Adoption of a child and registration of its surname in the civil-status documents. The refusal to register only the surname of the foster parent in place of that of the biological parent violated the right to respect for the child’s family life

JUDGMENT

Leyla Can v. Turkey 18.06.2019 (no. 43140/08)

see here 

SUMMARY 

Adoption of a child from a single-parent family. Entering of the surname of the adopted child in the civil-status  registry. Parentalist request to register only the her surname as a child’s surname. Denial of authorities.

The applicant adopted a 7-year-old, who lived with her biological parents until her adoption. The applicant changed the surname of the adopted child by registering her surname in the registry. The registrar also included the surname of the biological parents of the adopted child. The applicant requested only her own surname to be registered. The Turkish authorities have rejected the request for the complete deletion of the name of the biological parents in the child’s civil-status documents . The same was done by the domestic courts on the grounds that this was not in line with civil law and that the change would confuse the child.

PROVISION 

Article 8

PRINCIPAL FACTS 

The applicant, Ms Leyla Can, is a Turkish national who was born in 1964 and lives in Mersin (Turkey).
The case concerned an application to have the forenames of an adopted child’s biological parents
replaced on the child’s civil-status documents.

In 2006 Ms Can adopted a child born in September 1999. On completion of the adoption procedure
the child was entered in the register with Ms Can’s surname. The applicant was also allowed to
change the child’s forename. On 7 November 2006 Ms Can applied to the Tarsus District Court to
have the forenames of the biological parents replaced on the child’s civil-status documents. She
argued that the indication of the biological parents’ forenames on the child’s identity papers, before
her own surname, was liable to cause confusion and have negative consequences for the child. She
requested that the civil-status documents should indicate her forename as the forename of the
applicant’s mother, and that her own father’s forename should replace that of the child’s biological
father.

The District Court dismissed the application on the grounds that the adopted child had not been
abandoned, that the identity of her biological parents was known, that her parentage had been
established and that the amendment requested was liable to cause confusion as to that parentage.
Lastly, the District Court held that the applicant, who had adopted the child on her own, could not
request that the father and mother’s forenames be replaced under the Civil Code.

The Court of Cassation dismissed an appeal on points of law by Ms Can. An application for
rectification of that decision was likewise rejected.

The applicant mainly alleged a violation of her right to respect for her family life under Article 8 of
the Convention

THE DECISION OF THE COURT…

The applicant does not put forward any arguments other than those put forward at the time of the application. In her comments on fair satisfaction, she claims that the lack of civil registration has caused trauma and psychological discomfort to the child and herself.

The government argued that in the present case the child was 7 years old when adopted, that she was able to understand the links with her biological parents, that her interests were of primary importance and that it was not necessary to create a situation of insecurity for herself. It also referred to the right of the child to know its origin as one of the reasons justifying the provisions in force at the time of the facts.

The government also argued that the biological mother – because she lived with her child for the first six years of her life – maintained her interest in her identity, especially because the adopted child remained according to the civil code, her heir. It also underlined that the applicant was able to change the name and surname of the child and that the appropriate balance was struck between the various interests involved, in particular in view of the Member States’ discretion in this matter. In addition, the legislative changes will now allow the applicant to name her name as the child’s mother.

The Court recalls that the applicant has the opportunity to submit her observations on the inability of the mother to replace her child’s biological mother at the Registry. It is true that the circumstances of the present case differ somewhat from the case-law of the Court of Human Rights since, in this case, the child was already seven years old at the time of her adoption. However, the Court considers that the criteria and principles developed in the Gözüm v. Turkey judgment should guide it in assessing the circumstances of the case.

Thus, while reading the applicant’s requests to the national authorities – in particular as regards the change in her father’s name as the father of the adopted child, the Court may have serious doubts as to the substance of part of the complaints, nevertheless considers it useful to recall the conclusion reached in the Gözüm case, according to which at the material time: ‘As regards single-parent adoptions, Turkish civil law had a legal vacuum which affects the persons who were in the applicant’s position, a legal situation which the Turkish legislature had certainly not foreseen and framed in such a way as to strike a fair balance between the general interest and the conflicting interests of individuals’.

The Court notes with interest the information submitted by the Government on legislative developments in 2017, in accordance with Law No. 5490, but recalls that they can not be applied in the case in question, since they were introduced at a later date than the facts of the case.

In addition, the Court is sensitive to the Government’s arguments, particularly in the interests of a child of discerning age and the right of the child to know its origin. However, in view of the conclusions reached in the Gözüm case that the protection of civil law as contemplated at the material time can not be regarded as sufficient in relation to the positive obligations imposed on the respondent State in accordance with Article 8 of the ECHR.

The Court held that the Turkish authorities’ refusal to register the applicant’s surname as the surname of the child in the competent registry office infringed the right to respect for her family life( echrcaselaw.com).

Just satisfaction: EUR 2,500 (non-pecuniary damage)


ECHRCaseLaw

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