CEDH · CASELAW;CLIN;ENG — 16 décembre 2014

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Belgium - 52265/10 Judgment 16.12.2014 [Section II] Article 8 Positive obligations Article 8-1 Respect for family life Respect for private life Refusal to grant adoption of child placed in kafala care by her biological parents: no violation Facts – The first and second applicants are a married couple of Belgian nationality. The third applicant, a Moroccan national, is the second applicant’s niece. The child was entrusted by her genetic parents to the first two applicants (as khafils ) through a kafala arrangement, an institution under Islamic law defined as a voluntary undertaking to provide for the welfare, education and protection of an abandoned child. The Belgian couple attempted unsuccessfully to adopt the child in Belgium. Following her arrival in Belgium, the child was granted a temporary residence permit, which was renewed at regular intervals. After the second set of adoption proceedings had ended, she was left without a residence permit for seven months. In February 2011 she was again issued with a temporary residence permit, which was renewed several times. In April 2014 she was finally granted indefinite leave to remain. Law – Article 8 (a)     Refusal to grant adoption of third applicant (i)     Applicability – The first two applicants had been looking after the third applicant, as if they were her parents, since the age of seven, when she was entrusted to them under the kafala arrangement in 2002, and they had all been living together in a manner which could not be distinguished from “family life” in its ordinary meaning. Article   8 was thus applicable in its “family life” aspect. Moreover, the persistence of the ties between the child and its original family did not rule out the existence of family life with others. (ii)     Merits – As the first two applicants had complained about the consequences arising from the third applicant’s residence status, the Court decided to examine the situation from the perspective of the question whether the Belgian State had a positive obligation to create a legal parent-child relationship between the applicants. It was true that the kafala arrangement, validly established in Morocco, had created a legal tie between the applicants, but as this institution did not exist in Belgium, the adoption they were seeking constituted a new legal situation. The Belgian courts, in refusing to grant the adoption, found that the customary kafala arrangement could not be equated with an adoption and that the legal conditions for an adoption under domestic law, in a situation where the child’s national law did not recognise such adoption, had not been met, on the grounds that the child had not been entrusted to the would-be adoptive parents by the competent “authority” of the State of origin. The refusal to grant the applicants’ request could be explained in part by a concern to respect the spirit and purpose of the protection of the child’s “best interests”, in accordance with the relevant international conventions. The domestic courts had carried out an assessment of the social and family situation, in the light of a number of factors on the basis of which the child’s best interests could be established. The courts based their decision on a two-fold observation: first, the educational and emotional care of the child had been provided since 2003 by the khafil parents and second, the third applicant had a legal parent-child relationship with her genetic parents and had remained in contact with her mother’s family in Morocco. That second finding weighed particularly heavily in the balance and, since the young girl ran the subsequent risk of not having the same personal status in Belgium as in Morocco, this was a ground for refusing to grant the adoption to the khafil parents in Belgium. The Belgian authorities had thus been entitled to consider that it was in the child’s best interests to ensure the maintaining of a single parent-child relationship in both Belgium and Morocco. However, that refusal had not deprived the applicants of all recognition of the relationship between them, because the procedure of unofficial guardianship was still open to them under Belgian law. In addition, there were no practical obstacles that they would have to overcome in order to enjoy, in Belgium, their right to respect for their “family life” and to live together. Lastly, the child had a legal parent-child relationship with her genetic parents and had only complained before the Belgian authorities and the Court about the uncertainty surrounding her residence status, not about any other consequences of the lack of recognition in Belgium of a legal parent-child relationship with her khafils . Consequently, there had been no breach of the applicants’ right to respect for their family life or for the third applicant’s right to respect for her private life. Conclusion : no violation (four votes to three). (b)     The third applicant’s residence status – After the Court of Appeal’s judgment of 19   May 2010 bringing the second adoption procedure to a negative end, and for the following seven months – until the issuance of a residence permit in February 2011 – the girl had found herself without a residence permit at all and subsequently, for the next three years, the Belgian authorities had refused to issue her with a permit of unlimited duration, preferring to renew her temporary permit, in spite of the applicants’ repeated requests. That situation had lasted until she was granted indefinite leave to remain in April 2014. The underlying question, namely whether the Belgian authorities should have granted the third applicant the security of the residence status that she was seeking and thus her protection, in view mainly of her age, against instability and uncertainty, was to be addressed in terms of the State’s positive obligations. The third applicant had lived continuously in Belgium with her khafils since her arrival in Belgium in 2005. At no point had she really been threatened with removal from the country. The Belgian authorities had regularly renewed the girl’s temporary residence permit such that, with the exception of a seven-month period between May 2010 and February 2011, she had lived there legally and had been able to travel freely to spend her summer holidays in Morocco. Additionally, she appeared to be perfectly integrated into Belgian society and had successfully completed her secondary-school studies without being impeded by her residence status. However, the steps she had taken to renew her residence permit could have caused the girl stress and frustration, as she waited to receive an unlimited permit. But the only real obstacle encountered by her had been her inability to take part in a school trip, owing to the absence of a residence permit between May 2010 and February 2011, at the time when the travel formalities had to be completed. Even giving significant weight to the child’s interests, it would be unreasonable to consider, merely on the basis of that consequence, that Belgium was required, in exercising its prerogatives in such matters, to grant her unlimited leave to remain in order to protect her private life. Accordingly, the Court found that there had been no breach of the third applicant’s right to respect for her private life. Conclusion : no violation (four votes to three). The Court also found unanimously that there had been no violation of Article   14 taken together with Article   8, observing that the grounds which had led the Court to find no violation of Article   8 also constituted an objective and reasonable justification, for the purposes of Article   14, for the inability of the first two applicants to adopt the third on account of her personal status. (See also Harroudj v.   France , 43631/09, 4   October 2012, Information Note   156 ; Wagner and J.M.W.L. v.   Luxembourg , 76240/01, 28   June 2007, Information   Note 98 ; compare, on the subject of the importance for a person to have a single name, Henry Kismoun v.   France , 32265/10, 5   December 2013, Information   Note 169 ; lastly, see, more generally, the Factsheet on Parental rights )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes