CASE OF ODIEVRE v. FRANCE
Preliminary objection rejected (non-exhaustion);No violation of Art. 8;No violation of Art. 14+8
Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
9. The applicant is a French national who lives in Paris. 10. She was born in the fourteenth administrative district of Paris on 23 March 1965. Her mother requested that the birth be kept secret and completed a form at the Health and Social Security Department abandoning her after signing the following letter: “I abandon my child Berthe Pascale. I certify that I have been informed that after one month the abandonment of my child will become irreversible and that the authorities reserve the right to have her adopted. I decline the assistance that has been offered to me. I request that this birth be kept secret. I certify that I have received the form setting out information on abandonment. Paris, 24.5.[deleted] Berthe” 11. The applicant was placed with the Child Welfare Service at the Health and Social Services Department (Direction de l'action sanitaire et sociale – “the DASS”) and registered on 1 July 1965 under no. 280326 as being in the care of the département of Seine. Subsequently, a full adoption order was made on 10 January 1969 in favour of Mr and Mrs Odièvre, under whose name she is now known. The operative provisions of the Paris tribunal de grande instance's judgment ordering her adoption read as follows: “... The operative provisions of the judgment to be delivered shall be entered in the prescribed manner and time ... in the register of births, deaths and marriages held at the town hall of the fourteenth administrative district of Paris; This entry shall serve as the child's birth certificate; The original birth certificate and the birth certificate drawn up pursuant to Article 58 shall at the public prosecutor's behest be endorsed with the word 'adoption' and shall be deemed to be null and void.” 12. In December 1990 the applicant consulted her file as a person formerly in the care of the Children's Welfare Service of the département of Seine and managed to obtain non-identifying information about her natural family: “Record of information on a child admitted to the Saint-Vincent-de-Paul Hospital and Nursing Home provided by: CONFIDENTIAL Date of admission [date deleted] Detailed explanation of the reasons for the child's admission (if the child has been or may be abandoned, provide full information on such matters as the mother's, and if possible the father's, physical appearance, mental outlook, health, social background and occupation in order to enable the authorities to find the best possible placement) Abandonment: The parents have been cohabiting for seven years. Two children have been born of their relationship: an elder child, who is 21 months old, and Pascale, whom the mother has today abandoned and placed in our care. The couple have been put up by a woman for two years, but she now faces eviction. The father is a Spanish national and works as a painter and decorator. His monthly wage is approximately 1,200 [French] francs. He is married and has a legitimate daughter, who is being brought up by her mother. According to Pascale's mother, her partner refuses to have anything to do with Pascale and says that he cannot take on this new burden. She (Ms Berthe) appears to have no will of her own and is content to go along with her partner's wishes. She has not visited her daughter at the clinic, saying that she does not wish to become attached. She did not see her daughter until today and greeted their separation with total indifference. Ms Berthe does not work and looks after her son and her landlady's child. A request has been made for the birth to remain secret. Description of the mother: 1.63 m tall, slim, regular features, clear-skinned, heavily made-up brown eyes, long, thick brown hair, in good health, ambivalent attitude, very limited intellect. Description of the father: average height, blond hair, brown eyes, in good health, sober. Pascale was born 1 3/4 months premature and weighed 1,770 grams. She now weighs 3,100 grams. Her stay in the incubator room at ... was trouble-free. She has now reached term and presents no neurological or organic anomalies. Information noted on the medical certificate supplied to the nursery department. 25 May ... Birth certificate requested 14 June ... Certificate appended 18 June ... Proposal for category A registration.” 13. On 27 January 1998 the applicant applied to the Paris tribunal de grande instance for an order for the “release of information about her birth and permission to obtain copies of any documents, birth, death and marriage certificates, civil-status documents and full copies of long-form birth certificates”. She explained to the court that she had learned that her natural parents had had a son in 1963 and two other sons after 1965, that the DASS had refused to give her information concerning the civil status of her siblings on the ground that disclosure would be a breach of confidence, and that, now that she knew of her siblings' existence, she was entitled to seek an order for the release of information about her own birth. 14. On 2 February 1998 the court registrar returned the case file to the applicant's lawyer with the following letter of explanation: “Following examination of your file by Mrs B., Vice-President of the First Division, it appears that the applicant should consider applying to the administrative court to obtain, if possible, an order requiring the authorities to disclose the information, although such an order would in any event contravene the law of 8 January 1993.” 15. The mater semper certa est rule has not found acceptance in French law. There is an ancient tradition in France that enables newborn babies to be abandoned in accordance with a set procedure. The practice can be traced back to the time of Saint Vincent de Paul, who introduced the use of the tour, a sort of revolving crib housed in the wall a charitable institution. The mother would place the child in the crib and ring a bell. On that signal someone on the other side of the wall would cause the tour to pivot and collect the infant. The aim of Saint Vincent de Paul in setting up the Foundlings Home (Œuvre des Enfants trouvés) in 1638 was to prevent infanticide, abortion and babies being exposed. The Revolution introduced a reform making medical care available to expectant mothers who wished to abandon their children anonymously. In 1793 the Convention passed the following provision: “The Nation shall bear all the costs of the mother's labour and provide for all her needs during her stay, which will continue until she has fully recovered from her confinement. All information about her shall be treated in the strictest confidence.” The system of abandonment in the tour was abolished by a law of 27 June 1904 which introduced the “open office” (bureau ouvert) system (the office was open day and night so that the mother could leave her child there secretly, without disclosing her identity; at the same time she could be given information about the consequences of abandoning the child and offered assistance). The tradition of assisting anonymous births led the Vichy government to adopt the Legislative Decree of 2 September 1941 on the protection of births. The legislative decree allowed the mother to give birth anonymously and to receive free medical care during the month preceding and the month following the birth in any public hospital able to provide her with the care her condition required. That provision was repealed and subsequently reintroduced by decrees of 29 November 1953 and 7 January 1959, before being amended in 1986 and becoming first Article 47 of the Family and Welfare Code and then the current Article L. 222-6 of the Social Action and Families Code: “The costs of accommodation and confinement of women who, on being admitted to a public institution or approved private institution, request that their identity remain secret shall be borne by the Child Welfare Service in the département in which the institution's head office is located. At their request or with their agreement the women referred to in the first sub-paragraph shall receive psychological support and practical advice from the Child Welfare Service. The first sub-paragraph shall apply without any means of identification being required or inquiry conducted. If the name of the child's father or mother has been recorded in a birth certificate issued within the period prescribed by Articles 55 et seq. of the Civil Code, there shall be no legal entitlement to have the costs of accommodation and confinement paid for by the Service.” The system of anonymous births was embodied in Law no. 93-22 of 8 January 1993 “amending the Civil Code as regards civil status, the family and the rights of the child and instituting the office of family judge”, which introduced new provisions concerning the secret abandonment of children. For the first time, choosing to give birth in secret had an effect on the determination of filiation, as Articles 341 and 341-1 of the Civil Code created an estoppel defence to proceedings to establish maternity: there was no mother in the legal sense of the word: “An action to establish maternity may be brought subject to the application of Article 341-1. The child bringing the action shall be required to prove that he or she is the child to whom the alleged mother gave birth. The case may be proved only by strong presumptions or circumstantial evidence. On giving birth, the mother may request that her admission to hospital and identity shall remain secret.” In addition to Article L. 222-6 of the Social Action and Families Code setting out the procedure for anonymous and secret births – which are generally known as “births by an unidentified person” (accouchement sous X) and are related for filiation purposes to the aforementioned Articles 341 and 341-1 of the Civil Code – information about a child's origins may also be confidential under another provision. Provided the child is less than a year old, its parents may entrust it to the Child Welfare Service and request that their identity be kept secret (former Article 62-4 of the Family and Welfare Code, which later became Article L. 224-5 (4) of the Social Action and Families Code). The filiation stated in the civil-status documents is annulled and a fictitious birth certificate, known as a provisional civil-status certificate, issued in lieu. 16. Since the adoption of the law of 1993, several official reports have suggested that a reform of the system of anonymous births would be desirable. As far back as 1990 a report by the Conseil d'Etat, entitled “Status and protection of the child”, proposed the setting up of a mediatory body, “the Council for Tracing Family Origins”, to allow information to be communicated and contact to be established between the persons concerned, provided the interested parties consented. The Conseil d'Etat thus emphasised the need for a prior consensual basis before secret information about a child's origins could be disclosed. In that connection, it noted the difficulties inherent in searching for a parent (“this task is rendered all the more difficult by the fact that the administrative authorities currently follow a wide variety of practices with regard to the secrecy of origins. No method for tracing relatives can be established in these conditions. Nonetheless, one consistently finds in practice that a certain amount of information is collected and preserved and, in theory, it could be used. However, it will only become usable if a uniform, clear and simple procedure for collecting and preserving the confidential information relied on is established beforehand”); it also observed that professional secrecy obligations constituted a serious impediment to tracing. For that reason it proposed a compromise that would enable professionals to disregard their confidentiality obligations if they considered it appropriate for the purposes of enabling family origins to be established. In short, the Conseil d'Etat proposed that children should be given a limited right of access to information regarding the identity of their progenitors through the intermediary of a specially created structure that would be responsible for ascertaining the wishes of the parents and facilitating a psychological rapprochement of the parties. In 1995 a report by Mr Mattéi entitled “Children from here, children from elsewhere – Adoption without borders” proposed preserving the system of secret births, but suggested that it might be possible for non-identifying information to be gathered. The report of the parliamentary inquiry committee presided over by Laurent Fabius entitled “Rights of the child, uncharted territory”, which was made public on 12 May 1998, proposed reforming the system of anonymous births in these terms: “It is possible to envisage information on the child's biological filiation being kept with a public institution. Confidential information could be disclosed during the child's minority on a joint application by the mother and child. The right to make such an application could be made subject to conditions concerning the child's capacity or as to minimum age. The right would only be exercisable by the child in person, not its legal representative. Once the child has reached the age of 18, the information would automatically cease to be confidential at the child's request, subject to the mother being informed. In any event, disclosure of the confidential information would be incapable of having any effect on the parental ties the child already enjoyed. ... A system of this type could initially be established for cases of anonymous births and secret abandonment and subsequently extended, once the legislature considered it appropriate, to births following medically assisted procreation.” A report by Irène Théry entitled “Couples, filiation and parenthood today – The challenges posed to the law by changes in family and private life”, which was submitted to the Minister of Justice and the Minister for Employment and Solidarity on 14 May 1998, made the following proposal: “In view of the extremely serious consequences of anonymous births, which deprive the child of both its paternal and maternal filiation, we propose repealing Article 341-1 of the Civil Code. Putting the child up for adoption voluntarily and responsibly appears to be a more balanced and less painful course for the child.” A report by Professor Françoise Dekeuwer-Défossez entitled “Modernising family law: proposals for a law adapted to the realities and aspirations of our times”, which was submitted to the Minister of Justice on 14 September 1999, provides a résumé of the lively debate on the legitimacy of secrecy. It proposes retaining the system of anonymous births, repealing Article 62-4 of the Family and Welfare Code and encouraging a reversible implementation of a right for mothers to give birth “discreetly” by, for instance, the creation of a body or the appointment of referents who would be responsible for keeping confidential the mother's identity if she has so requested and would also act as mediators. 17. This statute is the final stage in the process of reform described above. It does not call into question the right to give birth anonymously but allows arrangements to be made for disclosure of identity subject to the mother's and the child's express consent being obtained. It does, however, abolish the parents' right to request confidentiality under Article L. 224-5 of the Social Action and Families Code. The main provisions of the statute provide as follows: “A Chapter VII worded as follows shall be added to Part IV of Book I of the Social Action and Families Code: '... National Council for Access to Information about Personal Origins Article L. 147-1 – A National Council, established under the auspices of the Minister for Social Affairs, shall be responsible for facilitating, in liaison with the départements and overseas authorities, access to information about personal origins in accordance with the conditions set out in this chapter. It shall inform the départements, the overseas authorities and approved adoption agencies about the procedure for the collection, communication and preservation of the information referred to in Article L. 147-5, and about the arrangements for attending to and assisting persons who wish to trace their origins, the natural parents and adoptive families concerned by their search, and about arrangements for attending to and assisting women who wish to benefit from the provisions of Article L. 222-6. ... It shall be composed of a judicial member of the national legal service, a member of the administrative courts, representatives of the ministers concerned, a representative of the authorities from the départements, three representatives of women's rights associations, a representative of adoptive families associations, a representative of associations of children in State care, a representative of associations that campaign for the right to know one's origins, and two public figures who are particularly qualified to hold office as a member of the Council as a result of their professional experience and skills obtained in the medical, paramedical or welfare spheres. Article L. 147-2 – The National Council for Access to Information about Personal Origins shall receive: (1) Requests for information about the child's origins from: – the child itself if the child has attained its majority; – the child's legal representatives or, with their agreement, the child itself, if the child is a minor; – the child's guardian if the child has attained its majority but has a guardian; – the child's direct adult descendants if the child is deceased; (2) Declarations by the natural mother authorising disclosure of her identity, or, as the case may be, by the natural father authorising disclosure of his identity; (3) Declarations of identity by their ascendants, descendants and siblings; (4) Requests by the natural father or natural mother to be informed whether the child has sought to trace them. Article L. 147-3 – Requests for access to information about one's origins shall be made in writing to the National Council for Access to Information about Personal Origins or the president of the council for the département; such requests may be withdrawn at any time in like manner. A natural father or natural mother who makes an express declaration that he or she waives confidentiality and an ascendant, descendant or sibling of the natural father or natural mother who declares his or her identity shall be informed that the declaration will not be communicated to the person concerned unless that person makes a request for access to information about his or her origins. Article L. 147-4 – The Council shall communicate to the president of the council for the département copies of all requests and declarations received pursuant to Article L. 147-2. Article L. 147-5 – In order to be able to deal with requests made to it, the Council shall collect copies of evidence relating to the identity of: (1) The woman who has requested that her identity and the fact of her admission to a health institution to give birth remain secret and, if applicable, the person named by her at that time as the father of the child; (2) Any person or persons who have requested that their identity remain secret when their child was taken into State care or was put up for adoption with an approved adoption agency; (3) The parents of any child whose name was not disclosed to the registrar of births, deaths and marriages when the birth certificate was issued. Health institutions, the département services and approved adoption agencies shall furnish the National Council on request with copies of evidence relating to the identity of the persons referred to in the preceding sub-paragraphs and any information that does not breach confidence regarding such identity concerning the natural mother's or natural father's health, the child's origins and the reasons for which and circumstances in which the child was placed with the Child Welfare Service or an approved adoption agency. In order to be able to process requests made to it, the Council shall also collect from the Central Adoption Authority, the International Adoption Mission or approved adoption agencies any information which they are able to obtain from the authorities of the child's country of origin in addition to the information initially received. Article L. 147-6 – After ensuring that the request remains valid, the Council shall communicate to the persons referred to in Article L. 147-2 (1) the natural mother's identity: – if it already has in its possession an express declaration waiving confidentiality in respect of the mother's identity; – if the mother's wishes have been verified and she has not expressly stated that she wishes to keep her identity secret; – if one of its members or a person appointed by it has been able to obtain the mother's express consent without interfering with her private life; – if the mother has died, provided that she has not expressed a contrary intent following a request for access to information about the child's origins. In such cases, one of the members of the Council or a person appointed by it shall advise the mother's family and offer it assistance. If the natural mother has expressly consented to disclosure of her identity or has died without refusing to allow her identity to be disclosed after her death, the Council shall disclose to the child who has made a request for access to information about its personal origins the identity of the persons referred to in Article L. 1472 (3). ... [a like provision follows with respect to the natural father] The Council shall furnish the persons referred to in Article L. 147-2 (1) with any information, other than information revealing the identity of the natural father or natural mother, it shall have received from the health institution, the département services and the bodies referred to in the fifth sub-paragraph of Article L. 147-5 or obtained from the natural father or natural mother, without interfering with their private lives, by a member of the Council or a person appointed by it. Article L. 147-7 – Access by a person to information about his or her origins shall have no effect on that person's civil status and filiation. It shall not create any right in favour of or impose any obligation on anyone whomsoever. Article L. 147-8 – The public prosecutor shall furnish the National Council on request with the information contained in the original birth certificates when such certificates are deemed to be null and void pursuant to Article 354 of the Civil Code. ...' ” “I. The following sub-paragraph shall be inserted at the beginning of Article L. 222-6 of the Social Action and Families Code: 'Any woman who, when giving birth, asks a health institution to keep the fact of her admission and her identity secret shall be informed of the legal consequences of her request and of the importance of knowing one's origins and history. She shall therefore be invited to leave, if she so agrees, information about her and the father's health, the child's origins and circumstances of the birth, and, in a sealed envelope, her identity. She shall be informed that she may at any time waive confidentiality regarding her identity and that otherwise her identity may only be disclosed in the circumstances set out in Article L. 147-6. She shall also be informed that she may at any time state her identity in a sealed envelope or add to the information given at the birth. The child's first names and, if applicable, a note that they were given by the mother, and the child's sex as also the date, place and time of birth shall be noted on the outside of the envelope. These formalities shall be attended to by the persons referred to in Article L. 223-7, whose names shall be furnished by the director of the health institution. In default, the director shall be responsible for attending to the formalities.' ” “... II. Article L. 223-7 of that Code shall be reintroduced as follows: 'Article L. 223-7 – For the purposes of the application of Article L. 222-6, in each département, the president of the council of the département shall appoint at least two members from his or her staff with responsibility for liaising with the National Council for Access to Information about Personal Origins, making arrangements without delay for the provision of the psychological counselling and practical advice to which women are entitled, receiving at the birth the sealed envelope referred to in the first sub-paragraph of Article L. 222-6, providing the mother with the information prescribed in Article L. 224-5 and collecting the information on the health of the natural father and natural mother, the origins of the child and the reasons for which and circumstances in which the child was placed with the Child Welfare Service or an approved adoption agency. They shall also ensure that arrangements are made for psychological counselling to be provided to the child. These members of staff shall attend an initial training programme and refresher courses to enable them to perform their duties. The training shall be organised by the National Council for Access to Information about Personal Origins which, in accordance with arrangements to be set out by decree, will provide them with regular back up.' ” 18. Civil Code “Within fifteen days of the date on which it becomes final, the full adoption order shall, at the request of the public prosecutor, be entered in the register of births, deaths and marriages held in the locality where the adopted child was born. The entry shall state the date, time and place of birth, the child's sex and first names as set out in the adoption order, and the first names, surnames, date and place of birth, occupation and home address of the person or persons adopting the child. The entry shall contain no details of the child's real filiation. The entry shall take the place of the adopted child's birth certificate. The original birth certificate and, where applicable, the birth certificate delivered pursuant to Article 58 shall, at the behest of the public prosecutor, be endorsed with the word 'adoption' and deemed to be null and void.” “Adoption shall confer on the child a filiation that shall replace its original filiation, since the adopted child ceases to be a member of its blood family ...” 19. It is relatively rare for mothers to be entitled to give birth anonymously under European domestic legislation, as Italy and Luxembourg stand alone in not imposing a statutory obligation on the natural parents to register a newborn child or to state their identity when registering it. Conversely, many countries make it obligatory to provide the names, not only of the mother, to whom the child is automatically linked, but also of the father. The countries concerned are Norway, the Netherlands, Belgium, Germany and Spain (where section 47 of the Law on civil status, which allowed mothers to have the words “mother unknown” entered in the register of births, deaths and marriages, was held to be unconstitutional in a decision of the Supreme Court in 1999), Denmark, the United Kingdom, Portugal, Slovenia and Switzerland. The current trend in certain countries is towards the acceptance, if not of a right to give birth anonymously, then at least of a right to give birth “discreetly”. An example of this is provided by Belgium, where a debate has begun, largely as a result of the large number of women crossing the border to give birth anonymously in France. In an opinion delivered on 12 January 1998 the Consultative Committee on Bioethics set out the two lines of argument that were defensible from an ethical standpoint: the first considered it unacceptable for children to be brought into the world without parents; for that reason its proponents proposed that facilities for “giving birth discreetly” should be provided, without completely closing the door on all attempts to trace the parents. Proponents of the second line of argument considered that the ethical dilemma posed by the right to give birth anonymously did not result from the need to resolve the conflict arising out of the clash between the respective rights of “the child to filiation” and “the mother in distress”, but from the more fundamental confrontation of two values: the life of the child on the one hand and the right of everyone to know his or her natural mother on the other. They contended that in the face of that dilemma, the primary concern had to be the protection of the life and of the development of the child. For that reason, they considered that giving birth anonymously was perfectly legitimate and acceptable from an ethical standpoint. Likewise, in Germany, in view of the rising number of abandoned newborn infants, the first “baby box” (Babyklappe) – a system that allows the mother to leave her child, ring a bell and leave without giving her identity – was installed in Hamburg approximately two years ago. Since then, other “baby boxes” have been installed in other towns. In May 2002 a bill on anonymous births was rejected by the Bundestag. On 21 June 2002 the Land of Baden-Württemberg introduced a further bill in the Bundesrat which was submitted to the relevant committees for presentation to the Bundestag. Yet another example is provided by Hungary, where mothers may decide to remain anonymous by abandoning their newborn child in a special, unsupervised room in the hospital.