Taking of children into care
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 1. Legislation 28. The history and development of the system of anonymous registration of births in France is set out in Odièvre v. France ([GC], no. 42326/98, §§ 15-16, ECHR 2003 ‑ III). (a) Social Action and Families Code (as resulting from Law no. 2002-93 of 22 January 2002) 29. The following provisions of the Social Action and Families Code are relevant to the present case: Article L. 224-4 “The following shall be taken into State care: (1) children whose parentage is not established or is uncertain and who have been entrusted to the Child Welfare Service for more than two months; ...” Article L. 224-5 “Where a child is entrusted to the Child Welfare Service in the circumstances referred to in Article L. 224-4, points (1), (2), (3) and (4), a record shall be drawn up. It shall mention that the parents in respect of whom the child ’ s filiation has been established, the child ’ s natural mother or natural father or the person handing the child over have been informed about: (1) the measures introduced, in particular by the State, the local authorities and the social-security bodies, to help parents to raise their children themselves; (2) the rules governing placement in State care in accordance with this Chapter; (3) the time-limits and conditions subject to which the child may be taken back by the father or mother; (4) the possibility of leaving behind any information concerning the health of the father and mother, the child ’ s origins and the reasons for which and circumstances in which the child was placed with the Child Welfare Service. Furthermore, where the child is entrusted to the service by the father or mother in accordance with points (2) or (3) of Article L. 224-4, the parent or parents concerned must be asked to consent to the child ’ s adoption; such consent shall be noted in the record, which must also mention that the parents have been informed of the time-limits and conditions in which they may withdraw their consent, in accordance with the second and third paragraphs of Article 348-3 of the Civil Code.” Article L. 224-6 “The child shall be deemed to have been provisionally taken into State care on the date on which the record referred to in Article L. 224-5 is drawn up. Guardianship arrangements shall be made with effect from the date of such declaration. However, within a period of two months from the date of the provisional placement in State care, the child may be returned immediately and without any further formalities to whichever of the parents entrusted him or her to the service. This period shall be extended to six months, in the circumstances specified in Article L. 224-4, point (3), for whichever parent did not entrust the child to the service. Beyond these periods, the decision to agree to or refuse the return of a child in State care shall, subject to the provisions of Article 352 of the Civil Code, be taken by the official guardian, with the agreement of the Family Council. In the event of a refusal, the persons concerned may apply to the tribunal de grande instance .” (b) Civil Code 30. The relevant provisions of the Civil Code are worded as follows: Article 347 “The following may be adopted: (1) children in respect of whom the mother and father or the Family Council have validly consented to adoption; (2) children in State care; (3) children declared abandoned in the circumstances provided in Article 350.” Article 348-3 “Consent to adoption shall be given before the senior registrar of the district court within whose jurisdiction the home or place of residence of the person giving the consent is situated, or before a French or a foreign notary, or before French diplomatic or consular officials. It may also be received by the Child Welfare Service if the child has been entrusted to the service. Consent to adoption may be withdrawn within a period of two months. Withdrawal of consent shall be effected by means of a registered letter with recorded delivery, addressed to the person or the service that received the consent. The handing over of the child to the parents on request, even a verbal request, shall also be treated as proof that consent has been withdrawn. If, on the expiry of the two-month period, consent has not been withdrawn, the parents may still request the return of the child, provided that the child has not been placed for adoption. If the person who has received the child refuses to give him or her back, the parents may apply to the court, which shall determine, having regard to the child ’ s interests, whether the return of the child should be ordered. The child ’ s return shall invalidate the consent to adoption.” 2. Case-law 31. The Court of Cassation takes the position that, where a mother gives birth anonymously, there are no established parental ties between her and the child and that, accordingly, her consent to adoption is not required. 32. Thus, in a judgment of 5 November 1996 ( Bulletin 1996 I no. 368, p. 259) in a case concerning a request for the return of an anonymously registered child born to a minor, the Court of Cassation quashed the judgment of the Court of Appeal, which had annulled the record of the child ’ s placement with the social services on the ground that the mother was under age and had not been assisted by a person exercising parental responsibility. It held as follows: “In so holding, despite the fact that in the absence of recognition, parental ties had not been established, so that it was not necessary to obtain Ms Y ’ s consent when the child was entrusted to the Child Welfare Service, the Court of Appeal breached the provision cited above [Article 61, point (1), of the Family and Welfare Code].” 33. Conversely, in a recent case in which the mother had given birth anonymously but the biological father had recognised the child before the birth, the Court of Cassation, relying in particular on the New York Convention on the Rights of the Child, quashed and annulled the judgment of the Court of Appeal, which had declared inadmissible the father ’ s application for the return of the child. It gave the following reasons: “... in so holding, despite the fact that, since the child had been identified by Mr X ... on a date prior to the consent to adoption, the child ’ s paternity had been established with effect from the date of the birth as a result of this prenatal recognition, so that the Family Council for Children in State Care, which had been informed of the recognition, could no longer ... validly consent to the child ’ s adoption, consent being the sole prerogative of the biological father, the Court of Appeal, disregarding the child ’ s right to know its declared father, breached the provisions cited above.” (Court of Cassation, First Civil Division, 7 April 2006, Petites affiches 14-17 July 2006) B. International and comparative law 1. International and European law (a) United Nations Convention on the Rights of the Child 34. Article 21 of this Convention provides: “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child ’ s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of childcare, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child ’ s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.” (b) Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption 35. This convention, which is not directly applicable to the present case since it concerns inter - country adoption, provides in Article 4 that the persons whose consent is necessary for adoption must “have been counselled as may be necessary and duly informed of the effects of their consent”, and that such consent must have been given freely and expressed or evidenced in writing and must not have been withdrawn. In addition, the consent of the mother, where required, must have been given only after the birth of the child. (c) European Convention on the Adoption of Children 36. This Council of Europe convention came into force on 24 April 1968. France has signed it but has not ratified it. Article 5 provides: “1. Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: (a) the consent of the mother ... 4. A mother ’ s consent to the adoption of her child shall not be accepted unless it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.” 37. According to the explanatory report, the object of paragraph 4 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored. 38. The convention is currently undergoing a revision. Article 5 of the draft revised convention is worded as follows: “1. Subject to paragraphs 2 to 5 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn: a. the consent of the mother and the father; or if there is neither father nor mother to consent, the consent of any person or body who is entitled to consent in their place; ... 2. The persons whose consent is required for adoption must have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin. The consent must have been given freely, in the required legal form, and expressed or evidenced in writing. ... 5. A mother ’ s consent to the adoption of her child shall be valid when it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.” The explanatory report [1] states the following: “33. Paragraph 2 emphasises that it is essential that the person giving consent has been well informed in advance of the consequences of doing so and that consent is given freely and in writing. ... 38. The object of paragraph 5 is to avoid premature adoptions to which mothers give their consent as a result of pressure exerted before the birth of the child or before their physical health and psychological balance have been restored after the child ’ s birth. 39. Paragraph 6 contains a definition of the terms ‘ father ’ and ‘ mother ’. Given this definition, the consent provided for in this article does not apply to parents of origin when legal affiliation has not been established.” 2. Comparative law (a) Procedures for obtaining the biological parents ’ consent 39. Most European legal systems provide that consent must be obtained by a judge or notary independently of the placement process. Some countries allow the parents ’ consent to be obtained by the social services responsible for the child, [2] by the director of the institution in whose care the child is placed [3] or by the supervisory authority. [4] 40. As regards the provision of information to the biological parents, some national regulations require adoption agencies to provide information on the legal effects of adoption, the adoption process and the other means of assistance available to them. [5] In other countries [6] this obligation falls directly to the judge, who must inform the parents of the legal effects of adoption and of their right to withdraw consent. (b) Time at which the biological parents ’ consent is obtained ( i ) Period of reflection 41. In order to ensure that the biological parents give their free and informed consent, most European legal systems have introduced a statutory period of reflection after the birth. In a similar manner to Article 5 § 4 of the European Convention on the Adoption of Children (see paragraphs 30-32 above), most legal systems [7] envisage a period of not less than six weeks, sometimes extending to as much as three months. [8] 42. Some countries simply make the validity of consent subject to “ the recovery of the mother after giving birth ” [9] or to the condition that it is given after the birth. [10] Lastly, the legislation in other countries [11] makes no provision for a period of reflection, but “prenatal” consent remains prohibited by law in the vast majority of legal systems. (ii) Time-limit for withdrawing consent 43. Some countries have instituted a period within which the biological parents may revoke their consent. There is considerable diversity in the legislation of the member States that have provided for this possibility; some systems allow consent to be withdrawn until the adoption order is issued [12] and others until the adoption process has been initiated, [13] whereas others lay down fixed periods whose length varies from country to country. [14] Lastly, in some countries [15] the biological parents ’ consent is irrevocable. 44. The effects of withdrawal of consent likewise vary from one State to another. In countries such as France or Switzerland, where consent may be revoked during a specified period, the withdrawal has an absolute effect in that it puts an end to the adoption process and opens up the possibility of the child ’ s return. Conversely, in systems where consent may be withdrawn until the adoption order is issued, the withdrawal does not automatically end the process and the courts are required to make a decision on the child ’ s return on the basis of the child ’ s best interests. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. The applicant alleged a breach of her right to respect for her private and family life as enshrined in Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall 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.” 46. The Government contested that view. A. Admissibility 47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant ( i ) Length of the period allowed for withdrawing consent 48. The applicant submitted that the period of two months within which consent could be withdrawn under the second paragraph of Article L. 224-6 of the Social Action and Families Code was too short and constituted disproportionate interference with the right of the parents and children to be together in a family environment. She contended that the Government ’ s arguments on this point were unconvincing. 49. Although it was in the interests of the child and the child ’ s future adoptive family that the uncertainty surrounding the planned adoption should not persist, the fact remained that an excessively short period for withdrawing consent was harmful both to the child and to the parents. With regard to the child, the painful psychological effects of adoption should not be overlooked, seeing that before reaching adulthood, many children or adolescents experienced the suffering of being abandoned and pursued the aim of restoring contact with their biological parents. Such suffering could only be exacerbated if the child discovered that, a few months after the birth, the natural mother had unsuccessfully sought to take him or her back. 50. With regard to the parents, the state of psychological distress affecting a mother who was compelled to give her child up to the social services for adoption had to be taken into consideration. The applicant pointed out in that connection that commentaries on the Court of Cassation ’ s judgment of 6 April 2004 had, to varying degrees, highlighted the insufficient length of the relevant period. Professor Monéger, for example, had argued that French legislation did not take sufficient account of the situation of the woman who had given birth [16] and Professor Bicheron had proposed that, without calling the two-month time-limit into question, the legislation should envisage the possibility of allowing consent to be withdrawn outside this time-limit where there had been exceptional circumstances surrounding the pregnancy or birth, provided that this was done within a reasonable period which would have to be defined. [17] 51. The applicant submitted in conclusion that the two-month period in which she had been entitled to claim her child back could not be regarded as sufficiently long to guarantee her right to respect for her family life. ( ii ) Information provided to the applicant 52. In the applicant ’ s submission, the positive measures which the State authorities had to take for the rights guaranteed under Article 8 of the Convention to be effective included making all the necessary arrangements to ensure that a non-French-speaking mother registering a birth anonymously understood the precise implications of her actions. It was therefore unacceptable for the mother not to be given a clear and accurate translation of the legal provisions concerning her, a requirement made even more essential by the technical nature of the legislation. 53. With regard to the present case, she contended that the Government were incapable of proving that she had received sufficient information from the social services. Although the Government had asserted that a welfare officer had translated the gist of the information that should have been provided to her, that in itself was insufficient, seeing that French legislation was anything but straightforward as regards the period within which the biological mother could withdraw consent, as was underlined by Professor Murat ’ s commentary on the Court of Cassation ’ s judgment of 6 April 2004. 54. That being so, the applicant contended that the task of providing information to a foreign mother could not be left to a welfare officer with no indication of possessing the necessary legal knowledge to understand the subtleties of the French legislation himself or herself or sufficient knowledge of English to translate complex legal notions with the clarity and accuracy required to avoid any misunderstanding or ambiguity. 55. Ultimately, the applicant argued, the Government had entirely failed to show that she had been provided with sufficient linguistic assistance to enable her to understand the procedures and time-limits for claiming her child back. Full compliance with this duty to impart information had been particularly essential since the French legislation, as construed by the Court of Cassation, made no provision for any means of redressing a breach of that duty. In that connection she cited a number of articles on legal theory and commentaries on the Court of Cassation ’ s judgment that were critical of the legislation in question. 56. The applicant submitted that, since there was a consensus that the legislation as it currently stood was flawed, the French authorities should have been particularly attentive to the need to do everything possible to ensure that a foreign, non-French-speaking mother was able to understand precisely her rights and obligations vis-à-vis her child once the child had been entrusted to the social services; she concluded that that had not been so in her case, as indeed the Court of Appeal had acknowledged. (b) The Government 57. As a preliminary remark, the Government stated that they did not dispute the applicability of Article 8 of the Convention to the present case, at least with regard to the right to respect for private life. They also accepted that there had been interference with the applicant ’ s rights, but contended that the interference – in particular, the existence of a two-month time-limit beyond which the parent could no longer seek the return of a child whose placement in State care he or she had requested – satisfied the requirements of foreseeability, legitimacy and necessity for the purposes of Article 8. (i ) Length of the period allowed for withdrawing consent 58. The Government submitted that the interference in issue was prescribed by law. It followed from Articles L. 224-4 to L. 224-6 of the Social Action and Families Code, taken together, that a child whose birth was registered anonymously was provisionally taken into State care on being entrusted to the Child Welfare Service, and could be taken back by the mother without any further formalities during a period of two months. Once that period expired, a full adoption order could be made in respect of the child. 59. The Government emphasised that the interference had pursued the legitimate aim of protecting the rights and freedoms of others, and more specifically had been in the child ’ s best interests. The provisions cited were intended to ensure stability for the child, both legally and psychologically, within a foster home. The child ’ s interests dictated that he or she should quickly be able to enjoy stable emotional relations in a new family and should have the benefit of parental ties, the main reason why the Adoption Reform Act of 5 July 1996 had reduced the time-limit for withdrawing consent from three to two months. 60. The Government submitted that where legal or biological parents relinquished their rights, they forfeited their family life with the child they had abandoned, and where the child was given up the day after being born, as in the instant case, no family life had been established. The child-welfare professionals interviewed in the context of the 1995 report on adoption by Professor Mattei had pointed out that it was in the interests of an abandoned child to enjoy stable emotional relations within a new family as quickly as possible, an observation borne out by subsequent studies on attachment disorders and their damaging consequences for the child. 61. The legislature had sought to confer on a child ’ s placement for adoption (the point from which the biological parents could no longer claim the child back) the same legal effects as adoption itself in order to make the child ’ s position more stable. The child ’ s right to family life therefore dictated that the time-limit for withdrawing consent should not be excessive. The relevant provisions also sought to protect the right of the adoptive family to lead a stable family life (they referred to Odièvre, cited above, § 44). 62. The Government further submitted that the interference in issue had been necessary in a democratic society within the meaning of Article 8 § 2. Citing the Court ’ s case-law (in particular, Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, and Odièvre, cited above), they observed that, in striking a fair balance between competing interests, the Court afforded States a certain margin of appreciation and that, in assessing whether or not they had overstepped that margin, it took particular care to ensure that the child ’ s best interests were preserved. In the instant case the Government submitted that, in such a delicate situation as the abandonment of a child by a mother who wished the birth to be registered anonymously, the French legislation attempted to square the various interests at stake: those of the child, the mother and the adoptive family. 63. In assessing the two-month time-limit for withdrawing consent, regard should therefore be had to the absence of pre-existing family life with the biological mother, who had voluntarily given up all family life with her child, to the child ’ s physical and psychological well-being and to the legal and emotional stability desired by the adoptive parents. The time-limit appeared sufficient to enable parents to reflect and to revise their decision if they so desired, especially as the social services provided them with detailed and accurate information about the implications of their actions. The social services had also noted that consent was generally withdrawn either in the first few or in the last few days of the period in question, and that this would remain the case if the period were shortened or extended. 64. Arguing in addition that the period within which consent could be withdrawn under French law was somewhat longer than the period provided for in other legal systems (for example, in Spain, Portugal, Poland, Quebec, Great Britain and Switzerland), the Government concluded that the time-limit satisfied the requirements of Article 8 of the Convention. (ii ) Information provided to the applicant 65. The Government submitted that the applicant, who lived in Ireland and had no ties in France, had made a free and informed choice to go to France to take advantage of the national legislation on anonymous registration of births and adoption. In Irish law, the principle mater semper certa est applied; affiliation was established by the fact of the child ’ s birth. If the applicant had given birth in Ireland, she would have been the child ’ s legal mother without having to recognise her, and the biological father would have been able to assert his rights without any difficulty. It was precisely to avoid that scenario that she had wanted to come to France, in order to keep secret the birth of a child resulting from adultery and to keep her marriage intact, while at the same time excluding the biological father, who was described as “violent and unbalanced” in the record of the child ’ s placement of 19 February 2002. 66. The Government submitted that, contrary to what she had alleged, the applicant, who had been 36 years old at the time, had been entirely aware of the meaning and implications of her actions. She had also been fully informed about the anonymous registration procedure and its practical details. The allegation that the decision had merely been provisional, giving her the chance to overcome temporary problems, was contradicted, in the Government ’ s view, by the fact that, prior to giving birth, she had sought advice from a lawyer, who had taken her to hospital, and that she had taken care to bring documents with her to be handed over to her daughter on reaching the age of majority if she ever wished to know her origins. 67. The Government submitted that, even supposing that the applicant had not been fully aware of her actions before arriving in France, she had in any event received clear and extensive information after the birth about the procedure provided for in Articles L. 224-4 to L. 224-6 of the Social Action and Families Code. That was attested, firstly, by the record of the child ’ s placement in State care and, secondly, by the judgment of the Lille tribunal de grande instance, which noted that the applicant had had at least two lengthy interviews with the social services, during which she had been told about the conditions and effects of anonymous registration of the birth. Although she had not had access to an official interpreter, which was not required by French law, she had been assisted by English-speaking staff during the interviews. Furthermore, in his submissions to the Court of Appeal, the prefect of the département of Nord had referred to the observation by the social services that the applicant “had difficulty in accepting the idea that her daughter would not be placed with adoptive parents immediately after leaving the maternity ward but would be placed temporarily in a foster home or a nursery for two months. In that connection, it was explained to her at length that the purpose of this procedure was to ensure the best possible preparation for the planned adoption, and also to comply with the statutory two-month time-limit for withdrawing consent, which in her case would expire on 20 April 2002.” 68. In the Government ’ s submission, the applicant could not maintain that the social services had failed in their duty to provide information, or that the information imparted, particularly as regards the time-limit for withdrawing consent, had been ambiguous. Lastly, the Government observed that during the two-month period in question, the social services had not been made aware of any incidents suggesting that the applicant wished to or was going to revise her decision. Nothing had been heard from her until 26 July 2002, several days after the Dublin Circuit Family Court ’ s initial decision of 19 July 2002, on an application by the biological father, ordering the applicant to take all necessary steps to ensure that the adoption procedure was suspended. 69. In those circumstances, the Government submitted that the information provided to the applicant in accordance with French legislation was capable of affording effective protection of her right to private and family life. 2. The third party ’ s submissions 70. Mr Byrski is the child ’ s biological father. As to the facts, he stated that he had had a relationship with Ms Kearns in 2001, during which time the child had been conceived, and that, having had no further contact with her after the relationship had ended in September 2001, he had made numerous approaches to the Irish administrative and judicial authorities (including his application to the Dublin Circuit Family Court ), in the belief that the child would be born in Ireland. Having learned in July 2002 that Ms Kearns had given birth in France, he had obtained an order from the Dublin court for the discontinuation of the adoption procedure and the return of the child to Ireland. From July 2002 he had contacted the French authorities, informing them that he was the child ’ s father and that he wanted the adoption procedure to be halted and the child returned to him. He outlined all the steps he had taken with the administrative and judicial authorities to that end (see paragraphs 17 and 20 above). 71. Mr Byrski submitted that his intention had always been to be a good father to his daughter and to look after her, but that the French authorities ’ interference had prevented him from having a normal family life with her. 3. The Court ’ s assessment 72. The Court considers in the first place that the relationship between the applicant and her child comes within the sphere of family life under Article 8 of the Convention (see V.S. v. Germany (dec.), no. 4261/02, 22 May 2007). 73. The Court further considers that the authorities ’ refusal of the request for the child ’ s return had a basis in law, namely Article 348-3 of the Civil Code and Article L. 224-6 of the Social Action and Families Code, and pursued the legitimate aim of protecting the rights and freedoms of others, in this instance the child. 74. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation (see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49; Odièvre, cited above, § 40; and Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007-...). The Contracting States will usually enjoy a wide margin of appreciation if the public authorities are required to strike a balance between competing private and public interests or Convention rights. This applies all the more where there is no consensus within the member States of the Council of Europe as to the relative importance of the interest at stake or as to the best means of protecting it (see Evans, cited above, §§ 77-81). 75. The Court further reiterates that its task is not to substitute itself for the domestic authorities, but rather to review under the Convention the decisions taken by those authorities in the exercise of their power of appreciation. The Court will therefore examine whether France, in handling the applicant ’ s action for recovery of her child, acted in breach of its positive obligations under Article 8 of the Convention (see Hokkanen v. Finland, judgment of 23 September 199 4, Series A no. 299-A, p. 20, § 55; Mikulić v. Croatia, no. 53176/99, § 59, ECHR 2002 ‑ I; and P., C. and S. v. the United Kingdom, no. 56547/00, § 122, ECHR 2002 ‑ VI). (a) Length of the period allowed for withdrawing consent 76. The applicant complained of the shortness of the two-month time-limit provided for in the second paragraph of Article L. 224-6 of the Social Action and Families Code for withdrawing consent to adoption. 77. As noted in paragraphs 39-44 above, the Court observes that there is no consensus among the member States of the Council of Europe regarding adoption, provision being made for a period of reflection in some countries but not in others, such as France. Similarly, as regards the time-limit for withdrawing consent, there is considerable diversity in the legislation of the member States that have provided for this possibility; some legal systems allow consent to be withdrawn until the adoption order is issued, whereas in others, by contrast, consent is irrevocable. In the States that have a fixed time-limit for withdrawing consent, it varies from ten days to three months. It cannot therefore be said that there is common ground in the member States ’ legislation and practice. 78. As regards the time-limit prescribed by French law, the Government pointed out that it had been reduced from three to two months by the Act of 5 July 1996, so that the child could quickly enjoy stable emotional relations within a new family and have the benefit of parental ties. 79. As it found in Odièvre (cited above, § 44), the Court observes that it is confronted in the present case with interests that are not easily reconciled: those of the biological mother, the child and the adoptive family. There is also a general interest at stake (ibid., § 45). In striking a balance between these different interests, the child ’ s best interests should be paramount. 80. In this connection, the Court accepts the relevance of the arguments put forward by the Government on the basis of studies by child-welfare professionals, which have stressed that it is in the child ’ s interests to enjoy stable emotional relations within a new family as quickly as possible. It further observes that the tribunal de grande instance held that psychological and legal stability should be sought for the child, “ if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures ”. 81. Furthermore, while the two-month time-limit may seem brief, it nevertheless appears sufficient to allow the biological mother time to reflect and to reconsider her decision to give the child up. The Court is mindful of the psychological distress which the applicant must have experienced, but observes that she was 36 years old at the time, was accompanied by her mother and had two lengthy interviews with the social services after giving birth (see paragraphs 86-87 below). 82. The Court lastly notes that in a recent case ( V.S. v. Germany, cited above), concerning a minor who had consented to the adoption of her child, it found that the German authorities had not overstepped their margin of appreciation, although under German law, consent to adoption is irrevocable except in the event of a declaration of nullity, which had not been sought in that particular case. 83. Having regard to the margin of appreciation which States must be afforded in view of the diversity in legal systems and traditions and in practice (see Odièvre, cited above, § 49, and Evans, cited above, § 77), the Court considers that the time-limit prescribed by the French legislation seeks to strike a balance and to ensure sufficient proportion between the competing interests (ibid.; see also, conversely and mutatis mutandis, Mizzi v. Malta, no. 26111/02, ECHR 2006 ‑ ... ). 84. Moreover, in the circumstances of the case, the action brought by the third party before the Irish authorities has no bearing on the conclusion reached by the Court. (b) Information provided to the applicant 85. The applicant submitted that the French authorities had not taken all the necessary steps to ensure that she understood the precise implications of her actions. She argued, in particular, that she had not been provided with sufficient linguistic assistance to be able to understand the procedures and time-limits subject to which she could take her child back. 86. The Court observes that the applicant, an Irish national resident in Dublin, chose to give birth in France in order to take advantage of the possibility of registering the birth anonymously, which does not exist in Irish law. As is shown by the documents produced to the Court, she visited the maternity ward in the week prior to the birth, assisted by a lawyer and her mother. The presence of a legal specialist creates a presumption that the applicant was provided with legal information even before the birth. 87. On the two days following the birth, the applicant, accompanied by her mother, had two lengthy interviews (each lasting half a day) with the social services, in the presence of, respectively, a nurse and a doctor with knowledge of English, who had been made available by the hospital to act as interpreters. In this connection, the Court considers that Article 8 cannot be construed as requiring the authorities to ensure the presence of a qualified interpreter in such cases. 88. With regard in particular to the information received by the applicant about the time-limit for withdrawing consent, the Court observes that the record of K. ’ s placement in State care mentioned two periods (two months and six months), which, as the Court of Appeal found, could have given rise to confusion. However, the form of consent to adoption signed by the applicant on the same day expressly stated: “I ... certify that I have been informed: ... that this document will become FINAL after a period of TWO MONTHS, that is, on 20 April 2002, and that during this period, the child may be returned to me in accordance with the prescribed procedures for withdrawal of consent (Article 348-3, paragraphs 2 and 3, of the Civil Code).” 89. Accordingly, no ambiguity could have persisted in the applicant ’ s mind as to the period within which she could seek the return of her child. 90. Lastly, it appears from the relevant documents that the applicant was given a notice outlining the time-limits and conditions for the return of the child, and a model letter for withdrawal of consent. 91. Having regard to the foregoing, the Court considers that in the present case the French authorities provided the applicant with sufficient and detailed information, affording her linguistic assistance not required by law and ensuring that she was informed as thoroughly as possible of the implications of her choice and of the time-limits and procedures for withdrawing consent. 92. The Court therefore concludes that the State has not breached its positive obligations under Article 8 of the Convention in relation to the applicant. There has therefore been no violation of that provision. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS TO THE LACK OF AN EFFECTIVE REMEDY 93. The applicant submitted that she had been denied the right to an effective remedy, on account of the shortness of the time-limit for withdrawing consent and the insufficiently precise information she had been given about the time-limit. She relied on Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ” 94. In so far as this complaint is indissociable from the complaint under Article 8 of the Convention, which it has examined above, the Court considers that it should be declared admissible and that no separate issue arises under Article 6 § 1. III. OTHER ALLEGED VIOLATIONS A. Fairness of the proceedings 95. The applicant also complained, under Article 6 § 1 of the Convention, that the proceedings in the Court of Cassation had not been fair in that the advocate-general, who had not attended the hearing, had filed written submissions to which her lawyer had been unable to reply. Furthermore, in quashing the judgment in her case without remitting it to the court below, the Court of Cassation had ignored an entire section of her arguments as to the incompatibility of French law with the Convention and had wrongly declared one of the prefect ’ s grounds of appeal admissible. 96. As to the first point, the Court observes that the applicant was represented in the Court of Cassation by a member of the Conseil d ’ Etat and Court of Cassation Bar. Her lawyer was thus able to make use of the practice outlined in Reinhardt and Slimane-Kaïd v. France (judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, p. 666, § § 106 ‑ 1 07 ), whereby the advocate-general informed him prior to the hearing of the tenor of his submissions, thus giving him the opportunity to reply by means of oral submissions at the hearing or a note sent to the court in deliberations. The Court found in Reinhardt and Slimane-Kaïd that this practice satisfied the requirements of Article 6 § 1 of the Convention and sees no reason to depart from that approach in the instant case. 97. As to the second and third points, the Court observes that it has already had occasion to rule on the practice whereby the Court of Cassation quashes a judgment without remitting it to the court below (see, for example, Riha v. France (dec.), no. 71443/01, 24 June 2004 ). In the instant case the Court observes that the applicant ’ s submissions, based, inter alia, on the Convention, were the subject of detailed argument in the tribunal de grande instance and the Court of Appeal and considers that Article 6 § 1 did not entitle her to have them addressed once again by a court of appeal following the remittal of the case. Nor can the Court discern any appearance of arbitrariness in the fact that the Court of Cassation, which determines points of law alone, declared the ground of appeal by the prefect of the département of Nord admissible. 98. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B. Discrimination 99. The applicant further complained, under Article 14 of the Convention taken together with Article 8, that she had been discriminated against on the ground of language in that she was a native English speaker. 100. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 101. The Court considers that the applicant has not shown that she suffered any discrimination since, as the domestic courts found, she was on the contrary given linguistic assistance not required by law. 102. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. Regarding the time-limit for withdrawal of consent, it found that the reflection period provided for under French law sought to strike a balance and ensure the right proportionality between the conflicting interests. The applicant had further been 36 years old at the time, had been accompanied by her mother and had had two long interviews with the social services after the birth. According to the Court, the French authorities had also provided the applicant with sufficient and detailed information, affording her linguistic assistance not required by law and ensuring that she was informed as thoroughly as possible of the consequences of her choice. All the necessary steps had thus been taken to ensure that the applicant understood the precise implications of her actions and the French State had not failed in its positive obligations towards her under Article 8 of the Convention.