CEDH · CASELAW;CLIN;ENG — 10 juin 2010

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 131 June 2010 Schwizgebel v. Switzerland - 25762/07 Judgment 10.6.2010 [Section I] Article 14 Discrimination Unmarried woman of a certain age debarred from adopting a second child: no violation   Facts – After adopting a first child in 2002, the applicant, a single woman aged 47, sought authorisation to receive a second child with a view to adoption. However, all her applications were rejected, up to the Federal Court at last instance in 2006. Law – Article 14 taken together with Article   8: (a)   Applicability – The case concerned an adoption authorisation procedure. The legislation expressly authorised adoption by a single person up to 35 years old. Since such authorisation was indispensable for anyone wishing to adopt a child, the circumstances of the case fell within Article 8. In addition, the applicant alleged that she had been discriminated against on the basis of age in the exercise of a right recognised by domestic legislation. Her age was decisive in the domestic authorities’ rejection of her applications. Article 14, taken together with Article   8, was therefore applicable in the present case. (b)     Merits – The applicant could claim that she was a victim of a difference of treatment in relation to a younger single woman who, in the same circumstances, might have been able to obtain authorisation to receive a second child for adoption. The denial of her request had pursued the legitimate aim of protecting the well-being and rights of that child. In 1998 the applicant, aged 41, had been authorised to receive a first child. As regards the adoption of a second child, in 2006 the Federal Court had taken the view that the age difference between the applicant and the child to be adopted (between 46 and 48 years) was excessive and contrary to the child’s interests. There was no common denominator among the legal systems of the member States of the Council of Europe concerning the right to adopt as a single parent, the lower and upper age-limits for adopters or the age-difference between the adopter and the child. The Swiss authorities had thus had a broad margin of appreciation and both the domestic legislation and the decisions taken in the present case seemed to be consonant with the solutions adopted by the majority of the member States of the Council of Europe and, moreover, to be compliant with the applicable international law. Nor could any arbitrariness be detected in the present case: the domestic authorities’ decisions, taken in the context of adversarial proceedings, had been reasoned. They had considered not only the best interests of the child to be adopted, but also those of the child already adopted. Moreover, the criterion of the age-difference between the adopter and the child had not been laid down in an abstract manner by legislation but had been applied by the Federal Court flexibly and having regard to the circumstances of the situation. The arguments of the domestic courts had not been unreasonable or arbitrary concerning the fact that the reception of a second child, even of an age comparable to the first, would constitute an additional burden for the applicant or that problems are more numerous in families with more than one adopted child. It was evident in this type of case that the use of statistics was necessary and that a degree of speculation was inevitable. Taking into account the broad margin of appreciation of States in this area and the need to protect children’s best interests, the refusal to authorise the placement of a second child had not contravened the proportionality principle. The difference in treatment complained of had not been discriminatory within the meaning of Article 14. 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