Last Updated on April 13, 2023 by LawEuro
Legal summary
April 2023
Advisory opinion requested by the Supreme Court of Finland
Request no. P16-2022-001
13.4.2023 [GC]
Legal summary
Article 8
Respect for private and family life
Advisory opinion on the procedural status and rights of a biological parent in proceedings for the adoption of an adult
Article 6
Article 6 § 1 (civil)
Civil rights and obligations
Access to court
Advisory opinion on the procedural status and rights of a biological parent in proceedings for the adoption of an adult
Background and questions – The request of the Finnish Supreme Court for an Advisory Opinion arose out of proceedings under Finland’s Adoption Act pending before it concerning the adoption of an adult, C, by his aunt, B, with whom he had been living with since the age of three and who had supplementary custody at the request of his biological mother, A. A had remained involved in C’s upbringing and they still had contact. She objected to the adoption and was heard by the District Court, on its own initiative as a witness. That court granted the adoption, finding that the conditions for the adoption of an adult set out in section 4 of the Adoption Act were met, namely, that C had been brought up by B and, while the adoptee was still a minor, they had a relationship comparable to that of child and parent. A’s appeal was rejected by the Court of Appeal as inadmissible without consideration of the merits; it ruled that under that Act a parent of an adult was not a party to a matter concerning adoption and had no right of appeal against a decision concerning the adoption. A then applied to the Supreme Court for leave to appeal against that decision. The Supreme Court requested the Court to give an advisory opinion on the following questions:
“1) Should the Convention on Human Rights be interpreted in such a way that legal proceedings concerning the granting of an adoption of an adult child in general, and especially in the circumstances of the case at hand, are covered by the protection of a biological parent referred to in Article 8 of the Convention on Human Rights?
2) If the answer to the question asked above is affirmative, should Articles 6 and 8 of the Convention on Human Rights be interpreted in such a way that a biological parent of an adult child should in all cases, or especially in the circumstances of this case, be heard in legal proceedings concerning the granting of adoption?
3) If the answer to the questions asked above is affirmative, should Articles 6 and 8 of the Convention on Human Rights be interpreted in such a way that a biological parent should be given the status of a party in the matter, and that the biological parent should have the right to have the decision concerning the granting of adoption reviewed by a higher tribunal by means of appeal?”
Opinion
Article 8 – The Court had first to determine whether that provision – under its family or private life aspects – was applicable to legal proceedings concerning the grant of adoption of an adult child.
Applicability of the “family life” aspect of Article 8 – In its request the Supreme Court had referred to the Court’s case-law to the effect that relationships between parents and adult children did not fall within the protective scope of Article 8 unless additional factors of dependence, other than normal emotional ties, were shown to exist. That interpretation, though originally laid down in the context of immigration, had been followed principally in family reunification and expulsion cases. In the specific context of the expulsion of settled migrants, the Court had made an exception for young adults (who were still living with their parents and had not yet started a family of their own). However, that approach, attaching weight to dependence as a factor, had also been followed in other contexts (for example, disability). The Court therefore agreed with the Supreme Court’s analysis that the matter should not be evaluated in terms of family life in the absence of factors of dependence between A and C. The Court further noted that it did not appear that there was a pecuniary or patrimonial aspect to their relationship, which was another relevant factor.
Applicability of the “private life” aspect of Article 8 – Under domestic law, the adult adoptee was deemed the child of the adoptive parents and not of the former parents. Insofar as the biological parent’s identity was at stake given the effect of the discontinuation of the legal parental relationship with the adult child, in relation to the biological parent, the private life aspects of Article 8 were applicable to legal proceedings concerning the grant of adult adoption. Such proceedings, however, also, and if anything to a greater degree, concerned the private life of the adopter and the adult adoptee. Thus, while the biological parent was entitled to due respect for his or her personal autonomy, as a core element of private life, that had to be understood as being delimited by the personal autonomy and private life of the adopter and adult adoptee.
Procedural requirements under Article 8 – The requesting court enquired whether in legal proceedings concerning the grant of adoption of an adult child the biological parent of the adoptee had a right to be heard, a right to be granted the status of a party and a right to appeal against the granting of adoption.
It appeared, from the Adoption Act’s provisions and the explanations given by the Supreme Court, that the conditions for granting adult adoption were essentially factual, i.e., the procedure involved an assessment by the courts of the character of the relationship that existed between adopter and adoptee while the latter was a minor. In keeping with the position in domestic law that the adult adoption, unlike the adoption of a minor, was essentially a personal matter, the interests of other parties – notably those of the biological parents – were not treated as relevant considerations. Having regard to the importance of the notion of personal autonomy in the interpretation of Article 8, that approach to adult adoption proceedings could be regarded as coming within the domestic authorities’ margin of appreciation, which was wide in this area.
At the same time, where an individual’s interests protected by Article 8 were at stake, an elementary procedural safeguard was that he or she be given the opportunity to be heard and that the arguments made were taken into account by the decider to the extent relevant. Further, while it did not appear that in this specific regard there was a common practice among the States that permitted adult adoption, it was more common than not for the biological parents to have some formal standing and/or procedural rights in such proceedings, usually the right to be heard by the court.
Although this was not provided by the Adoption Act, the District Court had, in fact, heard the biological mother in person as well as several more witnesses proposed by her. She had been able to put in evidence the nature and quality of her relationship with her adult child throughout his childhood. That court had expressly referred to her evidence in its assessment of the circumstances weighing for and against acceptance of the adoption application. Bearing in mind the wide margin of appreciation of the State in this area, the Court did not consider that additional and specific safeguards such as the right to be treated as a party to the proceedings and the right to appeal were required in order to satisfy the procedural requirements of Article 8 from a biological parent’s perspective.
Conclusion (unanimously):
Legal proceedings concerning the grant of adoption of an adult child might be regarded as affecting a biological parent’s private life under Article 8 of the Convention. That parent must be given the opportunity to be heard and the arguments made must be taken into account by the decider to the extent relevant. However, having regard to the wide margin of appreciation to which the State was entitled in the regulation of the procedure for adult adoption, respect for Article 8 did not require that a biological parent be granted the status of a party or the right to appeal the granting of the adoption.
Article 6 – To the extent that the second and third questions referred to Article 6, the Court, in its own practice, had often chosen to focus on Article 8 only where applicants complained under Articles 6 and 8 of the decision-making process that affected their rights. However, such a practice may not be appropriate to the context of Protocol No. 16, where, in order to provide useful guidance, all of the elements raised by the requesting court may need to be addressed.
For the purposes of the applicability of Article 6, it appeared that what A was effectively asserting was a “right” for a biological parent, in the context of adult adoption, to have their rights and interests weighed in the balance by the competent domestic court, and the right to appeal the balance struck if it was adverse to her. However, the substantive grounds for adult adoption in section 4 of the Adoption Act appeared to be essentially factual, with the role of the competent court having to ascertain that the relations between adopter and adoptee were indeed of the prescribed nature and with no scope for consideration of the interests of any other party. It was settled case-law, however, that the Court might not create by way of interpretation of Article 6 § 1 a substantive right which had no legal basis in the State concerned. Bearing in mind the explanations given by the Supreme Court about the content and rationale of the relevant statutory provisions, it appeared that the right claimed by A did not exist, even on arguable grounds, in domestic law. That was, however, for the requesting court to determine.
Conclusion (unanimously):
If the requesting court determined that the right claimed by the biological mother did not exist, even on arguable grounds, in domestic law, it would follow that, from her perspective, Article 6 of the Convention was not applicable to the proceedings for the adoption of an adult.
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