Adoption
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Law and practice relating to adoption 1. International texts a) Convention on the Rights of the Child, adopted by the General Assembly of the United Nations in its Resolution 44/25 of 20 November 1989 41. This Convention, which entered into force in Luxembourg and Peru before the facts, provides the following in its relevant Articles. Article 3 “ 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. ” Article 21 “ States Parties that recognise 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 authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent 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) Recognise that inter-country adoption may be considered as an alternative means of child's care, 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) Recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe 42. The relevant extracts of Recommendation 1443 (2000), entitled “International adoption: respecting children's rights”, read as follows : “ The Assembly ... fiercely opposes the current transformation of international adoption into nothing short of a market regulated by the capitalist laws of supply and demand, and characterised by a one-way flow of children from poor states or states in transition to developed countries. It roundly condemns all crimes committed in order to facilitate adoption, as well as the commercial tendencies and practices that include the use of psychological or financial pressure on vulnerable families, the arranging of adoptions directly with families, the conceiving of children for adoption, the falsification of paternity documents and adoption via the Internet. It wishes to alert European public opinion to the fact that, sadly, international adoption can lead to the disregard of children's rights and that it does not necessarily serve their best interests. In many cases, receiving countries perpetuate misleading notions about children's circumstances in their countries of origin and a stubbornly prejudiced belief in the advantages for a foreign child of being adopted and living in a rich country. The present tendencies of international adoption go against the UN Convention on the Rights of the Child, which stipulates that if a child is deprived of his or her family the alternative solutions considered must pay due regard to the desirability of continuity in the child's upbringing and to his or her ethnic, religious, cultural and linguistic background. ... ” 2. National legislation and case-law a) Full adoption 43. The principles and effects of full adoption may be summarised as follows (see G. Ravarani, “ La filiation ”, Feuille de liaison de la conférence Saint-Yves no. 75, March 1990). THE LAW I. THE ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 80. The applicants complained that they had not received a fair hearing, in so far as the national courts had failed to respond to their plea relating to Article 8 of the Convention. They relied in that regard on Article 6 of the Convention, which provides : “ In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] tribunal ... ” A. The parties'arguments 1. The applicants 81. The applicants took issue with the courts for having attempted to ignore their argument based on Article 8 of the Convention by failing to respond to it. 82. They asserted that they had consistently claimed before the national courts that the fact that the enforcement of the Peruvian judgment had been made subject to the condition that the mother should marry constituted an interference with their private life which was incompatible with Article 8 § 2 of the Convention. 83. The applicants took the view that there was no rule in Luxembourg positive law that defined the criteria according to which a plea had to be submitted and maintained that if the tribunals of fact had considered that their plea was unclear they ought to have requested the applicants to provide further particulars, in accordance with Article 62 of the new Code of Civil Procedure. 84. Last, they submitted that for a century the Luxembourg case-law had accepted that international law resulting from a treaty which had been signed and ratified, such as the European Convention on Human Rights, took precedence over the rules of national law; yet in the present case the Court of Cassation had considered that the tribunals of fact were not required to examine the compatibility of their ruling with Article 8 § 2 of the Convention. Thus, relying in particular on Dulaurans v. France ( no. 34553/97, §§ 33 and 34, 21 March 2000), the applicants took issue with the tribunals of fact for having failed to examine their plea properly and with the Court of Cassation for having endorsed that ruling, employing reasoning containing a manifest contradiction. 85. The applicants concluded that the proceedings at issue did not satisfy the standards of quality required by Article 6 of the Convention. 2. The Government 86. The Government were of the view that the plea at issue which the applicants had submitted to the tribunals of fact was neither clear nor precise. 87. The Government further submitted that it was not the Court of Cassation's place to undertake an investigation in order to clarify that plea and thus to make up for the applicants'shortcomings. 88. Last, the Government observed that the applicants had relied in their submissions on arguments based on international public policy; in the Government's submission, from the time when the tribunals of fact had decided that Luxembourg law had not been observed by the Peruvian judge in the context of the Luxembourg rules on the conflict of laws, any arguments centred on international public policy became devoid of purpose. The Government reiterated that “while Article 6 § 1 obliges courts to give reasons for their decisions, that obligation cannot be understood as requiring a detailed answer to every argument” ( Fourchon v. France, no. 60145/00, § 22, 28 June 2005), and submitted that in the present case it had been unnecessary to give specific reasons for the decision reached regarding that argument. In addition to that conclusion of pure logic, according to the Government, it was also the case that the Court was not required to adjudicate on errors of fact or of law made by the domestic courts. B. The Court's assessment 89. The Court reiterates that the right to a fair trial as guaranteed by Article 6 § 1 of the Convention includes, in particular, the right of the parties to the trial to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective ( see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 16, § 33), this right can only be seen to be effective if the observations are actually “heard”, that is duly considered by the trial court. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant ( see Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I, and Albina v. Romania, no. 57808/00, § 30, 28 April 2005 ). 90. The Court reaffirms, moreover, that while Article 6 § 1 obliges the courts to give reasons for their judgments, it cannot be understood as requiring a detailed answer to every argument put forward by the parties. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case ( see Ruiz Torija v. Spain, judgment of 9 September 1994, Series A no. 303 ‑ A, § 29, and Helle v. Finland, judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 55). 91. In the present case the applicants raised before the Court of Appeal, in a part entitled “ Public policy implications ”, a ground of appeal challenging the compatibility of the judgment at first instance with Article 8 of the Convention. They took issue with the first-instance court for having given Luxembourg law precedence over the international conventions in refusing to order enforcement of the Peruvian adoption decision. In its judgment of 6 July 2000 the Court of Appeal failed to respond, even in substance, to that ground of appeal. 92. In so far as the Government explained that the applicants'argument lacked clarity and precision, the Court is compelled to note at the outset that the Court of Appeal failed to avail itself of the possibility – provided by Article 62 of the new Code of Civil Procedure – to invite the applicants to provide further particulars of their ground of appeal. Incidentally, the Court considers that that plea, set out in writing in the document initiating the appeal, was formulated in sufficiently clear and precise terms. The applicants, relying on Article 8 of the Convention, had stated that in their view the judgment at first instance penalised the minor child and that public policy specifically required that the Peruvian adoption decision be enforced. The applicants had also cited a previous decision which, admittedly in a different context, had held that an interference with the right for the father and mother to maintain a relationship with their children was not justified by one of the objectives set forth in Article 8 § 2 of the Convention. 93. In its judgment of 14 June 2001 the Court of Cassation upheld the solution reached by the tribunals of fact. It decided, first, that the Court of Appeal was no longer required to respond to the ground of appeal put forward by the applicants 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 their decision not to apply the foreign law and, second, that the argument relating to Article 8 of the Convention set out in the document initiating the appeal, “owing to its doubtful, vague and imprecise nature, did not constitute a ground of appeal requiring a response ”. 94. The Court must ascertain whether, in this case, the solution adopted by the national authorities could reasonably be justified in the light of Article 6 of the Convention. 95. The Court of Appeal had decided that the first-instance court had been correct to dismiss the application for enforcement of the foreign judgment which had pronounced a full adoption by an unmarried Luxembourg national, on the ground that the Peruvian decision was inconsistent 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. The Court of Appeal had concluded that it was unnecessary to examine the other conditions of enforcement, including the conditions of conformity to international public policy. 96. The Court must bear in mind that, even though the courts cannot be required to state the reasons for rejecting each argument of a party ( see Ruiz Torija, cited above, § 29), they are nonetheless not relieved of the obligation to undertake a proper examination of and respond to the main pleas put forward by that party ( see, mutatis mutandis, Donadze v. Georgia, no. 74644/01, § 35, 7 March 2006). Where, in addition, those pleas deal with the “rights and freedoms” guaranteed by the Convention and the Protocols thereto, the national courts are required to examine them with particular rigour and care. 97. In the present case, the Court is of the opinion that the question of the incompatibility of the decision at first instance with Article 8 of the Convention – in particular from the aspect of its conformity to international public policy – was among the main pleas put forward by the applicants and thus required a specific and explicit response. The Court of Appeal failed to respond to the ground of appeal alleging that public policy specifically required, on the basis of Article 8 of the Convention, that the Peruvian adoption decision be enforced. The Court of Cassation, moreover, upheld that decision reached by the tribunals of fact, in spite of having previously held that the Convention had direct effects in the Luxembourg legal order (paragraph 79 above ). 98. In the light of the foregoing considerations, the Court considers that the applicants were not given an effective hearing by the domestic courts, which failed to guarantee their right to a fair hearing, within the meaning of Article 6 § of the Convention. Accordingly, there has been a violation of that provision. II. THE ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION, TAKEN ON ITS OWN 99. The applicants alleged that the Luxembourg authorities'refusal to grant enforcement of the judgment of the Peruvian court pronouncing the full adoption of the child infringed their right to family life. They relied on Article 8 of the Convention, which provides as follows : “ 1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is 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. ” A. The parties'arguments 1. The applicants 100. The applicants took issue with the Luxembourg authorities for not recognising the family tie which they had validly created by the full adoption judgment pronounced in Peru. 101. They maintained, above all, that the following various elements must be observed. 102. Before the first applicant, a number of unmarried women had been able to adopt children in Peru without difficulty. During the 1970s and up to the early 1990s it had been possible to go to the registration officer with a translation of the Peruvian full adoption judgment and have the judgment entered in the register without applying for enforcement of it. The decisions which had concluded a full adoption in Peru were thus given recognition by operation of law by the Luxembourg registration officers. It was against that background that the first applicant, acting in good faith, had taken steps to adopt in Peru. 103. The second applicant, whose biological mother had died, had been placed in an orphanage because of the ill-treatment she had received in her family of origin. 104. The first applicant – with a certificate issued by the Luxembourg Attorney General's representative attesting to her eligibility to adopt – ensured that she had scrupulously carried out all the steps in the procedure provided for by the Peruvian legislation to adopt the child, then aged three. Thus, in particular, she had spent several weeks in the locality of the court competent to pronounce the adoption. The Peruvian court had pronounced full adoption, after establishing that all the legal conditions were satisfied. 105. It had not therefore been the first applicant's intention to fraudulently circumvent the provisions of the law or to launch a crusade in favour of adoption by unmarried persons. 106. In 1994 the practice of entering Peruvian full adoption judgments in the Luxembourg civil status registers had been abruptly abolished. The applicants, sadly, had no longer been able to take advantage of that practice; their case had been the first to be subject to review by the Luxembourg judicial authorities. 107. The applicants were at pains to point out that the Court of Appeal, in a differently composed division from that which had sat in their case, had recently taken a different approach with respect to the recognition of a full adoption pronounced abroad. In that other case, a married couple had obtained a certificate attesting that they satisfied all the statutory conditions to carry out a full adoption in Peru. The husband had died during the course of the proceedings and the Peruvian authorities had agreed to entrust the child to the wife alone. Although the Luxembourg District Court had declared the widow's application to adopt inadmissible, the Court of Appeal had decided that as the Peruvian adoption judgment had to be recognised by operation of law, it produced binding effects (paragraph 65 above ). 108. As to the merits, the applicants maintained that the refusal to enforce the Peruvian judgment pronouncing full adoption constituted an “interference” with their right to respect for their family life. Although, on account of the full adoption validly effected in Peru, the ties between the child and her family of origin had been severed, with the consequence that she no longer had a biological family, the tie formed between the two applicants as a result of that foreign adoption was denied by the Luxembourg legal order. Failing enforcement of the Peruvian decision the child would continue, so far as the Luxembourg authorities were concerned, to bear her Peruvian name and was regarded, under the tax laws, as being the responsibility of the first applicant without being fully recognised as her daughter. A residence permit must therefore be applied for from the Ministry of Justice at regular intervals, and could one day be refused. While it was true that in the meantime a simple adoption judgment had been delivered in favour of the applicants, those problems had nonetheless not been resolved. 109. The applicants acknowledged that the interference could be considered to be “in accordance with the law” in view of the interpretation of the domestic law as presented by the national courts. 110. On the other hand, they disputed the “necessity” of the interference. Contrary to the Government's contention, the interference had not been necessary for the purpose of determining whether a full adoption, effected contrary to the Luxembourg law by an unmarried person, was prohibited; in the applicants'submission, the impugned interference with their family life consisted precisely in the denial of a family tie legitimately acquired abroad. The refusal to recognise the full adoption made the child a victim, although the child could not be penalised for the acts carried out by her adoptive mother. By way of example, the applicants pointed out that the minor child must be issued with residence permits on a regular basis and could not be entered in her mother's passport. Furthermore, if, when she had reached the age of 16, the minor child should wish to pursue an occupational apprenticeship, she would not benefit from the Community preference and would thus not obtain a work permit unless it were proved that an equivalent candidate could not be found on the employment market in the European Union. The applicants concluded that the child was in a legal vacuum, since she no longer had any ties with her family of origin and the refusal to order enforcement of the full adoption prevented the creation of a substitute family tie with her adoptive mother. The applicants emphasised that this problem had not been resolved by the simple adoption recently granted: the sole purpose of simple adoption was to create a supplementary family tie which did not include the genuine, unrestricted integration of the adopted child into the adoptive family. While those consequences were not harmful for a child whose ties with the family of origin persisted, the effects were harmful in the present case, where the child had lost the tie with her family of origin but that tie could not be replaced by a new tie with her adoptive mother. 111. The applicants concluded that the fact that the Luxembourg authorities refused to recognise an adoption legitimately concluded in another State Party to an international convention without being able to invoke what were indeed the best interests of the child constituted an interference with their family life which was not justified on any of the grounds set forth in Article 8 § 2. 112. The applicants submitted that the Grand Duchy of Luxembourg had a “positive obligation” to recognise the existence of an adoptive family tie resulting from a court judgment which had become final and which had been delivered in a country that shared the system of values of the majority of member States of the Council of Europe, in normal and legitimate circumstances and in conformity with the law of that country. Thus, a civil- status situation created legitimately in another State should be recognised by operation of law. The applicants, finding support in that regard in the ruling of an administrative court of first instance (paragraph 38 above) and in that of a division of the Court of Appeal (paragraph 107 above), were of the opinion that Luxembourg's ratification of the Hague Convention had placed it under an obligation to recognise the adoption pronounced in Peru. The only permitted restriction of that positive obligation to recognise the obligation validly concluded abroad was that of the right of the child. 2. The Government 113. The Government did not dispute that family life was at issue in the present case, even though the family in question was a limited family, consisting of an unmarried mother and an adopted child. In so far as the question of the recognition of the Peruvian adoption by the Luxembourg courts had arisen when the applicants were already living together, the Government considered that the concept of “family” was established. 114. On the other hand, the Government denied that there had been any “interference” by the public authorities with the effective exercise of the applicants'right to a family life. The Luxembourg authorities had not in any way attempted to prevent or prohibit the applicants from living together. In that regard, the Government submitted that the applicants alleged not a direct interference with the actual exercise of their family life, but administrative obstacles affecting the child whose full adoption had not been recognised; the Government emphasised, moreover, that the bill on the reform of the law on nationality provided for absolute equality between children, whether adopted or not, with respect to access to nationality. In the Government's submission, the interference by the legislature consisted in the present case in the fact that it required that a foreign judgment effecting adoption be recognised according to the procedures of Luxembourg private international law. The fact of requiring enforcement of a judgment was recognised in all States as a clear and necessary prerogative, for the purpose of ascertaining that the judgment was compatible with the fundamental rules governing the organisation of society and of the State. 115. On the assumption that there had been an “interference”, the Government maintained that the interference was “necessary” in order to protect Luxembourg international public policy, in that it made it possible to determine whether a rule of Luxembourg law – the rule prohibiting full adoption, contrary to Luxembourg law, abroad, by an unmarried person – had or had not been observed. In that regard, the Government emphasised the margin of appreciation left to States to define what type of family – single - parent family or two - parent family – afforded the greater protection to the child. Thus, in the present case, the interference was proportionate to the aim pursued, namely, the protection of the adopted child. The legislature had placed limits on full adoption so that such adoption, which entailed a definitive break with the adopted child's family of origin and the adopted child's full and entire entry into the new family, did not adversely affect the adopted child, or, moreover, any children of the adoptive family. The Government concluded that an interference, if it must be described as such, by the Luxembourg legislature with the applicants'family life was lawful in a democratic society in order to prevent an adoption effected in any circumstances whatsoever – and possibly in circumvention of Luxembourg law – from adversely affecting the child and the parent. In that regard, the Government emphasised that the very essence of a procedure for recognition of a foreign adoption by the Luxembourg courts was to ascertain that the child's ties with his or her family of origin had been severed without the child sustaining irremediably harmful emotional or economic consequences. 116. As to whether or not the State bore a “positive obligation”, the Government maintained that, in so far as no family life had pre-existed the application to adopt the child, which had been made in a manner contrary to Luxembourg public policy, the State was under no positive obligation to protect the creation of a family tie before that tie could even be recognised. In the Government's submission, Article 8 could not afford the possibility of circumventing the legislation of a country by imposing de facto the protection of family life before the State in question had been able to pronounce de jure on the recognition of a family tie in conformity with its national legislation. In their observations of 29 December 2004, the Government further explained that the question was whether effective “respect” for the applicants'family life obliged Luxembourg to enhance the status of the adoptive parent and the adopted child. Observing that the Court had consistently held that Article 8 implied the right of a parent to measures capable of reuniting him or her with his or her child, the Government asserted that in the present case no problem of reunification arose, since the emotional ties established by the fact that the applicants lived together had not been challenged. The Government added that the Luxembourg legislature could not be criticised for having made the adopted child's situation uncomfortable, as the procedure for recognition of a foreign judgment was intended to enable the State to ascertain that Luxembourg's public international policy was respected. The Government referred to the Court's case-law to the effect that the Convention did not guarantee a right to adopt as such and went on to list the positive obligations defined by the Court in Marckx v. Belgium ( judgment of 13 June 1979, Series A no. 31), Johnston and others v. Ireland ( judgment of 18 December 1986, Series A no. 112) and Eriksson v. Sweden ( judgment of 22 June 1989, Series A no. 156). The Government submitted that it could not be inferred from that case-law that Luxembourg was under any obligation, in relation to adoption, to amend its legislation in order to allow recognition of a foreign judgment which had approved the full adoption of a child by an unmarried mother, when in Luxembourg simple adoption was the only form of adoption available to an unmarried person. B. The Court's assessment 1. Applicability of Article 8 of the Convention 117. The Court reiterates that “[b]y guaranteeing the right to respect for family life, Article 8 presupposes the existence of a family” ( see Marckx, cited above, § 31, and Johnson v. the United Kingdom, judgment of 24 October, Reports 1997-VII, § 62). In the present case, the applicant has acted as the minor child's mother in every respect since 1996, so that “family ties” exist “ de facto ” between them (see, mutatis mutandis, X, Y and Z v. the United Kingdom, judgment of 22 April 1997, Reports 1997-II, vol. 35, § 37). The Court further observes that the Government do not dispute that a family tie has been established between the two applicants. It follows that Article 8 is applicable. 2. Compliance with Article 8 of the Convention 118. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are, in addition, positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( see Pini and others v. Romania, nos 78028/01 and 7803 0/01, § 149, ECHR 2004 ‑ V (extracts)). 119. According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and establish legal safeguards that render possible the child's integration in his family (see, mutatis mutandis, Kroon and Others v. the Netherlands, judgment of 27 October 1994, Series A no. 297-C, § 32 ). 120. The Court considers that the positive obligations that Article 8 lays on the Contracting States in this matter must be interpreted in the light of the Convention on the Rights of the Child of 20 November 1989 (see, mutatis mutandis, Maire v. Portugal, no. 48206/99, § 72, ECHR 2003 ‑ VII). 121. The Court reiterates, moreover, that although “the right to adopt was not included as such among the rights guaranteed by the Convention” ( see Fretté v. France, no. 36515/97, § 29, ECHR 2002 ‑ I), “ the relations between an adoptive parent and an adopted child are as a rule of the same nature as the family relations protected by Article 8 of the Convention ” ( see Pini and Others, cited above, § 140, and X. v. France, no. 9993/82, Commission decision of 5 October 1982, Decisions and Reports (DR) 31, p. 241). 122. The Court observes at the outset that the present case must be distinguished from the Fretté case. In this case the first applicant did not have an application for authorisation to adopt rejected but was refused enforcement of a Peruvian judgment which, following a rigorous procedure, had pronounced a full adoption and which, moreover, had been declared enforceable in Peru. 123. Whether the question is approached from the aspect of a positive obligation of the State – to adopt reasonable and adequate measures to protect the rights of the individual under paragraph 1 of Article 8 – or from that of a negative obligation – an “interference by a public authority”, which must be justified under paragraph 2 –, the principles to be applied are quite similar. Although the Luxembourg courts'refusal to grant enforcement of the Peruvian judgment is the result of the absence in the Luxembourg legislation of provisions allowing an unmarried person to obtain full adoption of a child, the Court considers that that refusal represented in this case an “interference” with the right to respect for the applicants'family life (see, mutatis mutandis, Hussin v. Belgium, no. 70807/01, 6 May 2004). 124. Such an interference constitutes a breach of Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims set forth in the second paragraph of that provision and is “necessary in a democratic society” in order to attain them. “Necessity” implies an interference that is based on a pressing social need and, in particular, is proportionate to the legitimate aim pursued. 125. In the present case, the Court finds that the interference was indisputably based on Articles 367 and 3 70 of the Luxembourg Civil Code and was therefore “in accordance with the law”. 126. In the Court's eyes, there is no reason to doubt that the refusal to order enforcement of the Peruvian adoption judgment was meant to protect the “health and morals” and the “rights and freedoms” of the child. It does not seem unreasonable that the Luxembourg authorities should display prudence when they determine whether the adoption was made in accordance with the Luxembourg rules on the conflict of laws. On that point, the Court reiterates the terms of Recommendation 1443 (2000) of the Parliamentary Assembly of the Council of Europe, entitled “International adoption: respecting children's rights” ( see paragraph 42 above ). 127. In order to determine whether the impugned measures were “necessary in a democratic society”, the Court must consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see, among other authorities, Kutzner v. Germany, no. 46544/99, § 65, ECHR 2002-I ). 128. The Court reiterates at the outset that in the area at issue the Contracting States enjoy a wide margin of appreciation (see, mutatis mutandis, Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299 ‑ B, § 39). In addition, the Court's task is not to substitute itself for the competent Luxembourg authorities in determining the most appropriate policy for regulating the adoption of children, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, among other authorities, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299 ‑ A, § 55, and Stjerna, cited above, § 39). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and the context; in this respect one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, mutatis mutandis, Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, § 40). 129. The Court observes that in the sphere in question the situation is at an advanced stage of harmonisation in Europe. An examination of the legislation of the member States shows that adoption by unmarried persons is permitted without restriction in most of the forty - six countries ( see paragraph 70 above ). 130. In this case, a practice existed before the facts in issue, whereby Peruvian judgments pronouncing full adoption were recognised by operation of law in Luxembourg. Thus – and the Government do not dispute this –, several unmarried women had been able to have such a judgment entered in the Luxembourg civil status registers without seeking enforcement of those judgments. The first applicant therefore took steps in good faith with a view to adopting in Peru. As the applicant had complied with all the rules laid down by the Peruvian procedure, the court pronounced the full adoption of the second applicant. Once in Luxembourg, the applicants could legitimately expect that the civil status registrar would enter the Peruvian judgment on the register. However, the practice of entering judgments had been suddenly abolished and their case was submitted for review by the Luxembourg judicial authorities. 131. Those authorities dismissed the application for enforcement submitted by the applicants, relying on the application of the Luxembourg rules on the conflict of laws, which provide that the conditions for adoption are governed by the national law of the adoptive parent, in this case Article 367 of the Civil Code, which provides that an application for full adoption can be made only by a married couple. The courts concluded that there was no need to examine the other conditions of enforcement, which included compliance with international public policy. 132. The Court considers that the decision refusing enforcement fails to take account of the social reality of the situation. Accordingly, since the Luxembourg courts did not formally acknowledge the legal existence of the family ties created by the Peruvian full adoption, those ties do not produce their effects in full in Luxembourg. The applicants encounter obstacles in their daily life and the child is not afforded legal protection making it possible for her to be fully integrated into the adoptive family. 133. Bearing in mind that the best interests of the child are paramount in such a case (see, mutatis mutandis, Maire, cited above, § 77), the Court considers that the Luxembourg courts could not reasonably disregard the legal status validly created abroad and corresponding to a family life within the meaning of Article 8 of the Convention. However, the national authorities refused to recognise that situation, making the Luxembourg conflict rules take precedence over the social reality and the situation of the persons concerned in order to apply the limits which Luxembourg law places on full adoption. 134. The Government explain that the legislature set limits on full adoption so that such adoption – which entails a definitive break with the adopted child's family of origin and his or her full and entire entry into the new family – will not be harmful to the adopted child. In the circumstances of the present case, the Court does not find that argument convincing : as the second applicant had been declared abandoned and placed in an orphanage in Peru, it was precisely the interests of the child that stood against the refusal to recognise the Peruvian adoption judgment. On that point, the Court notes, moreover, that a division of the Court of Appeal recently took the best interests of the child into consideration and decided, in a slightly different legal and factual context, that a Peruvian adoption judgment pronounced in favour of a Luxembourg woman should be recognised by operation of law. In the judgment in question, the Court of Appeal emphasised, inter alia, the need to give the child the most favourable status. The Court of Appeal further stated that the fact that the Peruvian decision produced the effects of a Luxembourg full adoption, in particular by severing the child's pre-existing legal parent-child relationship and by its irrevocable nature, was not prejudicial to Luxembourg's international public policy ( see paragraph 65 above). 135. The Court concludes that in this case the Luxembourg courts could not reasonably refuse to recognise the family ties that pre-existed de facto between the applicants and thus dispense with an actual examination of the situation. Reiterating, moreover, that the Convention is “a living instrument and must be interpreted in the light of present-day conditions” (see, among other authorities, Johnston and Others, cited above, § 53 ), the Court considers that the reasons put forward by the national authorities – namely, the strict application, in accordance with the Luxembourg rules on the conflict of laws, of Article 367 of the Civil Code, which permits adoption only by married couples – are not “sufficient” for the purposes of paragraph 2 of Article 8. 136. In the light of the foregoing, the Court considers that there has been a violation of Article 8 of the Convention. III. THE ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 8 137. The applicants claimed that the refusal to enforce the Peruvian adoption judgment constituted a violation of Article 14 of the Convention in conjunction with Article 8, those Articles reading as follows : Article 14 “ 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. ” Article 8 “ 1. Everyone has the right to respect for his private and family life ... ” A. The parties'arguments 1. The applicants 138. The applicants maintained in the first place that the child, who had not chosen her situation, had been the subject of unjustified discrimination. Although an adoptive mother had been designated for her in all conscience and according to a well- organised procedure by the authorities of her country of origin, the adoptive tie was denied by the Luxembourg courts. The minor child thus suffered discrimination by comparison with another Peruvian child who had been adopted by a Luxembourg married couple and whose family ties had been recognised in Luxembourg, even if the couple had subsequently separated or if one of the parents had subsequently died. 139. The refusal to order enforcement exposed the second applicant to obstacles on a daily basis. For example, as she did not have Luxembourg nationality, she was required to obtain a visa in order to visit Switzerland, whereas Community nationals had no need of such a visa. Nor had the day-to-day problems been resolved by the fact that in the meantime she had had the advantage of a simple adoption, since the resulting legal treatment continued to operate to her disadvantage. 140. As for the first applicant, she asserted that she indirectly suffered, on a daily basis, the obstacles suffered by her child. Thus, she was required to carry out all the administrative procedures resulting from the fact that the child did not have Luxembourg nationality. 141. Next, she submitted that, as an unmarried person, she suffered discrimination by comparison with a married person who sought to adopt. Owing to a simple question of civil status, an unmarried person with the same capacity to bring up children as a married person would have only restricted opportunities to adopt; yet the fact of being married did not afford better guarantees to the adopted child. Also, the first applicant contended that distinction based on a question of civil status was not based on a relevant criterion. In her submission, the only truly relevant criterion in adoption matters should be that of the capacity of the adoptive parent to bring up children. 142. Last, the first applicant saw no justification for the prohibition on full adoption by unmarried persons, since a simple adoption was available to the same unmarried persons. She questioned why what the national authorities deemed to be the harmful consequences of full adoption by an unmarried person ceased to apply in the case of simple adoption. 2. The Government 143. The Government observed that Article 14 of the Convention had no independent existence and concluded that there had been no violation of that provision, since, in their view, there had been no violation of Article 8 of the Convention. 144. In the alternative, the Government maintained that the second applicant could not claim to have suffered discrimination, as her situation was the same as that of other Luxembourg and foreign children. 145. Nor, in the Government's submission, could the first applicant claim to be a victim of a violation of Article 14. There was indeed a difference in regime between simple adoption and full adoption, but that difference was not discriminatory because it was the consequence of the status of the parents – married or unmarried – in the eyes of the national legislation. 146. According to the Government, the refusal to recognise the foreign judgment pronouncing the full adoption of a child by an unmarried person pursued, by way of legitimate aim, that of protecting the child. The aim was to afford the child every opportunity to grow up in his or her new family in the presence of two parents capable of helping the child to realise his or her full potential. 147. The refusal was also proportionate to the aim pursued, since it did not constitute for the adoptive parent and the adopted child an obstacle to simple adoption. The justification for the difference between the two adoption regimes was objective and reasonable in that it was based on the idea that two parents were more capable of taking in a child – who was often foreign and had therefore been uprooted – who, by full adoption, had just become part of the new family. In that regard, the Government emphasised that “the State must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect” ( Fretté, cited above, § 42) and that the Court's role was not to substitute itself for the competent domestic authorities in regulating the care of children and the rights of those children's parents, but rather to review under the Convention the decisions that those authorities had taken in the exercise of their power of appreciation ( Hokkanen, cited above, § 55). B. The Court's assessment 1. Applicability of Article 14 of the Convention 148. As the Court has consistently held, Article 1 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or other of the latter (see, among many other authorities, Mizzi v. Malta, no. 26111/02, § 126, ECHR 2006 ‑ ... (extracts ), and Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, § 33 ). 149. In the present case the Court has declared Article 8 of the Convention applicable ( see paragraph 117 above) and has even concluded that there was a breach of that provision ( see paragraph 136 above). The facts therefore fall within the ambit of Article 8 of the Convention and Article 14 of the Convention may apply in conjunction with Article 8 (see, mutatis mutandis, Mizzi, cited above, §§ 127 and 128). 2. Compliance with Article 14 of the Convention 150. The Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations ( see Mazurek v. France, no. 34406/97, § 46, ECHR 2000 ‑ II). 151. In this case the second applicant is in a similar situation to that of any child who has been the subject in Peru of a full adoption judgment entailing the severance of the ties with his or her family of origin and whose adoptive parent has sought to have that judgment enforced under Luxembourg law. As for the first applicant, she is in a similar situation to that of any other person seeking recognition in Luxembourg of a full adoption judgment delivered in her favour in Peru. 152. For the purposes of Article 14 of the Convention, a difference of treatment is discriminatory if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, in particular, Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291 ‑ B, § 24, and Mazurek, cited above, § 48 ). 153. The Court considers, for the reasons set out above ( see paragraph 126 above), that it cannot be excluded that the aim invoked by the Government may be considered legitimate. 154. It remains to be ascertained whether, so far as the means employed are concerned, the introduction of a difference in treatment between children, according to whether or not the foreign full adoption judgment is recognised in Luxembourg, appears to be proportionate and appropriate to the aim pursued. 155. In spite of the fact that the applicant followed all the steps required by the Peruvian procedure in good faith and that, in addition, the social worker recommended the adoption in Luxembourg ( see paragraph 14 above), the full adoption judgment delivered in Peru was not recognised by the Luxembourg authorities. The consequence of this refusal to order enforcement is that the second applicant suffers on a daily basis a difference in treatment by comparison with a child whose full adoption is recognised in Luxembourg. It is an inescapable finding in this case that the child's ties with her family of origin have been severed but that no full and entire substitute tie exists with her adoptive mother. The second applicant is therefore in a legal vacuum which has not been remedied by the fact that simple adoption has been granted in the meantime ( see paragraph 40 above ). 156. It follows in particular that, not having acquired Luxembourg nationality, the second applicant does not have the advantage of, for example, Community preference; if she wished to serve an occupational apprenticeship she would not obtain a work permit unless it were shown that an equivalent candidate could not be found on the European employment market. Next, and above all, for more than ten years the minor child has had to be regularly given leave to remain in Luxembourg and has had to obtain a visa in order to visit certain countries, in particular Switzerland. As for the first applicant, she indirectly suffers, on a daily basis, the obstacles experienced by her child, since she must, inter alia, carry out all the administrative procedures resulting from the fact that the former has not obtained Luxembourg nationality. 157. The Court does not find any ground in the present case to justify such discrimination. That conclusion is particularly valid in that, before the facts in issue, other Peruvian children adopted by unmarried mothers obtained a full adoption judgment by operation of law in Luxembourg. In addition, the Court must reiterate that a division of the Court of Appeal recently decided, in a slightly different legal and factual context, that a Peruvian adoption decision pronounced in favour of the Luxembourg woman in that case must be recognised by operation of law ( see paragraph 65 above). 158. In any event, the Court considers that the second applicant cannot be blamed for circumstances for which she is not responsible (see, mutatis mutandis, Mazurek, cited above, § 54). It must be noted that, because of her status as a child adopted by a Luxembourg unmarried mother who has not obtained recognition in Luxembourg of the family ties created by the foreign judgment, she is penalised in her daily existence ( see paragraph 156 above). 159. The foregoing factors are sufficient for the Court to conclude that there was not a reasonable relationship of proportionality between the means employed and the aim pursued. 160. Accordingly, there has been a violation of Article 14 of the Convention in conjunction with Article 8. ...
The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention because of the Luxembourg courts’ failure to acknowledge the family ties created by the full adoption granted in Peru, and a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8, the child (and her mother as a result) having been penalised in her daily life on account of her status as the adoptive child of an unmarried mother of Luxembourg nationality whose family ties created by a foreign judgment were not recognised in Luxembourg.