Right to Family and Private Life requires Maintenance of Family Bonds

X v Croatia [2008] ECHR 11223/04 (17 July 2008)

The European Court of Human Rights has held that, by allowing an individual to be excluded from participating in their child’s adoption proceedings, Croatia violated its obligation to ensure the right to respect for private and family life under art 8 of the European Convention on Human Rights.

Facts

The case concerned a complaint made by the applicant, X, that her daughter, A, had been adopted without X’s knowledge or consent.

X was diagnosed with schizophrenia in 1998 and, in 1999, gave birth to A.  In 2000, a Croatian court divested X of her capacity to act, on the grounds that she was not capable of taking care of her personal needs, interests and rights.

A was ultimately placed into the State’s care and her adoption authorised in late 2003.  While A was in the State’s care, there was evidence that X had continued to exercise her parental rights (given that her access rights were preserved, and that she had exercised those rights).  However, under Croatian domestic law, a parent divested of capacity cannot participate in adoption proceedings, so X was unable to participate in A’s adoption proceedings.  In the circumstances, X’s consent was not required for the adoption.

Decision

The Court found that the bond existing between the applicant and her daughter was sufficient to amount to a ‘family life’ and therefore attracted the application of art 8.  Although there was no doubt that the adoption had disrupted the applicant’s relationship with her daughter, the ‘interference’ had a basis in national law and pursued the legitimate aim of protecting the best interests of the child.  The central issue in the case was therefore whether the procedures followed properly respected the applicant’s rights under art 8.

The Court noted that applicant’s relationship with her child was never assessed in any of the proceedings and no separate decision was ever taken about the applicant’s parental rights — her exclusion from the adoption proceedings was merely an incident of the 2000 decision about X’s capacity.

The Court did not accept that anyone divested of the capacity to act should be automatically excluded from adoption proceedings concerning his or her child, and concluded that X should have been given the opportunity to express her views about the potential adoption, considering:

• the crucial impact of the proceedings upon A’s and X’s relationship; and
• that, apart from X’s inability to participate in the adoption proceedings, her parental rights (eg access) remained intact.

In the circumstances, by excluding the applicant from proceedings, which resulted in her daughter’s adoption, Croatia had violated art 8 in failing to ensure the applicant’s right to respect for her private and family life.

Relevance to the Victorian Charter

This case may prove relevant to the interpretation of s 17 of the Victorian Charter.

Section 17 recognises families as the fundamental group unit of society and their entitlement to protection by society and the State.  It entitles every child to the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.  This decision of the European Court of Human Rights provides further recognition of the significance of the family unit and that any restrictions placed upon family life will be strictly construed.

Jonathan Mitchell, Human Rights Law Group, Mallesons Stephen Jaques