CEDH · CASELAW;CLIN;ENG — 4 octobre 2012

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France - 43631/09 Judgment 4.10.2012 [Section V] Article 8 Positive obligations Article 8-1 Respect for family life Refusal of permission to adopt owing to prohibition of adoption in child’s country of birth: no violation Facts – The applicant is a French national. In 2004 an Algerian court granted her the right to take Zina Hind, a child born in Algeria of unknown parents in November 2003 and abandoned at birth, into her legal care ( kafala ). The applicant also obtained legal authorisation to change the child’s name to Hind Harroudj. In February 2004 the applicant took Hind to live in France, where she applied to adopt the child, but her application was rejected in 2007 because the family law of the child’s country of origin made no provision for adoption. In Islamic law adoption, which creates family bonds comparable to those created by biological filiation, is prohibited. Instead, Islamic law provides for a form of legal guardianship called “ kafala ”. In Muslim States, with the exception of Turkey, Indonesia and Tunisia, kafala is defined as a voluntary undertaking to provide for a child and take care of his or her welfare and education. Law – Article 8: The Court shared the Government’s view that the refusal of authorisation to adopt the child did not constitute an “interference” with the applicant’s family life. It considered that the complaint should be examined from the point of view of the State’s positive obligations. Comparative law revealed that none of the States considered kafala equal to adoption, but in France and elsewhere kafala produced comparable effects to legal guardianship or supervision, or placement with a view to adoption. Also, there was no clear consensus among the States as to whether or not the law of the child’s country of origin constituted an obstacle to adoption. The margin of appreciation open to the French State here was therefore wide. In refusing the applicant permission to adopt the child the French courts had applied Article 370-3 paragraph   2 of the Civil Code, which prohibits the adoption of a foreign child if the law of his or her country of origin does not authorise adoption. They had also taken into account the provisions of the Hague Conventions of 1993 and 1996, and the New York Convention on the Rights of the Child, which explicitly recognises kafala in Islamic law as protecting the child’s best interests in the same way as adoption. The refusal of permission to adopt had thus been largely in keeping with the spirit and aims of the international treaties. The acknowledgment of kafala in international law was a decisive factor when considering how the States accommodated it in their domestic law and made allowance for the legal issues that might arise. Furthermore, kafala was fully accepted in the respondent State and produced effects comparable in this case to guardianship as the child had had no parents when she was taken into care. The domestic courts had emphasised that the applicant had succeeded in giving the child her family name, and enjoyed parental authority that enabled her to take all decisions in the child’s interest. It was true that kafala created no filial ties, conferred no inheritance rights and did not suffice to entitle the child to acquire the nationality of the guardian. However, the applicant could still include the child in her will and choose a legal guardian to look after her in the event of her own demise. In applying the relevant international conventions the respondent State had made a flexible compromise between the law of the child’s country of origin and its own law. In this way French law helped to cushion the restrictions on adoption as the child became more fully integrated into French society. The French Civil Code authorised the adoption of a minor whose personal status was governed by Islamic law “if the minor was born and habitually resided in France”. Also, a child who could not be adopted because of his or her personal status under Islamic law had the right, before coming of age, to apply for French citizenship – and thus to become adoptable – if they had lived in France for at least five years in the care of a French national. Indeed, the respondent State submitted, and the applicant did not dispute, that the child could already avail herself of that possibility. In gradually erasing the restrictions on adoption in this manner, the authorities had made an effort to encourage the integration of such children without immediately severing the ties with the laws of their country of origin, thereby respecting cultural pluralism and striking a fair balance between the public interest and that of the applicant. Considering the margin of appreciation left to the States in the matter, there had been no violation of the applicant’s right to respect for her family life. Conclusion : no violation (unanimously).   © 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