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Family Law

The leading authority on all aspects of family law

25 MAY 2010

ADOPTION: Kurochkin v Ukraine (App No 42276/08)

(European Court of Human Rights; 20 May 2010)

In the course of proceedings to end the adoptive father's marriage, a report was produced stating that the child's relationship with the adoptive father was positive, and that the adoptive father had authority over the child, whereas the child's relationship with the adoptive mother was negative. It recommended cancellation of the adoption, in view of the deterioration of the couple's marriage. The adoptive mother asked the court to cancel the adoption, on the grounds that the child had attacked her. Both the adoptive father and the child opposed this application (in relation to the father but not the mother); the child wanted to remain with the adoptive father and the adoptive father was willing to care for him. Shortly after the adoptive father remarried the adoption was annulled by the court, explicitly disregarding the child's wish to remain with the adoptive father, on the basis that the adoptive father had not addressed the child's aggression towards women, and that a sanction was needed. Although the court ordered that the child be taken into care (for placement in an institution) he remained with the former adoptive father, who was eventually appointed the child's ‘guardian'.

The ECHR, noting that lawful and genuine adoption established family relations, and attracted respect for family life, found a breach of Art 8. The appointment of the ‘adoptive father' as guardian did not remedy the interference with his Art 8 rights. Although the wide scope of the discretion to annul an adoption conferred on the court by Ukrainian law was reasonable and acceptable for Art 8 purposes, in this case there had been no issue with the applicant's ability to care for the child, the decision was based on a judgment that he lacked authority over the child and the impossibility of family life resuming with both adoptive parents. The domestic court did not seem to have considered the possibility of annulling the adoption in relation to the mother, but not in relation to the father. Punishment of the child's behaviour was not a relevant reason for splitting up an established family unit. The court seemed not to have considered the impact of the decision on the future well-being of the child, or considered alternative strategies to deal with the child's behaviour.

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