Temporary placement of an abandoned child
14 March 2011
Other International Provisions:
European Convention on Human Rights (ECHR), Article 8: Right to respect for private and family life
Law on Adoption and Foster Care, Article 14(1): Recognising a child as abandoned
A female infant, NL, was found at the doorstep of NS and KG’s home. They took her in and began raising her, providing the necessary conditions for her proper upbringing, without officially adopting her as required under law. NL was identified as an abandoned child and was granted the status of ‘child to be adopted’. A Government Agency (‘the Agency’) brought a lawsuit against NS and KG claiming that they were raising the child without legal grounds to do so, contrary to the provisions of national legislation.
The District Court had ruled that NL should stay with the family of NS and KG before being officially adopted in compliance with national legislation. This decision was appealed by the Agency to the Appellate Court. The Appellate Court upheld the decision of the District Court and stated that, although the child was being raised by this family without any legal basis, her best interests should be given priority. The Court said that the child was raised by this family for more than a year, that she loved the members of this family and that the decent family environment had had a positive impact on her physical and spiritual development. This decision was further appealed by the Agency to the Supreme Court of Georgia; the Supreme Court repealed the decision and remanded the case to the Appellate Court for further consideration.
Issue and resolution:
Adoption. Best interests of the child.The issue before the court concerned the placement of an abandoned child and whether such a child should be removed from a nurturing family environment in order to comply with the legislative requirements of the official adoption process.
The Supreme Court held that, although NS and KG ensured the necessary conditions for the proper upbringing of the child, this was not a sufficient argument to leave the child with the family without legal grounds. Therefore, the Appellate Court should further consider the facts of the case, ascertain whether it is possible to ensure better conditions for the child and, with the assistance of a suitable specialist, determine what impact a change of placement might have on the child.
Excerpts citing CRC and other relevant human rights instruments:
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, “[...] the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”; the CRC confirms the obligation of the State to recognise the right of every child to an adequate standard of living and the right to special protection and assistance of those children who are deprived of their family environment (Articles 20 and 27 of the Convention).
According to Article 3(1) CRC, in all actions concerning children, whether undertaken by public or private bodies, the best interests of the child shall be a primary consideration. As such, the provisions of the Convention, which are also incorporated into national legislation, recognise the primacy of the best interests of the child. Each body taking decisions concerning the child should give priority to the full and harmonious development of the child, the creation of a family environment is an important factor in this regard.
Article 8 ECHR, which ensures the right to the respect for private and family life, is also applicable to the child when protecting his or her best interests. In this instance there is a conflict of interests between, on the one hand, the Agency which has the right to decide the placement of the abandoned child and, on the other hand, the placement of the child in a family environment although without legal grounds. The case should be settled based on the principle of proportionality and priority should be given to the best interests of the child.
According to Article 18(1) CRC “[P]arents or, as the case may be, legal guardians have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.” In this case, the best interests of the child lie in creating a healthy and secure environment for her, which must also be the primary concern for competent public authorities.
Consequently, the court is obliged to fully consider all the facts which may have an impact on the rights of the child, ensuring that the decision serves the best interests of the child.
Link to Full Judgment:
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.