CEDH · CASELAW;CLIN;ENG — 17 avril 2018

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Ukraine - 6878/14 Judgment 17.4.2018 [Section IV] Article 8 Article 8-1 Respect for private life Adoption of child without due consideration of his aunt’s interest in becoming his legal tutor: violation Facts – In July 2012 a district court in Chernivtsi (Ukraine) deprived the applicant’s sister of her parental rights over her five-year-old son and he was subsequently put on a list for adoption. In August and September the same year, the applicant, who lived in Magadan (Russia), 12,000   km away from Chernivtsi, informed the Childcare Service of Chernivtsi and the orphanage where her nephew was staying that she was preparing the necessary documents to make a formal application to become his legal tutor. In mid-September the Childcare Service responded that a couple had already submitted all the necessary documents for the adoption and had been given permission to establish contact with the child. The applicant was advised to lodge a tutelage application with the court in Chernivtsi as soon as possible. In early October a district court in Chernivtsi granted the adoption to the identified couple. Some days later, the Tutelage and Guardianship Service of Magadan declared the applicant suitable to become a legal tutor or guardian. At the end of October, the applicant went to Chernivtsi to submit a formal application to become her nephew’s tutor but was informed that it would not be possible as the child had already been adopted prior to her arrival in Ukraine. The applicant lodged an unsuccessful appeal against the adoption decision. Law – Article 8: As the applicant had not lived with her nephew and only visited him once during five years, their relationship was not of a kind that fell within the concept of “family life”. Regarding the applicant’s possible intention to establish “family life” with her nephew by becoming his legal tutor, Article   8 did not guarantee the right to found a family. The applicant’s interest in maintaining and developing the relationship with her nephew fell within the scope of “private life”. The interest in question was not without factual or legal basis considering that the nephew was her relative; there had been some contact between them albeit not of a regular or permanent nature; her intention to become his tutor was genuine in light of her vested efforts in becoming his tutor; and the fact that she had previously become a tutor for his half-sister. Furthermore, domestic law gave preference to relatives where a question of care arose because of the parents’ inability to exercise their duties vis-à-vis their child. The adoption had entailed a severing of ties between the applicant and her nephew and defeated her attempt to become his tutor. It had constituted an interference with the applicant’s right to respect for her private life. The case disclosed a “procedural dysfunction or fault” on the part of the Ukrainian authorities and courts. Although the applicant’s intention to become her nephew’s tutor had been acknowledged in the different stages of the adoption process, all instances had failed to give any meaningful consideration to it. The local courts had furthermore failed to clarify why the adoption better served the best interests of the child as opposed to the tutelage which his aunt intended to establish. The local authorities’ and courts’ reluctance to deal with the matter of tutelage could be explained by the fact that an application for tutelage had not been submitted by the time of the contested adoption. However, the applicant had diligently acted in line with the advice she had been given by the Childcare Service of Chernivtsi. Moreover, her arguments as to time constraints had been completely ignored. Therefore, the interference had not been in compliance with the procedural requirements implicit in Article   8. Conclusion : violation (unanimously). Article 41: finding of a violation constituted sufficient just satisfaction in respect of any 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