Submitted by Zizipho Zondani on
ITALY
Title:
Godelli v. Italy
Court:
European Court of Human Rights
Date:
25 September 2012
CRC Provisions:
Article 7: Name and nationality
Other International Provisions:
European Convention on Human Rights, Article 8 (Right to respect for private and family life)
Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, Article 30 (Preservation of and access to information concerning a child’s origin and history)
Domestic Provisions:
Section 27 of Law no. 184/1983: Guarantee of the right to keep a child’s origins secret in the absence of judicial authorisation.
Section 28(7) of Law no. 184/1983: A mother’s right to give birth, not claim maternity and remain anonymous on the declaration of birth. That anonymity lasts one hundred years.
Case Summary:
Background:
The case was brought by a woman (the applicant) who was adopted after being abandoned at birth. Italian law allowed her biological mother to give birth anonymously without recording her name on the child’s birth certificate. The applicant found out she was adopted at the age of 10. As an adult she began to seek information on her birth mother from the government but was unsuccessful. Applications for information to Italian courts were dismissed on the grounds that the law protects the birth mother’s wish to remain anonymous. The applicant took her case to the European Court of Human Rights alleging that the refusal to grant her information on her birth amounted to a violation of her right to respect for family and private life under Article 8 of the European Convention on Human Rights (ECHR). The applicant also referred to the right of a child to know his or her parents under Article 7 of the UN Convention on the Rights of the Child.
Issue and resolution:
Right to identity. The Court took into account the competing rights of the adopted child to know their origins and the birth mother to remain anonymous. The Court found a violation of Article 8 ECHR as the Italian authorities failed to balance and achieve proportionality between the interests of the child and birth mother.
Court reasoning:
The Court explained that the right to an identity includes the right to know one’s parentage and is an integral part of private life, which is protected by Article 8 of the European Convention. In the situation presented by this case, both the woman giving birth and the child have a right to private life, but their interests are competing.
On one hand, the child has a right to know their origins, which forms part of the child’s vital interest in their personal development. On the other hand, Italian law allows women a right to remain anonymous after giving birth with the aim of preventing illegal abortions, child abandonment in unsafe conditions and ensuring that women receive appropriate medical care when giving birth.
In such cases of competing interests, the State must strike a fair balance between the rights of the two parties. However, in the current case, the applicant’s attempt to establish her identity were denied automatically. This means that, where a child of an anonymous birth seeks information on their origins, Italian law gives blind preference to the person who wishes to remain anonymous. For this reason, the Court decided the law did not genuinely attempt to balance the woman and the child’s right to private life in anonymous birth situations and concluded there had been a violation of the European Convention.
Furthermore, the Court rejected the notion that as a person gets older their interest in discovering their parentage diminishes, saying that although the applicant had managed to develop her personality without knowledge of her mother’s identity, the denial of information caused her mental and psychological suffering.
Excerpts citing CRC and other relevant human rights instruments:
The parties’ submissions
The applicant
37. Thus, the applicant pointed out that the United Nations Convention on the Rights of the Child of 20 November 1989 provided that a child had from birth “as far as possible, the right to know his or her parents” (Article 7). Likewise, the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in respect of Intercountry Adoption, which had been ratified by Italy, provided that the competent authorities of a Contracting State must ensure that information held by them concerning a child’s origins, in particular information concerning the identity of his or her parents, as well as the child’s medical history, would be preserved. The competent authorities were required to ensure that the child or his or her representative had access to such information, under appropriate guidance, in so far as was permitted by the law of that State (Article 30). In Recommendation 1443 (2000) of 26 January 2000 – “International adoption: respecting children’s rights” – the Parliamentary Assembly of the Council of Europe invited the States to “ensure the right of adopted children to learn of their origins at the latest on their majority and to eliminate from national legislation any clauses to the contrary”.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. Under Article 7 the child has a right, as far as possible, to know his or her parents and under Article 8 - a right to preserve his or her identity, including family relations as recognised by law without unlawful interference. By refusing children born ‘anonymously’ access to any information regarding their parentage, the State is violating Articles 7 and 8 of the CRC.
Citation:
Application No. 33783/09
Link to Full Judgment:
http://hudoc.echr.coe.int/eng?i=001-113460
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
