CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 juin 2007

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display:inline-block }     FIRST SECTION     CASE OF WAGNER AND J.M.W.L. v. LUXEMBOURG     (Application no. 76240/01)       JUDGMENT       STRASBOURG   28 June 2007       FINAL   28/09/2007       This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Wagner and J.M.W.L . v. Luxembourg, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mr   A. Kovler ,   Mr   K. Hajiyev ,   Mr   D. Spielmann,   Mr   S.E. Jebens, judges , and Mr S. Nielsen, Section Registrar , Having deliberated in private on 18 January and 7 June 2007, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 76240/01) against the Grand Duchy of Luxembourg lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Luxembourg national, Ms Jeanne Wagner, and her child, J.M.W.L., of Peruvian nationality (“the applicants”), on 15 November 2000. 2.     The applicants complained, on the basis of Articles 8 and 14 of the Convention, of a breach of their right to respect for their family life and of discriminatory treatment, owing to the non-recognition in Luxembourg of the Peruvian decision pronouncing the full adoption of the second applicant by the first applicant. They also claimed, on the basis of Article 6 of the Convention, that they had been deprived of their right to a fair hearing. 3.     By a decision of 5 October 2006, the Chamber declared the application admissible. 4.     A hearing took place in public in the Human Rights Building, Strasbourg, on 18 January 2007 (Rule 59 § 3 of the Rules of Court).   There appeared before the Court: –     for the Government Mr   L. Schaack, avocat , Mr   F. Moyse, avocat ,   Counsel ; –     for the applicants Mr J.-P. Noesen, avocat ,   Counsel . The Court heard addresses by the parties' representatives as well as their replies to questions from judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants were born in 1967 and 1993 respectively and are resident in Luxembourg. 6.     On 6 November 1996 the Family Court of the province of Huamanga (Peru) pronounced the adoption of the second applicant, then aged three years and previously declared abandoned, by the first applicant. The judge listed the various stages of the adoption procedure which had been completed in accordance with the legal conditions. By the judgment the child acquired the status of daughter of the first applicant, ceased to belong to her blood family and henceforth bore the forenames and names J.M.W.L. In accordance with the legal conditions and the agreement drawn up between the technical secretariat for adoptions in Peru and the Luxembourg-Peru Association, the latter was declared responsible for monitoring the child and, if necessary, for the legalisation of the adoption in Luxembourg. 7.     The judgment of the Family Court of the province of Huamanga was declared enforceable – according to the certificate issued by that court on 14 December 1996 – and entered in the civil status register of Ayacucho ‑ Huamanga. 8.     In May 1997 the first applicant, who lived alone in Luxembourg with the adopted child, gave birth to a daughter. On 13 November 2006 her lawyer stated that she was now the mother of four children attending school and still lived in Luxembourg. A.     Proceedings instituted before the civil courts for a declaration that the Peruvian judgment pronouncing full adoption was enforceable in Luxembourg 9.     On 10 April 1997 the applicants brought proceedings against the Attorney General's Department before the Luxembourg District Court. They requested the court to declare that the Peruvian judgment was enforceable in the Grand Duchy as though it were a judgment ordering full adoption delivered by the competent Luxembourg court; they stated that the purpose of the application for enforcement was to ensure that the child could be registered in the civil status register in the Grand Duchy, acquire the nationality of her adoptive mother and be granted definitive leave to remain in Luxembourg. 1.     Judgment of the District Court of 11 February 1998 10.     On 11 February 1998 the District Court declared the application for enforcement admissible as it had been properly submitted by originating summons. In that regard, the court stated the following: “An application for enforcement of a foreign judgment is a principal legal claim different in nature from the application that gave rise to the foreign judgment. The court dealing with the application for enforcement does not examine the merits of the application submitted to the foreign court, but confines itself to verifying that the decision satisfies the relevant international procedural requirements. The application for enforcement of an adoption judgment, which is different in nature from the application to adopt, is not subject to the objection procedure in [the relevant article] of the Code of Civil Procedure, under which applications to adopt may be made by petition ...” 11.     The court decided that a court dealing with an application for enforcement of an adoption judgment delivered by a foreign court must first of all ascertain whether the foreign court was competent by reference to the rules determining its jurisdiction. On that point, the court concluded that the adoption had been pronounced by the court that was competent according to Article 370 of the Luxembourg Civil Code. 12.     As for the law applicable to the merits of the case, the court first of all recalled the positions taken by the parties to the proceedings. Thus, the Attorney General's Department maintained that the court should ascertain whether the foreign court had applied the law designated by the Luxembourg system of private international law. As the adoptive parent was of Luxembourg nationality, the conditions for adoption were governed by Luxembourg law; and Article 367 of the Luxembourg Civil Code did not permit full adoption by an unmarried person. The Attorney General's Department concluded that in pronouncing full adoption by the first applicant, as an unmarried person, the Peruvian court had failed to apply Luxembourg law . The applicants were of the view that the court should confine itself to examining whether the adoption pronounced in Peru had been made according to the procedures prescribed by the laws of Peru. They submitted, in particular, that the final paragraph of Article 370 of the Luxembourg Civil Code must be interpreted as meaning that “the Luxembourg international rule on conflict expressly recognises as valid an adoption made abroad by an authority competent under the laws of that country, ... provided that the local procedure and local provisions were complied with”. The court decided that the final paragraph of Article 370 of the Civil Code introduced a rule on jurisdiction and also maintained its rules on the conflict of laws. It added that according to Article 370 of the Civil Code the adoption by the first applicant, of Luxembourg nationality, was governed by Luxembourg law with respect to the requisite conditions for adoption. The court concluded that the court dealing with an application to enforce the decision must ascertain whether the adoption had been pronounced in accordance with Luxembourg law with respect to those conditions. 13.     The court then stated that it had adjourned the deliberations on 11 November 1997 to enable the parties to submit their observations on the following preliminary questions which it proposed to refer to the Constitutional Court: “1.     The law on adoption, more particularly Article 367 of the Civil Code, allows a married couple to adopt a child fully and prohibits full adoption by an unmarried person. Is that law consistent with Article 11(3) of the Constitution, which provides that 'the State guarantees the natural rights of human beings and the family' and Article 11(2) of the Constitution, which states that 'Luxemburgers are equal before the law'? 2.     Is the right to found a family a natural right of human beings and the family? 3.     Is the right to found an adoptive family a natural right of human beings and the family? 4.     Does the right to found a family include the right to found a single-parent family? 5.     Is the right to found a family a right of only married human beings? 6.     Does the principle of equality before the law allow full adoption to be authorised for married persons to the exclusion of unmarried persons? 7.     Do Articles 11(2) and (3) of the Constitution establish rights of an unmarried person to full adoption on the same terms as those applicable to a married couple?” 14.     The court confirmed that it must examine the correct application of Article 367 of the Civil Code and its conformity with the Constitution before adjudicating on the application for enforcement. In order to do so, the court requested the applicants to clarify their actual family situation, on the following grounds: “By submissions of 15 December 1997 Ms Jeanne Wagner's representative maintained that the Wagner family existed in fact and in law and that it was not a single-parent family. He also submitted that nowadays 'the more general acceptance by society of unmarried cohabitation has led to an increase in the number of children living in a single home with a father and mother who are not married. It is less and less certain that the parents need to be married in order for the child to grow up in a home with a father and a mother'. If those submissions have any meaning, Ms Jeanne Wagner is living as part of a couple without being married. ... The assertion of the existence of a family which is not a single-parent family is new and not substantiated by any evidence. The social inquiry report of 6 August 1997, which was submitted to the court on 28 October 1997, states that Ms Jeanne Wagner gave birth to a daughter in May 1997. That report on the adaptation of the adopted child in her new family in Luxembourg examines only the relationship between the mother and the child. It does not mention the existence of a man in Ms Wagner's home or any relationship between the adopted child and Ms Wagner's partner. The pre-adoption report drawn up on 30 April 1996, also by social worker [B.], states as the general reason for adopting the conviction that 'children are the purpose of life'. Ms Wagner was approaching her thirtieth birthday and decided 'not to wait to meet the ideal man in order to have children but to adopt a child on her own, in the knowledge that her family would help her ...' As the reason for adopting a Peruvian child, the social worker observed that in Luxembourg Ms Wagner encountered many obstacles, mainly the fact that she was not married. 'The only country which has an agreement with Luxembourg and which consents to adoption by an unmarried woman is Peru and thus Ms Wagner contacted the Luxembourg-Peru Association and prepared the file through that association'. The social worker recommended that the adoption should be approved, as the child found a welcoming home 'within that “single-parent” family'. The reports filed by the applicant therefore mention only a family consisting of the mother and two children. It is important to refer to the Constitutional Court questions which are appropriate to the adoptive parent's actual family situation. Adoption by a family consisting of an unmarried couple may receive a different reply from that given to adoption by an unmarried mother living alone. It is therefore for the adoptive parent to establish her actual family situation and to establish that her family is not a single-parent family.” 15.     The hearing was resumed on 10 March 1998. 2.     Judgment of the District Court of 1 April 1998 16.     In its judgment of 1 April 1998, the court first of all set out the views expressed by the applicants in relation to the proposed preliminary questions. Thus, the applicants, first, emphasised that the court was dealing with an application for enforcement and not an application to adopt and, second, took issue with the proposed questions because they emphasised the rights of the mother, whereas the real issue was the rights of the child adopted following the Peruvian judgment. The applicants also observed that the first applicant had given birth to a child in May 1997, and proposed the following preliminary questions: “1.   Is the right to secure from the Luxembourg courts recognition of a family relationship validly established abroad for the purposes of securing recognition that the adopted child has the same political and civil rights as a biological child of the adoptive mother a natural right of the human being, and more particularly of an adopted child? 2.     In so far as Article 367 of the Luxembourg Civil Code must, in spite of the substance of Article 370, final paragraph, be considered to constitute an obstacle to the recognition of a full adoption lawfully made abroad by an unmarried mother of Luxembourg nationality, and must be so considered in spite of the substance of Articles 7 and 21 of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989, as approved by the Law of 20 December 1993, does not the principle of equality before the law set forth in Article 11(3) of the Constitution require recognition of that full adoption in so far as such recognition is necessary in order for the adopted child to be able to enjoy all her political and civil rights to the same extent as her biological collaterals? Does the principle of equality before the law allow a difference in treatment to be created by the law, in particular with respect to the entry of the adoption in the civil status register, the issuing of the certificate of nationality and the situation regarding succession, in complete legal certainty between a non-marital child and an adopted child of the same mother?” 17.     The court then gave judgment in the following terms: “The court must ascertain whether the conditions prescribed by Luxembourg law for adoption were satisfied at the time when the adoption was pronounced by the Peruvian judge. In fact, Ms Wagner is an unmarried woman who, according to Article 367 of the Civil Code, cannot undertake a full adoption. The question that arises is therefore whether the prohibition on full adoption by an unmarried person is compatible with the constitutional rights in Article 11(3) and (2), that is to say, any rights enjoyed by the mother, and not by the child. When ensuring that the decision to be enforced satisfies the relevant international procedural requirements, the court must examine whether the foreign court was in a position to pronounce the adoption by reference to the conditions on adoption provided for by the relevant Luxembourg legislation. The establishment of a constitutional right to adopt without discrimination between married persons and unmarried persons does not preclude the specific assessment of the physical and mental situation of the persons wishing to adopt and of their capacity to raise and contribute to the development of a child. It may be that the right to family life is not recognised where the best interests of the child would be in danger. The existence of a right is distinct from its actual exercise. As Ms Wagner is an unmarried woman not living as part of a couple, the questions which correspond to her family situation relate to a single-parent family. The questions envisaged by the court on 11 November 1997 are therefore relevant to the outcome of the dispute. Examination of the existence of “a right to secure recognition” in Luxembourg “of a legal parent-child relationship validly established abroad” assumes that the valid creation of an adoptive parent-child relationship within the meaning of Luxembourg law is established. The first preliminary question proposed by Ms Wagner is irrelevant, as the lawfulness of the Peruvian adoption has not been established. Examination of the second question proposed must be reserved. As matters now stand, the questions envisaged by the court on 11 November 1997 should be referred.” 3.     Judgment of 13 November 1998 of the Constitutional Court 18.     On 13 November 1998 the Constitutional Court declared the questions numbered 2 to 7 (paragraph 13 above) inadmissible. As for the first question, it decided that Article 367 of the Civil Code was not contrary to the Constitution, for the following reasons: “ Regarding Article 11(3) of the Constitution: ... Article 11(3) of the Constitution states that the State guarantees the natural rights of human beings and the family; ... natural rights are those flowing from human nature and exist, even without a legislative text; ... applied to the family, they include the right to procreate and the right to live together; ..., in parallel, the legislature has established, by adoption, a substitute legal parent-child relationship which, while it demands proper motives on the part of the adoptive parents, must above all be advantageous for the person adopted; ... [adoption] has its basis in positive law and not in natural law; ... it is therefore for the legislature to put in place all the conditions and limits necessary for its proper functioning and satisfying the interests of society and of the adoptive family; Regarding Article 11(2) of the Constitution: ... Article 11(2) of the Constitution provides that 'all Luxemburgers are equal before the law'; ... that constitutional principle, which is applicable to every individual affected by Luxembourg law if personality rights are concerned, is not to be understood in an absolute sense, but requires that all those in the same factual and legal situation be treated in the same way; ... the specific treatment is justified if the difference in condition is effective and objective, if it is in the public interest and if the extent of its application is not unreasonable; ... the specific treatment is lawful in the present case as it is based on a genuine distinction resulting from the civil status of the persons, on an increased guarantee in favour of the adopted child as a result of the number of persons holding parental authority in the case of married persons and on reasonable proportionality owing to the fact that simple adoption remains available to an unmarried person in compliance with the procedural and substantive requirements provided for by law;” 4.     Judgment of the District Court of 2 June 1999 19.     On 2 June 1999 the district court dismissed the application for enforcement, on the ground that the Peruvian adoption judgment had been delivered contrary to the Luxembourg law applicable according to the rule on the conflict of laws set forth in Article 370 of the Civil Code. 20.     The court upheld the argument of the Attorney General's Department that the Peruvian judge had not applied Luxembourg law by pronouncing full adoption by an unmarried Luxembourg woman. 21.     The court concluded that there was no need to consider whether the Peruvian decision was contrary to public policy. In that regard, however, it made the following observation: “... according to the pre-adoption social inquiry report of 30 April 1996, Ms Wagner chose to adopt in Peru, through the Luxembourg-Peru Association, since Peru permits adoption by an unmarried woman, whereas she encountered various obstacles to adoption in Luxembourg, mainly because she was not married. Ms Wagner therefore decided to obtain indirectly, by enforcement of the adoption in Peru, what she was unable to obtain directly by an application to adopt in Luxembourg. However, a judgment obtained by circumventing the statutory requirements cannot be enforced.” 22.     The court then dealt with the second preliminary question which had been proposed by the applicants at the earlier hearing: “The judgment of April 1998 reserved the alternative preliminary question proposed by Ms Wagner. In the event that Article 367 of the Civil Code precluded full adoption, Ms Wagner proposed that the Constitutional Court should examine whether the principle of equality allowed a difference in treatment to be created by law, notably with respect to the entry of the adoption in the civil status registers, the issuing of a certificate of nationality and the situation regarding succession between the non-marital child and the adoptive child of the same mother. In her submissions lodged after the decision of the Constitutional Court, Ms Wagner maintained that proposal for a preliminary question.. Under [the relevant section] of the ... Constitutional Court (Organisation) Act, a court before which a party has raised a question relating to the constitutionality of a law is not required to refer the matter to the [Constitutional] Court if the question is wholly unfounded or if the [Constitutional] Court has already ruled on a question having the same subject-matter. ... As the [Constitutional] Court decided [in its judgment of 13 November 1998] that adoption was not a constitutional right but was a matter for legislation, and on the basis that the law may introduce a distinction between persons having different civil status, the preliminary question proposed by Ms Wagner is wholly unfounded. The question also seeks to secure a review of the compatibility of the law on adoption, which prohibits full adoption by an unmarried person, with the principle of equality and the right to family life. The [Constitutional] Court held that biological filiation and adoptive filiation were different in nature, the former coming under natural law protected by the Constitution and the latter created by the legislature. It also decided that the principle of equality applied to those in the same factual and legal situation. As an adoptive child is in a legal and factual situation distinct from that of a non-marital child and as the principle of equality assumes that the situation of the persons is the same, the proposed question is unfounded. There is thus no reason to refer the question to the Constitutional Court..” 23.     Lastly, the court rejected the argument put forward by the applicants on the basis of the Convention on the Rights of the Child, for the following reasons: “Ms Wagner maintains that public policy and the Convention on the Rights of the Child require that the adoption decision be enforced. As the best interests of the child are to be a primary consideration, in application of Article 3 of the Convention, the adopted child should have the same rights as her 'biological' sister, the mother's non-marital child. The interests of the child may be assessed by the legislature. Luxembourg law accepts that it is in the interests of children to be fully adopted by a married couple and not by an unmarried person. The court must therefore apply that statutory provision.” 5.     Judgment of the Court of Appeal of 6 July 2000 24.     On 7 July 1999 the applicants appealed against the judgments of 11 February 1998, 1 April 1998 and 2 June 1999. 25.     They requested the Court of Appeal to declare the judgment of the Huamango Family Court of 6 November 1996 enforceable in Luxembourg and to order that the forthcoming judgment be entered in the civil status registers. 26.     In support of their appeal, the applicants maintained first of all that Article 367 of the Civil Code – a rule of strictly territorial application determining the conditions of an application for full adoption coming within the jurisdiction of the Luxembourg courts – was not a reason to dismiss an application for enforcement of a foreign decision, since the court dealing with the application to enforce the decision had no power of review and was not empowered to alter the effects of the adoption pronounced by the Peruvian court. They further maintained that under Article 370, final paragraph, of the Civil Code a foreign adoption decision could be enforced in Luxembourg provided it had been delivered by a competent court according to the rules on the conflict of laws and the procedures of the country of origin. Thus, the final paragraph of Article 370 was not a simple rule on jurisdiction but a rule on the conflict of laws. 27.     The applicants also maintained their request that the preliminary question which they had formulated before the district court be referred to the Constitutional Court. 28.     In a section entitled “Public policy implications”, the applicants contended that the procedure for securing recognition of the effects of a full adoption pronounced abroad differed from the procedure for pronouncement of an adoption in Luxembourg, so that the impact of the questions of public policy arose in different terms and did not have the same weight. Next, relying on the Convention on the Rights of the Child, they submitted that the best interests of the child consisted in favouring the effects of a full adoption, in particular the right to acquire Luxembourg nationality and to share in the succession of the adoptive family on the same basis as a legitimate or non-marital child. While they acknowledged that a new simple adoption could be made in Luxembourg, they emphasised that it would grant less substantial rights to the child, particularly in relation to succession and the acquisition of Luxembourg nationality. In the applicants' submission, it was specifically public policy that required enforcement, so that the adoptive child would be granted the same rights as her biological sister and so that legal calm rather than uncertainty would reign in the families. They cited a decision of the district court, which, in a different context, had held that an interference with the right for the father and mother to maintain relations with their children was not justified by one of the objectives set forth in Article 8 § 2 of the Convention. They contended that in this case the judgment at first instance – which gave priority to Luxembourg law over an international convention as a ground for refusing to order enforcement – penalised the minor child and was incompatible with Article 8 of the Convention. 29.     By judgment of 6 July 2000 the applicants' appeal was declared unfounded. The Court of Appeal held, in the first place, the following: “By way of preliminary point, it should be observed that while foreign judicial decisions on the status of persons enjoy immediate substantive effectiveness in the Grand Duchy of Luxembourg, provided only that they satisfy the relevant international procedural requirements, they none the less may and even must be enforced in order to render them incontestable and enforceable by execution and to enable the acts necessary to enforce them to be carried out. In this case, recognition of the Peruvian adoption decision is sought, not only to ensure that the adopted child has the same succession rights as those recognised by Luxembourg law to a legitimate or non-marital child, but also to avoid problems arising in the future as a result of the fact that the child has not lost Peruvian nationality by the effect of her adoption in her country of origin and, in the absence of a decision recognising the foreign judgment, does not acquire Luxembourg nationality, at least for the time being, and cannot in those circumstances benefit from the advantages conferred on nationals of the countries of the European Union.” 30.     The Court of Appeal then analysed the scope and significance of the final paragraph of Article 370 of the Civil Code and reached the following conclusion: “The [District] Court was correct to take the view that the Luxembourg court dealing with the application to enforce the Peruvian judgment must ascertain whether the adoption was made in conformity with the Luxembourg rules on the conflict of laws, as provided for in Article 370 of the Civil Code, and to dismiss the application on the ground that the Peruvian judgment pronouncing full adoption in favour of an unmarried Luxembourg national is in flagrant contradiction with the Luxembourg law on the conflict of laws, which provides that the conditions for adoption are governed by the national law of the adoptive parent. It is therefore unnecessary to examine further the other conditions required for enforcement, namely conformity to international public policy and circumvention of the law.” 31.     The Court of Appeal also concluded that the applicants were wrong to rely on the Convention on the Rights of the Child, for the following reasons: “Article 7 of that Convention, approved by the Law of 20 December 1993, provides in paragraph 1 that the child is to be registered immediately after birth and is to have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. Article 21 provides that States Parties that recognise and/or permit the system of adoption are to ensure that the best interests of the child shall be the paramount consideration, and sets out the obligations placed on the Contracting States in that regard (paragraphs (a) and (b) of that article). The Court agrees with the Attorney General's representative, who maintains ... that Articles 7 and 21 cannot be applied directly in order to secure recognition of a foreign full adoption decision pronounced in breach of our national laws. ... The [applicants] are wrong to rely on the abovementioned Articles of the Convention to secure recognition of a foreign adoption made in compliance with its legal rules, which, it is emphasised, are very strict, but in breach of Luxembourg law, which rightly or wrongly maintains the principle that full adoption by an unmarried person is prohibited, since Article 21 does not require the States Parties to alter their national legislation in that sense, a fortiori because it is not established that such a change in the legislation would be in the paramount interest of the child, quite apart from any political or moral considerations which influence the legislative choices according to current thinking. Article 7, on which the applicants rely, concerns at most only the effects of the adoption, but has no bearing on whether an adoption decision satisfies the relevant international procedural requirements. ...” 32.     Last, the Court of Appeal considered that the first-instance court had been correct not to deem it appropriate to refer the preliminary question formulated by the applicants to the Constitutional Court. 6.     Judgment of the Court of Cassation of 14 June 2001 33.     On 8 December 2000 the applicants appealed on a point of law. 34.     On 14 June 2001 the Court of Cassation dismissed the appeal, for the following reasons: “The first ground of appeal, alleging “breach, if not misapplication of the law, in the present case of Article 370, final paragraph of the Civil Code, which provides that in the event of conflict between the rules of competence prescribed respectively by the national law of the adoptive parent and by that of the adopted child, the adoption is validly concluded according to the procedure prescribed by the law of the country in which the adoption took place and before the authorities competent under that law, in that the judgment considered that the word 'procedure' had only the meaning of 'procedural rule' and did not include the substantive conditions whereas, first part , the text of Article 370 speaks in unequivocal terms of 'procedures' and not restrictively of 'procedural rules', so that the scope of the legislative text cannot be restricted by the implicit addition thereto of words which it does not contain, in this case the word 'rule'; second part the word 'procedure' employed by the legislature in the specific context of the final paragraph of Article 370 is not limited to procedural rules in the strict sense, but covers both the latter and the substantive rules, and therefore legal 'procedures' in the broad, flexible and general sense, the legislature having clearly displayed its intention to properly encompass in the word 'procedure' both the substantive conditions and procedural conditions properly so called”; But ... in agreeing with the court of first instance that the Peruvian full adoption decision was delivered in contradiction to the Luxembourg law on the conflict of laws, which provides in paragraph 2 of Article 370 of the Civil Code that the conditions that must be satisfied in order to adopt are governed by the national law of the adoptive parent, the Court of Appeal made a correct application of the law without being in breach of the legislative text referred to in the two parts of the ground of appeal; ... it follows that the ground of appeal cannot be upheld; The second ground of appeal, alleging “misapplication, if not violation of Article 8 of the [Convention], which provides that there is to be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, and of Article 89 of the Constitution, which provides that every judgment must state the reasons on which it is based, in that the judgment did not even examine the appellants' plea based on Article 8 paragraph 2 of the [Convention], when the best interests of the child ought to have led the decision under appeal, on the assumption that Article 370, final paragraph, of the Civil Code is not to be interpreted as meaning that an adoption lawfully concluded abroad cannot be repudiated, to refuse to apply the Luxembourg domestic rule, which prevents an unmarried woman of Luxembourg nationality from fully adopting a minor child, in such a way as to apply Luxembourg law to her, and that the intention of the Luxembourg legislature to require an unmarried woman to marry if she wishes to undertake full adoption of a child, in such a way as to ensure that that child enjoys all the privileges attached to Luxembourg and Community nationality constitutes an unnecessary interference with family life ...” But ... first, the Court of Appeal was not required to respond to the ground of appeal set out in the document initiating the appeal under the heading “Public policy implications”, as that question had become devoid of purpose by the very effect of its decision not to apply the foreign law; ..., second, owing to their dubious, vague and imprecise nature, the arguments relating to Article 8 paragraph 2 of the Convention on Human Rights contained in the document initiating the appeal did not constitute a ground of appeal requiring a response; Whence it follows that the plea cannot be upheld.” B.     Proceedings before the administrative courts under the Hague Convention of 29 May 1993 on protection of children and cooperation in respect of intercountry adoption 35.     On 5 August 2003 the applicants requested the Minister for the Family, Social Solidarity and Youth to take the necessary measures to enable the adoption pronounced by the Peruvian judgment of 6 November 1996 to be entered as a full adoption recognised by the Luxembourg authorities in the civil status register with competence ratione territoriae in application of the Hague Convention of 29 May 1993. 36.     On 12 August 2003 the Minister declared that the provisions of the Hague Convention were not applicable to the applicants' request. 37.     On 13 September 2003 the applicants sought judicial review of that decision. 38.     By judgment of 19 January 2004 the administrative court of first instance ( Tribunal administratif ) annulled the ministerial decision, for the following reasons: “...the [Hague Convention of 29 May 1993] was adopted by Luxembourg law on 14 April 2002 and entered into force on 1 November 2002 in the Grand Duchy of Luxembourg, on which date it is common ground that the Convention was already in force with respect to Peru; ... from 1 November 2002 the Hague Convention has therefore been in force between the two countries concerned by the present case: Peru, the State of origin, and the Grand Duchy of Luxembourg, the receiving State, as defined in Article 2 of the Convention; ... the Convention states in Article 41 that it is to 'apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin' ; ... Article 14 of the Convention states that '[p]ersons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence'; ... it follows from the Explanatory Report drawn up by Mr G. Parra-Aranguren, the Venezuelan representative in the proceedings of the 17 th Hague Conference which culminated in the Convention of 29 May 1993, and more particularly paragraphs 584 and 585 thereof (doc. Parl. 4820, page 95), that a second paragraph had indeed been envisaged at a particular time during the drafting of what became Article 41, but that that paragraph was abandoned for the reasons explained more fully in that report as follows: ' 584. Working document no. 100, submitted by the Permanent Bureau, suggested a second paragraph for the article with the following text: “A Contracting State may at any time by declaration extend the application of Chapter V (Recognition) to other adoptions certified by the competent authority of the State of the adoption as having been made in accordance with the Convention”. The idea behind the proposal was to give a rule to answer the question as to the validity of adoptions already made in the Contracting States when a State becomes a Party to the Convention. 585.     Some participants considered that proposal ambiguous and suggested its deletion or its clarification, at least, but others sustained it. The Observer for the International Commission on Civil Status observed that it was unnecessary and dangerous, because the formulation might permit a wicked conclusion, if interpreted a contrario , since the natural consequence of a State becoming a Party to the Convention is to recognise adoptions already made in the Contracting States. Therefore, the “declaration” provided by the second paragraph could be interpreted as permitting the non-recognition of such adoptions and, for this reason, the proposal was rejected'; ... ... for the purposes of application ratione tempore it is appropriate to distinguish the situation of the application properly so called of the Convention in the words of Article 41 concerning adoption procedures to be initiated and that relating to adoptions previously carried out, which by definition no longer have to follow the procedure provided for in Article 14 of the of the Convention, and raising more particularly aspects of recognition and re-entry on the competent registers of civil status; ... although the text of Article 41 gives rise to no doubt concerning the applicability of the Convention in all cases where an application referred to in Article 14, in initial act of the procedure there referred to, was received after the entry into force of the Convention in the receiving State and in the State of origin, reliance on that Convention for other aspects relating more particularly to the recognition and entry of adoptions previously carried out in the State of origin do not fall directly under the wording of Article 41; ... the fact that two