Advisory opinion on the procedural status and rights of the biological parent in adult adoption proceedings

Advisory opinion regarding Finland 13.04.2023 (P16-2022-001)

The background to the case and the domestic proceedings

The advisory opinion requested relates to a case pending before the Supreme Court of Finland with
regard to the adoption of an adult.

The adoption concerns C, born in 1993. For the first four years of his life his primary carer was his
biological mother. In late 1996 he went to live with his aunt. Shortly after the aunt was given
supplementary custody of the child at the request of and in agreement with the biological mother,
who at the time was in an unstable situation as a student and single mother of three. The biological
mother remained involved in C’s upbringing and they still have contact.

After C became an adult, and with his consent, his aunt applied to the courtsto adopt him. The District
Court granted the adoption, finding that the conditions set out under the relevant domestic law
governing the adoption of an adult had been met. Those conditions included it being established that
the child, while still a minor, had been taken care of by the prospective adopter or that they had had
a relationship comparable to that of child and parent.

The biological mother, whose submissions were heard by the District Court, objected to the adoption.
She considered that the relationship of mother and child existed between her and C, not between the
aunt and C, and that the adoption had been for inheritance and tax purposes.

She lodged an appeal, which was rejected as inadmissible. The Court of Appeal ruled that the biological
mother did not have the right to bring an appeal as she was not a party to the adoption proceedings.
The biological mother appealed against that decision to the Supreme Court of Finland. That court
asked for guidance from the European Court on what the Convention required in terms of the
biological mother’s procedural rights in adoption proceedings. Specifically, it asked whether, by virtue
of Article 6 (right of access to courts) and Article 8 (right to respect for private and family life) of the
Convention, the biological mother had to be heard by the court dealing with the issue, and if she
should also be given the status of a party to the proceedingsso thatshe had the right to appeal against
the adoption decision.

Procedure

The request for an advisory opinion was lodged on 10 October 2022. It was accepted by the Panel of
the Grand Chamber on 7 November 2022. A Grand Chamber was formed on 15 November 2022 in
accordance with Rule 24 § 2 (g) of the Rules of Court.

The President of the Chamber invited the parties to the proceedings before the Supreme Court of
Finland to submit written observations by 9 January 2023. Written observations were received from
the biological mother within that time-limit. These were transmitted to the Supreme Court, which
informed the Court that it would not be submitting comments on them (Rule 94 § 6). Neither the
Council of Europe Commissioner for Human Rights nor the Government of Finland exercised their right
to submit written comments.

The Court’s opinion

Firstly, the Court considered that legal proceedings concerning the adoption of an adult, which
discontinued the legal relationship between parent and adult child, affected a biological parent’s
private life under Article 8. It emphasised, however, that such proceedings also, and if anything to a
greater degree, also concerned the right to private life of the adopter and the adult adoptee.
It went on to point out that an elementary procedural safeguard of the biological parent’s right to
private life wasthat they be given the opportunity to be heard and their argumentstaken into account
to the extent relevant in the adoption proceedings.

That was what had apparently happened before the District Court, which had heard the biological
mother in person as well as several more witnesses proposed by her. It had also expressly referred to
that evidence, in particular the nature and quality of the biological mother’s relationship with her son
throughout his childhood, in assessing whether the conditions for granting the adoption had been
satisfied.

While the biological mother might view that as insufficient, the Court did not consider that additional
and specific safeguards, such as the right to be treated as a party to the proceedings and the right to
appeal, were required in order to satisfy the procedural requirements of Article 8 from her
perspective.

Certain other legal systems among the Contracting States1 do give biological parents such standing or
rights in adult adoption proceedings. However, the Court stated that Contracting States were entitled
to wide discretion (“margin of appreciation”) when regulating the procedure for adult adoption.