The absolute prohibition for a person, who has been punished for a criminal offence related to violence or threat of violence, to become an adopter of the spouse’s child, is incompatible with Article 110 of the Satversme
On 5 December 2019, the Constitutional Court passed the judgement in case No. 2019‑01‑01 “On Compliance of Para 1 of Section 163 (4) of the Civil Law with Article 96 and Article 110 of the Satversme of the Republic of Latvia”.
The Contested Norm
Para 1 of Section 163 (4) of the Civil Law provides that the adopter may not be a person, who has been punished for criminal offences related to violence or threatening of violence, regardless of the extinguishing of the criminal record or removal thereof.
The Norms of Higher Legal Force
Article 96 of the Satversme of the Republic of Latvia (hereinafter – the Satversme): “Everyone has the right to inviolability of his or her private life, home and correspondence”.
Article 110 of the Satversme: “The State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence”.
The Facts
The case was initiated with regard to an application by the Supreme Court. The Supreme Court is reviewing an administrative case, which has been initiated on the basis of a person’s application regarding the refusal by the Orphans’ Court to recognise him as the adopter of his spouse’s children.
The applicant in the administrative case heard by the Supreme Court has been living with his spouse and her children in a shared household for more than ten years. The applicant has been involved in the daily care and supervision of the spouse’s children since their infancy. Therefore the Supreme Court is of the opinion that actual family relationships exist between the applicant and the children. However, the Orphan’s Court, on the basis of the contested norm, has refused to recognise the applicant as the adopter of his spouse’s children because, almost twenty years ago, he had been punished for criminal offences related to violence or threat of violence.
The Supreme Court holds that the contested norm causes a restriction of fundamental rights included in Article 96 and Article 110 of the Satversme. It is maintained that this restriction on fundamental rights is incompatible with the principle of proportionality since the legitimate aim of the contested norm could be reached my less restrictive measures. Therefore the Supreme Court has suspended the legal proceedings in the case and has turned to the Constitutional Court.
The Court’s Findings
On specifying the claim
The Constitutional Court recognised that various situations could exist in the process of adoption, i.e., a person could adopt a child from a child care institution, his or her ward, a child placed in his or her family as a foster family, or a child of one’s cohabiting spouse. However, the basic issue in the present case was, whether the State’s action, including in the contested norm also a prohibition to adopt the child of one’s spouse, complied with the right to inviolability of the private life and protection of the family. In view of the above, the Constitutional Court decided to examine the compatibility of the contested norm with Article 96 and Article 110 of the Satversme, insofar this norm applied to persons, who submitted an application for adopting a child of one’s spouse. [15.]
On Article 96 of the Satversme
The Constitutional Court found that the scope of Article 96 of the Satversme, with respect inviolability of private life, did not include the right to adopt a particular child. Hence, the legal proceedings in the case in the part regarding the compliance of the contested norm with Article 96 of the Satversme were terminated. [16.3.]
On Article 110 of the Satversme
To examine in the present case, whether the State had fulfilled its obligation included in Article 110 of the Satversme to ensure legal protection for a family in the area of adoption, the Constitutional Court verified whether, firstly, the legislator had taken measures to ensure legal protection of the family in the area of adoption; secondly, whether these measures had been duly implemented; i.e., whether general legal principles derived from the basic norm of a democratic state governed by the rule of law and other norms of the Satversme had been complied with. [17.]
The Constitutional Court recognised that the State had the obligation to ensure the legal protection for the family, which required such legal regulation that established and maintained the legal framework for family relationships that existed in the social reality. This obligation comprises the establishment of the legal framework for adoption, thus defining the legal grounds of family relationships. [16.2., 16.3.]
The Constitutional Court noted that the legislator, by adopting the Civil Law, Law on the Protection of Children’s Rights, as well as envisaging that the procedure of adoption had to be established on the basis of these, had taken measures to ensure legal protection of the family in the area of adoption; however; these measures had not been duly implemented. [18.3.]
The Constitutional Court found that the contested norm, having the purpose to protect children against violence, included an absolute prohibition to become an adopter; however, this is incompatible with the principle of proportionality. The legislator had not ascertained whether the absolute prohibition, included in the contested norm, complied with the best interests of a child in all cases. I.e., the legislator had not examined the need to not only protect children against violence but also to ensure, to the extent possible, that they grew up in a family-like environment. Likewise, the legislator had not examined, whether and how the behaviour of a person, who had been previously punished for a criminal offence related to violence or threat of violence, could change over time. [19.1., 19.2., 23.2.]
The Constitutional Court recognised that the Orphans’ Courts already now had the obligation to examine the family life, personality of the potential adopted, as well documents prepared by a medical expert with respect to him or her and also assess, whether each particular situation complied with the best interests of a child. Moreover, the adoption is approved by a court, which also has to ascertain that the adoption complies with the best interests of a child. Hence, the possibility to examine, whether a person, who had been previously punished for a criminal offence related to violence or threat of violence, could become an adopter, would reach the legitimate aim of the absolute prohibition included in the contested norm – protecting children’s rights – in the same quality. However, even the possibility of an individual assessment does not guarantee a person the right to acquire the status of an adopter. [24.2.]
On the date, as of which the contested norm becomes invalid
With respect to persons, who have started defending their rights by general legal remedies, the contested norm becomes invalid as of the moment when it was applied to these persons by the Orphan’s Court. Whereas with respect to other persons the contested norm becomes invalid as of the date the judgement is published. In both cases, in the adoption procedure, in the administrative court and a court of general jurisdiction, Article 110 of the Satversme and the findings expressed in this judgement shall be directly applicable. [25.]
The Constitutional Court held:
1) to terminate legal proceedings regarding compliance of Para 1 of Section 163 (4) of the Civil Law, insofar it establishes an absolute prohibition for persons, who submit an application for adoption of his or her spouse’s child, with Article 96 of the Satversme of the Republic of Latvia;
2) to recognise Para 1 of Section 163 (4) of the Civil Law, insofar it establishes an absolute prohibition for persons, who submit an application for adoption of his or her spouse’s child, as being incompatible with Article 110 of the Satversme of the Republic of Latvia;
3) with respect to persons, who have started defending their rights by general legal remedies, to recongise Para 1 of Section 163 (4) of the Civil Law, insofar it establishes an absolute prohibition for persons, who submit an application for adoption of his or her spouse’s child, as being incompatible with Article 110 of the Satversme of the Republic of Latvia and invalid as of the moment when it was applied to these persons by the Orphan’s Court.
The judgment of the Constitutional Court is final and is not subject to appeal, it shall enter into force on the day of is publication. The judgement will be published in the official journal “Latvijas Vēstnesis” within the term set in Section 33 (1) of the Constitutional Court Law.
The text of the judgement [in Latvian] is available on the homepage of the Constitutional Court: https://www.satv.tiesa.gov.lv/web/viewer.html?file=/wp-content/uploads/2019/01/2019-01-01_Spriedums.pdf#search=
Linked case: 2019-01-01