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Family Law

The leading authority on all aspects of family law

13 DEC 2007

ADOPTION: Emonet v Switzerland

(European Court of Human Rights; 13 December 2007)

The mother and child were living with the mother's long-term cohabitant in Switzerland. The father had died; the child, who was severely disabled regarded the mother's cohabitant as her father. The mother, her cohabitant and the child agreed that the cohabitant should adopt the child. Only after the adoption order had been made did the family discover that the order had the effect of terminating the mother's parental tie, and that the child was required to take her adoptive father's name. The mother and child objected, but the Swiss courts refused to restore the mother's parental tie, as previously existing parental ties had to be severed on adoption unless the natural parent was the spouse of the adoptive parent. The family also applied unsuccessfully to have the adoption order set aside.

There had been a breach of the applicants' human rights. Respect for family life required that both biological and social realities be taken into account so as to avoid such unforeseen legal results. The Swiss authorities' failure to take these realities into account had flown in the face of the wishes of the individuals concerned, without actually benefiting anyone. It was not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wished to adopt. The applicants could not be reproached for having been unaware of the extent of the consequences of their request for adoption.

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