CASE OF KEARNS v. FRANCE
No violation of Art. 8;Remainder inadmissible
Alvina Gyulumyan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa
7. The applicant was born in 1966 and lives in Dublin. She is married to T. 8. On 8 February 2002 she went to Seclin Hospital, in France, together with her mother and a French lawyer, to request anonymous registration of the forthcoming birth of her child (accouchement sous X). 9. She was admitted to the maternity ward on 17 February 2002, and on 18 February 2002 she gave birth to a girl, K., from an extramarital relationship with Mr Byrski. 10. On 19 February 2002 she had an interview lasting half a day with the social services, in the presence of her mother and a nurse who had been asked to act as an interpreter by the hospital. On the same day she signed a record of the child’s placement in State care in accordance with Article L. 224-5 of the Social Action and Families Code, handing over a folder intended for the child, which contained a letter, photographs and administrative documents. 11. In the record she indicated that she wished to have the child taken into State care, to request secrecy and to give her consent to adoption under Article 348-3 of the Civil Code. She stated that the child was born out of wedlock and was not recognised by the father. 12. The section entitled “Reasons for the placement” contained the following details: “[The applicant] wishes to keep secret the reasons why she is giving her child up for adoption. She would prefer to hand us the attached documents, which will be released to the child at her request on reaching the age of majority (letter, photos, official documents). Secrecy has been requested purely to ‘protect her baby’ from the violent and unbalanced biological father.” 13. The section entitled “Information on the placement” stated: “We have informed her of the following: ... (3) Time-limits and conditions for return of the child: – a child who is claimed back within a period of two months by the parent who entrusted the child to the Child Welfare Service will be returned to that parent without any further formalities (Article L. 224-6, paragraph 2, of the Social Action and Families Code). – if the child has a second parent who did not entrust him or her to the service and who claims the child back within a period of six months, the child will be returned to that parent without any further formalities (same Article). – once these periods have expired (two months if the sole parent or both parents entrusted the child to the service; six months if the second parent did not entrust the child to the service), an application for judicial review of the child’s placement in State care may be lodged, within thirty days from the date of the formal registration, with the tribunal de grande instance (Article L. 224-8 of the Social Action and Families Code). – beyond these time-limits: * if the child has been placed for adoption, any application to have the child returned will be inadmissible (Article 352 of the Civil Code) ... (6) Conditions for withdrawal of consent to adoption (Article 348-3, paragraphs 2 and 3, of the Civil Code) We have given her the following: – a notice setting out the effects of placement in State care and of consent to adoption and the conditions for recovery of the child and withdrawal of consent; – a model letter requesting the return of the child and/or withdrawing consent to adoption, if consent has been given.” 14. On the same day (19 February 2002) the applicant gave her consent to the child’s adoption. The form of consent stated, inter alia: “I ... certify that I have been informed: ... 2. about the effects of consent to adoption, namely: – that the placement is secret, – that I forfeit all my rights over the child, – that placement for adoption constitutes a bar to any recognition, declaration of filiation or application for recovery. 3. that this document will become FINAL after a period of TWO MONTHS, on 20 April 2002, and that during this period the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent (Article 348-3, paragraphs 2 and 3, of the Civil Code). I hereby declare that I formally consent to the adoption of my child ..., leaving the choice of the adopter to the Child Welfare Service. I acknowledge that I have received: – a notice setting out the time-limits and conditions for the return of my child, – a model letter for withdrawal of consent to adoption and to the record of the child’s placement in State care.” 15. On 20 February 2002 the applicant had a further interview lasting half a day with the social services, in the presence of a doctor acting as an interpreter, during which, at her request, various matters relating to the record signed the previous day were discussed. 16. On 7 May 2002, after approval had been given by the Family Council, the chairman of the Nord département council, as the official guardian of children in State care, placed K. in the care of Mr and Mrs L.-B. with effect from that date with a view to her full adoption. 17. In the meantime, Mr Byrski, the child’s biological father, had applied to the Dublin Circuit Family Court for recognition of his rights over the child. In decisions of 19 July and 14 and 28 August 2002 the Circuit Family Court directed that the adoption process in France should not proceed any further, that the name and a photograph of the child were to be sent to Mr Byrski and that its decisions were to be forwarded to the Nord département council and the French social services. 18. On 25 and 26 July 2002 the applicant went to the hospital’s maternity ward and subsequently to the French social services, seeking the return of the child. According to a note drawn up by the social services, her request was based on two reasons: firstly, the biological father had learned of the child’s birth in the meantime and had brought an action in Ireland, and secondly, she had managed to persuade her husband to recognise the child. Her request was refused because the two-month time-limit for withdrawing consent had expired. 19. The applicant then applied to the Lille tribunal de grande instance, seeking the annulment of the decision to give the child up and an order for her return. She submitted that the consent she had given on 19 February 2002 had been invalid on account of the family pressure exerted on her and because she had not realised the consequences of registering the birth anonymously, since the process had been explained to her without an interpreter being present. She argued that French law contravened Articles 13 and 14 of the Convention. 20. The child’s biological father, Mr Byrski, intervened in the proceedings. 21. In a judgment of 31 October 2002 the court dismissed the applicant’s claims, holding as follows: “In support of her application for the annulment of the decision to give up the child born on 18 February 2002 and for the child’s return, Ms Kearns alleges that an error was committed as to the meaning and scope of the document of 19 February 2002. Ms Kearns, an Irish national living and working in Dublin, came to the maternity ward in Seclin to give birth on 18 February 2002. On that occasion she expressed the wish for her admission and her identity to be kept secret. The exercise by any woman of this right, which is enshrined in Article 341-1 of the Civil Code and which the legislature has to date had no intention of reconsidering, is governed by the provisions of Article L. 222-6 of the Social Action and Families Code, as amended by the Act of 22 January 2002. It appears from the evidence before the court ... that at least two lengthy interviews were held in order to explain to this woman the conditions and effects of anonymous registration of a birth. These interviews took place in the presence of English speakers, and Ms Kearns, who chose to come to France to give birth, cannot expect the social services to have offered anything more in this respect, particularly not the presence of an official interpreter, which is not provided for or required by any statutory instrument. Furthermore, it appears from the proceedings ... and from the written submissions summarising her counsel’s address ... that Ms Kearns was taken to hospital by a lawyer; she had therefore clearly sought legal advice prior to the birth. Accordingly, no matter what psychological state the applicant may have been in, like any woman opting to give birth in these circumstances, it appears that Ms Kearns was nevertheless fully aware of both the immediate and the future implications of her actions and decisions. She thus acted quite consciously in having the birth registered anonymously and giving the child up to the social services to be taken into State care, and there are no grounds for arguing that her intellectual faculties were impaired or that the consent was invalid in any way; moreover, the question of consent is not applicable from a civil-status perspective. In addition, as regards the formal propriety of the document of 19 February 2002, once a child is entrusted to the social services, the latter assume a number of obligations, including the provision of information ... It appears from the record of the child’s placement, which contains entries whose existence is not disputed, that the social services fulfilled their obligation to provide information on a child’s placement in State care and the ensuing legal effects. Such information was, moreover, provided in English, and the notice and model letter requesting the return of the child were indeed given to Ms Kearns. Furthermore, Ms Kearns fully understood the meaning and scope of this information since she left documents for the child in the event that the latter expressed the wish to discover her origins at a future date. Ms Kearns clearly expressed her wish that the child should never be able to have legal ties to her. Moreover, she did not withdraw her consent within the two-month period. It should be noted in this connection that this right is strictly personal; accordingly, no action by a third person may be treated as an action to withdraw consent, that being the sole prerogative of the mother, or interrupt the relevant period. Accordingly, there are no grounds for declaring null and void the record of 19 February 2002, which served as an entirely valid basis for the placement in State care (first provisionally and later with final effect) of the child born on 18 February 2002 with no established parentage ... Since the mother did not apply for the return of the child within two months after giving her up, the child, who has no legally established parentage, was able to be placed with foster parents by the State authorities with a view to her adoption under Article 351 of the Civil Code. Such placement for adoption, by virtue of the provisions of Article 352 of the Civil Code, constitutes a bar not only to the return of the child to the mother but also to any declaration of filiation or recognition. The first ground of appeal must therefore be declared ineffective. Ms Kearns further alleges a violation of Articles 13 and 14 of the European Convention on Human Rights. As stated above, Ms Kearns gave birth ... while wishing to keep the birth and her identity secret, a right enshrined in Article 341-1 of the Civil Code and given effect by the Social Action and Families Code. More generally, these Articles govern the conditions for giving up a child, for consent to adoption or for anonymous registration of a birth, as well as the conditions and procedures applicable in the event of repudiation and/or withdrawal of any of these measures. They strike a delicate balance between the rights of a mother, which the legislature has to date had no intention of reconsidering, to give birth anonymously with the consequences that entails, and the rights of the foster parents and of the child, whose rights are now framed in such a way as to allow him or her access to more information, if he or she so desires, but in whose interests stability and certainty, both psychological and legal, must be sought, if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures. The instant case thus cannot be said to involve any discrimination or deprivation of the enjoyment of a right secured to the mother or the child by the European Convention on Human Rights, or indeed our national law, within the meaning of Article 14 of the Convention. Similarly, no matter how short they are, time-limits do exist in French law for bringing an action in the ordinary courts, constituting, within the meaning of Article 13 of the Convention ..., an effective remedy before a national authority independent of the administrative authority that may be required to rule on an application for the return of a child or to approve an adoption.” 22. The applicant appealed. In a judgment of 22 September 2003 the Douai Court of Appeal set aside the first-instance judgment. After reiterating the content of the record of 19 February 2002, and in particular the information it provided, the court held: “Paragraph 3 of the section on information thus expressly mentions the existence of two time-limits for the child’s return without any further formalities, one being two months (the only possible limit that could apply in the instant case), the other being six months, where the second parent has not entrusted the child to the social services. This six-month time-limit is mentioned on two further occasions, firstly in relation to the right to have the child returned to the second parent and secondly in indicating that even after the expiry of the two-month and six-month periods, a court action may still be brought. This information could have misled Ms Kearns ... since in reality the six-month time-limit applicable under Article L. 224-6 of the Social Action and Families Code in the circumstances referred to in Article L. 224-4 did not apply in the instant case, there being no established paternity as the mother had registered the birth anonymously, and the placement therefore came under point (1) of Article L. 224-4. Ms Kearns, an Irish national who is a native English speaker and does not speak French, could not have known the consequences in French law of anonymous registration of the birth, in terms of her rights and those of the biological father, and the information given was in no way capable of enlightening her in a clear and precise manner. Having been informed of the existence of a six-month time-limit where ‘the child has a second parent who did not entrust him or her to the service’, she may legitimately have thought, in the light of the information set out in the record, that this time-limit was applicable in her case since she had on several occasions notified the local health and social services department of the existence of a biological father who had not been informed of the placement procedure. It will be observed that there is no mention in the record that an interpreter was present when it was signed and that it has not been disputed that a member of the maternity ward staff assisted with the translation and the explanation in English of the information given in French to Ms Kearns ... However, a translation of this nature, which was provided by a person who used English only occasionally and did not have specific legal knowledge, and which, moreover, was based on particularly ambiguous information as to the time-limits, did not enable Ms Kearns ... to have access to proper information about her rights regarding the procedures for withdrawing consent. It therefore appears that the information provided to the appellant concerning the right to have the child returned was inaccurate or at least particularly ambiguous, and was set out in a pre-printed document not specially adapted to the procedure of anonymous birth registration but designed for use in any of the circumstances covered by Article L. 224-4 of the Social Action and Families Code for the taking of a child into State care; that reference was made to a six-month time-limit not applicable in her case; and that, moreover, being an native English speaker, the mother was not effectively informed of the procedures for the return of her child and of the strict two-month time-limit that applied in her case. Furthermore, it has not been shown in any way that Ms Kearns ... otherwise received any clear information before the record was signed as to her right to recover the child. The note by Ms F. – who also drew up the record in issue – besides having no evidential value, since it was written by a party to the proceedings, does not contain any clarification as to the information given to Ms Kearns ... about the time-limit for withdrawing consent. Similarly, the fact that Ms Kearns ... was in contact with a French lawyer prior to the birth does not mean that she received precise information from him about the exclusive nature of the two-month time-limit ... Ms Kearns’ belief ... in the possibility of recovering the child within a six-month period is corroborated by the request she made in person on 25 and 26 July 2002 to the Nord health and social services department, citing this time-limit, and by the subsequent letters from her lawyer, which also state that his client thought that she could take her child back within such a period. Having regard to all these considerations, it appears that Ms Kearns ... placed her child in State care while believing – legitimately, in view of the ambiguous information she had received when signing the record of the placement – that she could take her back within a period of six months and that this time-limit also applied to Mr B., who had, moreover, instituted proceedings in Ireland on 9 April 2002. This error as to the time-limit for the return of the child concerns a significant element of her consent to the child’s placement in State care, especially as the provisions of Article L. 224-5 of the Social Action and Families Code require precise information on the subject to be given to the mother. In these circumstances, the application for the record of the child’s placement of 19 February 2002 to be declared null and void must be allowed. ... seeing that the handing over of the child to the State authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on 19 February 2002, the child’s placement in State care is to be retrospectively annulled and cannot therefore have any legal effect. Accordingly, the application for the child to be returned to Ms Kearns ... should be allowed, without there being any need to address the subsidiary arguments she submitted in support of that application. Pursuant to Article 334-8 of the Civil Code, parental ties shall be established between Ms Kearns ... and the child to whom she gave birth in the maternity ward of Seclin Hospital on 18 February 2002 and a reference to this judgment shall be entered in the register of births, deaths and marriages for the town of Seclin.” 23. In a letter of 24 September 2003 the applicant’s lawyer asked the prefect to enforce the judgment and to return the child to her mother. No action was taken on this request. 24. The prefect for the département of Nord appealed on points of law, arguing that in the absence of recognition by the mother of the child to whom she had given birth anonymously, it was not necessary to obtain her consent for the child to be taken into State care. 25. In a judgment of 6 April 2004 the Court of Cassation allowed the appeal, holding as follows: “[Article L. 224-4, point (1), of the Social Action and Families Code] provides that children whose parentage has not been established or is unknown and who have been entrusted to the Child Welfare Service for more than two months are deemed to have been taken into State care. On 18 February 2002 Mrs T. (née Kearns) gave birth anonymously. On 19 February 2002 a record of the child’s placement in State care with the Child Welfare Service was drawn up in accordance with Article L. 224-5 of the Social Action and Families Code. On 7 May 2002 the child was placed for adoption after the Family Council for Children in State Care had given its approval on 25 April 2002. On 25 July 2002 Mrs T. unsuccessfully sought to have the child returned to her. In applications of 22 August and 10 September 2002 she brought proceedings against the prefect of the département of Nord, seeking the return of the child. In allowing her claim, the Court of Appeal held that the child’s placement with the State authorities was rendered void by a lack of true consent affecting the validity of the record drawn up on 19 February 2002, seeing that when the record was signed Mrs T. had received only ambiguous information about the period within which she could take her child back. In so holding, despite the fact that in the absence of recognition, the child’s parentage was not established, such that Mrs T.’s consent was not required when the child was taken into care ..., the Court of Appeal breached the provision cited above.” 26. The Court of Cassation therefore quashed and annulled the Court of Appeal’s judgment in its entirety and, applying Article 627, paragraph 2, of the New Code of Civil Procedure (by which it may put an end to the dispute by applying the appropriate legal rule), dismissed the applicant’s claims. 27. The full adoption procedure, which had been suspended, was resumed by Mr and Mrs L.-B. In a judgment of 17 June 2004 the Lille tribunal de grande instance allowed their application and made a full adoption order in respect of the child. 28. The history and development of the system of anonymous registration of births in France is set out in Odièvre v. France ([GC], no. 42326/98, §§ 15-16, ECHR 2003III). 29. The following provisions of the Social Action and Families Code are relevant to the present case: “The following shall be taken into State care: (1) children whose parentage is not established or is uncertain and who have been entrusted to the Child Welfare Service for more than two months; ...” “Where a child is entrusted to the Child Welfare Service in the circumstances referred to in Article L. 224-4, points (1), (2), (3) and (4), a record shall be drawn up. It shall mention that the parents in respect of whom the child’s filiation has been established, the child’s natural mother or natural father or the person handing the child over have been informed about: (1) the measures introduced, in particular by the State, the local authorities and the social-security bodies, to help parents to raise their children themselves; (2) the rules governing placement in State care in accordance with this Chapter; (3) the time-limits and conditions subject to which the child may be taken back by the father or mother; (4) the possibility of leaving behind any information concerning the health of the father and mother, the child’s origins and the reasons for which and circumstances in which the child was placed with the Child Welfare Service. Furthermore, where the child is entrusted to the service by the father or mother in accordance with points (2) or (3) of Article L. 224-4, the parent or parents concerned must be asked to consent to the child’s adoption; such consent shall be noted in the record, which must also mention that the parents have been informed of the time-limits and conditions in which they may withdraw their consent, in accordance with the second and third paragraphs of Article 348-3 of the Civil Code.” “The child shall be deemed to have been provisionally taken into State care on the date on which the record referred to in Article L. 224-5 is drawn up. Guardianship arrangements shall be made with effect from the date of such declaration. However, within a period of two months from the date of the provisional placement in State care, the child may be returned immediately and without any further formalities to whichever of the parents entrusted him or her to the service. This period shall be extended to six months, in the circumstances specified in Article L. 224-4, point (3), for whichever parent did not entrust the child to the service. Beyond these periods, the decision to agree to or refuse the return of a child in State care shall, subject to the provisions of Article 352 of the Civil Code, be taken by the official guardian, with the agreement of the Family Council. In the event of a refusal, the persons concerned may apply to the tribunal de grande instance.” 30. The relevant provisions of the Civil Code are worded as follows: “The following may be adopted: (1) children in respect of whom the mother and father or the Family Council have validly consented to adoption; (2) children in State care; (3) children declared abandoned in the circumstances provided in Article 350.” “Consent to adoption shall be given before the senior registrar of the district court within whose jurisdiction the home or place of residence of the person giving the consent is situated, or before a French or a foreign notary, or before French diplomatic or consular officials. It may also be received by the Child Welfare Service if the child has been entrusted to the service. Consent to adoption may be withdrawn within a period of two months. Withdrawal of consent shall be effected by means of a registered letter with recorded delivery, addressed to the person or the service that received the consent. The handing over of the child to the parents on request, even a verbal request, shall also be treated as proof that consent has been withdrawn. If, on the expiry of the two-month period, consent has not been withdrawn, the parents may still request the return of the child, provided that the child has not been placed for adoption. If the person who has received the child refuses to give him or her back, the parents may apply to the court, which shall determine, having regard to the child’s interests, whether the return of the child should be ordered. The child’s return shall invalidate the consent to adoption.” 31. The Court of Cassation takes the position that, where a mother gives birth anonymously, there are no established parental ties between her and the child and that, accordingly, her consent to adoption is not required. 32. Thus, in a judgment of 5 November 1996 (Bulletin 1996 I no. 368, p. 259) in a case concerning a request for the return of an anonymously registered child born to a minor, the Court of Cassation quashed the judgment of the Court of Appeal, which had annulled the record of the child’s placement with the social services on the ground that the mother was under age and had not been assisted by a person exercising parental responsibility. It held as follows: “In so holding, despite the fact that in the absence of recognition, parental ties had not been established, so that it was not necessary to obtain Ms Y’s consent when the child was entrusted to the Child Welfare Service, the Court of Appeal breached the provision cited above [Article 61, point (1), of the Family and Welfare Code].” 33. Conversely, in a recent case in which the mother had given birth anonymously but the biological father had recognised the child before the birth, the Court of Cassation, relying in particular on the New York Convention on the Rights of the Child, quashed and annulled the judgment of the Court of Appeal, which had declared inadmissible the father’s application for the return of the child. It gave the following reasons: “... in so holding, despite the fact that, since the child had been identified by Mr X ... on a date prior to the consent to adoption, the child’s paternity had been established with effect from the date of the birth as a result of this prenatal recognition, so that the Family Council for Children in State Care, which had been informed of the recognition, could no longer ... validly consent to the child’s adoption, consent being the sole prerogative of the biological father, the Court of Appeal, disregarding the child’s right to know its declared father, breached the provisions cited above.” (Court of Cassation, First Civil Division, 7 April 2006, Petites affiches 14-17 July 2006) 34. Article 21 of this Convention provides: “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 and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.” 35. This convention, which is not directly applicable to the present case since it concerns inter-country adoption, provides in Article 4 that the persons whose consent is necessary for adoption must “have been counselled as may be necessary and duly informed of the effects of their consent”, and that such consent must have been given freely and expressed or evidenced in writing and must not have been withdrawn. In addition, the consent of the mother, where required, must have been given only after the birth of the child. 36. This Council of Europe convention came into force on 24 April 1968. France has signed it but has not ratified it. Article 5 provides: “1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: (a) the consent of the mother ... 4. A mother’s consent to the adoption of her child shall not be accepted unless it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.” 37. According to the explanatory report, the object of paragraph 4 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored. 38. The convention is currently undergoing a revision. Article 5 of the draft revised convention is worded as follows: “1. Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a. the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; ... 2. The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing. ... 5. A mother’s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.” The explanatory report states the following: “33. Paragraph 2 emphasises that it is essential that the person giving consent has been well informed in advance of the consequences of doing so and that consent is given freely and in writing. ... 38. The object of paragraph 5 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored after the child’s birth. 39. Paragraph 6 contains a definition of the terms ‘father’ and ‘mother’. Given this definition, the consent provided for in this article does not apply to parents of origin when legal affiliation has not been established.” 39. Most European legal systems provide that consent must be obtained by a judge or notary independently of the placement process. Some countries allow the parents’ consent to be obtained by the social services responsible for the child, by the director of the institution in whose care the child is placed or by the supervisory authority. 40. As regards the provision of information to the biological parents, some national regulations require adoption agencies to provide information on the legal effects of adoption, the adoption process and the other means of assistance available to them. In other countries this obligation falls directly to the judge, who must inform the parents of the legal effects of adoption and of their right to withdraw consent. 41. In order to ensure that the biological parents give their free and informed consent, most European legal systems have introduced a statutory period of reflection after the birth. In a similar manner to Article 5 § 4 of the European Convention on the Adoption of Children (see paragraphs 30-32 above), most legal systems envisage a period of not less than six weeks, sometimes extending to as much as three months. 42. Some countries simply make the validity of consent subject to “the recovery of the mother after giving birth” or to the condition that it is given after the birth. Lastly, the legislation in other countries makes no provision for a period of reflection, but “prenatal” consent remains prohibited by law in the vast majority of legal systems. 43. Some countries have instituted a period within which the biological parents may revoke their consent. There is considerable diversity in the legislation of the member States that have provided for this possibility; some systems allow consent to be withdrawn until the adoption order is issued and others until the adoption process has been initiated, whereas others lay down fixed periods whose length varies from country to country. Lastly, in some countries the biological parents’ consent is irrevocable. 44. The effects of withdrawal of consent likewise vary from one State to another. In countries such as France or Switzerland, where consent may be revoked during a specified period, the withdrawal has an absolute effect in that it puts an end to the adoption process and opens up the possibility of the child’s return. Conversely, in systems where consent may be withdrawn until the adoption order is issued, the withdrawal does not automatically end the process and the courts are required to make a decision on the child’s return on the basis of the child’s best interests.