#1800 - Odievre V France - Family Law

Odievre v France [2003] 1 FCR 621

ECtHR

Facts

M, a French national, made use of their provisions to give birth anonymously and “abandon” the child. The child (P) later sought to find out about her natural mother and trace her, but was blocked by the French authorities and laws from doing so.

Held ECtHR(maj)

• The applicant complained that she was unable to obtain identifying information about her natural family and had thereby been prevented from finding out her personal history, a breach of Art 8

  • P’s purpose is not to call into question her relationship with her adoptive parents but to discover the circumstances in which she was born and abandoned,

    • For that reason, it considers it necessary to examine the case from the perspective of private life, not family life, since P’s claim to be entitled, in the name of biological truth, to know her personal history

      • is based on her inability to gain access to information about her origin and related identifying data

• The Court reiterates that although the object of Art.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 the Court's opinion, people “have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development”.

  • In the Mikulić case, the applicant complained of the length of a paternity suit which she had brought with her mother and the lack of procedural means available under Croatian law to enable the courts to compel the alleged father to comply with a court order for DNA tests to be carried out.

    • The Court weighed the vital interest of a person in receiving the information necessary to uncover the truth about an important aspect of his or her personal identity

      • against the interest of third parties in refusing to be compelled to make themselves available for medical testing.

      • It found that the State had a duty to establish alternative means to enable an independent authority to determine the paternity claim speedily.

• The Court observes that Mr Gaskin and Miss Mikulić were in a different situation to the applicant. The issue of access to information about one's origins and the identity of one's natural parents is not of the same nature as that of access to a case record concerning a child in care or to evidence of alleged paternity

  • The expression “everyone” in Art.8 of the Convention applies to both the child and the mother. On the one hand, people have a right to know their origins, that right being derived from a wide interpretation of the scope of the notion of private life. The child's vital interest in its personal development is also widely recognised in the general scheme of the Convention. ¹⁴ On the other hand, a woman's interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions cannot be denied.

    • In addition to that conflict of interest, the problem of anonymous births cannot be dealt with in isolation from the issue of the protection of third parties.

      • Non-consensual disclosure could entail substantial risks, not only for the mother herself, but also for the adoptive family which brought up the applicant,

        • and her natural father and siblings, each of whom also has a right to respect for his or her private and family life.

      • In these circumstances, the full scope of the question which the Court must answer—does the right to know imply an obligation to divulge?—is to be found in an examination of the Law of January 22, 2002, in particular as regards the State's margin of appreciation

        • The Court observes that in the present case the applicant was given access to non-identifying information about her mother and natural family that enabled her to trace some of her roots, while ensuring the protection of third-party interests

Dissenting judgements (7 judges)

• The Court had to examine whether the State was in breach of its positive obligation under Art.8 of the Convention when it turned down the applicant's request for information about her natural mother's identity

  • The court’s obligation was not to verify whether the interference with the applicant's right to respect for her private life was proportionate to the aim pursued

    • but to examine whether the obligation imposed on the State was unreasonable having regard to the individual right to be protected,

      • even if there are similarities between the principles applicable in both cases as regards the balance to be struck between the rights of the individual and of the community

• In order to decide that issue, the Court must examine whether a fair balance has been struck between the competing interests.

  • It is not, therefore, a question of determining which interest must, in a given case, take absolute precedence over others.

    • It must perform a balancing of interests test and examine whether in the present case the French system struck a reasonable balance between the competing rights and interests

  • As a result of the domestic law and practice, no balancing of interests was possible in the instant case, either in practice or in law

    • In practice, French law accepted that the mother's decision constituted an absolute defence to any requests for information by the applicant, irrespective of the reasons for or legitimacy of that decision

      • In all circumstances, the mother's refusal is...