A case about adoption and the best interests of children.

Judgment in this case was circulated on 17th January 2017. It involved 16 applications against the Russian Federation by 45 US citizens and involved 27 children. The claimants had all been in the final process of adopting Russian children when in 2013 the Russian Federation imposed an unexpected and swift ban on any adoption by US Citizens.

The case ended with the ECtHR agreeing that US parents had been discriminated against and awarding a small amount of damages as ‘just satisfaction’. The arguments about the rights and wrongs of the ban on adoption by US citizens were wide ranging and illustrate, yet again, that the rights of individual children are very often lost in the competing political and social arguments made by adults. 

The saddest part of the judgment is where the court notes that the peremptory ban on adoption lead to many of the children remaining in orphanages for months, even years. Some remain in orphanages still. 

Background to the claim

The death of Dima Yakovlev in 2008 had led to an outcry in Russia and concern over ill-treatment of other Russian children who had been adopted by American citizens. Dima died after being left in a car for 9 hours by his American adoptive father, who was later acquitted of involuntary manslaughter. On 1st January 2013 the Russian Federation introduced a law prohibiting any further adoption by US nationals of Russian children.  The US parents argued that preventing them from completing their adoption applications because of their nationality was unlawful discrimination and claimed breach of Article 14 of the ECHR in conjunction with Article 8. They also made a claim arguing breach of Article 3 because the children, many of whom had disabilities, had been deprived of medical treatment in the US.

At the time of the ban, the US State Department issued a statement highlighting its regret, pointing out that some children who had already formed bonds with their potential new families would now not be able to live with them. There was further serious criticism from various human rights agencies such as Amnesty international, who said it was politically motivated and not in the best interests of the children concerned.

Judge Dedov had the following view of the political background to the ban:

Obviously, the impugned Law was a reaction to the political pressure constantly exercised by the US authorities in relation to Russia since 2002, when the Russian authorities started taking steps to reinforce the independence and sovereignty of the country. Finally, in 2015 Russia was officially declared to be one of the most serious threats (together with ISIS and Ebola) to the USA. The US strategy was implemented through political and economic sanctions, cultural isolation, intensive political propaganda demonising the so-called “political regime” in Russia and establishment of military bases surrounding Russian territory.

Inter-country adoption is recognised as a mechanism to promote the welfare of children who cannot otherwise remain with their birth family by Art 21 of the 1989 UN Convention of the Rights of the Child, which was ratified by Russia in 1990. In 2013 the OSCE Parliamentary Assembly adopted a Resolution on Inter Country Adoptions (see jmt para 301) which recognised that ‘a bond forms rapidly between the child and prospective adopters during the adoption process but before legal parent-child relationship has been effected’ and urged participating States to resolve its disputes about inter-country adoption in a way that did not harm the best interests of the child or damage this ‘nascent family’.

Article 8 and the right to a family and private life/ Article 14 prohibition on discrimination

All parties agreed that Article 8 right to a family life did not protect a mere wish to start a family (see para 376); it presupposes the existence of a family thus does not support a ‘right’ to adopt. The US applicants had initiated the inter-country adoption processes in 2010-12 so most of them had met the child they were seeking to adopt, had spent time with him or her, and had either submitted the adoption application to a Russian court or had their file ready for submission. They were all therefore in the ‘final stages’ of the adoption procedure (para 422).

Some applicants were clearly further down the road to establish ‘familial ties’ with the children  – for example, one family had already adopted the sibling of one of the children and thus had a clear argument on both right to family life and right to a private life.

The court noted at para 383 that the US applicants had a genuine intention to become parents by applying for inter country adoption when it was still lawful in Russia. Therefore the issue was their decision to become parents and ‘their personal development through the role of parents that they wished to assume’. This fell within the scope of ‘private life’ protected by Article 8. 

The Court therefore agreed that Article 14 and Article 8 applied and dismissed the arguments of the Russian Federation to the contrary. However, Article 14 could only apply to the US potential parents, who were discriminated against on the grounds of nationality. It could not apply to the children.

Russian Government – ban on adoption by US nationals was ‘measure of last resort’ to protect children

The Russian Government argued that the ban on the adoption of Russian children by US nationals was not discriminatory but based on objective and reasonable grounds and the children’s best interests (See para 392). The US citizens could still adopt from elsewhere and other countries had implemented similar blanket bans – for example the UK banned adoption from Cambodia in 2005. Other countries permit inter-country adoption only in exceptional circumstances or subject to strict requirements.

There was also concern that parents in the US had failed to provide reports about the wellbeing of 653 Russian children over the past 3 years and the Russian Government further relied upon reports from NGOs and the US Department of Health and Human Services, of a hidden ‘epidemic of violence’ against children in the USA, citing 5 children who died every day because of abuse or negligence perpetrated by adults (in 80% of cases being biological or adoptive parents). The Russian Government were concerned that at least 20 children adopted from Russia had been killed by American adoptive parents, although they did not have precise statistics to support this figure (para 396).

Thus a ban on adoption of Russian children by US nationals was not discrimination but a measure of last resort, prompted not only by instances of death, injury and sexual abuse of Russian adopted children but also by the lack of co-operation by the US to help ensure their safety and psychological well being (para 398).  Also cited was the desire to increase adoptions by Russian nationals.

US parents response – no objective justification for ban

The claimants responded (para 403) that death and serious injury to Russian adoptive children comprised on a tiny proportion of the overall number of Russian children so adopted and that the Russian Government had not provided any information that the situation was any better for Russian children in any other country, or indeed in Russian orphanages. The claimants rejected the argument that one of the aims behind the ban was to encourage adoption by Russian families as adoption by foreign nationals was only permitted when it was ‘impossible’ to find a Russian family willing to adopt. The claimants argued that the Russian response was disproportionate and excluded an entire category of potentially loving parents for children for whom no adoptive family could be found in Russia (para 405).

The Decision of the Court – in imposing ban on adoption, no consideration given to the interests of the children

The Court agreed that American nationals were being treated differently. Did that have an objective and reasonable justification (para 412)? The Court noted that the ban on adoption came only two months after the introduction of the Bilateral Agreement on Adoption between Russia and the US which was aimed at providing stronger legal safeguards for such inter-country adoptions. Most of the concerning incidents involving Russian children in the US had occurred before the entry into force of that Bilateral Agreement. Thus it was doubtful that the ban on adoption had a reasonable justification (para 420).

The claimants were all in the final stages of the adoption process and their proceedings were brought to an abrupt end because of the automatic ineligibility provided by the ban on adoption that unexpectedly came into force over ten days.

The Court found at para 425:

‘No consideration was given to the interests of the children concerned, and those of them who were eventually placed in a different adoptive or foster family were obliged to stay in the orphanage for additional periods ranging from several months to several years. At the date of this judgment, some of them are still in orphanages.

The Russian Government had thus failed to show that there were compelling reasons to justify a blanket ban applied retroactively and indiscriminately to all prospective adoptive parents from the US (para 426). The difference in treatment was thus discriminatory in breach of Article 14, in conjunction with Article 8. There was thus no need to examine a separate complaint under Article 8.

The Article 3 breach

The claimants further alleged that most of the children concerned needed specialist medical care that was only available in the US and depriving them of that treatment was a breach of their Article 3 rights, which protects against inhuman or degrading treatment. The Court considered this at para 432 onwards. The Russian Government provided evidence about medical treatment available and conditions in Russian orphanages and rejected the argument that the Russian state could not provide suitable medical care for the children. The claimants relied upon expert statements and academic works concerning the general situation in Russia as the medical files relating to the children were in the Russian Government’s possession.

Submissions of third party intervenors about the importance of early permanence for children.

At para 440 onwards the Court heard argument from the intervenors. The Harvard Law School’s Child Advocacy Program (CAP) and the Bucharest Early Intervention Project (BEIP) argued that extensive research over many years demonstrated the importance of placing children in permanent adoptive homes as early as possible. Nurturing parenting in child’s early months and years is vital to normal physical, emotional and intellectual development. CAP cited particular concerns about Russian orphanages, saying ‘95% of Russian children who grow up in orphanages end up on the streets… and are likely to die shortly after their 18th birthday’. As the world became more global, the idea ‘that children belonged in some essentialist sense with their racial or national groups of origin was outdated’ (para 443).

The Russian Government countered that Article 8 of the UN Convention on the Rights of the Child protected the child’s right to preservation of his or her identity, including nationality. They rejected the arguments about dire outcomes for children in Russian orphanages as ‘unsubstantiated and untrue’ (para 446).

The Court ruled that the complaint based on Article 3 was inadmissible as manifestly ill founded. The information provided by the claimants was largely of a general nature and the evidence from the Russian Government showed that these particular children received adequate medical care in Russia.

Damages

The Court awarded the applicants EUR 3,000 in respect of non-pecuniary damage and around $600 dollars for costs and expenses of the court proceedings.

The Partly Concurring Opinion of Judge Dedov

This raises a sad and salient point:

There is a more serious problem in Russia. The Russian Government informed the Court that there were still more than 66,000 children abandoned by their parents and subsequently placed in orphanages. The total number of such children who have been accommodated in orphanages during the last 25 years may be close to 300,000. Obviously this is the result of a structural social problem caused by the deterioration of values and lack of social responsibility. This problem cannot be resolved either by inter-country adoption or by political pressure’.