EHRM, 05-03-2019, nr. 38201/16

The second applicant maintained his complaints. He submitted that the adoption proceedings had been unlawful. In particular, the examination of the adoption case without him being involved in the proceedings had deprived him of an opportunity to express his interest in maintaining a relationship with his granddaughter. This had resulted in the absence of a reference as to the preservation of his relationship with the child in the adoption judgment and, as a consequence, it had been impossible for him to protect his interest in maintaining contact with the child after the termination of the adoption proceedings. The second applicant believed that the interference in question had neither been proportionate nor had it been necessary in a democratic society.

The Court reiterates that there may be ‘family life’ within the meaning of Article 8 of the Convention between grandparents and grandchildren where there are sufficiently close family ties between them. While cohabitation is not a prerequisite, as close relationships created by frequent contact also suffice, relations between a child and his or her grandparents with whom he or she had lived for a time will normally be considered to fall within that category (see Kruškić v. Croatia (dec.), no. 10140/13, § 108, 25 November 2014).

In the present case the second applicant had been taking care of his granddaughter M. for five years from May 2008, when she had moved in with him together with her mother at age one year and eight months, through her mother's serious illness and death in April 2011, and until July 2013, when the girl moved out to live with her future adoptive parents Mr and Ms Z. He had also been M.'s guardian between May 2011 and December 2013. The Court is satisfied that there was family life between the second applicant and the child within the meaning of Article 8 of the Convention. This has not been disputed by the parties.

The Court will next examine whether there has been a failure to respect the second applicant's family life.

The Court notes that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained. The relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child and thus by its very nature generally calls for a lesser degree of protection. The right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contact between them, even though that contact normally takes place with the agreement of the person who has parental responsibility (see Mitovi v. the former Yugoslav Republic of Macedonia, no. 53565/13, § 58, 16 April 2015).

The Court is mindful, however, that the adoption terminates the legal relationship between the child and his or her natural parents and family of origin and, therefore, the Convention obligation to enable the family tie to be maintained will necessarily change (see paragraph 54 above).

The Court observes that in the present case the issue of post-adoption contact, thus the issue of whether a family tie between the second applicant and his granddaughter should be maintained after her adoption was not examined as such by the domestic courts in the course of the adoption proceedings.

The Court notes that the Government acknowledged that there had been an interference with the second applicant's right to respect for his family life within the meaning of Article 8 § 1 of the Convention in connection with the termination of family ties with his granddaughter after her adoption.

The Court reiterates that an interference breaches Article 8 unless it is ‘in accordance with the law’, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, ‘necessary in a democratic society’ to achieve those aims. The Court will therefore proceed with examining whether the interference in question was carried out in accordance with the law.

Pursuant to the Court's case-law, the wording ‘in accordance with the law’ requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, that is to say to be accessible, foreseeable and accompanied by necessary procedural safeguards affording adequate legal protection against arbitrary application of the relevant legal provisions (see Surikov v. Ukraine, no. 42788/06, § 71, 26 January 2017, with further references).

Turning to the circumstances of the present case, the Court notes that domestic law provides that adopted children lose personal non-pecuniary and pecuniary rights and are relieved from obligations vis-à-vis, in particular, their relatives. However, where at the request of the adopted child's grandparents the court examining the adoption case decides, in the interests of the child, to maintain their personal non-pecuniary and pecuniary rights and obligations in respect of the child, an application by such relatives for contact with the child can be made under Article 67 of the Family Code (see paragraphs 54–55 above). The Court notes in this connection that the second applicant did not make an application for post-adoption contact with his granddaughter before the District Court examining the adoption case at first instance. This issue was therefore not examined by the District Court and no reference to post-adoption contact between the child and the second applicant was made in the operative part of the adoption judgment, resulting in the loss of any legal tie between them and making it impossible for him to seek contact with the child under Article 67 of the Family Code as of the adoption judgment's becoming final on 7 December 2013 (see paragraphs 30 and 68 above).

The Court takes note of the second applicant's argument to the effect that his failure to apply for maintaining personal non-pecuniary and pecuniary rights and obligations in respect of his granddaughter before the District Court examining the adoption case in the first instance resulted from the District Court's omission to involve him in the adoption proceedings. The Court notes, however, that the domestic law did not provide for mandatory presence of the second applicant as the child's guardian in the examination of the adoption application. This issue was left to the discretion of the court examining the adoption case (see paragraphs 60 and 67 above). It further notes that the second applicant was aware of the adoption proceedings, having consented to the adoption in writing and expressed the wish for the case to be heard in his absence (see paragraph 29 above). Nothing therefore suggests that the second applicant was prevented from or unable to apply to the District Court for continued contact with his granddaughter after her adoption or that the adoption judgment delivered by the District Court on 26 November 2013 had been unlawful.

The Court notes that subsequently, when the consequences of the adoption proceedings entailing the permanent severance of family ties between the second applicant and his granddaughter became clear to him, and possibly after his relationship with Mr and Ms Z. had deteriorated (see paragraph 27 above), the second applicant pursued two sets of proceedings seeking to restore his contact with the child. In the first of those proceedings, the second applicant succeeded in having restored the procedural time-limit for lodging his appeal against the adoption judgment and challenged the judgment in question on account of, in particular, the loss of contact with his granddaughter following her adoption. The City Court, however, dismissed his appeal without discussing the question of whether it was appropriate for him to have contact with his granddaughter, at the same time stating that it remained open to him to apply to a court for the determination of his contact with his granddaughter in accordance with Article 67 of the Family Code (see paragraphs 32–34 and 49 above).

However, when the second applicant brought proceedings against Mr and Ms Z. seeking elimination of obstacles to his contact with his granddaughter and determination of the terms of his contact with her under Article 67 of the Family Code, the courts discontinued the proceedings, stating that, since the adoption judgment of 26 November 2013 did not contain an indication as to the continuation of family ties between the second applicant and his granddaughter after the adoption, the former did not have a right to claim the elimination of obstacles to contact with the child and determination of the terms of his contact with her (see paragraphs 47–49 above).

Having regard to the foregoing, a question arises as to whether the domestic law governing the issue of post-adoption contact between the adopted child and his or her relatives was clear enough and foreseeable in its application in so far as it did not expressly provide that the rights of relatives of the adopted child were transferred to the adoptive parents or otherwise ceased on adoption, unless an application by relatives had been made in the course of the adoption proceedings for continued relations, including contact, and specific provision made for them to this effect in the adoption judgment.

Presuming, however, that this was implied in the relevant provisions of the domestic law (see paragraph 88 above), once the second applicant's request for restoration of the procedural time-limit for lodging his appeal against the adoption judgment had been granted by the District Court it was then for the City Court dealing with the second applicant's appeal to examine the issue of whether he should have post-adoption contact with the child, in particular by deciding whether this corresponded to the child's interests, and if so, to include the relevant provision in the operative part of the adoption judgment. Instead the City Court upheld the adoption judgment and led the second applicant to believe that it was open to him to have the issue of his post-adoption contact with his granddaughter settled after the termination of the adoption proceedings pursuant to the procedure provided by Article 67 of the Family Code. In reality, though, no such remedy was available to him because, as the City Court and the District Court found in the Article 67 proceedings, in the absence of a specific provision as to continued post-contact in the adoption judgment, no application for contact could be made.

Thus, as a result of the way the City Court interpreted and applied the relevant provisions of domestic law in the re-opened adoption proceedings, the second applicant was entirely and automatically excluded from his granddaughter's life after her adoption even though the issue of post-adoption contact was before the City Court.

Having regard to the foregoing and proceeding on the assumption of sufficient clarity of domestic law governing the subject of post-adoption contact between the adopted child and his or her relatives, the Court considers that the failure of the City Court to examine the merits of the issue of the second applicant's post-adoption contact with his granddaughter amounted to disrespect for the second applicant's family life. There has accordingly been a violation of Article 8 of the Convention.

Having regard to its finding relating to Article 8 of the Convention (see paragraphs 79–95 above), the Court considers that it is not necessary to examine separately whether there has been a violation of Article 13 of the Convention.