KKO:2024:18 – Procedural rights of a biological parent in adult adoption case
Diary number: S2022/5
Issued on: 28 February 2024
ECLI:FI:KKO:2024:18
Background information
A, who is the biological mother of C, born in 1993, was C’s sole custodian and C’s primary carer until 1997. B is A’s sister, and she has been C’s joint custodian with A as of 29 January 1997. In late 1996, C moved from A’s home to live with B and continued to live with B until in 2016 when he moved out to live independently. A remained actively involved in the C’s daily life also after the move in 1996.
In late 2018, B submitted an application to the District Court that she be granted adoption of C, who had at this point reached the age of majority. C had given consent to the adoption. The District Court reserved a right for A and D, who is C’s biological father, to submit statements. D accepted the adoption application, while A objected.
The District Court accepted the application and confirmed the adoption.
A appealed to the Court of Appeal that decided to not process A’s appeal, as it was deemed that A was not a party to the proceedings and did not have a right to appeal.
A appealed to the Supreme Court.
Questions before the Supreme Court
The question brought before the Supreme Court was if A had the right to appeal the District Court’s decision that confirmed the adoption of her adult child by her sister and discontinued her own parental relationship, by virtue of the Finnish adoption law, general principles of procedural law or fundamental and human rights obligations.
Provisions of the Adoption Act of Finland
Pursuant to section 4 of the Adoption Act, adoption of an adult may be granted if it has been established that, while still a minor, the adoptee was taken care of and brought up by the adopter or that a similar established relationship, comparable to that of a child and their parent, has been formed between the adoptee and the appellant while the adoptee was a minor.
Pursuant to section 10(1) of the Adoption Act, adoption may not, as a general rule, be granted without the consent of a child who has reached the age of 12. The Adoption Act does not, however, include provisions that would require the consent of biological parents of an adult child being adopted.
Pursuant to section 53 of the Adoption Act, the Court shall, on its own initiative, order that all the evidence necessary to resolve a matter concerning the granting of adoption be produced. The Court shall, where necessary, hear all the persons who can provide information on a matter concerning adoption.
By virtue of section 54(1) of the Adoption Act, the parents of a minor child as well as the child’s custodian and guardian shall be reserved an opportunity to be heard in a matter concerning the granting of adoption. If the child’s parent is legally incompetent, also the custodian and guardian of the parent shall be reserved an opportunity to be heard. If the adopter’s legal competence has been restricted, also their guardian shall be reserved an opportunity to be heard.
Pursuant to section 56 of the Adoption Act, the applicant, child and a person who must be heard in accordance with section 54(1) of said Act, has the right to appeal for a change in a case given by the court concerning the confirmation of adoption.
Supreme Court’s assessment regarding A’s right to appeal
The Supreme Court found that in order to grant the adoption of an adult child, the Adoption Act did not require that the consent of an adult child’s parent was obtained or that the parent was heard. By virtue of the provisions of the Adoption Act, the parent of an adult child is not a party to the proceedings and he or she does not have the right to appeal according to section 56 of the Adoption Act.
The Supreme Court found that pursuant to section 53 of the Adoption Act, the hearing of A was possible and it was in fact done for the purpose of obtaining evidence, even if there was no obligation to do so by virtue of section 54 of the Adoption Act. The sole fact that A was heard in the various stages of the trial, and that she has objected adoption, did not constitute a status of a party in the proceedings or the right to appeal. Similarly the fact that the legal effects of the decision affect A and also bind her did not the make A a party to the proceedings as such status had not been provided for her pursuant to the material legislation. Therefore, A was not found to have the status of a party to the proceedings or the right to appeal by virtue of adoption legislation or the principles of procedural law.
The relevance of the fundamental and human rights in the assessment of the right to appeal
Regulations
A had furthermore pleaded that the case concerned a question of her private and family life that are protected under section 10 of the Constitution of Finland and Article 8 of the European Convention on Human Rights, which means that she must have the right to have the matter processed by the court in a fair trial by virtue of the section 21 of the Constitution and Article 6 of the Convention. In A’s opinion, the restriction on the right to appeal laid down under section 56 of the Adoption Act should be set aside and section 106 of the Constitution of Finland applied instead.
Section 7 of the Constitution provides that everyone has the right to personal liberty, which has been deemed to refer to physical liberty but also freedom of will and right of self-determination. Article 5 of the European Human Right Convention similarly provides on the right to personal liberty.
Section 10(1) of the Constitution guarantees protection to everyone’s private life. Similarly, under Article 8(1) of the European Convention on Human Rights, everyone has the right to respect for his/her private and family life. Article 8(2) furthermore provides that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary, inter alia, for the protection of the rights and freedoms of others.
Pursuant to section 21(1) of the Constitution of Finland, everyone has the right to have his/her case dealt with appropriately and without undue delay by a competent court of law or, as well as to have a decision pertaining to his/her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. Pursuant to subsection 2 of this section, provisions concerning the publicity of proceedings, the right to be heard, the right to receive a reasoned decision and the right of appeal, as well as the other guarantees of a fair trial and good governance shall be laid down by an Act. Article 6 of the European Human Rights Convention similarly provides on the preconditions of a fair trial.
According to section 106 of the Constitution if, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution.
Request for an advisory opinion by the Supreme Court and the advisory opinion of the European Court of Human Rights
The Supreme Court found, referring to the earlier legal practice of the European Court of Human Rights that it is open to interpretation what kind of weight should be given to the protection of private life of a biological parent in connection to the adoption of an adult child and what kind of requirements the rights guaranteed by the European Human Rights Convention set for the trial proceedings on adoption. Therefore, the Supreme Court requested for an advisory opinion by the European Court of Human Rights, as referred to in Additional Protocol 16 of the European Convention on Human Rights.
The European Court of Human Rights delivered its advisory opinion on 13.04.2023 (Advisory opinion no P16-2022-001).
Assessment by the Supreme Court
The Supreme Court found it undisputed that a social and emotional family relationship had been formed between A and C in C’s childhood, and the relationship had remained relatively close up to this date despite C moving in to live with B at approximately four years of age. The Supreme Court found it proven that being C’s parent continued to form a part of A’s identity and thus part of her private life. Therefore, potentially losing her parental status due to adoption meant interference in A’s private life that is protected by section 10 of the Constitution of Finland and Article 8 of the European Human Right Convention.
However, besides A’s rights, in this case attention had to be paid to the rights of C and B who were the de facto parties of the adoption proceedings. Even though the adoption proceedings affected A’s private life, they primarily concerned the private life of the adoptee C and B, who had applied for adoption, as well as their rights, guaranteed by section 7 of the Constitution of Finland, to decide on their relationships with family and relatives as adults with full legal capacity, free from external intervention and delays caused as a result of that. The Supreme Court found that in a situation like this, where the family relationships of adult individuals are concerned, the principles of freedom of will and personal autonomy of adults should be emphasised. In adult adoption, the matter primarily concerns the adoptee and the adopter.
In its advisory opinion, the European Court of Human Rights had stated that by virtue of Article 8 of the European Human Rights Convention, a person whose rights, laid down in the aforementioned article, were affected by the trial, had to be given the opportunity to be heard and the information they provided had to be taken into account to the degree that they were relevant in the case. Therefore, an adult adoptee’s parent, who will lose his/her parental status if the adoption application is successful, should not be completely excluded from the trial and he/she should have more than a solely formal role in the proceedings. The Supreme Court found that similar requirements could be concluded by virtue of section 10 of the Constitution, which protects the respect for private life. The parent of an adult adoptee should therefore be reserved an opportunity to be heard in the processing of the case as the trial on the confirmation of the adoption affects his/her private life.
In itself, Article 8 of the European Human Rights Convention did not provide a right to appeal for the biological parent. Based on the aforementioned factors and the principles affecting the provisions of adult adoption in particular, the Supreme Court found that there were no grounds to give section 10 of the Constitution a broader interpretation than that of Article 8 of the European Convention on Human Rights in this context.
The Supreme Court stated that A had been heard at the District Court and that she had been offered the opportunity to present evidence on matters relevant to the confirmation of the adoption. Therefore, the need to respect for A’s private life had been taken into account sufficiently and in the extent required by the fundamental and human rights.
The Supreme Court furthermore stated that the right to be heard based on the fundamental and human rights did not as itself constitute the right to appeal the case. This was justified, in particular, by the notion that the status and interest of the parties of the proceedings as laid down in law, materially differ from those of an adult adoptee’s parent, whose opinion or consent alone does not influence the consideration of the material elements of adoption and whose hearing was primarily relevant in the establishment of the facts that were a precondition of confirming the adoption, and therefore better comparable to that of a witness than a party of the proceedings, irrespective of the fact that their hearing simultaneously served to protect their private life.
The provisions on adult adoption did not constitute a status of a party to the proceedings for the biological parent as described above. Even though the confirmation of the adoption did also affect their private life, adult adoption did not concern the rights of the biological parent in the manner referred to in section 21 of the Constitution of Finland and Article 6 of the European Human Rights Convention. Therefore, there was no need to assess the matter separately with regard to the principles of a fair trial.
Conclusion
The District Court had reserved A the opportunity to be heard and to provide evidence in the case. The District Court received the information offered by A and heard her during the trial for the purpose of clarifying the matter and has furthermore taken into account the factors presented by A in its assessment of whether the preconditions of section 4 of the Adoption Act are met for the purpose of confirming the adoption. A’s right to private life as the biological mother had been respected during the proceedings. The application of section 56 of the Adoption Act did not, under these circumstances, result in the evident conflict referred to in section 106 of the Constitution of Finland with the rights guaranteed to A by the Constitution. Therefore there was no reason not to apply the provision 56 of the Adoption Act based on conflict with A´s fundamental and human rights.
Therefore, the decision by the Court of Appeal was not amended.