CEDH · CASELAW;CLIN;ENG — 17 juillet 2008

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Croatia - 11223/04 Judgment 17.7.2008 [Section I] Article 8 Article 8-1 Respect for family life Respect for private life Exclusion of the applicant, who had been divested of her capacity to act, from proceedings resulting in the adoption of her daughter: violation   Facts : The applicant suffers from paranoid schizophrenia and has been divested of her capacity to act. In July 2000 the applicant’s daughter A., who was born in December 1999, was taken into foster care by the applicant’s mother. It was found that the applicant, who was suffering from a serious mental illness and was a drug addict, was not capable of caring for the child. Subsequently, by a court decision in May 2001 the applicant was divested of the capacity to act on the ground that, as she suffered from paranoid schizophrenia, she was incapable of taking care of her own rights and interests. Although not expressly stated in that decision, one of its consequences was that she was deprived, under sections 130 and 138 of the 2003 Family Act, of her parental rights since a parent divested of the capacity to act could not be a party to adoption proceedings and his or her consent was not required for adoption. In 2005 the domestic courts, relying on psychiatric assessments which reported that the applicant’s illness had progressed and that she continued to be incapable of taking care of her interests, refused her request to have her capacity to act restored. In the meantime, in November 2001 the applicant’s daughter was taken into State care on the ground that the applicant, who was living with her mother, was interfering with the child’s upbringing. Adoption proceedings were subsequently brought, without the applicant’s knowledge, on the ground that A. was without parental care as her mother had been divested of her capacity to act and her father had died. The Government stated that the applicant had been informed of those proceedings by telephone on 26 August 2003. On 2   September 2003 A’s adoption was authorised. Until the adoption, the applicant’s access rights were preserved and, according to the applicant, she continued to visit her daughter on a regular basis. Law : A. had lived with her mother from her birth in December 1999 until she was taken into foster care in November 2001. Even after that date, the applicant had continued to visit her on a regular basis. Throughout that period there had accordingly been a bond between the applicant and her daughter which amounted to “family life” within the meaning of Article 8. There was no doubt that the adoption had completely disrupted the applicant’s relationship with her daughter and had amounted to a very serious “interference” with her right to respect for family life. That “interference” had had a basis in national law, namely the 1998 and 2003 Family Acts, and pursued the legitimate aim of protecting the best interests of the child. However, at no point in the domestic proceedings which preceded A.’s adoption had the applicant’s relationship with her daughter been assessed, despite the fact that, under domestic law, one of the consequences of the decision to divest the applicant of her capacity to act had been her complete exclusion from the adoption proceedings. Nor had any separate decision been taken about the applicant’s parental rights. Indeed, after the applicant was divested of the capacity to act, she had still continued to exercise her parental rights at least to a certain extent, since her access rights had been preserved until the adoption. Notwithstanding this, A. had been given up for adoption and the applicant had not been allowed to participate in the ensuing proceedings in any form, save for an alleged telephone call. The Court found it difficult to accept that anyone divested of the capacity to act should be automatically excluded from adoption proceedings concerning his or her child. Instead of being summarily informed of the decision concerning her daughter, the applicant should also have been given an opportunity to express her views about the potential adoption in the proceedings. The applicant had not therefore been sufficiently involved in the decision-making process, especially given the crucial impact the decision of 2 September 2003 would have on her relationship with her daughter. It followed that by excluding the applicant from the proceedings which had resulted in the adoption of her daughter, the State had failed to ensure the applicant’s right to respect for her private and family life. Conclusion : violation (unanimously). Article 41 – EUR 8,000 in respect of non-pecuniary damage.   © 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