CASE OF HARROUDJ v. FRANCE
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1962 and lives in Villeurbanne. 6. Zina Hind was born on 3 November 2003 in Algeria and was abandoned immediately by her biological mother, who gave birth anonymously. As her father was also unknown, Zina Hind became a ward of the Algerian State on 3 December 2003. The director of social services in Boumerdès (Algeria) was appointed as her guardian. 7. On 13 January 2004 the President of the court of Boumerdès granted the applicant, then aged 42 and unmarried, the right to take the child Zina Hind into her legal care (kafala). He also authorised Zina Hind to leave Algeria and settle in France. 8. In a decision of 19 January 2004, the President of the court of Bordj Menaïel (Algeria) admitted a request for the child to take the same name and authorised the change from Zina Hind to Hind Harroudj. 9. Hind Harroudj arrived in France on 1 February 2004. Since then she has been living with the applicant and the applicant’s mother. 10. On 8 November 2006 the applicant applied for the full adoption of Hind. In support of her request she argued that to enable Hind to be adopted was the solution most consistent with “the best interests of the child”, within the meaning of Article 3 § 1 of the Convention on the Rights of the Child of 20 November 1989 and Article 1 of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. 11. In a judgment of 21 March 2007 the Lyons tribunal de grande instance dismissed her application for adoption, after noting that kafala gave her parental authority, enabling her to take any decisions in the child’s interest. The court found that kafala gave the child the protection to which all children were entitled under the international conventions. It further pointed out that, under Article 370-3 of the French Civil Code (see paragraph 23 below), a child could not be adopted if the law of his or her country prohibited adoption, which it did in the case of Hind, as the Algerian Family Code stipulated: “adoption is prohibited by the Sharia and by legislation” (see paragraph 17 below). The applicant appealed against that judgment. 12. In a judgment of 23 October 2007 the Lyons Court of Appeal upheld the judgment of the court below: “Article 370-3, second paragraph, of the Civil Code, inserted by the Law of 6 February 2001 on Intercountry Adoption, stipulates: ‘Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France’. The choice-of-law rule, in so far as it refers to the personal law, is not discriminatory and is compliant with Articles 8 and 14 of the European Convention on Human Rights and with international law; Article 4 (a) of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption provides that adoption may take place only if the competent authorities of the State of origin have established that the child is adoptable, this not being the case where adoption is prohibited. Hind Harroudj was born in Algeria. Article 46 of the Algerian Family Code authorises kafala, but prohibits adoption. Under French law, simple or full adoption creates a legal parent-child relationship for the benefit of the adopters and cannot be equated with kafala. The Algerian Family Code does not provide for any exception to the prohibition of adoption where the child has no established parentage. The executive decree of 13 January 1992 on changes of name does not establish parent-child relationships, as the holder of the right of kafala retains the status of guardian. The kafala system preserves the child’s interests by conferring legal status on the care provided by guardians. It is expressly recognised by Article 20 § 3 of the Convention on the Rights of the Child of 20 November 1989. Islamic law makes other provision for the inheritance of property. Accordingly, the above-mentioned provisions do not run counter to the child’s best interests.” 13. The applicant lodged an appeal on points of law. Under Articles 8 and 14 of the Convention, she relied on Hind’s right to respect for her family life, submitting that it was in the child’s interest for a legal parent-child relationship to be established between them, and that her inability to adopt Hind entailed a disproportionate interference with her own family life. She argued that the fact of denying her the right to adopt had the effect of establishing a difference in treatment in respect of the child’s family life on account of the child’s nationality and country of origin, as children born in countries which did not prohibit adoption could be adopted in France. 14. In a judgment of 25 February 2009 the Court of Cassation dismissed her appeal on points of law: “After noting that the choice-of-law rule in Article 370-3, second paragraph, of the Civil Code, referring to the personal law of the adopted child, was consistent with the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption – the application of which is intended only for adoptable children, excluding those whose country of origin prohibits adoption – the Court of Appeal did not establish any difference in treatment in respect of the child’s family life or disregard the right to respect for the latter, in finding that Article 46 of the Algerian Family Code prohibited adoption but authorised kafala and in rejecting the application for adoption, in so far as kafala was expressly recognised by Article 20, paragraph 3, of the New York Convention of 26 January 1990 [adopted on 20 November 1989] on the Rights of the Child, as preserving, on a par with adoption, the child’s best interests. ...” 15. Adoption, emanating from classical Roman law, which based it on the “imitation of nature” (the principle of adoptio naturam imitatur in the Institutes of Justinian) creates, between the adopter and the adoptee, a legal relationship that is identical to that existing between parent and child. Although certain States make a distinction between several levels of adoption (most often between full adoption and simple adoption), this characteristic is always present. 16. Under Islamic law adoption is prohibited (haraam). However, the right is accorded a special institution: kafala or “legal care”. 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, education and protection. 17. The procedural arrangements for establishing kafala depend on the domestic law of each Muslim State. The relevant provisions of the Algerian Family Code thus read as follows: “Adoption (tabanni) is prohibited by the Sharia and by legislation.” “Kafala is an undertaking to assume responsibility for supporting, educating and protecting a minor child in the same manner as a father would care for his son. It is established by a legal act.” “Kafala is granted upon appearance before the judge or notary, with the child’s consent when he or she has a father and mother.” “The holder of the right of kafala (the kafil) must be a Muslim, a sensible and upright person, and be in a position to support the fostered child (the makfoul), with the capacity to protect him or her.” “The fostered child may be of known or unknown parentage.” “The fostered child shall retain his or her original legal parent-child relationship if of known parentage. Otherwise, Article 64 of the Civil Status Code shall be applied in respect of the child.” “Should the father and mother, or one of them, request the reinstatement under their guardianship of the fostered child, it will be for the child, provided he or she is of an age of discernment, to choose whether or not to return to his parents. If the child is not of such an age, he may be returned only with the judge’s authorisation, taking into account the interests of the fostered child.” 18. Articles 20 and 21 of the United Nations Convention on the Rights of the Child, of 20 November 1989, read as follows: “1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia, foster placement, Kafala of Islamic law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.” “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration ...” 19. The relevant provisions of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, adopted in the context of the Hague Conference on Private International Law, read as follows: “The States signatory to the present Convention, Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ... Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin, Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children, ... Have agreed upon the following provisions” “The objects of the present Convention are - (a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law; ... (c) to secure the recognition in Contracting States of adoptions made in accordance with the Convention.” “... 2. The Convention covers only adoptions which create a permanent parent-child relationship.” “An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin - (a) have established that the child is adoptable; (b) have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests; ...” 20. The relevant provisions of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children, also adopted in the context of the Hague Conference on Private International Law, read as follows: “(1) The objects of the present Convention are - (a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child; (b) to determine which law is to be applied by such authorities in exercising their jurisdiction; (c) to determine the law applicable to parental responsibility; (d) to provide for the recognition and enforcement of such measures of protection in all Contracting States; (e) to establish such co-operation between the authorities of the Contracting States as may be necessary in order to achieve the purposes of this Convention. (2) For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.” “The measures referred to in Article 1 may deal in particular with – ... (c) guardianship, curatorship and analogous institutions; (d) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; (e) the placement of the child in a foster family or in institutional care, or the provision of care by kafala or an analogous institution; ...” “The Convention does not apply to - ... (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; ...” 21. Out of the twenty-two Contracting States of which a comparative law study has been made (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Denmark, Finland, “the former Yugoslav Republic of Macedonia”, Georgia, Germany, Greece, Ireland, Italy, the Netherlands, Russia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom), where, as a result of historical factors, either the majority of the population is traditionally Muslim or there are sufficiently large Muslim communities, none of them regard kafala established abroad as adoption. In cases where the domestic courts have recognised the effects of kafala granted in a foreign country, they have always treated it as a form of guardianship or curatorship, or as placement with a view to adoption. 23. Law no. 2001-111 of 6 February 2001 inserted new provisions in the Civil Code concerning intercountry adoption, including the new Article 3703 in Chapter III (Choice-of-law rule concerning the legal parent-child relationship established by adoption and the effect in France of adoptions granted abroad) in Title VIII on legal parent-child relationships by adoption. The Article reads as follows: “The requirements for adoption are governed by the national law of the adopter or, in case of adoption by two spouses, by the law which governs the effects of their marital relationship. Adoption, however, may not be granted where it is prohibited by the national laws of both spouses. Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France ...” 24. Law no. 2003-1119 of 26 November 2003 on immigration control, foreign residents in France and nationality amended Article 21-12 of the Civil Code, concerning acquisition of French nationality by declaration. It now reads as follows: “A child who was the subject of a simple adoption by a person of French nationality may, until the age of majority, declare, in the manner provided for in Articles 26 et seq. hereof, that he opts for the status of French national, provided he resides in France at the time of his declaration. However, the obligation of residence is dispensed with where the child was adopted by a French national who does not have his habitual residence in France. The following may also opt for French nationality under the same conditions: 1o A child who, for at least five years, has been in foster care in France and brought up by a French national or who, for at least three years, has been entrusted to the child welfare service. 2o A child in foster care in France and brought up in conditions that have allowed him to receive, for at least five years, a French education, from either a public body, or a private body satisfying the characteristics determined by a decree issued after consultation of the Conseil d’Etat.” 25. Decree no 93-1362 of 30 December 1993 pertaining to declarations of nationality, and to decisions of naturalisation, redintegration, and of loss, forfeiture and withdrawal of French nationality (amended by decree no. 2010-527 of 20 May 2010) reads as follows: “In order to make the declaration provided for in Article 21-12 of the Civil Code, the applicant shall provide the following documents: ... (4) Where the applicant is a child who has been fostered in France and raised by a French national, the certificate of French nationality, civil registration certificates, any documents emanating from the French authorities that show the said foster parent has French nationality and any document proving that the child was placed in foster care in France and has been raised by that person for at least five years; ...” 26. Before the Law of 6 February 2001, the ordinary courts and the Court of Cassation had adopted a flexible position, allowing the conversion of kafala into adoption subject to the consent of the minor’s representative “having regard to the effects attached by French law to adoption and, in particular, in the case of full adoption, to the complete and irrevocable nature of the severance of the relationship between the minor and his blood relatives or the guardianship authorities of his country of origin” (Court of Cassation, First Civil Division, 10 May 1995, no. 93-17634). Following the enactment of the law, the Court of Cassation changed its position, quashing the judgments of courts of appeal which had granted simple adoption in respect of Moroccan and Algerian children in the kafala care of French couples (Court of Cassation, First Civil Division, 10 October 2006, no. 06-15264 and no. 06-15265). That solution has remained constant since then (see, for example, Court of Cassation, First Civil Division, 9 July 2008, no. 07-20279; Court of Cassation, First Civil Division, 28 January 2009, no. 0810034; and more recently, Court of Cassation, First Civil Division, 15 December 2010, no. 0910439). 27. In reports of 2004 and 2005, and in an opinion of 2007, the Children’s Advocate and the High Council for Adoption drew attention to the administrative difficulties encountered for the fostered child (access to visas, welfare rights) as a result of the lack of a legal parent-child relationship with the foster parent and to the difficulties of acquiring nationality. The report on adoption by J.-M. Colombani, deposited on 19 March 2008, noted that any evolution of the legal aspects of the situation appeared difficult and proposed cooperation with the two main countries concerned (Algeria and Morocco) especially with a view to adapting the conditions for the granting of a visa on a family reunification basis. The report explained that the Franco-Algerian Agreement of 27 December 1968 enabled children in kafala care to benefit from a family reunification measure in France provided that the other conditions for such a measure were met (income, housing). In 2010 the French Ombudsman called on the legislature to reconsider the question of kafala, advocated that children placed by judicial decision in kafala care should, at a minimum, be eligible for simple adoption and requested the abolition “of the five-year period of residence required by Article 21-12 of the Civil Code for French nationality to be sought by children placed by judicial decision in kafala care and raised by a French national, the possession of nationality being the only means for such children to become adoptable”. Lastly, two private member’s Bills, one on the adoption of children lawfully placed in kafala care, tabled by Senator A. Milon on 10 March 2011, the other on abandoned children and adoption tabled by Member of Parliament M. Tabarot on 8 February 2012, have been registered with the Presidency of the National Assembly and with that of the Senate. The aim of the Bills is for placement in kafala care by judicial decision or non-judicial decision (the Milon Bill) to be equated with simple adoption.