Can someone who is placed under enhanced curatorship be married without the permission of his guardian?
JUDGMENT
Delecolle v. France 25.10.2018 (no. 37646/13)
SUMMARY
Right to marriage. Guardianship. A senior Frenchman was put under enhanced curatorship because he did not have the physical and mental capacity to manage his real estate. Then he wanted to marry his partner. But the permission of the guardian appointed by the court was required. The guardian refused to grant the permission, claiming the future wife was not well acquainted with her future husband. The French courts justified the guardian’s position and did not grant permission for the marriage. The ECtHR considered that the case had been thoroughly examined and that the French courts had investigated the case. There has been interference with his right to marry, but the limitations to this right have not restricted or diminished it in an arbitrary or disproportionate manner. No violation of Article 12 of the ECHR.
PROVISION
Article 12
PRINCIPAL FACTS
The applicant, the late Mr Roger Delecolle, was a French national who was born in 1937 and lived in
Paris.
The case concerned the right of a person placed under enhanced curatorship to marry without the
authorisation of his or her curator or of the guardianship judge.
In June 2009 the guardianship judge of the District Court placed Mr Delecolle, who was aged 72 at
the time, under enhanced curatorship. Mr Delecolle applied to the Paris tribunal de grande instance
to have the measure lifted. The tribunal de grande instance rejected the application, finding that the
applicant no longer had the physical or intellectual capacity to manage his immovable property.
Mr Delecolle requested authorisation from his curator to marry M.S., a friend whom he had known
since 1996 and with whom he had been in a relationship since 2008. The curator refused the request
on the grounds that she did not know the applicant sufficiently well to authorise the marriage.
Mr Delecolle then sought authorisation from the guardianship judge.
The guardianship judge refused the applicant’s request following a medical expert opinion and a
social welfare report, finding that the proposed marriage ran counter to the applicant’s interests at
that stage. The applicant appealed and the Paris Court of Appeal upheld the decision of the
guardianship judge. The Court of Appeal noted that although Mr Delecolle had, on several occasions,
expressed the wish to marry M.S., the serious disorders from which he suffered severely impaired
his judgment. It also observed that, since living with M.S., Mr Delecolle had made a number of
irrational management decisions. The Court of Appeal further noted that his relationship with his
daughter, M.D., had deteriorated considerably. Mr Delecolle appealed on points of law and
requested the court to refer a question concerning Article 460 § 1 of the Civil Code for a preliminary
ruling on constitutionality. In June 2012 the Constitutional Council found that the provision in
question was compatible with the Constitution, as it did not prohibit marriage but made it subject to
authorisation by the curator. In December 2012 the Court of Cassation dismissed an appeal on
points of law by the applicant.
Following the applicant’s death on 4 February 2016 M.S. informed the Court of her intention to
pursue the application.
Relying on Article 12 (right to marry) of the European Convention on Human Rights, the applicant
complained that he was unable to marry, criticising the fact that he could only marry with the
authorisation of the curator or the guardianship judge.
THE DECISION OF THE COURT
Article 12
Individuals under protective supervision were not deprived of the right to marry. However, their marriage was subject to prior authorisation on account of the restriction of their legal capacity, which was one of the substantive grounds recognised by the case-law.
The decision whereby the applicant had been denied authorisation to get married had first been taken by his protective supervisor, after hearing both the applicant and his partner. The guardianship judge had then considered that the applicant’s plan ran counter to his interest, after, firstly, a welfare investigation which had shown the existence of a financial stake at the heart of a major family conflict, in which his interest and well-being seemed not to be given much consideration; and secondly, a psychiatric assessment, which had found some impairment of his mental faculties, and, while regarding him as having the capacity to give his consent to the marriage, concluded that he was incapable of controlling the consequences of his consent in terms of his property and finances. The guardianship judge’s decision had given ample reasoning and the applicant had been able to appeal against the judgment. The judgment of the Court of Appeal, also giving reasons, had been delivered after a hearing during which the applicant, who had been present and assisted by his lawyer, had been able to submit his arguments.
The applicant had subsequently appealed to the Court of Cassation, exercising his right to raise a priority question of constitutionality concerning the alleged interference with the principle of freedom to marry, on account of the need for the authorisation of the supervisor, or otherwise that of the guardianship judge, for an adult under protective supervision. In its decision, the Constitutional Court noted that Article 460, paragraph 1, of the Civil Code did not prohibit marriage but subjected it to the authorisation of the supervisor, whose refusal could be appealed against to the judge. The judge would then, after hearing the parties, give a reasoned decision against which an appeal would also lie. It concluded that, having regard to the resulting personal and financial obligations, marriage was an important act of civil life and restrictions on the freedom to marry would not constitute a disproportionate interference. As to the Court of Cassation, it rejected the applicant’s appeal, citing the decision of the Constitutional Court and finding that the Court of Appeal had legally justified its decision by analysing the various documents in the file, which had enabled it to infer that the applicant was not in a position to give informed consent to his marriage.
In the European Court’s view, the applicant’s status meant that the present case was different from previous cases concerning individuals who had full legal capacity. Unlike the situations in which individuals were deprived in all circumstances of the right to get married, the obligation for the applicant to request prior authorisation for that purpose could be explained by the fact that he was covered by a measure of legal protection, as he was placed under an enhanced measure of protective supervision. The authorities had thus had a margin of appreciation in the present case, as regards both the impugned legal provisions and the denial of authorisation, in order to be able to protect him effectively in the light of the circumstances and thus to foresee any consequences that might harm his interests. Article 460, paragraph 1, of the Civil Code in fact safeguarded the right to marry, as the Constitutional Court had confirmed. To be sure, certain limitations were provided for, but they were circumscribed, being accompanied by remedies making it possible to obtain judicial review, in adversarial proceedings, of any restrictions on the right to marry. That had been shown to be true in the applicant’s case, as he had used the relevant domestic remedies and had been able to submit his arguments in adversarial proceedings in order to challenge the decision to deny him authorisation. In addition, as the Constitutional Court had pointed out, the protective supervision system was intended to safeguard the interests of the protected person and, as far possible, to support that person’s autonomy.
Accordingly, the limitations on the applicant’s right to marry had not restricted or reduced that right in an arbitrary or disproportionate manner. (echrcaselaw.com )
