, had acted in breach of its positive obligation
under Article 8. Under the national legislation, the guardianship office was responsible for
protecting the interests of minors and persons lacking legal capacity, including in judicial
proceedings in which they were involved. However, the guardianship office had not taken part in
the proceedings as it was required to do, while neither the applicant nor his mother had been
represented by a lawyer at any point in the proceedings. In the face of these continuing
shortcomings, the court had not taken any procedural steps to secure the appearance of a
27
representative of the guardianship office. Furthermore, the latters absence had not been offset by
any other measures to protect the childs interests in the proceedings, such as the appointment of a
lawyer or the attendance at the hearings of a member of the public prosecutors office, although the
same court had considered this to be necessary. Likewise, no steps had been taken by the authorities
to contact the witnesses the childs mother wished to be called, after the first attempt to do so had
failed. Regard being had to the childs best interests and the rules requiring the guardianship office
or a representative of the public prosecutors office to participate in paternity proceedings, it had
been up to the authorities to act on behalf of the applicant in order to compensate for the difficulties
facing his mother and avoid his being left without protection.
The applicants mother had also been placed under the care of the social welfare authorities on
account of her severe disability. Although the Court was unable to establish whether, at the material
time, she had been in a position to fully defend her childs interests, it pointed out that, in the
context of exhaustion of domestic remedies, consideration had to be given to the vulnerability of
certain individuals and their inability in some cases to plead their case coherently or, indeed, at all.
Domestic law did not provide for any measure by which a defendant could be required to undergo a
paternity test ordered by the courts; this could reflect the need to protect third parties by ruling out
the possibility of their being forced to undergo medical tests of whatever kind, particularly DNA
tests. It was common practice for the courts to take into account, in reaching their decision, the fact
that one of the parties had sought to prevent certain facts from being established. In the instant case
the courts had not drawn any inferences from Z.s refusal to cooperate.
The domestic courts had not struck a fair balance between the right of the applicant, a child, to have
his interests safeguarded in the paternity proceedings and the right of his putative father not to take
part in the proceedings or to refuse to undergo a paternity test.
Article 41: EUR 7,000 in respect of non-pecuniary damage.
I.L.V. v. Romania (dec.), no. 4901/04, 24 August 2010.
Refusal of domestic courts to order mother and child to undergo DNA tests to establish
scientific evidence of paternity where that issue had already been judicially determined:
inadmissible.
Facts In 1988 the applicant had a relationship with L.C., who became pregnant. He was informed
of her pregnancy in June 1988. In early October 1988 they decided to live together but separated
after three weeks. In March 1989 L.C. gave birth to a daughter, A. In a final judgment of 1990 a
district court upheld a claim by L.C. and recognised the applicant as the father of A. It based its
decision mainly on the history of the couples relationship and on the statutory conception period. In
2003 the applicant brought proceedings against L.C. and A. to oblige them to undergo blood and
DNA tests. All his actions were dismissed by the courts.
Law Article 8: (a) Applicability The determination of the legal regime governing relations
between a father and his putative child concerned the fathers private life. Whilst, in the present
case, the domestic courts had been confronted with a question of evidence, the applicants aim had
nevertheless been to ascertain the truth about an important aspect of his existence, namely whether
or not he was the childs father. Consequently, Article 8 was applicable.
(b) Merits The applicant had not appealed against the judgment of March 1990 establishing his
paternity in respect of A. However, in 2003 he had brought an action before the domestic courts to
oblige L.C. and A. to undergo a DNA test. That action had thus concerned an obligation to act,
which was governed by the general rules applicable to civil actions. It had been dismissed by the
28
court of appeal on the basis of the Constitution, which guaranteed every individuals right to
selfdetermination. The dismissal of the proceedings had thus been provided for by law and had
pursued the legitimate aim of protecting the rights and freedoms of others, in this case to safeguard
the interests of A. The balancing of the interests at stake had involved, on the one hand, the
applicants right to find out whether he was the biological father of A. and, on the other, the A. right
of to retain her established parental relationship and the public interest in the protection of legal
certainty. The applicants legal action had been aimed at obtaining evidence in order to ascertain the
biological reality of his relationship with A., by obliging her to undergo a DNA test. However, given
the childs refusal to undergo the test, the interests at stake appeared contradictory. Moreover, the
upholding of the applicants action would have affected not only his own interests but also those of
A. The emergence of DNA testing and the possibility of using it in legal proceedings had
represented a significant development for the courts, enabling the existence of biological
relationships between different individuals to be established with certainty. That being said, the
need to protect third parties could exclude the possibility of obliging them to undergo a particular
form of medical analysis, especially when, as in the present case, the third party in question was a
child who had a long-established legitimate paternal relationship. The Court therefore found, as
indeed the domestic courts had done, that at the material time it had not been unreasonable to place
the childs best interests and the principle of legal certainty above the interests of the applicant.
Accordingly, the absence of any indication that the child wished to have her paternity verified, the
fact that she was a minor, the length of time for which she had had a settled civil status and the
possible pecuniary consequences, albeit minimal, all weighed in favour of upholding the childs
interest in not being deprived of a legitimate biological paternity. Therefore, the reasons given by
the court of appeal based on the childs interests had been sufficient to justify the rejection of the
applicants action. Since the applicant had no biological evidence to show that he was not A.s
father it was not for the Court to examine in abstracto whether the domestic law permitted the
setting-aside of the final judgment of March 1990, against which the applicant had not appealed, in
order to bring the legal reality into line with the biological reality.
Conclusion: inadmissible (manifestly ill-founded).
Chavdarov v. Bulgaria, no. 3465/03, 21 December 2010.
Inability of biological father to establish in law his paternity of children born to a married
woman with whom he had been cohabiting: no violation.
Facts In 1989 the applicant set up home with a married woman (who was living separately from
her husband); she gave birth to three children, in 1990, 1995 and 1998, while they were living
together. The womans husband was named as the childrens father on their birth certificates and the
children were given his surname. At the end of 2002 the woman left the applicant and the children
in order to set up home with another partner. Since then the applicant has lived with the three
children. At the beginning of 2003 he consulted a lawyer with a view to bringing proceedings for
recognition of paternity. However, the lawyer informed him that domestic law did not enable him to
challenge the presumption of paternity in respect of his former companions husband. In
consequence, the applicant applied directly to the European Court.
Law Article 8
(a) Existence of a family life The thirteen years during which the applicant and his former
companion had cohabited (1989-2002) and the birth of the three children during that period
indicated that this was indeed a de facto family unit, in which the applicant had been able to
29
develop emotional ties with the children. His attachment to them was also evident from the rapid
steps taken by him following the separation with a view to overcoming the lack of any formal
family ties between himself and the children, and from the fact that the children had apparently
lived with him since the separation. It was therefore appropriate to consider that the ties between the
applicant and the three children whose biological father he claimed to be did indeed amount to
family life within the meaning of the Convention.
(b) Positive obligations The States enjoyed a certain margin of appreciation in regulating paternal
filiation, an area in which various moral, ethical, social or religious considerations applied. The data
on twenty-four States Parties to the Convention indicated that there was no consensus on whether
domestic legislation should enable the biological father to contest the presumption of a husbands
paternity. In the instant case, the existence of the de facto single-parent family formed by the
applicant and the three children had not been threatened at any point, by the authorities, the mother
or the latters husband. Although the applicant was unable to bring an action to challenge the three
childrens paternal filiation, domestic legislation did not deprive him of any possibility of
establishing a paternal link in their respect or of overcoming the practical disadvantages posed by
the absence of such a link. In particular, he could have applied to adopt the children, or asked the
social services to have them placed under his responsibility as a close relative of abandoned
underage children. Since the applicant had not shown that he had availed himself of those
possibilities, the State authorities could not be held responsible for the applicants own passivity.
Respect for the childrens legitimate interests had also been secured by the domestic legislation.
Accordingly, the fair balance between the interest of society and that of the individuals concerned
had not been breached in this case.
Anayo v. Germany, no. 20578/07, 21 December 2010.

The case concerned the refusal of the German courts to grant Mr Anayo, who was the biological
father of twins, access to his children on the ground that he had no social and family relationship
with the children. The Court observed, in that application, that the domestic court had refused the
applicant access to his children without giving any consideration to the question whether, in the
particular circumstances of the case, contact between the twins and the applicant would be in the
childrens best interest. The Court accordingly found that the domestic court had failed to fairly
balance the competing rights involved. As the reasons given for refusing Mr Anayo contact with his
children had thus not been sufficient for the the purposes of paragraph 2 of Article 8, Article 8
had been violated (see Anayo, cited above, 67-73).
CONFIDENTIALITY OF BIRTH INFORMATION
GENERAL PRINCIPLES
In the Court's opinion, people have a vital interest, protected by the Convention, in receiving the
information necessary to know and to understand their childhood and early development. With
regard to an application by Mr Gaskin for access to the case records held on him by the social
30
services he was suffering from psychological trauma as a result of ill-treatment to which he said
he had been subjected when in State care the Court stated:
... confidentiality of public records is of importance for receiving objective and reliable
information, and ... such confidentiality can also be necessary for the protection of third persons.
Under the latter aspect, a system like the British one, which makes access to records dependent on
the consent of the contributor, can in principle be considered to be compatible with the obligations
under Article 8, taking into account the State's margin of appreciation. The Court considers,
however, that under such a system the interests of the individual seeking access to records relating
to his private and family life must be secured when a contributor to the records either is not
available or improperly refuses consent. Such a system is only in conformity with the principle of
proportionality if it provides that an independent authority finally decides whether access has to be
granted in cases where a contributor fails to answer or withholds consent. (Gaskin, cited above, p.
20, 49; see also M.G. v. the United Kingdom, no. 39393/98, 27, 24 September 2002)
In Mikuli, cited above, the applicant, a 5-year-old girl, complained of the length of a paternity suit
which she had brought with her mother and the lack of procedural means available under Croatian
law to enable the courts to compel the alleged father to comply with a court order for DNA tests to
be carried out. The Court weighed the vital interest of a person in receiving the information
necessary to uncover the truth about an important aspect of his or her personal identity against the
interest of third parties in refusing to be compelled to make themselves available for medical
testing. It found that the State had a duty to establish alternative means to enable an independent
authority to determine the paternity claim speedily. It held that there had been a breach of the
proportionality principle as regards the interests of the applicant, who had been left in a state of
prolonged uncertainty as to her personal identity ( 64-66).
<...>
The expression everyone in Article 8 of the Convention applies to both the child and the mother.
On the one hand, people have a right to know their origins, that right being derived from a wide
interpretation of the scope of the notion of private life. The child's vital interest in its personal
development is also widely recognised in the general scheme of the Convention (see, among many
other authorities, Johansen v. Norway, judgment of 7 August 1996, Reports 1996-III, p. 1008, 78;
Mikuli, cited above, 64; and Kutzner v. Germany, no. 46544/99, 66, ECHR 2002-I). On the
other hand, a woman's interest in remaining anonymous in order to protect her health by giving
birth in appropriate medical conditions cannot be denied.
Odivre v. France, no. 42326/98, 13 February 2003, 42, 44.
CASES
Odivre v. France, no. 42326/98, 13 February 2003 (Grand Chamber).

The applicant, who was adopted, found out that she had three biological brothers. Her request for
access to information to identify them was rejected because she had been born under a special
procedure which allowed mothers to remain anonymous. In addition, she could not inherit from her
natural mother. No violation of Articles 8 (right to respect for private and family life) or 14
(prohibition of discrimination) in that France had struck a fair balance between the various
competing interests at stake: the public interest (the prevention of abortions especially illegal
abortions and the abandonment of babies); a childs personal development and right to know
her/his origins; a mothers right to protect her health by giving birth in appropriate medical
circumstances; and, the protection of other members of the various families involved. It would also
have been possible for the applicant to request disclosure of her mothers identity with her consent.
In addition, the applicant could inherit from her adoptive parents and was not in the same position
as her mothers other natural children.
31
Godelli v. Italy, no. 33783/09, 25 September 2012.
The case concerned the confidentiality of information concerning a childs birth and the inability of
a person abandoned by her mother to find out about her origins. Violation of Article 8 (right to
respect for private and family life). The Court held that the Italian system did not take account of
the childs interests. It considered that a fair balance had not been struck between the interests at
stake since the legislation, in cases where the mother had opted not to disclose her identity, did not
allow a child who had not been formally recognised at birth and was subsequently adopted to
request either non-identifying information about his or her origins or the disclosure of the birth
mothers identity with the latters consent.
CHILD CARE & PLACEMENT TO PUBLIC CARE

GENERAL PRINCIPLES
The Court reiterates, firstly: the mutual enjoyment by parent and child of each others company
constitutes a fundamental element of family life; furthermore, the natural family relationship is not
terminated by reason of the fact that the child has been taken into public care ... (see the Eriksson
v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, 58). As the Court has previously
observed, ... taking a child into care should normally be regarded as a temporary measure to be
discontinued as soon as circumstances permit and ... any measures of implementation of temporary
care should be consistent with the ultimate aim of reuniting the natural parent and the child ... In
this regard, a fair balance has to be struck between the interests of the child in remaining in public
care and those of the parent in being reunited with the child ... In carrying out this balancing
exercise, the Court will attach particular importance to the best interests of the child, which,
depending on their nature and seriousness, may override those of the parent. In particular, ... the
parent cannot be entitled under Article 8 of the Convention to have such measures taken as would
harm the child's health and development. (see the Johansen v. Norway judgment of 7 August 1996,
Reports of Judgments and Decisions 1996-III, pp. 1008-09, 78).
<...>
The Court wishes to emphasise that it does not underestimate the importance of preparatory
counselling. Indeed, it has previously said: ... the reunion of natural parents with children who
have lived for some time in a foster family needs preparation. The nature and extent of such
preparation may depend on the circumstances of each case, but it always requires the active and
understanding cooperation of all concerned. Whilst national authorities must do their utmost to
bring about such cooperation, their possibilities of applying coercion in this respect are limited
since the interests as well as the rights and freedoms of all concerned must be taken into account,
notably the children's interests and their rights under Article 8 of the Convention. Where contacts
with the natural parents would harm those interests or interfere with those rights, it is for the
national authorities to strike a fair balance ... (see the Olsson v. Sweden (no. 2) judgment of
27 November 1992, Series A no. 250, pp. 35-36, 90).
Scozzari and Giunta v. Italy, no. 39221/98 & 41963/98, 13 July 2000, 169, 175.
The Court further reiterates that, notwithstanding a margin of appreciation enjoyed by the domestic
authorities in deciding on placing a child into public care, severing family ties means cutting a child
off from its roots, which can only be justified in very exceptional circumstances (see, for example,
Gnahor v. France, no. 40031/98, 59, ECHR 2000-IX). A relevant decision must therefore be
32
supported by sufficiently sound and weighty considerations in the interests of the child, and it is for
the respondent State to establish that a careful assessment of the impact of the proposed care
measure on the parents and the child has been made (see, for example, Scozzari and Giunta v. Italy
[GC], nos. 39221/98 and 41963/98, 148, ECHR 2000-VIII).
In particular, where the decision is explained in terms of a need to protect the child from danger, the
existence of such a danger should be actually established (see, mutatis mutandis, Haase v. Germany,
no. 11057/02, 99, ECHR 2004-III (extracts)). In taking a decision on removal of a child, a variety
of factors may be pertinent, such as whether by virtue of remaining in the care of its parents the
child would suffer abuse or neglect, educational deficiencies and lack of emotional support, or
whether the childs placement in public care is necessitated by the state of its physical or mental
health (see Wallov and Walla v. the Czech Republic, no. 23848/04, 72, 26 October 2006 and
Havelka and Others v. the Czech Republic, no. 23499/06, 57, 21 June 2007). On the other hand,
the mere fact that a child could be placed in a more beneficial environment for his or her upbringing
does not on its own justify a compulsory measure of removal (see, for example, K.A. v. Finland,
no.27751/95, 92 ECHR 2003-I). Neither can this measure be justified by a mere reference to the
parents precarious situation, which can be addressed by less radical means than the splitting of the
family, such as targeted financial assistance and social counselling (see, for example, Moser v.
Austria, no. 12643/02, 68, 21 September 2006; Wallov and Walla, cited above, 73-76; and
Havelka and others, cited above, 61).
Further, in assessing the quality of a decision-making process leading to splitting up the family, the
Court will see, in particular, whether the conclusions of the domestic authorities were based on
sufficient evidentiary basis (including, as appropriate, statements by witnesses, reports by
competent authorities, psychological and other expert assessments and medical notes) and whether
the interested parties, in particular the parents, had sufficient opportunity to participate in the
procedure in question (see, mutatis mutandis, Schultz v. Poland (dec.), no. 50510/99,
8 January 2002; Remmo and Uzunkaya v. Germany (dec.), no. 5496/04, 20 March 2007; and
Polek v. Czech Republic (dec.), no. 31885/05 , 8 January 2007). The Court will also have regard
to whether, where appropriate, the children themselves were able to express their views (see, for
example, Havelka and Others, cited above, 62, and Haase, cited above, 97).
In any event, taking a child into care should normally be regarded as a temporary measure, to be
discontinued as soon as circumstances permit. It cannot, therefore, be justified without prior
consideration of the possible alternatives (see K. and T., cited above, 166; Kutzner, cited above,
67; and Moser, cited above, 70) and should be viewed in the context of the States positive
obligation to make serious and sustained efforts to facilitate the reuniting of children with their
natural parents and until then enable regular contact between them, including, where possible, by
keeping the siblings together (see, mutatis mutandis, Kutzner, cited above, 76-77 and K. and T. v.
Finland [GC], cited above, 179).
Saviny v. Ukraine, no. 39948/06, 18 December 2008, 49-52.
The Courts case-law regarding care proceedings and measures taken in respect of children clearly
establishes that, in assessing whether an interference was necessary in a democratic society, two
aspects of the proceedings require consideration. First, the Court must examine whether, in the light
of the case as a whole, the reasons adduced to justify the measures were relevant and sufficient;
second it must be examined whether the decision-making process was fair and afforded due respect
to the applicants rights under Article 8 of the Convention (see K and T. v. Finland [GC], no.
25702/94, 154, ECHR 2001-VII; R.K. and A.K. v. the United Kingdom, no. 38000/05, 34, 30
September 2008; T.S. and D.S. v. the United Kingdom (dec.), no. 61540/09, 19 January 2010; A.D.
and O.D. v. the United Kingdom, no. 28680/06, 82, 16 March 2010; Neulinger and Shuruk v.
Switzerland [GC], no. 41615/07, 134, 6 July 2010; and R. and H. v. the United Kingdom, no.
35348/06, 75 and 81, 31 May 2011).
33
The Court reiterates that in cases concerning the placing of a child for adoption, which entails the
permanent severance of family ties, the best interests of the child are paramount (see Johansen v.
Norway, 7 August 1996, 78, Reports of Judgments and Decisions 1996-III; Kearns v. France, no.
35991/04, 79, 10 January 2008; and R. and H., cited above, 73 and 81). In identifying the
childs best interests in a particular case, two considerations must be borne in mind: first, it is in the
childs best interests that his ties with his family be maintained except in cases where the family has
proved particularly unfit; and second, it is in the childs best interests to ensure his development in a
safe and secure environment (see Neulinger and Shuruk, cited above, 136; and R. and H., cited
above, 73-74). It is clear from the foregoing that family ties may only be severed in very
exceptional circumstances and that everything must be done to preserve personal relations and,
where appropriate, to rebuild the family (see Neulinger and Shuruk, cited above, 136; and R.
and H., cited above, 73). It is not enough to show that a child could be placed in a more beneficial
environment for his upbringing (see K and T., cited above, 173; and T.S. and D.S., cited above).
However, where the maintenance of family ties would harm the childs health and development, a
parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and
Shuruk, cited above, 136; and R. and H., cited above, 73).
The identification of the childs best interests and the assessment of the overall proportionality of
any given measure will require courts to weigh a number of factors in the balance. The Court has
not previously set out an exhaustive list of such factors, which may vary depending on the
circumstances of the case in question. However, it observes that the considerations listed in section
1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in
assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it
considers that in seeking to identify the best interests of a child and in assessing the necessity of any
proposed measure in the context of placement proceedings, the domestic court must demonstrate
that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely
effect on the child of ceasing to be a member of his original family and the relationship the child
has with relatives.
The Court recognises that, in reaching decisions in so sensitive an area, local authorities and courts
are faced with a task that is extremely difficult. Further, the national authorities have had the benefit
of direct contact with all the persons concerned, often at the very stage when care measures are
being envisaged or immediately after their implementation. There is therefore a need to allow them
a certain margin of appreciation in deciding how best to deal with the cases before them and it is
accordingly not the Courts task to substitute itself for the domestic authorities but to review, in the
light of the Convention, the decisions taken and assessments made by those authorities in the
exercise of their margin of appreciation (see K and T., cited above, 154; A.D. and O.D., cited
above, 83; Neulinger and Shuruk, cited above, 138; and R. and H., cited above, 81). However,
it must be borne in mind that the decisions taken by the courts in this field are often irreversible,
particularly in a case such as the present one where a placement order has been made. This is
accordingly a domain in which there is an even greater call than usual for protection against
arbitrary interferences (see B. v. the United Kingdom, 8 July 1987, 63, Series A no. 121; X v.
Croatia, no. 11223/04, 47, 17 July 2008; and R. and H., cited above, 76).
The margin of appreciation to be accorded to the competent national authorities will vary in the
light of the nature of the issues and the seriousness of the interests at stake, such as, on the one
hand, the importance of protecting a child in a situation which is assessed as seriously threatening to
his or her health or development and, on the other hand, the aim of reuniting the family as soon as
circumstances permit (see K and T., cited above, 155). The Court has indicated that the authorities
enjoy a wide margin of appreciation in assessing the necessity of taking a child into care. However,
a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by the
authorities on parental rights of access, and of any legal safeguards designed to secure an effective
protection of the right of parents and children to respect for their family life, as such further
34
limitations entail the danger that the family relations between the parents and a young child are
effectively curtailed (see K and T., cited above, 155; R.K. and A.K., cited above, 34; and A.D.
and O.D., cited above, 83; R. and H., cited above, 81). The making of a placement order in
respect of a child must be subject to the closest scrutiny.
As to the decision-making process, what has to be determined is whether, having regard to the
particular circumstances of the case and notably the serious nature of the decisions to be taken, the
parents have been involved in the decision-making process, seen as a whole, to a degree sufficient
to provide them with the requisite protection of their interests and have been able fully to present
their case (see Neulinger and Shuruk, cited above, 139; and R. and H., cited above, 75). Thus it
is incumbent upon the Court to ascertain whether the domestic courts conducted an in-depth
examination of the entire family situation and of a whole series of factors, in particular of a factual,
emotional, psychological, material and medical nature, and made a balanced and reasonable
assessment of the respective interests of each person, with a constant concern for determining what
would be the best solution for the child (see, mutatis mutandis, Neulinger and Shuruk, cited above,
139). In practice, there is likely to be a degree of overlap in this respect with the need for relevant
and sufficient reasons to justify a measure in respect of the care of a child.
The need to involve the parents fully in the decision-making process is all the greater where the
proceedings may culminate in a child being taken from his biological parents and placed for
adoption (R. and H., cited above, 76).
Y.C. v. the United Kingdom, no. 4547/10, 13 March 2012, 133-139.
CASES
Scozzari and Giunta v. Italy, no. 39221/98 & 41963/98, 13 July 2000 (Grand Chamber).
In September 1997 the applicants two sons/grandsons, born in 1987 and 1994, were placed by
court order in the Il Forteto childrens home, where as the national court was aware two of the
principal leaders and co-founders had been convicted of sexual abuse of three handicapped people
in their care. Prior to his placement in the home, the eldest boy had been a victim of sexual abuse by
a paedophile social worker. The Court found that the two leaders played a very active role in the
care of the two children and that there had been a violation of Article 8 (right to respect for private
and family life) of the Convention, concerning, among other things, the uninterrupted placement of
the boys in Il Forteto.
ADOPTION
GENERAL PRINCIPLES
The only question that the Court may entertain in the present case is whether it was necessary to
replace the foster home arrangement with a more far-reaching type of measure, namely deprivation
of parental responsibilities and authorisation of adoption, with the consequence that the applicant's
legal ties with A would be broken. In examining this question the Court will have regard to its case-
law, namely that such measures should only be applied in exceptional circumstances and could
only be justified if they were motivated by an overriding requirement pertaining to the child's best
interests (see Johansen v. Norway, 7 August 1996, 78, Reports of Judgments and Decisions 1996
III). It should also be reiterated that in Gnahor v. France, no. 40031/98, 59, ECHR 2000 IX; see
also Grgl v. Germany, no. 74969/01, 48, 26 February 2004), the Court held:
it is clear that it is equally in the child's interest for its ties with its family to be maintained, except
in cases where the family has proved particularly unfit, since severing those ties means cutting a
35
child off from its roots. It follows that the interest of the child dictates that family ties may only be
severed in very exceptional circumstances and that everything must be done to preserve personal
relations and, if and when appropriate, to 'rebuild' the family.
Aune v. Norway, no. 52502/07, 28 October 2010, 66.
(Whilst Article 8 did not guarantee a right to adopt, it did not prevent an obligation arising on
States, in certain circumstances, to allow family ties to be formed.) Moretti and Benedetti v. Italy,
no. 16318/07, 27 April 2010.
also see Emonet and others v. Switzerland, no. 39051/03 in Filiation chapter!!!
CASES
Harroudj v. France, no. 43631/09, 4 October 2012.
Refusal of permission to adopt owing to prohibition of adoption in childs country of birth: no

violation
Facts The applicant is a French national. In 2004 an Algerian court granted her the right to take
Zina Hind, a child born in Algeria of unknown parents in November 2003 and abandoned at birth,
into her legal care (kafala). The applicant also obtained legal authorisation to change the childs
name to Hind Harroudj. In February 2004 the applicant took Hind to live in France, where she
applied to adopt the child, but her application was rejected in 2007 because the family law of the
childs country of origin made no provision for adoption. In Islamic law adoption, which creates
family bonds comparable to those created by biological filiation, is prohibited. Instead, Islamic law
provides for a form of legal guardianship called kafala. In Muslim States, with the exception of
Turkey, Indonesia and Tunisia, kafala is defined as a voluntary undertaking to provide for a child
and take care of his or her welfare and education.
Law Article 8: The Court shared the Governments view that the refusal of authorisation to adopt
the child did not constitute an interference with the applicants family life. It considered that the
complaint should be examined from the point of view of the States positive obligations.
Comparative law revealed that none of the States considered kafala equal to adoption, but in France
and elsewhere kafala produced comparable effects to legal guardianship or supervision, or
placement with a view to adoption. Also, there was no clear consensus among the States as to
whether or not the law of the childs country of origin constituted an obstacle to adoption. The
margin of appreciation open to the French State here was therefore wide. In refusing the applicant
permission to adopt the child the French courts had applied Article 370-3 paragraph 2 of the Civil
Code, which prohibits the adoption of a foreign child if the law of his or her country of origin does
not authorise adoption. They had also taken into account the provisions of the Hague Conventions
of 1993 and 1996, and the New York Convention on the Rights of the Child, which explicitly
recognises kafala in Islamic law as protecting the childs best interests in the same way as adoption.
The refusal of permission to adopt had thus been largely in keeping with the spirit and aims of the
international treaties. The acknowledgment of kafala in international law was a decisive factor
when considering how the States accommodated it in their domestic law and made allowance for
the legal issues that might arise. Furthermore, kafala was fully accepted in the respondent State and
produced effects comparable in this case to guardianship as the child had had no parents when she
was taken into care. The domestic courts had emphasised that the applicant had succeeded in giving
the child her family name, and enjoyed parental authority that enabled her to take all decisions in
the childs interest. It was true that kafala created no filial ties, conferred no inheritance rights and
36
did not suffice to entitle the child to acquire the nationality of the guardian. However, the applicant
could still include the child in her will and choose a legal guardian to look after her in the event of
her own demise. In applying the relevant international conventions the respondent State had made a
flexible compromise between the law of the childs country of origin and its own law. In this way
French law helped to cushion the restrictions on adoption as the child became more fully integrated
into French society. The French Civil Code authorised the adoption of a minor whose personal
status was governed by Islamic law if the minor was born and habitually resided in France. Also,
a child who could not be adopted because of his or her personal status under Islamic law had the
right, before coming of age, to apply for French citizenship and thus to become adoptable if they
had lived in France for at least five years in the care of a French national. Indeed, the respondent
State submitted, and the applicant did not dispute, that the child could already avail herself of that
possibility. In gradually erasing the restrictions on adoption in this manner, the authorities had made
an effort to encourage the integration of such children without immediately severing the ties with
the laws of their country of origin, thereby respecting cultural pluralism and striking a fair balance
between the public interest and that of the applicant. Considering the margin of appreciation left to
the States in the matter, there had been no violation of the applicants right to respect for her family
life.
K.A.B. v. Spain, no. 59819/08, 10 April 2012.
Adoption of child following mothers deportation, despite fathers opposition: violation.

Facts The applicant is a Nigerian national. He emigrated in 2001 to Spain with his partner and
their one-year-old son. Later that year the partner was deported from Spain and barred from
returning for ten years. Her lawyer had pleaded before the investigating judge that her thirteen-
month-old baby was in Spain but the deportation nevertheless went ahead on 24 October 2001. The
child was taken in by friends of the couple, as the applicant was in another city for work-related
reasons. Eight days later an investigation was opened by the prosecutor responsible for minors. The
child was declared abandoned on 16 November 2001 and placed in a childrens home. On 30
November 2001 the applicant went to the Child Protection Department and, claiming to be the
childs biological father, said that he disagreed with the placement. He expressed his intention to
undergo a paternity test. However, the test did not take place as the applicant could not pay for it. In
the absence of further news from the applicant, the child was placed in a foster family and an
adoption procedure was initiated. However, the applicant successfully brought an action to establish
paternity, which was recognised in 2005, and he then started proceedings to challenge the adoption.
In 2006 his challenge was rejected on the ground that he had justifiably been deprived of parental
authority and therefore his agreement to the adoption was not required. The court relied in particular
on the fact that the applicant had lived only briefly with the child, that he had not taken any action
since 2001 to prove that he showed any interest in the childs welfare and that he had waited for two
years before claiming paternity. That judgment was upheld on appeal and the applicants amparo
appeal was declared inadmissible. The adoption of the applicants son by his foster family was
authorised by the Family Court. Appeals by the applicant were dismissed.
Law Article 8: The present case was about the relationship between a child born out of wedlock
and the biological father. The lack of family ties between the applicant and his son was not entirely
attributable to the applicant himself, considering that he had not seen his son since the mothers
deportation. The formalities undertaken by the applicant, bearing in mind his precarious situation,
were sufficient to show that he wished to recover the child. It could not be excluded that the
applicants intention to regain contact with his son was covered by the protection of family life. In
37
any event, the decisions of the Spanish courts, refusing any contact or possibility of reunion with his
son, had constituted interference with his right to respect for, at least, his private life.
The Court examined the case from the perspective of the States positive obligations under Article
8. In view of the childs age, the Court found particularly serious the fact that, between his mothers
deportation and the declaration of his abandonment, the child had remained for almost one month in
a state of legal limbo. The declaration of abandonment had triggered the subsequent proceedings
leading to the childs adoption by the Spanish couple, who had initially received him on a pre-
adoption basis. However, the situation of abandonment had at least partly been caused by the
authorities themselves, as they had deported the mother without prior verification and without
taking into account the information provided to the judge about the existence of her baby. No
satisfactory explanation had been forthcoming to justify the urgency of the deportation.
Nevertheless, at no point in the proceedings had the authorities responsibility been invoked. In
particular, the Family Court, without taking into account the applicants vulnerability in 2001, had
found that the applicant was himself fully responsible for the loss of contact with his son. In reality,
the applicant had not been informed of the payment that he was supposed to make for the paternity
test, nor of the fact that the test could be covered by the State under the legal-aid scheme. Lastly,
despite the fact that the Child Protection Department had the applicants name and address, they had
not tried to make contact with him, allegedly because his paternity had not been established. Even
after the applicant had gone to the relevant family authority in 2003, the adoption procedure was
nevertheless pursued for one year before being suspended on account of the application to establish
paternity.
Thus, the passage of time resulting from the authorities inaction , the deportation of the childs
mother without the necessary prior verification, the failure to assist the applicant when his social
and financial situation was most fragile at the earlier stage, together with the failure of the courts to
give weight to any other responsibility for the childs abandonment and the finding that the
applicant had lost interest in his sons welfare, had decisively contributed to preventing the
possibility of reunion between father and son. The national authorities had therefore failed in their
duty to act particularly swiftly in such matters and had not made appropriate or sufficient efforts to
ensure respect for the applicants right to be reunited with his son.
Y.C. v. the United Kingdom, no. 4547/10, 13 March 2012.
Placement of child from abusive background with prospective adoptive parent: no violation.
Facts The applicant and her partner of several years had a son in 2001. In 2003 the family came to
the attention of social services as a result of an alcohol fuelled incident between the parents.
There were subsequent incidents of domestic violence and alcohol abuse which escalated from the
end of 2007 with the police being called to the family home on numerous occasions. In June 2008
the local authority obtained an emergency protection order after the boy was injured during a
further violent altercation between the parents. That order was followed up by an interim care order
and the boy was placed in foster care. A guardian was appointed to protect his interests. The interim
care order was repeatedly extended pending detailed reports by social services, the boys guardian
and a psychologist. In April 2009 the family proceedings court decided not to make a full care order
and a placement order after finding that the applicant, who claimed that she had separated from the
father, should be given one last opportunity to have her parenting ability assessed in the light of that
separation. It made a further interim care order instead. That order was overturned by the County
Court on an appeal by the local authority and the childs guardian after the judge found that the
38
only effect of postponing the decision to make a care order [would be] to delay, and therefore to
jeopardise, the process of finding an alternative long term placement. The applicant was refused
leave to appeal to the Court of Appeal and her son was placed with a prospective adoptive parent in
January 2010.
Law Article 8: There was no doubt that the decision to refuse a further assessment and to make a
care and placement order constituted a serious interference with the applicants right to respect for
her family life. The interference was in accordance with the law and pursued the legitimate aim of
protecting the rights of the child.
As to whether the interference was necessary in a democratic society, the County Court judge had
noted when considering the childs best interests that any further assessment would entail a degree
of disruption to the childs foster placement and a risk of emotional harm should the assessment
break down. He considered that an assessment of the applicant would never be able to provide
sufficient evidence to justify the refusal of a care order, given her shortcomings and the real risk that
she would resume her relationship with the father, and would serve only to delay and jeopardise the
prospect of finding a long-term placement. In the light of the history of the case and the reports, the
judges view that a resumption of the applicants relationship with the father was likely and entailed
a risk to the childs well-being did not appear unreasonable. Accordingly, while it was in a childs
best interests that his or her family ties be maintained where possible, it was clear that in the instant
case this consideration had been outweighed by the need to ensure the childs development in a safe
and secure environment. Attempts had been made to rebuild the family through the provision of
support for alcohol abuse and opportunities for parenting assistance. The applicant did not appear to
have accessed domestic-violence support despite being given the relevant details. The reports
prepared by the social worker, the guardian and the psychologist had highlighted the difficulties that
had been encountered as a result of the parents failure to engage with the authorities.
In reaching his decision, the County Court judge had directed his mind, as required by Article 8, to
the childs best interests, had had regard to various relevant factors and made detailed reference to
the reports and oral evidence of the social worker, the guardian and the psychologist, all of whom
had identified the issues at stake. The applicant had been afforded an opportunity to seek any
clarification she might require as to the reasons for the judges decision and to seek a further review
by the Court of Appeal. Accordingly, the decision to make a placement order had not exceeded the
States margin of appreciation and the reasons for the decision had been relevant and sufficient. The
applicant had been given every opportunity to present her case and had been fully involved in the
decision-making process.
Conclusion: no violation (six votes to one).
Moretti and Benedetti v. Italy, no. 16318/07, 27 April 2010.
Failure to examine request for adoption by foster parents before declaring child free for
adoption: violation.
Facts The first and second applicants are a married couple. In June 2004 a one-month old baby
girl, who had been abandoned by her birth mother shortly after her birth, was temporarily placed
with the applicants. In December 2005 she was given to a new adoptive family chosen by the court.
In January 2006 a request for a special adoption order, which had been lodged by the applicants in
respect of the child in March 2005, was examined and dismissed by the childrens court.
Subsequently the court of appeal set that decision aside. However, it went on to find, basing its
decision on an expert report, that a further separation would be detrimental to the child. The
adoption became final.
39
Law Article 8: a) Admissibility The respondent Government raised three preliminary objections.
They submitted, firstly, that the applicants did not have standing to represent the child before the
Court; secondly, that the applicants had not exhausted domestic remedies because they could have
appealed on points of law to the Court of Cassation; and, thirdly, that the applicants could not rely
on the existence of family life requiring protection in the present case.
(i) Regarding the part of the application submitted on behalf of the child: Whilst pains should be
taken to avoid a restrictive or purely technical approach regarding the representation of children
before the Court, in the present case the applicants did not exercise parental responsibility over the
child, were not her guardians and had no biological tie with her; nor had any power of attorney been
signed to allow them to represent her interests. Moreover, in the domestic proceedings the child had
been represented by a guardian. In the circumstances the applicants did not have standing before the
Court to represent the child.
Conclusion: preliminary objection upheld (unanimously).
(ii) Regarding the non-exhaustion of domestic remedies: A possible appeal on points of law would
not have had the effect of remedying the applicants complaints. As the grounds of appeal submitted
by the applicants would have mainly concerned the merits of the case the Court of Cassation would
have declared the appeal inadmissible.
Conclusion: preliminary objection dismissed (unanimously).
(iii) Regarding the existence of a bond constituting family life: The applicants had taken the baby
girl in when she was one month old and had shared the first important stages of her youth for
nineteen months. During that period the child had lived with a sister and brother. The expert reports
had shown that she was well integrated into the family and deeply attached to the applicants and
their children. Furthermore, the applicants had fostered the girls social development by, among
other things, enrolling her in a crche and taking her on holiday. Those factors were sufficient to
find that there had been a close inter-personal bond between the applicants and the child and that the
applicants had behaved in every respect like the girls parents, so that family ties had existed de
facto between them. At all events, although the applicants had previously, on a temporary basis,
taken in children who had then been adopted by other families, in this case they had lodged a
request to adopt the child, which was further evidence of the strength of the bond that had been
established. Accordingly, the relationship between the applicants and the child fell within the notion
of family life within the meaning of Article 8.
Conclusion: preliminary objection dismissed (majority).
(b) Merits The interests with which the Court was confronted in the present case, which
concerned an adoption procedure, were not easily reconcilable. On the one hand there were those of
the child and on the other those of the two families concerned. In attempting to achieve a balance
between those various interests, the childs best interests must be a primary consideration. The
question arose as to whether the proceedings that had resulted in the interference had guaranteed the
applicants protection of their interests. It had been of primary importance here that the request for a
special adoption order lodged by the applicants be examined carefully and speedily. The childrens
court had not provided any reasons for dismissing the request in question and, moreover, had not
examined it before declaring the child free for adoption and choosing the new family. The court of
appeal had failed to remedy that shortcoming. After ordering an expert report, it had considered that
the young girl appeared to be well integrated into her new family and that a further separation,
which might traumatise her, was inappropriate. The passage of time had also had the effect of
rendering the decision of the childrens court final. It was re-grettable that the court had not
examined the adoption request lodged by the applicants before declaring the child free for adoption,
and that the request had been dismissed with no reasons being stated. It was not for the Court to
substitute its own reasoning for that of the national courts, which had acted in good faith regarding
the measures taken to ensure the childs well-being. However, the failure to comply with the law
40
and rules of procedure had had a direct effect on the applicants right to family life. The
shortcomings observed in the conduct of the proceedings had resulted in an infringement of the
positive obligation to ensure effective respect for the applicants right to their family life.
Kurochkin v. Ukraine, no. 42276/08, 20 May 2010.
Order annulling adoption following the divorce of the adoptive parents: violation.
Facts The applicant and his wife adopted an orphan. The marriage subsequently broke down and
the applicant brought divorce proceedings. The wife sought an annulment of the adoption on the
grounds that the child had been violent towards her and that the applicant had refused to stop the
attacks. Her application was contested by both the applicant and the child, who wished to continue
to live together. Following the couples divorce (and the applicants remarriage) the domestic courts
annulled the adoption and made an order for the child to be placed in care on the grounds that the
applicant had failed to show that he was able to influence the boy positively and secure his normal
personal development. The child nevertheless continued to live with the applicant, who was
subsequently appointed the childs guardian by the authorities.
Law Article 8: This was not a case of a parent being declared unfit to care for a child because of
physical or mental illness or violent or abusive conduct. Instead, the reason given by the domestic
courts for annulling the adoption was that the applicant lacked authority over the child and had
failed to show that he could ensure its proper upbringing. That conclusion had been based on
evidence that the child had been aggressive to the adoptive mother. However, she and the applicant
had divorced, so there did not appear to be any reason why the annulment of the adoption order in
her favour should also have necessitated the applicants separation from the boy. The domestic
courts assertion that annulment could also be considered a sanction for the boys behaviour did not
appear to be a relevant reason for splitting up an established family unit. Furthermore, the domestic
authorities did not appear to have carried out a careful assessment of the impact which the
annulment of the adoption might have on the childs well-being or to have explored other less far-
reaching alternatives that would be in line with the States obligation to promote family unity.
Instead, despite the fact that both the applicant and the boy had expressed the wish to remain
together as a family, the authorities had laid the burden of proof on the applicant to show that he
was able to influence and bring up the child properly. The boy had continued to live with the
applicant after the orders annulling the adoption and requiring the child to be put in care were made
and the child-welfare authority had subsequently appointed the applicant the childs guardian with
responsibilities for his upbringing and development. These developments did not appear to support
the domestic courts findings that the applicant was incapable of ensuring the childs upbringing in a
family environment. In sum, the findings of the domestic courts had not been supported by relevant
and sufficient reasons such as to justify the interference with the applicants family life.
PARENTAL AUTHORITY, CHILD CUSTODY AND ACCESS RIGHTS
41
GENERAL PRINCIPLES
In its well established case-law the Court has emphasised that the mutual enjoyment by parent and
child of each others company constitutes a fundamental element of family life. Furthermore, the
natural family relationship is not terminated by reason of the fact that the child is taken into public
care (see Johansen v. Norway, 7 August 1996, 52, Reports of Judgments and Decisions 1996-III,
and Olsson v. Sweden (no. 1), 24 March 1988, 59, Series A no. 130).
A.K. and L. v. Croatia, no. 37956/11, 8 January 2013, 51.
The Court considers at the outset that there can be no doubt that a bond amounting to family life
within the meaning of Article 8 1 of the Convention exists between the parents and the children
born from their marriage-based relationship, as is the case in the present application. Such a natural
family relationship is not terminated by reason of the fact that the parents separate or divorce, as a
result of which the child ceases to live with one of its parents (see Clz v. the Netherlands, no.
29192/95, 59, ECHR 2000-VIII and the cases cited therein).
Mustafa and Armaan Akn v. Turkey, no. 4694/03, 6 April 2010, 19.
However, a mere biological kinship between a natural parent and a child, without any further legal
the protection of Article 8 (compare L. , cited above, 37). As a rule, cohabitation is a requirement
and Others v. the Netherlands, 27 October 1994, 30, Series A no. 297-C, and L. , cited above,
36).
ambit of Article 8, notably in cases where the fact that family life has not yet fully been established
is not attributable to the applicant (compare Pini and Others v. Romania, nos. 78028/01
and 78030/01, 143 and 146, ECHR 2004-V). In particular, where the circumstances warrant it,
family life must extend to the potential relationship which may develop between a child born out
of wedlock and the natural father. Relevant factors which may determine the real existence in
practice of close personal ties in these cases include the nature of the relationship between the
natural parents and a demonstrable interest in and commitment by the father to the child both before
and after the birth (see Nylund; Nekvedavicius; L. 36; Hlsmann; and Anayo, all cited above; and
compare Raski v. Poland, no. 55339/00, 64, 18 May 2006).
The Court further reiterates that Article 8 protects not only family but also private life. It has
been the Convention organs traditional approach to accept that close relationships short of family
life would generally fall within the scope of private life (see Znamenskaya, cited above, 27,
with further references). The Court thus found in the context of proceedings concerning the
establishment or contestation of paternity that the determination of a mans legal relations with his
legal or putative child might concern his family life but that the question could be left open
because the matter undoubtedly concerned that mans private life under Article 8, which
encompasses important aspects of ones personal identity (see Rasmussen v. Denmark, 28
November 1984, 33, Series A no. 87; Nylund, cited above; Yildirim v. Austria (dec.), no.
34308/96, 19 October 1999; and Backlund v. Finland, no. 36498/05, 37, 6 July 2010).
Schneider v. Germany, no. 17080/07, 15 September 2011, 80-82.
42
In relation to the States obligation to take positive measures, the Court has held that in cases
concerning the implementation of the contact rights of one of the parents, Article 8 includes a
parents right to the taking of measures with a view to his being reunited with his child and an
obligation on the national authorities to facilitate such reunion, in so far as the interest of the child
dictates that everything must be done to preserve personal relations and, if and when appropriate, to
rebuild the family; the States obligation is not one of result, but one of means (see, among other
authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, 94, ECHR 2000-I; Nuutinen v. Finland,
no. 32842/96, 127, ECHR 2000-VIII; Hokkanen v. Finland, 23 September 1994, 55, Series A
no. 299-A; Gnahor v. France, no. 40031/98, 59, ECHR 2000-IX and also Nistor v. Romania, no.
14565/05, 70, 109, 2 November 2010).
In cases concerning the enforcement of decisions in the sphere of family law, the Court has
repeatedly held that what is decisive is whether the national authorities have taken all necessary
steps to facilitate the execution as can reasonably be demanded in the special circumstances of each
case (see Hokkanen, cited above, 53; Ignaccolo-Zenide, cited above, 96; Nuutinen, cited above,
128; and Sylvester, cited above, 59). The adequacy of the measures taken is to be judged by the
swiftness of their implementation, as the passage of time can have irremediable consequences for
the relationship between the child and the parent who does not live with him or her; at the same
time the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent
with whom the children live, even though coercive measures against the children are not desirable
in this sensitive area (see Ignaccolo-Zenide, cited above, 102 and 106).
The Court further reiterates that active parental participation in the proceedings concerning children
is required under Article 8 of the Convention in order to ensure the protection of their interests, and
that when an applicant applies for enforcement of a court order, his conduct as well as that of the
courts is a relevant factor to be considered (see Glaser v. the United Kingdom, no. 32346/96, 70,
19 September 2000).
Finally, as the Court has repeatedly held, in matters relating to their custody, the interests of
children are of paramount importance. The childs best interests must be the primary consideration
(see, to that effect, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, 134, 6 July 2010 and
Paza v. Poland, no. 18830/07, 71, 25 January 2011) and may, depending on their nature and
seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, 66,
ECHR 2003-VIII).
Cristescu v. Romania, no. 13589/07, 10 January 2012, 5760.
CASES
A.K. and L. v. Croatia, no. 37956/11, 8 January 2013.
Authorities failure to ensure legal representation of mentally disabled applicant in

proceedings divesting her of parental rights and to inform her of adoption proceedings in
respect of her son: violation.
Facts The first applicant is the mother of the second applicant L., who was born in 2008. Soon
after his birth, L. was placed, with his mothers consent, in a foster family in another town, on the
grounds that his mother had no income and lived in a dilapidated property without heating. In May
2010 the first applicant was divested of her parental rights in respect of L., on the grounds that she
had a mild mental disability and was not able to provide proper care to him. She applied for legal
aid to lodge an appeal, but was only assigned a lawyer after the time-limit for appealing had
expired. In October 2010 her lawyer applied to a municipal court for an order restoring the first
applicants parental rights, but the application was dismissed because in the meantime L. had been
43
adopted by third parties. The first applicant was not a party to the adoption proceedings and was not
informed of them, as her consent was not needed because she had been divested of her parental
rights.
Law Article 8 (a) Standing of the first applicant to act on behalf of L. In respect of any issues
concerning the facts after the adoption became final, L.s only representatives under national law
were his adoptive parents.However, all issues concerning the severing of his ties with his biological
mother before his adoption should be examined by the Court. It was in principle in a childs interest
to preserve its ties with its biological parents, save where weighty reasons existed to justify severing
them. In the present proceedings, owing to his tender age, L. was not in a position to represent his
interests. The first applicant was the only person able to argue on his behalf that severing the ties
between them had also affected L.s right to respect for his family life. The Governments objection
as regards the locus standi of the first applicant to represent L. in the proceedings before the Court
had to be dismissed.
(b) Applicability Although the child had been placed in a foster family soon after birth, the first
applicant had continued to visit him. In the Courts view there existed a bond between the first
applicant and her son that amounted to family life. Article 8 was therefore applicable.
(c) Merits The measures taken by the State amounted to interference with the applicants right to
respect for their family life. The interference had a basis in domestic law and had been aimed at
protecting the best interests of the child. The Court was not called upon to determine whether the
adoption of the first applicants child was justified as such. Nor did it have to rule on the
compliance with Article 8 of legislation which did not allow a parent divested of parental rights to
participate in the adoption proceedings. Instead, the Court examined whether sufficient safeguards
for the protection of the applicants private and family life had been provided at every stage of the
process. The domestic legislation provided adequate safeguards as regards the interests of parents
and their children in proceedings. However, despite the legal requirement and the authorities
findings that the first applicant suffered from a mild mental disability, she had not been represented
by a lawyer in the proceedings divesting her of parental rights. Given that she could not properly
understand the full legal effect of such proceedings and adequately argue her case and given the
importance of such proceedings for her right to respect for her family life, the national authorities
should have ensured that the interests of both the first applicant and L. were adequately protected, in
particular from the standpoint of preserving ties between them. While the Court could accept that
the consent of the first applicant, who had been divested of her parental rights, was not necessary in
the adoption proceedings, it nevertheless considered that where, as in Croatia, a national system
allowed for parental rights to be restored, it was indispensable that a parent be given an opportunity
to exercise that right before the child was put up for adoption. However, by not informing the first
applicant about the adoption proceedings the national authorities had deprived her of the
opportunity to seek restoration of her parental rights before the ties between her and her son had
been finally severed by his adoption. She had thus been prevented from enjoying her right
guaranteed by domestic law and had not been sufficiently involved in the decisionmaking process.
Article 41: EUR 12,500 to the first applicant in respect of non-pecuniary damage.
Santos Nunes v. Portugal, no. 61173/08, 22 May 2012.
Lack of diligence by domestic authorities in executing court order granting biological father
custody of abducted child: violation.
Facts The applicant had a casual relationship with a Brazilian national, who gave birth to a
daughter in 2002. In 2003, following a genetic test, the applicant acknowledged paternity and
44
applied to the authorities for custody of the child. It came out in the proceedings that the mother had
placed the child in the care of a Portuguese couple. When questioned, the couple (Mr and Mrs G.)
explained that the mother had signed a consent form entrusting the child to their care because she
could not afford to bring her up. As they could not have children of their own, they had applied to
adopt the child. In July 2004 the court awarded the applicant custody of his daughter. It explained
that although Mr and Mrs G. were financially better off than the applicant, in taking the child they
had shown complete disregard for the applicable laws and procedures. The applicant subsequently
asked the court to enforce the decision, alleging that Mr and Mrs G. had refused to hand over the
child. In 2006, after all attempts to locate the child had failed, the court decided to give the case
priority, and Mr G. was remanded in custody. Mrs G. then complied with the courts order to have
the child examined in a hospital. In 2007, following that examination, the court fixed a transitional
period for the enforcement of the judgment awarding custody to the father. The girl stayed with Mr
and Mrs G. but the applicant was able to visit her. She was handed over to her father in December
2008. In January 2009, after interviewing the girl, the judge ended the transitional period and
decided that the girl would live with the applicant from then on. Mr and Mrs G. were subsequently
granted access. They were prosecuted and found guilty of child abduction, given a two-year
suspended sentence and ordered to pay the applicant damages.
Law Article 8: It had taken four years and five months to have the decision granting the applicant
custody of his daughter enforced. The process had been marked by a lack of cooperation on the part
of Mr and Mrs G., who had ignored the various summonses issued by the courts and the police. The
case had not been considered urgent until 2006, even though the applicant had alerted the
authorities about this lack of cooperation by the couple as early as July 2004. The Court was
surprised by the failure of the police to trace the child. Not until Mr G. was remanded in custody
had Mrs G. presented the child to the authorities. It was a particularly delicate case because of the
media interest it generated and the unusual situation, which went beyond a simple dispute between
biological parents, or between the latter and the State, because third parties were involved.
However, this did not absolve the authorities of their positive obligations under Article 8. It was true
that from 2007, in spite of various complications, the domestic courts had done their best, in good
faith, to protect the childs welfare. However, the Portuguese authorities had failed to make
adequate and effective efforts to protect the applicants rights, thereby breaching his right to respect
for his family life.
Article 41: EUR 15,000 in respect of non-pecuniary
damage.
Schneider v. Germany, no. 17080/07, 15 September 2011.
Denial of access to possible biological father without consideration of childs best interests:
Violation.
Facts Between May 2002 and September 2003 the applicant had a relationship with a married
woman and he claims to be the biological father of her son born in March 2004 whose legal father
is the mothers husband. Although the woman and her husband acknowledged that the applicant
might be the biological father, they preferred not to verify paternity in the interest of their family.
Following the boys birth the applicant applied to the domestic courts for access to and regular
information about his development, but his application was dismissed on the grounds that, even
assuming he was the biological father, he did not fall within the group of people such as the legal
father or a person who had developed a social and family relationship with the child who were
45
entitled to access under the Civil Code. That decision was upheld on appeal and the Federal
Constitutional Court declined to consider his constitutional complaint.
Law Article 8: It was not excluded that the applicants intended relationship with the boy fell
within the ambit of family life. Although the applicant had not established any family relationship
with the child this was because he had been prevented from taking any steps to assume
responsibility for him against the legal parents will. He had, however, had a non-haphazard
relationship with the mother for over a year and had sufficiently demonstrated an interest in and
commitment to the child both before and after birth: the child had been planned, the applicant had
accompanied the mother to medical examinations relating to her pregnancy and he had
acknowledged paternity before the birth. In any event, even if the legal relations between the
applicant and the child fell short of family life, they nevertheless concerned an important part of the
applicants identity and thus his private life. The domestic courts refusal to grant him access and
information about the boy constituted an interference which was in accordance with the relevant
provisions of the Civil Code and pursued the legitimate aim of protecting the rights and freedoms of
others.
As to whether the interference had been necessary in a democratic society, the Court noted that the
domestic courts had reached their decision without examining whether, in the particular
circumstances of the case, granting the applicant access and providing him with information would
be in the childs best interest, or whether the applicants interest should override that of the legal
parents. They had also failed to examine the reasons why the applicant had not previously
established a social and family relationship or to give any weight to the fact that, for legal and
practical reasons, it had been impossible for him to do so. As to the Governments submission that
always giving an existing legal family precedence over biological fathers rights guaranteed
stability, the Court was not convinced that the best interest of children living with their legal father
but having a different biological father could be truly determined by a general legal assumption.
Consideration of what lay in the best interest of the child was of paramount importance in every
case of this kind and, in view of the great variety of family situations possibly concerned, a fair
balancing of the rights of all persons involved necessitated an examination of the particular
circumstances of each case. The domestic courts had failed to conduct such an examination in the
applicants case and had thus failed to give sufficient reasons to justify the interference with his
rights.
(See also Anayo v. Germany, no. 20578/07, 21 December 2010; and, with regard to the general
exclusion from judicial review of the attribution of sole custody to the mother of a child born out of
wedlock, Zaunegger v. Germany, no. 22028/04, 3 December 2009, Information Note no. 125).
Gluhakovi v. Croatia, no. 21188/09, 12 April 2011 (IMPORTANT CASE! The Court for the
first time issued a direction).
Failure of State to take applicants personal circumstances into account when arranging
contact with his daughter: violation.
Facts In his application to the European Court, the applicant, a divorced father, complained that
he was unable to exercise his right to contact with his daughter as the domestic authorities had
failed to take into account his work schedule or to arrange for a suitable meeting place. Despite the
fact that he worked in Vicenza (Italy) for periods of three full days with the fourth day off, he was
granted contact at counselling centres in Rijeka (Croatia), without suitable facilities, at a fixed time
46
each week, making it impossible for him to attend. This had resulted in his losing contact with his
daughter since July 2007.
Law Article 8: The applicants right to see his daughter at regular intervals had been
acknowledged by the domestic courts and fell within the scope of family life. Accordingly, the
national courts were obliged to ensure effective exercise of the applicants right to contact.
The Court accepted that travelling from Vicenza to Rijeka on a fixed day had made it difficult for
the applicant to exercise his right of contact. It noted that the national courts at all levels had
constantly ignored both the reality of the applicants situation and the counselling centres
objections concerning the suitability of the place designated for meetings. They had ordered that the
meetings be held in counselling and welfare centres, without assessing the suitability of the
premises. This had resulted in the applicant having to go to significant lengths to organise his
replacement at work, to meetings being held in unsuitable places such as the kitchen or offices at
the centre and finally to the complete cessation of contact between the applicant and his daughter in
July 2007, as the only place available for the meetings had been a corridor at the welfare centre.
Even though the domestic courts had finally ordered in 2008 that the meetings be held once a week
when the applicants work schedule allowed, they had failed to state where the meetings should be
held, leaving that issue for the parents to decide. Bearing in mind that the applicant had had no
contact with his daughter since July 2007, the Court held that the national authorities had failed to
adequately secure the applicants right to effective contact with his daughter.
Article 46: Exceptionally and given the particular circumstances of the case and the urgent need to
put an end to the violation of the applicants right to respect for his family life, the Court for the
first time issued the direction that the respondent State had to ensure effective contact
between the applicant and his daughter at a time compatible with his work schedule and on
suitable premises.
Mihailova v. Bulgaria,
no. 35978/02, 12 May 2006 (concerning effective enforcement of custody rights).
The applicant; Petranka Ivanova, is a Bulgarian national who was born in 1975 and lives in Dobrich
(Bulgaria). She married in June 1994 and gave birth to a girl in November 1995. The couple
separated in July 2000 and the applicant moved into her sister's apartment and her husband returned
to his parents' house with their daughter. The applicant spent short periods of time with her
daughter. The couple divorced on 18 April 2001 and custody was given to the applicant. That
judgment was enforced on 29 November 2001, but the same day, as the parties left the courtroom,
the applicant's former husband took back their daughter. The enforcement proceedings continued,
but were unsuccessful, however; the child continued living with her father, refusing to go with her
mother. On 16 January 2004 custody was given to the applicant's former husband, with the
applicant having the right to spend every second weekend with her daughter and to see her for five
weeks during holiday periods.
The applicant complained that the domestic authorities did not enforce the 2001 judicial order
granting her the custody of her daughter and eventually transferred custody to the father. She also
maintained that her daughter suffered anguish and psychological trauma as a result of the
interventions of the authorities and the protracted judicial proceedings. She relied on Article 8 (right
to respect for private and family life). She further complained about the length of the enforcement
47
proceedings and that they did not result in the execution of the custody order, relying on Article 6
1 (right to a fair hearing).
The European Court of Human Rights noted that the applicant had not shown that she was seeking
the assistance of the authorities to realise preparatory contacts with her daughter and that they failed
to do what was necessary in the circumstances. The facts of the case demonstrated that obstruction
by the applicant's former husband, but also the applicant's own lack of understanding for the need of
a careful preparation as a precondition to effective enforcement of her custody rights, played a
significant role in the events.
The Court also noted that the applicant's former husband, who tried to avoid the enforcement of the
custody agreement, was repeatedly fined, that the police made efforts to put pressure to bear on him
and that the applicant did not request a partial revision of the contact measures as she could have
under Article 106 5 of the Family Code or interim measures in the revision proceedings instituted
by her former husband.
The Court concluded that the authorities did what was reasonable in the circumstances to enforce
the custody agreement between the applicant and her former husband. The fact that those attempts
were unsuccessful did not disclose a failure to comply with Article 8.
As to the judgment of 16 January 2004 whereby the custody measures were revised, the Court
considered that it was based on relevant and sufficient grounds, in the light of the child's best
interest.
In so far as the applicant stated that the enforcement proceedings were a traumatic experience for
her daughter, the Court saw no indication that the authorities acted in disregard of the psychological
vulnerability of the child. It had not been shown either that the child was in danger or that the
authorities failed to protect her.
The Court therefore held unanimously that there had been no violation of Article 8. It also held,
unanimously, that it was unnecessary to examine separately the applicant's complaints under Article
6 1. (The judgment is available only in English.)
Cengiz Kl v. Turkey, no. 16192/06, 6 December 2011.
Inability of a father to exercise his contact rights in relation to his son during the course of
divorce proceedings: violation
Facts The applicant has a son who was born in 2001. He is divorced from the childs mother, who
was awarded parental responsibility by a court order. Relying on Article 8 of the Convention, he
complained before the European Court that the authorities had failed to take the necessary steps to
allow him to maintain relations with his son and had not removed the obstacles created by the
childs mother to the exercise of his right to contact despite the court decisions in which he had been
granted that right.
Law Article 8: What was decisive in this case was whether the national authorities had taken all
the steps that could reasonably have been expected of them in the proceedings concerning the
applicants exercise of staying and visiting contact, with a view to reuniting him with his son.
According to the documents in the case file, throughout the two sets of divorce proceedings, and in
particular between 2005 and 2008, the applicant had applied to the court at least ten times, either
seeking an order enabling him to maintain his personal relations with his son or informing the court
that his visiting contact had been hindered by the childs mother. The applicant had had no contact,
or very limited contact, with his son for periods of up to two years. The psychological assessment of
the parents and the child had not been completed until late 2008, more than seven years after the
couple had separated and the applicant had first filed for divorce and applied to be granted parental
responsibility. The experts reports had found that the period that had elapsed without adequate
48
contact between the applicant and his son had played a decisive role in the childs attitude of
rejection towards his father. While acknowledging that situations involving failure to enforce orders
granting parental responsibility and visiting and staying contact were particularly difficult to resolve
by judicial means, the Court noted that there was no indication in the file that the family-affairs
judge had made any efforts to reconcile the parties respective demands or taken any steps to
facilitate the voluntary execution of court decisions. It had to be recognised that the ordinary rules
on execution of court decisions, as applied in the present case, were hardly appropriate for resolving
the type of situation encountered here, concerning the non-enforcement of the right to respect for
family life. Furthermore, the national courts appeared to have refrained from taking any sanctions
against the childs mother, other than ordering her to comply on one occasion. The Court also noted
that the national legal system made no provision for civil mediation, an option which would have
been desirable as a means of promoting cooperation between all persons concerned. In this
connection the Court referred to Recommendation No. R (98) 1 of the Committee of Ministers of
the Council of Europe on family mediation, which stated that recourse to family mediation could
improve communication between family members, reduce conflict between parties in dispute,
produce amicable settlements, provide continuity of personal contacts between parents and children,
and lower the social and economic costs of separation and divorce for the parties themselves and
states. In conclusion, by failing to take all the practical measures that could reasonably have been
expected of it in the circumstances of the case, the respondent State had fallen short of its
obligations under Article 8.
The Court also held, unanimously, that there had been a violation of Article 6 1 of the Convention,
taken separately and in conjunction with Article 13.
Mustafa and Armaan Akn v. Turkey, no. 4694/03, 6 April 2010.
Custody order effectively preventing siblings spending time together: violation.

Facts Following divorce proceedings, the first applicant was awarded custody of the couples son
(the second applicant) and his wife custody of their daughter. Under the terms of the court order, the
parents were to exchange the children during school holidays and certain religious festivities. The
first applicant appealed against that decision requesting that the children be allowed to spend some
time together with one of the parents, but his request was refused.
Law Article 8: The decision of the domestic courts interfered with the applicants right to respect
for their family life, in that the second applicant was never able to spend time with his sister and the
first applicant was unable to enjoy the company of both his children at the same time. It was
therefore necessary to examine whether the respondent State had complied with its positive
obligations and whether the authorities had acted with a view to maintaining and developing the
applicants family ties. The Court was struck by the lack of reasoning justifying the separation of
the children, in particular since neither parent had requested such an arrangement. Further, it could
not accept the argument that, since they lived in the same neighbourhood, the children were able to
see each other, because maintaining family ties between them was too important to be left to the
discretion of their parents. The domestic courts had concluded that regular contact between the
applicants and their daughter and sister would amount to an unacceptable change of environment
for the latter. However, it was unclear how the siblings spending time together on weekends could
have had such an impact, especially as they lived in the same area. Finally, the domestic courts had
not sought the opinion of the children or based their decision on any psychological or other expert
assessment. In conclusion, they had failed to have due regard to the best interests of the family.
49
Macready v. the Czech Republic, nos. 4824/06 and 15512/08, 22 April 2010.
Failure to ensure fathers right of contact during proceedings for return of son who had been
taken abroad by the mother: violation.
Facts The applicant, an American national, lived in the United States with his wife and their son,
who was born in December 2002. In May 2004, following a divorce petition filed by the applicant,
an interim joint guardianship order was put in place. However, the mother took the child to the
Czech Republic without the applicants consent. In June 2004 she was awarded custody of the child
by a decision of a Czech court that had not been informed of the boys illegal removal. The
applicant brought proceedings in the Czech Republic in October 2004 and the childs return to the
United States was ordered in April 2005. Following an appeal by the mother, the court ordered an
expert report. In reliance on the experts conclusions, it overturned the judgment of the first-instance
court in June 2006 on the ground that the childs return to the United States might cause him
irreparable harm that risked causing a deterioration in his mental health. Appeals by the applicant
were dismissed in February and September 2007. Lastly, from October 2004 onwards the applicant
made a series of requests for interim measures allowing him to meet with his son during his visits to
the Czech Republic. Although the mother appealed against most of the decisions, some meetings
between father and son were organised up until January 2006.
Law Article 8: The bond between the applicant and his son came within the scope of family life
within the meaning of Article 8. Furthermore, the Hague Convention on the Civil Aspects of
International Child Abduction with whose underlying philosophy the Court was in full agreement
applied to the mothers removal of the child to the Czech Republic in May 2004. In the present
case more than twenty months had elapsed before the lower courts adopted the decision finally
determining the question of the childs return to the United States. A period of that length had made
it practically impossible to re-establish the previous position. The child would have had to be taken
back to an environment from which he had been removed at the age of eighteen months and which
was now no longer familiar to him. This would have been a particularly difficult experience in his
case because he had been diagnosed as autistic and thus requiring stability and minimum change to
his routine. Moreover, the Czech courts had had to wait for the outcome of the proceedings
concerning the childs return before ruling on the question of parental responsibility. Throughout
that entire period, therefore, the only means by which the applicant had been able to exercise his
parental rights had been by virtue of interim measures granting him a right of contact during his
visits to the Czech Republic. Those visits could only be occasional because he lived and worked in
the United States. In that connection the Court was forced to the conclusion that although the courts
had been informed, admittedly ex post facto, of the difficulties encountered by the applicant during
his visits, they had not taken any appropriate measure of their own initiative to create the necessary
conditions for the future to ensure that the applicant could exercise his right of contact. In the
context of the case the domestic courts could have envisaged taking coercive measures against the
mother or requested the assistance of social services or child psychiatrists or psychologists to
facilitate contact. Those considerations sufficed to conclude that respect for the applicants family
life had not been effectively protected.
50
INTERNATIONAL CHILD ABDUCTION
GENERAL PRINCIPLES
In Neulinger and Shuruk (cited above, 131-140, with further references) the Court articulated
and crystallised a number of principles which have emerged from its case-law on the issue of the
international abduction of children, as follows.
(i) The Convention cannot be interpreted in a vacuum, but, in accordance with Article 31 3 (c) of
the Vienna Convention on the Law of Treaties (1969), account is to be taken of any relevant rules of
international law applicable to the Contracting Parties (see Streletz, Kessler and Krenz v. Germany
[GC], nos. 34044/96, 35532/97 and 44801/98, 90, ECHR 2001-II).
(ii) The positive obligations that Article 8 of the Convention imposes on States with respect to
reuniting parents with their children must therefore be interpreted in the light of the UN Convention
and the Hague Convention (see Maire v. Portugal, no. 48206/99, 72, ECHR 2003-VII, and
Ignaccolo-Zenide v. Romania, no. 31679/96, 95, ECHR 2000-I).
(iii) The Court is competent to review the procedure followed by the domestic courts, in particular
to ascertain whether those courts, in applying and interpreting the provisions of the Hague
Convention, have secured the guarantees of the Convention and especially those of Article 8 (see, to
that effect, Bianchi v. Switzerland, no. 7548/04, 92, 22 June 2006, and Carlson v. Switzerland, no.
49492/06, 73, 6 November 2008).
(iv) In this area the decisive issue is whether a fair balance between the competing interests at stake
those of the child, of the two parents, and of public order has been struck, within the margin of
appreciation afforded to States in such matters (see Maumousseau and Washington, cited above,
62), bearing in mind, however, that the childs best interests must be the primary consideration
(see, to that effect, Gnahor, cited above, 59).
(v) The childs interests are primarily considered to be the following two: to have his or her ties
with his or her family maintained, unless it is proved that such ties are undesirable, and to be
allowed to develop in a sound environment (see, among many other authorities, Elsholz v. Germany
[GC], no. 25735/94, 50, ECHR 2000-VIII, and Marlek v. the Czech Republic, no. 8153/04,
71, 4 April 2006). The childs best interests, from a personal development perspective, will depend
on a variety of individual circumstances, in particular his age and level of maturity, the presence or
absence of his parents and his environment and experiences.
(vi) A childs return cannot be ordered automatically or mechanically when the Hague Convention
is applicable, as is indicated by the recognition in that instrument of a number of exceptions to the
obligation to return the child (see, in particular, Articles 12, 13 and 20), based on considerations
concerning the actual person of the child and his environment, thus showing that it is for the court
hearing the case to adopt an in concreto approach to it (see Maumousseau and Washington, cited
above, 72).
(vii) The task to assess those best interests in each individual case is thus primarily one for the
domestic authorities, which often have the benefit of direct contact with the persons concerned. To
that end they enjoy a certain margin of appreciation, which remains subject, however, to European
supervision whereby the Court reviews under the Convention the decisions that those authorities
have taken in the exercise of that power (see, for example, Hokkanen v. Finland, 23 September
1994, 55, Series A no. 299-A, and Kutzner v. Germany, no. 46544/99, 65-66, ECHR 2002-I;
see also Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000-IV;
Bianchi, cited above, 92; and Carlson, cited above, 69).
51
(vii) In addition, the Court must ensure that the decision-making process leading to the adoption of
the impugned measures by the domestic court was fair and allowed those concerned to present their
case fully (see Tiemann, cited above, and Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05,
ECHR 2005-XIII (extracts)). To that end the Court must ascertain whether the domestic courts
conducted an in-depth examination of the entire family situation and of a whole series of factors, in
particular of a factual, emotional, psychological, material and medical nature, and made a balanced
and reasonable assessment of the respective interests of each person, with constant concern for
determining what the best solution would be for the abducted child in the context of an application
for his return to his country of origin (see Maumousseau and Washington, cited above, 74).
neersone and Kampanella v. Italy, no. 14737/09, 12 July 2011, 85.
In relation to the speediness of review, the Court reiterates that in matters pertaining to the
reunification of children with their parents, the adequacy of a measure is also to be judged by the
swiftness of its implementation, such cases requiring urgent handling, as the passage of time can
have irremediable consequences for the relations between the children and the parent who does not
live with them (see Iosub Caras, cited above, 38). Even if the Court were to accept the
Governments argument whereby the six-week time-limit set forth under the Hague Convention is
not to be interpreted strictly, it cannot fail but notice that this time-limit was largely exceeded as the
Hague Convention proceedings lasted a total of eleven months before the first-instance and the
instance of appeal. Moreover, the Court notes that the Council Regulation No. 2201/2003 permits
non-compliance with the six-week rule only in exceptional circumstances (see paragraph 21 above).
No satisfactory explanation was put forward by the Government for this delay.
Karrer v. Romania, no. 16965/10, 21 February 2012, 54.
In relation to the States obligation to take positive measures, the Court has repeatedly held that
Article 8 includes a parents right to the taking of measures with a view to his being reunited with
his child and an obligation on the national authorities to facilitate such reunion (see, among other
authorities, Ignaccolo-Zenide v. Romania, cited above, 94, ECHR 2000-I; Nuutinen v. Finland,
no. 32842/96, 127, ECHR 2000-VIII and Iglesias Gil and A.U.I. v. Spain, no. 56673/00, 49,
ECHR 2003-V).
In cases concerning the enforcement of decisions in the sphere of family law, the Court has
repeatedly held that what is decisive is whether the national authorities have taken all necessary
steps to facilitate the execution as can reasonable be demanded in the special circumstances of each
case (see Hokkanen v. Finland, 23 September 1994, 53, Series A no. 299-A; Ignaccolo-Zenide,
cited above, 96; Nuutinen v. Finland, cited above, 128, and Sylvester v. Austria, nos. 36812/97
and 40104/98, 59, 24 April 2003).
The Court reiterates that in cases of this kind, the adequacy of a measure is to be judged by the
swiftness of its implementation, as the passage of time can have irremediable consequences for
relations between the child and the parent who does not live with him or her (see Ignaccolo-Zenide,
cited above, 102). The Hague Convention recognises this fact because it provides for a range of
measures to ensure the prompt return of children removed to or wrongfully retained in any
Contracting State. Article 11 of the Hague Convention requires the judicial or administrative
authorities concerned to act expeditiously to ensure the return of children and any failure to act for
more than six weeks may give rise to a request for explanations (Neulinger and Shuruk v.
Switzerland [GC], no. 41615/07, 140, ECHR 2010-...). In proceedings under the EC Regulation
on Recognition of Judgments this is likewise so, as Article 11 3 requires the judicial authorities
concerned to act expeditiously, using the most prompt procedures available in domestic law, and
issue a judgment no later than six weeks after the application is lodged.
52
The Court also held that although coercive measures against the children are not desirable in this
sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the
parent with whom the children live (see Ignaccolo-Zenide, cited above, 106).
Shaw v. Hungary, no. 6457/09, 26 July 2011, 64-67.
CASES
X v. Latvia, no. 27853/09 (Chamber judgment of 13 December 2011).
Lack of in-depth examination of all relevant factors when deciding to return applicants child
under the Hague Convention on the Civil Aspects of International Child Abduction:
case referred to the Grand Chamber.
Facts The applicant lived in Australia and in 2005 gave birth to a daughter while living with her
partner T. The childs birth certificate did not state the fathers name and no paternity test was ever
carried out. In 2008 the applicant left Australia with her daughter and returned to Latvia. T. then
filed a claim with the Australian courts seeking to establish his parental rights in respect of the
child. He stated that he had submitted false documents to the social-security services in order for the
applicant to receive the single-parent benefit and that she had fled Australia taking the child without
his consent, contrary to the Hague Convention on the Civil Aspects of International Child
Abduction. The Australian court decided that T. and the applicant had joint custody of the child and
that the case would be further reviewed once the child was returned to Australia. Once the
competent Latvian authorities received notification from the Australian authorities, they heard
representations from the applicant, who contested the applicability of the Hague Convention
claiming that she had been the childs sole guardian. The Latvian courts granted T.s request
concluding that it was not up to them to challenge the conclusions reached by the Australian
authorities concerning his parental responsibility. Consequently, the applicant was ordered to return
the child to Australia within six weeks. On appeal, the applicant claimed that the child was well
integrated in Latvia and submitted a psychologists report stating that the child should not be
separated from her mother. Her appeal was dismissed. In March 2009 T. met the applicant, took the
child and returned with her to Australia. Ultimately, the Australian courts ruled that T. was the sole
guardian and that the applicant was only allowed to visit the child under supervision and was not
allowed to speak to her in Latvian.
Law Article 8: The Court was called upon to assess whether the decision-making process leading
to the interference with the applicants Article 8 rights had been fair and such as to afford due
respect to her interests safeguarded by that provision. Such an interference could not be regarded as
necessary in a democratic society if, among other things, the persons concerned were prevented
from being sufficiently involved in the decision-making process and if the domestic courts failed to
conduct an in-depth examination of the entire family situation and of factors of an emotional,
psychological and medical nature. In this connection, the Court reiterated that the concept of the
childs best interests was a primary consideration in the procedures provided for in the Hague
Convention.
Before the Latvian courts the applicant had relied on several grounds in order to establish that the
childs return to Australia would not serve the childs best interests, in particular the psychologists
report which indicated that the child would be exposed to psychological harm if she was separated
from her mother. However, the Latvian courts had failed to consider the clear conclusions of that
report, despite the fact that the requirement for procedural fairness enshrined in Article 8 obliged the
national courts to pay due respect to the arguable claims brought by the parties in order to ensure
53
that the childs return would be ordered only in his or her best interests and not as a purely
procedural measure. In that connection, the Hague Convention had to be seen as an instrument of a
procedural nature and not as a human-rights treaty. The Latvian courts had further omitted to assess
the childs material well-being if returned to Australia, or the mothers ability to follow and
maintain contact with her there. They had thus failed to carry out an in-depth examination of the
entire family situation and all relevant factors, and had rendered the interference disproportionate.
Conclusion: violation (five votes to two).
(See also Maumousseau and Washington v. France, no. 39388/05, 6 December 2007, and Neulinger
and Shuruk v. Switzerland [GC], no. 41615/07, 6 July 2010)
On 4 June 2012 the case was referred to the Grand Chamber at the Governments request.
Karrer v. Romania, no. 16965/10, 21 February 2012.
Insufficiently thorough analysis of best interests of child and unfairness of decision-making

process in Hague Convention proceedings: violation.
Facts In 2004 the first applicant, an Austrian national, married a Romanian national, K.T. In 2006
the couple had a daughter, the second applicant, who was in their joint custody. In January 2008
K.T. filed for an injunction against the first applicant seeking his removal from the family home on
the grounds of his violent behaviour. The injunction was granted for a period of three months and
criminal proceedings were instituted against him. The couple separated and K.T. filed for divorce.
She also sought temporary sole custody of the second applicant. In July 2008 an Austrian court
acquitted the first applicant of inflicting bodily harm. In September 2008, while the divorce and the
custody proceedings were still pending before the Austrian courts, K.T. left for Romania together
with the second applicant. The first applicant then submitted a request for the return of the child to
Austria under Article 3 of the Hague Convention on the Civil Aspects of International Child
Abduction. The Romanian authorities established that the second applicant was living with K.T. in
her grandparents home and the social services drew up a report mainly describing her living
conditions. The first-instance court found in favour of the second applicants return to Austria, but
the court of appeal reversed that decision finding that a return might expose the second applicant to
physical and psychological harm. Meanwhile, in November 2008 the Austrian courts had granted
the first applicant sole custody of the child pending the conclusion of the divorce proceedings.
Law Article 8: The Court firstly examined the manner in which the Romanian authorities had
determined the best interests of the child. It was observed in this connection that they had based
their assessment on an expired injunction issued in Austria and had decided to set aside the Austrian
courts decision awarding temporary custody to the first applicant only because that decision was
delivered after K.T. had left for Romania. Furthermore, the relevant social services report on which
the Romanian courts had based their decision had not assessed the implications of the second
applicants return to Austria. Moreover, the witness testimonies relied on had consisted only of
statements of K.T. and her parents and no attempt had been made to contact the first applicant in
order to hear his views. In such circumstances, the analysis conducted by the domestic authorities to
determine the childs best interests had not been sufficiently thorough. As to the fairness of the
decision-making process, the first applicant had never been afforded the opportunity to present his
case before the Romanian courts either directly or through written submissions. Finally, the Hague
Convention proceedings had lasted a total of eleven months before two levels of jurisdiction,
notwithstanding that such proceedings should have been terminated within six weeks.
54
Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage
dismissed.
(See also X v. Latvia, no. 27853/09, 13 December 2011; and neersone and Kampanella v. Italy, no.
14737/09, 12 July 2011).
B. v. Belgium, no. 4320/11, 10 July 2012.
Forced return to an allegedly abusive father of a child well integrated in the host country:
forced return would constitute a violation.
Facts In 2003 the first applicant gave birth in the United States to a daughter, the second
applicant, who had an American father. For the first four years of her life, the child lived with her
mother. In 2004 the first applicant asked the father to waive any rights to custody, which he refused
to do. In 2006 the first applicant was convicted of social-security fraud. There followed a long
judicial battle for custody of the child, during which the mother referred to a risk of domestic
violence against the girl. In October 2008 the first applicant left the United States with the child,
without authorisation from either the father or the courts, and settled in Belgium. In December
2008 an American court noted that the child had been abducted by the first applicant and gave sole
custody to the father. In January 2009 the American Central Authority applied to the Belgian
Central Authority for international child abductions, requesting the girls enforced return in
application of the Hague Convention on the Civil Aspects of International Child Abduction. At the
same time the first applicant brought proceedings with a view to obtaining parental authority and
sole custody of the child. As the mother refused to take the child back to the United States, the
Belgian Central Authority, acting on behalf of the father, referred the case to the court of first
instance, which held in March 2010 that the childs return could not be justified under the Hague
Convention. The court of appeal, to which the Belgian Central Authority had applied, set aside that
decision and ordered the first applicant to return her daughter to the United States. The mother
appealed on points of law. In February 2011, at the first applicants request, the
Court ordered the application of Rule 39 of its Rules of Court until the close of the proceedings
before the Court of Cassation and subsequently pending the proceedings before the Court. Law
Article 8: The Belgian courts order to return the child amounted to interference, the legal basis of
which was the Hague Convention. In the field of international child abduction, the obligations
placed on the States by Article 8 had to be interpreted in the light of the requirements imposed, in
particular, by that Convention. In the instant case, the national courts had not been unanimous. In
addition, the psychological reports on the child indicated that it was not in her interest to be
separated from her mother and that a return to the United States would pose a danger to her. It was
the appeal courts prerogative not to attach full credence to psychological reports submitted by one
of the parties. However, the appeal court had not attempted, by ordering other reports as
recommended by the State Counsels Office, to ascertain for itself the true extent of the likelihood
that the child would be exposed to an intolerable situation. Nor had it based its decision on a finding
that, in the absence of grounds which would objectively justify the mothers refusal to return to the
United States, she could reasonably be expected to return to that country with the child. Finally, it
had not relied on the possibility that the mother could accompany the child to the United States in
order to assert her residence and visiting rights there. On the contrary, it had merely found that it
was improbable that the mother would return to the United States, where she faced a prison
sentence and the loss of her parental authority. In addition, the child, who had dual nationality, had
arrived in Belgium at the age of five years and had lived there since without interruption. She spoke
Dutch and was fully integrated into her surroundings and school environment. Yet the court of
appeal had taken account of the time factor only from a procedural standpoint. However, the
55
time factor was itself a crucial element, which ought to have been taken into account in
evaluating more exhaustively the tangible implications of a return. The court of appeal had thus not
been in a position to determine, in an informed manner, whether there existed a risk within the
meaning of the Hague Convention. The domestic decision-making process had therefore not met the
procedural requirements inherent in Article 8 of the European Convention. The childs forced return
to the United States could not be considered necessary in a democratic society.
Conclusion: forced return would constitute a violation (five votes to two).
Article 41: EUR 5,000 to the second applicant in respect of non-pecuniary damage; claim submitted
by the first applicant for non-pecuniary damage dismissed.
(See also Neulinger and Shrunk v. Switzerland [GC], no. 41615/07, 6 July 2010; and neersone and
Kampanella v. Italy, no. 14737/09, 12 July 2011).
neersone and Kampanella v. Italy, no. 14737/09, 12 July 2011.
Order for return of minor child, who had been living with mother in Latvia, to father in Italy
without due consideration of childs best interests: violation.
Facts The second applicant, whose mother (the first applicant) is Latvian and father Italian, was
born in Italy in 2002. A year later his parents separated and he has lived with his mother ever since.
The mother was granted custody by an Italian court in September 2004. She left Italy for Latvia in
April 2006 taking the second applicant with her. Subsequently, the Italian courts granted the father
sole custody. In 2007 the Latvian courts decided on the basis of a psychologists report that the
boys return to Italy would not be in his best interests and might even provoke neurotic problems
and illnesses. The Italian courts subsequently ordered the childs return to Italy on the basis of
European Council Regulation No. 2201/2003 concerning jurisdiction in matters of parental
responsibility (the Regulation). Latvia brought an action against Italy before the European
Commission in connection with the return proceedings but, in a reasoned opinion, the Commission
found that Italy had not violated either the Regulation or the general principles of Community law.
In their application to the European Court, the applicants complained that the Italian courts
decisions ordering the second applicants return to Italy were contrary to his best interests and to
international and Latvian law. They further complained that the Italian courts had heard the case in
the first applicants absence.
Law Article 8
(a) The return order The Italian courts order for the childs return to Italy constituted an
interference with the applicants right to respect for their family life. The interference was in
accordance with the law (Article 11 of the Regulation in combination with Article 12 of the Hague
Convention on the Civil Aspects of International Child Abduction) and pursued the legitimate aim
of protecting the rights and freedoms of the child and his father.
As to whether the interference had been necessary in a democratic society, the reasoning in the
Italian courts decisions was rather scant. Even assuming that the Italian courts role was limited by
Article 11(4) of the Regulation to assessing whether adequate arrangements had been made to
secure the childs protection after his return to Italy from any identified risks within the meaning of
Article 13(b) of the Hague Convention, the fact remained that none of the risks identified by the
Latvian authorities were addressed by the Italian courts. The Italian courts did not refer to the two
psychologists reports that had been drawn up in Latvia or to the potential dangers to the boys
psychological health the reports identified. No effort was made by the Italian authorities to inspect
the accommodation proposed by the father to establish its suitability as a home for a young child.
The Court was thus unpersuaded that the Italian courts had sufficiently appreciated the seriousness
of the difficulties the child was likely to encounter in Italy. Nor could the safeguards of the childs
56
well-being accepted by the Italian courts be regarded as adequate: allowing the first applicant to
stay with the child for fifteen to thirty days during the first year and then for one summer month
every other year was a manifestly inappropriate response to the psychological trauma that would
inevitably follow a sudden and irreversible severance of the close ties between mother and child;
the provision of facilities such as a kindergarten, swimming pool and Russian-language classes
could in no way compensate for the childs drastic immersion in a linguistically and culturally
foreign environment; and external psychological support could not be considered equivalent to the
support intrinsic to strong, stable and undisturbed ties between a child and its mother. Nor had the
Italian courts considered any alternative solutions for ensuring contact between the boy and his
father. The interference had thus not been necessary in a democratic society.
(b) Procedural fairness Taking into account that both the father and the first applicant had
submitted, with the aid of counsel, detailed written statements to two levels of Italian jurisdiction,
the Court, like the European Commission, was satisfied that the procedural fairness requirement of
Article 8 had been observed.1
Article 41: EUR 10,000, jointly, in respect of non-pecuniary damage.
Shaw v. Hungary, no. 6457/09, 26 July 2011.
EU Regulation on the enforcement of judgments and illegal removal of a child: violation.

Facts After the applicant, an Irish national living in Paris, and his Hungarian wife divorced in
2005, they were granted joint custody of their then five-year-old daughter. In December 2007 the
mother took the child to Hungary for the holidays and enrolled her in a school there without the
applicants consent. Relying on Council Regulation (EC) no. 2201 of 2003 concerning Jurisdiction
and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental
Responsibility (the EC Regulation) and the Hague Convention on the Civil Aspects of
International Child Abduction, in March 2008 the applicant brought an action against the mother in
a Hungarian court for the return of the child. The court established that the habitual residence of the
child was in France and that, given their joint custody, neither parent could change that residence
without the approval of the other. On 30 May 2008 the court established that the child had been
abducted and ordered the mother to take her back to France by 6 June or hand her over to the
Hungarian police by 10 June. On appeal, on 2 September 2008 the second-instance court upheld
that decision but granted the mother an extension of time. However, when the mother did not
comply, on 15 October 2008 the first-instance court ordered enforcement of the judgment. A court
bailiff then unsuccessfully asked the mother to comply voluntarily with the order. On 18 November
2008 the Supreme Court upheld the lower courts decisions. The mother then requested a stay of
execution, but her request was rejected and she was ordered to pay a fine of about EUR 180. In
April 2009 the court ordered the enforcement of the childs return with police assistance and
scheduled an on-site intervention for 29 July 2009. Meanwhile, a French court had issued a
European arrest warrant against the mother, on the basis of which she was arrested on 27 July 2009,
but released a day later since no criminal proceedings were pending against her in Hungary. The
enforcement attempt of 29 July was unsuccessful since the mother and daughter had absconded. In
October 2009 the bailiff tried to find the child in school, but established that she had not attended
classes during the school year. Despite numerous measures such as monitoringthe
telecommunication providers, the school and the database of the national-health insurance fund
the authorities have been unable to locate the mother or the child.
57
Meanwhile, in April 2008, on the basis of Article 41(2) of the EC Regulation, a French court issued
a certificate concerning the applicants access rights established after the divorce. However, when
the applicant requested enforcement of those rights before the Hungarian authorities, his request
was dismissed with the explanation that they lacked jurisdiction.
Law Article 8: The Court was called upon to examine whether, seen in the light of their
international obligations arising in particular under the EC Regulation and the Hague Convention,
the Hungarian authorities had made adequate and effective efforts to secure compliance with the
applicants right to the return of his child and the childs right to be reunited with her father. Even
though Article 11(3) of the EC Regulation set out a clear obligation on the domestic courts to issue
a judgment within six weeks after the lodging of the application, in the applicants case the first-
instance judgment was delivered only after seven weeks, the second-instance judgment after
another thirteen weeks and the Supreme Courts judgment eleven weeks later. These delays may
have been partially due to the five-week court holiday period, but cases of this sort should be
classified as urgent and be dealt with even during court holidays. The delays in the procedure alone
enabled the Court to conclude that the authorities had not complied with the positive obligations
under the European Convention. Moreover, the authorities had failed to take adequate steps for the
enforcement of the return order prior to 29 July 2009. Almost eleven months had elapsed between
the delivery of the enforcement order and the mothers disappearance with the daughter. During that
time, the only enforcement measures taken were an unsuccessful request for the voluntary return of
the child and the imposition of a relatively modest fine. Finally, the situation had been aggravated
by the fact that more than three and a half years had passed without the father being able to exercise
his access rights. This was essentially due to the fact that the Hungarian authorities had declined
jurisdiction in the matter despite the existence of a final court decision that had been certified in
accordance with Article 41 of the EC Regulation.
Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, 6 July 2010.
Order for return of child with mother to fathers country of residence

from which it had been wrongly removed: forced return would
constitute violation.
Facts The first applicant, a Swiss national, settled in Israel, where she got married and the couple
had a son. When she feared that the child (the second applicant) would be taken by his father to an
ultraorthodox community abroad, known for its zealous proselytising, the Family Court imposed a
ban on the childs removal from Israel until he attained his majority. The first applicant was
awarded temporary custody, and parental authority was to be exercised by both parents jointly. The
fathers access rights were subsequently restricted on account of his threatening behaviour. The
parents divorced and the first applicant secretly left Israel for Switzerland with her son. At last
instance, the Swiss Federal. Court ordered the first applicant to return the child to Israel. In a
Chamber judgment of 8 January 2009, the European Court held, by four votes to three, that there
had been no violation of Article 8 of the Convention.
Law Article 8: In the opinion of the national courts and experts, the childs return to Israel could
be envisaged only if he was accompanied by his mother. The measure in question remained within
the margin of appreciation afforded to national authorities in such matters. Nevertheless, in order to
assess compliance with Article 8, it was also necessary to take into account any developments since
the Federal Courts judgment ordering the childs return. The Court took the view that it could be
guided on this point, mutatis mutandis, by its case-law on the expulsion of aliens and the criteria on
which to assess the proportionality of an expulsion order against a minor who had settled in the host
58
State. In the present case, the child was a Swiss national and had settled very well in the country
where he had been living continuously for about four years. Even though he was at an age (seven
years old) where he still had a significant capacity for adaptation, the fact of being uprooted again
would probably have serious consequences for him and had to be weighed against any benefit that
he was likely to gain from it. In this connection, it was noteworthy that restrictions had been
imposed on the fathers right of access before the childs abduction. Moreover, the father had
remarried twice since then and was now a father again but had failed to pay maintenance for his
daughter. The Court doubted that such circumstances would be conducive to the childs wellbeing
and development. As to the mother, her return to Israel could expose her to a risk of criminal
sanctions, such as a prison sentence. It was clear that such a situation would not be in the childs
best interests, his mother probably being the only person to whom he related. The mothers refusal
to return to Israel was not therefore totally unjustified. Even supposing that she agreed to return to
Israel, the fathers capacity to take care of the child in the event of criminal proceedings against her
and of her subsequent imprisonment could be called into question, in view of his past conduct and
limited means. Moreover, the father had never lived alone with the child and had not seen him since
the childs departure at the age of two. The Court was thus not convinced that it would be in the
childs best interests for him to return to Israel. As to the mother, she would sustain a
disproportionate interference with her right to respect for her family life. Consequently, there would
be a violation of Article 8 in respect of both applicants if the decision ordering the second
applicants return to Israel were to be enforced. Conclusion: violation (sixteen votes to one).
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any
nonpecuniary damage.
Serghides v. Poland, no. 31515/04, 2 November 2010.
Revocation, on account of unsatisfactory conduct by both parents, of order for return of

applicants daughter following her abduction by mother: no violation.
Facts The applicant, a British national, requested the return to the United Kingdom of his minor
daughter, who had been unlawfully taken to Poland by the mother, a Polish national.
Law Article 8: In April 2004 the authorities had ordered the childs immediate return to the United
Kingdom, then they had swiftly initiated a procedure for the enforcement of the decision in
question. However, that procedure had never been completed and the enforcement had become
without object about a year and a half later, because the decision that was supposed to be
implemented had been amended on 10 May 2005 to the applicants disadvantage. The authorities
had found that the relevant circumstances had changed, with the result that the childs return to the
United Kingdom might now expose her to harm, within the meaning of the Hague Convention on
the Civil Aspects of International Child Abduction of 1980. A failed attempt by the father to retrieve
his child from her mother in order to take her back to the United Kingdom, in spite of the
proceedings pending in Poland for the enforcement of the decision ordering her return to her father,
had apparently had a negative impact on the childs emotional condition. It had allegedly
contributed to a breakdown in emotional ties between the applicant and his daughter, subsequently
worsened by the mothers behaviour. Thus it did not appear that the passage of time related to the
length of the
proceedings had been the main factor for the finding of a change in the relevant circumstances. On
the contrary, to a large extent it was the conduct of the childs parents, which was found to have
been unsatisfactory by the experts, that had been the cause of that change. In addition, whilst the
applicant had been advised by a professional, he had not made use of the means available in
59
domestic law to remain in contact with his daughter during that decisive period for his relationship
with his child. The proceedings at issue had lasted for a total of about three and a half years. During
that period the authorities had not remained inactive. They had taken action with a view to
concluding the case and hearings had generally been held with
due diligence. In view of the above, the revocation of the decision ordering the return of the
applicants daughter to him in the United Kingdom could not, on the whole, be attributed to the
conduct of the national authorities.
Conclusion: no violation (four votes to three).
60

ECHR Cases Concerning Children Rights

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ECHR Cases Concerning Children Rights

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CONCEPT OF BEST INTERESTS OF THE CHILD................................................................

INHERITANCE AND AFFILIATION...........................................................................................10

DOMESTIC VIOLENCE ABUSE, SEXUAL ABUSE...............................................................15

CONFIDENTIALITY OF BIRTH INFORMATION...................................................................30

CHILD CARE & PLACEMENT TO PUBLIC CARE.................................................................32

PARENTAL AUTHORITY, CHILD CUSTODY AND ACCESS RIGHTS................................42

INTERNATIONAL CHILD ABDUCTION...................................................................................51

CONCEPT OF FAMILY LIFE

Ali v. the United Kingdom, no. 40385/06, 11 January 2011.

Horvth and Kiss v. Hungary, no. 11146/11, 29 January 2013.

Pla and Puncernau v. Andorra, no. 69498/01, 13 July 2004.

Godelli v. Italy, no. 33783/09, 25 September 2012

Inability of child abandoned at birth to gain access to non-identifying information or to make

Odivre v. France, no. 42326/98, 13 February 2003 (Grand Chamber).

Jggi v. Switzerland, no. 58757/00, 13 July 2006.

Genovese v. Malta, no. 53124/09, 11 October 2011.

DOMESTIC VIOLENCE ABUSE, SEXUAL ABUSE

(The reaction to the information about violence!)

M.D. and Others v. Malta, no. 64791/10, 17 July 2012.

M. and C. v. Romania, no. 29032/04, 27 September 2011.

Siliadin v. France, no. 73316/01, 26 July 2005.

Kontrov v. Slovakia, no. 7510/04, 31 May 2007.

E.S. and Others v. Slovakia, no. 8227/04, 15 September 2009.

C.A.S. and C.S. v. Romania, no. 26692/05, 20 March 2012.

Stoica v. Romania, no. 42722/02, 04 March 2008.

Darraj v. France, no. 34588/07, 04 November 2010.

Cierhun ner v. Turkey (no. 2), no. 2858/07, 23 November 2010.

Popov v. France, nos. 39472/07 and 39474/07, 19 January 2012.

Gve v. Turkey, no. 70337/01, 20 January 2009.

oelav v. Turkey, no. 1413/07, 09 October 2012.

Emonet and others v. Switzerland, no. 39051/03, 13 December 2007.

A.M.M. v. Romania, no. 2151/10, 14 February 2012.

Shortcomings of proceedings to establish paternity of a minor with disabilities: violation.

I.L.V. v. Romania (dec.), no. 4901/04, 24 August 2010.

Chavdarov v. Bulgaria, no. 3465/03, 21 December 2010.

Anayo v. Germany, no. 20578/07, 21 December 2010.

CONFIDENTIALITY OF BIRTH INFORMATION

Odivre v. France, no. 42326/98, 13 February 2003 (Grand Chamber).

CHILD CARE & PLACEMENT TO PUBLIC CARE

Harroudj v. France, no. 43631/09, 4 October 2012.

Refusal of permission to adopt owing to prohibition of adoption in childs country of birth: no

K.A.B. v. Spain, no. 59819/08, 10 April 2012.

Adoption of child following mothers deportation, despite fathers opposition: violation.

Y.C. v. the United Kingdom, no. 4547/10, 13 March 2012.

Moretti and Benedetti v. Italy, no. 16318/07, 27 April 2010.

Kurochkin v. Ukraine, no. 42276/08, 20 May 2010.

PARENTAL AUTHORITY, CHILD CUSTODY AND ACCESS RIGHTS

A.K. and L. v. Croatia, no. 37956/11, 8 January 2013.

Authorities failure to ensure legal representation of mentally disabled applicant in

Santos Nunes v. Portugal, no. 61173/08, 22 May 2012.

Schneider v. Germany, no. 17080/07, 15 September 2011.

Cengiz Kl v. Turkey, no. 16192/06, 6 December 2011.

Mustafa and Armaan Akn v. Turkey, no. 4694/03, 6 April 2010.

Custody order effectively preventing siblings spending time together: violation.

X v. Latvia, no. 27853/09 (Chamber judgment of 13 December 2011).

Karrer v. Romania, no. 16965/10, 21 February 2012.

Insufficiently thorough analysis of best interests of child and unfairness of decision-making

B. v. Belgium, no. 4320/11, 10 July 2012.

neersone and Kampanella v. Italy, no. 14737/09, 12 July 2011.

Shaw v. Hungary, no. 6457/09, 26 July 2011.

EU Regulation on the enforcement of judgments and illegal removal of a child: violation.

Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, 6 July 2010.

Order for return of child with mother to fathers country of residence