CASE OF EMONET AND OTHERS v. SWITZERLAND
Preliminary objections dismissed (ratione materiae, non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award (global)
Christos Rozakis
8. The applicants were born in 1971, 1946 and 1948 respectively and live in Geneva. 9. In 1971 Mariannick Faucherre (the second applicant) and her husband had a daughter, Isabelle Chantal Emonet (the first applicant). The couple divorced in 1985 and the second applicant's former husband died in 1994. 10. Since 1986 Mariannick Faucherre has been living with Roland Emonet (the third applicant), who is divorced and has no children. The three applicants lived together between 1986 and 1992, when the first applicant left to live with the man she had married. The couple divorced in 1998. 11. In March 2000 a serious illness left the first applicant paraplegic. She kept her own home, but needed to be cared for by her mother and the third applicant, whom she regarded as her father. By agreement between the three applicants, it was therefore decided that the third applicant should adopt the first applicant so that they could become a real family in the eyes of the law. 12. On 14 December 2000 the third applicant filed an adoption request with the Canton of Geneva Court of Justice, enclosing two letters attesting to the other two applicants' agreement. 13. On 8 March 2001 the Court of Justice pronounced the adoption. 14. On 15 June 2001 the cantonal civil status authorities informed the second applicant that the adoption had the effect of terminating her legal parent-child relationship with the first applicant and that 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 mother-daughter relationship between them and requested that it be restored. 15. In a letter of 23 July 2001 the cantonal civil status authorities announced that they were standing by their decision, which was based on Article 267 of the Swiss Civil Code (see “Relevant domestic and international law”, paragraph 20 below). Under the provisions of that Article previously existing parent-child relationships were severed on adoption, save in respect of the spouse of the adoptive parent. Mariannick Faucherre and Roland Emonet, however, were simply cohabiting. 16. On 3 September 2001 the President of the Geneva Department of Justice, Police and Transport formally rejected the request for restoration of the mother-daughter relationship. The applicants applied to the administrative court seeking to have that decision quashed and requesting a declaration that the adoption had not severed the mother-child relationship and that the adopted child could keep her name. On 17 December 2001 the applicants instituted parallel proceedings in the Court of Justice to have the adoption order set aside. The court suspended the proceedings pending the outcome of the present application. 17. On 25 June 2002 the administrative court partly allowed the application, setting aside the decisions of 23 July and 3 September 2001 in so far as they severed the mother-daughter relationship, and ordering the cantonal civil status authorities to restore that relationship. 18. On 2 September 2002 the Federal Office of Justice, having been informed of that decision, referred the matter to the Federal Court. 19. On 28 May 2003 the Federal Court allowed the appeal and invited the cantonal civil status authorities to record the adoption in the civil status register. In its judgment the Federal Court considered whether there was an omission in the Civil Code with regard to the adoption by a cohabitant of his or her partner's child. It pointed out that the adoption of the spouse's child, whether considered as a form of joint adoption or as adoption by a single person, created a legal parent-child relationship between the child and the adoptive parent without severing the existing relationship between the child and its parent. It also pointed out that adoption should be in the interest of the child, so that joint adoption should be the rule and adoption by a single person the exception. The Federal Court noted that adoption by a single person was not subject to any condition other than that of the child's welfare. It concluded that adoption could satisfy that condition only if the link between the partners was strong and lasting, which in principle excluded cohabiting partners, between whom relationships were less stable than between married couples. That was also the reasoning behind the adoption of section 3, paragraph 3, of the Federal Medically Assisted Procreation Act of 18 December 1998, which entered into force on 1 January 2001 and restricted sperm donation to married couples only. The Federal Court reiterated in this connection that the Federal Council had explicitly stated that the requirements in respect of sperm donation could not be less strict than those concerning joint adoption, a possibility which was open only to married couples, that a stable and lasting relationship between the parents was essential to the child's healthy development, and that common-law partnerships were generally less solid than marriages and, unlike marriage, did not guarantee durability and could therefore not be compared with marriage. The Federal Court thus held that Article 264 a) § 3 of the Civil Code could not be applied by analogy, and that there was no omission in the law that needed to be remedied. That court considered that the situation was that provided for in Article 264 b) § 1 of the Civil Code (see “Relevant domestic and international law”, paragraph 20 below). Concerning the Convention, the Federal Court considered that Article 8 did not embody the right to demand a form of adoption that was not provided for by law. Furthermore, the very essence of adoption being the forging of new family ties, prohibiting the accumulation of parent-child relationships was not at variance with Article 8. As to Article 12 of the Convention, the Federal Court repeated that it referred only to marriage and did not confer a right to adopt. The Federal Court also considered the complaint concerning the applicants' unwillingness to accept the legal consequences of the adoption, and found that they could bring proceedings to have the adoption annulled for lack of consent. The judgment was served on the applicants on 3 October 2003. 20. The relevant provisions of the Swiss Civil Code are as follows: “1. Spouses shall only adopt jointly; joint adoption shall not be open to other persons. 2. The spouses must have been married for five years or be at least 35 years of age. 3. A spouse may adopt the child of the other spouse if the spouses have been married for five years.” “1. An unmarried person may adopt a child alone if they are at least 35 years old. 2. ...” “I. Where there are no descendants, an adult or a person who has been declared incapable may be adopted: 1. if he or she suffers from a physical or mental disability requiring permanent care and the adoptive parents have provided such care for at least five years; 2. ... III. For the remainder, the provisions on the adoption of minors shall apply by analogy.” “1. The child shall acquire the legal status of a child of the adoptive parents. 2. The existing parent-child relationships shall be severed, save in respect of the spouse of the adoptive parent. 3. The child may be given a new forename upon adoption.” “1. If, for no lawful reason, consent has not been sought, the persons entitled to give consent may challenge the adoption in court, provided that this would not seriously prejudice the child's welfare. 2. This right does not, however, concern parents who have the possibility of appealing against the decision to the Federal Court.” 21. Section 122 of the Federal Court Act of 17 June 2005, which entered into force on 1 January 2007, provides for the possibility of having Federal Court judgments reviewed in the event that the Court finds a violation of the Convention. Section 122 - Violation of the European Convention on Human Rights “Revision of a Federal Court judgment for violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (ECHR) may be requested under the following conditions: a. when the European Court of Human Rights, in a final judgment, has found a violation of the ECHR or its protocols; b. compensation cannot remedy the effects of the violation; c. revision is necessary to remedy the effects of the violation.” 22. The relevant provisions of the European Convention of 24 April 1967 on the adoption of children, which entered into force in Switzerland on 1 April 1973, read as follows: “This Convention applies only to legal adoption of a child who, at the time when the adopter applies to adopt him, has not attained the age of 18, is not and has not been married, and is not deemed in law to have come of age.” “1. The law shall not permit a child to be adopted except by either two persons married to each other, whether they adopt simultaneously or successively, or by one person. 2. The law shall not permit a child to be again adopted save in one or more of the following circumstances: a. where the child is adopted by the spouse of the adopter; b. where the former adopter has died; c. where the former adoption has been annulled; d. where the former adoption has come to an end.” “1. Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock. Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother. 2. When the rights and obligations referred to in paragraph 1 of this article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist. Nevertheless, the law may provide that the spouse of the adopter retains his rights and obligations in respect of the adopted person if the latter is his legitimate, illegitimate or adopted child. In addition the law may preserve the obligation of the parents to maintain (in the sense of l'obligation d'entretenir and l'obligation alimentaire) or set up in life or provide a dowry for the adopted person if the adopter does not discharge any such obligation. 3. As a general rule, means shall be provided to enable the adopted person to acquire the surname of the adopter either in substitution for, or in addition to, his own. 4. If the parent of a child born in lawful wedlock has a right to the enjoyment of that child's property, the adopter's right to the enjoyment of the adopted person's property may, notwithstanding paragraph 1 of this article, be restricted by law. 5. In matters of succession, in so far as the law of succession gives a child born in lawful wedlock a right to share in the estate of his father or mother, an adopted child shall, for the like purposes, be treated as if he were a child of the adopter born in lawful wedlock.” 23. At its 77th meeting, held in May 2002, the European Committee on Legal Cooperation instructed the Committee of Experts on Family Law to examine the European Convention on the Adoption of Children. A working party on adoption was set up at the start of 2003 to draft a report making detailed proposals for a possible revision of that convention. In its final report (CJFA-GT1 (2004) 2) the working party concluded that a new (revised) convention on the adoption of children should be elaborated as soon as possible. 24. On 16 May 2006, the draft revised Convention of the Council of Europe on the Adoption of Children, as amended by the working party at its 4th meeting, from 5 to 7 April 2006, was published. The revised version is based on the information contained in the working party's final activity report. 25. The following are excerpts from the draft (revised) Convention and the corresponding explanatory report, as adopted by the working party at its 36th meeting, from 15 to 17 November 2006, and by the European Committee on Legal Cooperation at its 82nd meeting, from 26 February to 1 March 2007: Text of the draft Convention (revised): Preamble “... Considering that, although the institution of the adoption of children exists in the law of all member states of the Council of Europe, there are in those countries still differing views as to the principles which should govern adoption and differences in the procedure for effecting, and the legal consequences of, adoption; ...” Article 2 (Scope of the Convention) “1. This Convention applies to the adoption of a child who, at the time when the adopter applies to adopt him or her, has not attained the age of 18, is not and has not been married and has not reached majority. ...” Article 7 (conditions for adoption) “1. The law shall permit a child to be adopted: a. by two persons of different sex who i. are married to each other, or ii. where such an institution exists, have entered into a registered partnership together; b. by one person. 2. States are free to extend the scope of this Convention to same-sex couples who are married together or who have entered into a registered partnership. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship. ...” Article 11 (Effects of an adoption) “1. Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin. 2. Nevertheless, the spouse or registered partner of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child, unless the law otherwise provides. 3. As regards the termination of the legal relationship between the child and his or her family of origin, States Parties may make exceptions in respect of matters such as the surname of the child and impediments to marriage or to entering into a registered partnership. 4. States Parties may make provision for other forms of adoption having more limited effects than those stated in the preceding paragraphs of this article. ...” Commentary on the Articles of the Convention. Article 7 (conditions for adoption) “... 48. States are also free to extend the scope of the convention to different- or same-sex couples who are living together in a stable relationship. It is up to the States Parties to specify the criteria for assessing the stability of such a relationship. 49. If a State Party has extended the scope of the convention its provisions have to be applied mutatis mutandis. ...” Article 11 (Effects of an adoption) “64. The revised convention mainly deals with “full” adoption (which is an adoption that severs all ties with the family of origin) without preventing those states that have “simple” adoption (which is an adoption that does not sever the relationship with the family of origin so that the adopted child is not entirely integrated into his or her adoptive family) from continuing to use this form of adoption. 65. The main object of this article is to ensure that an adopted child is treated from every standpoint like a child of the adopter and his or her family and that, in principle, all ties with the child's family of origin should be severed. ... 67. According to paragraph 2, the parent whose child is adopted by his or her spouse or registered partner retains his or her rights and obligations in respect of the child, unless the law otherwise provides. ....”