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Kafala and adoption in light of article 8 ECHR – Chbihi Louboudi and others v. Belgium

In Chbihi Louboudi and others v. Belgium, the European Court of Human Rights has dealt with the recognition of a ‘kafala’, a traditional Islamic form of adoption, in light of article 8 ECHR.  It has held that the right to respect for family life does not require signatory states to grant an adoption if a child has been placed in the custody of other persons by a ‘kafala’.

Facts:

Three applicants had submitted applications to the European Court of Human Rights. One of them was a girl from Morocco, the others were her Uncle and his spouse. The girl’s parents had agreed with the second and the third applicant that they would take care of the girl and raise her like their own child in Belgium. The agreement had been drawn up in form a ‘kafala’, a traditional form of adoption under Islamic law.

The first applicant had traveled to Belgium and had started living with the second and the third applicant. The second and the third applicant sought to adopt her; however, their request was rejected in two sets of proceedings by final judgments.

The third applicant only had a temporary permit to stay in Belgium, which was extended on a regular basis. For fear not be able to return to Belgium, she had not participated in two school trip abroad; she had also suffered from anxiety on account of her precarious situation and had felt embarrassed towards her classmates and friends.

Law:

The applicants claimed that by refusing to grant the adoption Belgium had violated its violations under the ‘right to respect for family life’ limb of article 8 ECHR. In addition to that, the third applicant – the girl – submitted that Belgium’s failing to provide her a permanent permit to stay constituted a violation of her right to private life under article 8 ECHR.

The Court stated that the case fell within the scope of article 8 ECHR. It reiterated its long standing jurisprudence to the effect that family life did not require the existence of biological parent-child relationships. Whether persons entertained family life had to be assessed on the basis of emotional and social ties between them. Belgium had contended that the situation of the applicants had to be treated differently, because the third applicant still maintained contact and close relationships with her biological parents. The Court rejected this argument.

It turned to the question whether Belgium had been under a positive obligation stemming from article 8 ECHR to grant the desired adoption. The Court pointed out that a ‘kafala’ was not recognized by Moroccan law; it also stated that the refusal of the adoption had not prevented the applicants from maintaining their family life, so that it was hard to see why it would constitute a violation of the right to family life. Therefore, the European Court of Human Rights found that there had been no violation of article 8 ECHR in its ‘family life’ limb.

With regard to the complaint that the failure to grant her a permanent permit to stay violated the third applicant in her right to private life, the Court stated that it could see that the situation in which the applicant found herself was distressful. However, it pointed to its long-standing jurisdiction that article 8 ECHR did not confer a right to stay in a certain country or to obtain a permission to stay in a country of one’s choosing. For this reason, the Court held that there had been no violation of the right to private life either.

 

Legal provisions regarding child birth in light of article 8 ECHR – Dubska and Krejova v. Czech Republic

In Dubska and Krejova v. Czech Republic, the European Court of Human Rights has dealt with the implications of article 8 ECHR for the legal framework governing medical assistance during births and home births. It held that legal provisions which made it nearly impossible for women to give birth at home did not infringe the right to private life.

Facts:

The Court had joined two applications. The first one had been submitted by a mother of two, who in essence complained that Czech laws had made it impossible for her to give birth to a child at home. The applicant had given birth to her first child without any complications. Following the birth, medical personnel in the hospital had urged her to undergo medical treatment she considered unnecessary. Also, she had spent more time separated from her child than she wanted to and was not released from the hospital as early as she desired. Due to these difficulties, she decided to give birth at home when she was pregnant with her second child. However, she was unable to find any midwife willing to assist her; her health insurance informed her that assistance during a home birth would not be covered. The applicant gave birth to her child at home without any professional assistance.

The second applicant had already given birth to two children at home with the assistance of midwives. The midwives had worked without any authorization from the state. When the applicant was pregnant with her third child, she decided to deliver at home again. However, she was unable to find a midwife willing to assist her because of the heavy fines which could be imposed on persons providing medical assistance without authorization.

In the Czech Republic, only a very small number of women give birth at home. The Medical Chamber regards home births as risky and considers them not in line with professional standards. Recommendations issued by the Ministry of Health state that newborns should, as a rule, not be released from hospital sooner than 72 hours after birth. According to statistics, the Czech Republic is among the countries with the lowest mortality rate in Europe.

Law:

The applicants complained that the legal framework in Czech Republic prevented them from giving birth at home, which amounted to a violation of their right to private life under article 8 ECHR.

The European Court of Human Rights pointed out that the issue fell within the scope of article 8 ECHR. It clarified that the question at hand was not whether the right to private life embraced a right to give birth at home, but rather whether it encompassed a woman’s right to decide herself on the circumstances and way in which she wanted to give birth. The Court reiterated its jurisprudence that private life is a broad concept which covers personal autonomy. It stated that giving birth had implications for the mother’s physical and psychological integrity and constituted a very intimate aspect of her private life. Thus, legal provisions to the effect that the applicants could not give birth at home constituted an interference with their right to private life.

The European Court of Human Rights went on to examine whether this interference was justified pursuant to article 8 para 2 ECHR. It found that the legal provisions which stated that medical assistance could only be provided by persons with the appropriate license and in possession of the necessary equipment were a sufficient legal basis. It also accepted that they served a legitimate aim, namely the protection of the health and life of mother and children during and after birth.

The European Court of Human Rights then turned to the question whether the interference was necessary in a democratic society. It pointed out that there was no consensus among Council of Europe member states on questions of home birth and health care during and after delivery. Also, regulation in this field required a lot of scientific data and expert advice. Since member states were best placed to obtain these, they enjoyed a wide margin of appreciation in this area. It stated that legislation on health care related to births had to respect the rights of the mother while being mindful of the interests of the newborn children as well. The Court found that the Czech authorities had duly balanced the competing interests at stake and come to conclusions which were within the state’s margin of appreciation. Accordingly, the European Court of Human Rights did not find a violation of article 8 ECHR.

 

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