issued by the Registrar of the Court  
ECHR 161 (2014)  
05.06.2014  
German courts were right not to accept claim by mother to have contact with  
and information about the children she had given up for adoption  
In today’s Chamber judgment in the case of I.S. v. Germany (application no. 31021/08), which is not  
final1, the European Court of Human Rights held, by a majority, that there had been:  
no violation of Article 8 (right to respect for private and family life) of the European Convention on  
Human Rights.  
The case concerned a woman’s complaint of not being able to have regular contact and receive  
information about her biological children who had been adopted by another couple.  
The Court considered that by consenting to the adoption, Ms S. had knowingly given up all rights as  
regards her biological children. The arrangements concerning her right to regularly receive  
information about them had been based on a mere declaration of intent by the adoptive parents.  
The German courts’ decision to favour the children’s interest in developing in their adoptive family  
without disruption over the mother’s right to respect for her private life had therefore been  
proportionate.  
Principal facts  
The applicant, I.S., is a German national who was born in 1962 and lives in Bielefeld (Germany).  
Following an extramarital affair, Ms S., who already had two children at the time, gave birth to twin  
daughters in April 2000. Feeling under pressure from her husband, and suffering from depression  
and anxiety, she consented to having the children placed in foster care less than three weeks after  
giving birth. In November 2000 she gave her formal consent to the children’s adoption in a deed  
before a civil law notary. The document stated in particular that she was aware that her declaration  
could not be revoked and that all kinship between her and the children would cease. A few days  
after her declaration, Ms S. and the prospective adoptive parents agreed orally during a meeting at a  
regional social authority that she would receive a report with photos of the children once a year. It is  
disputed whether during the meeting they also agreed on any rules for regular contact between Ms  
S. and the children.  
In June 2001 the adoption was concluded by decision of the guardianship division of a district court.  
The hearing record indicated, in particular, that a “half-open adoption was agreed on, which led to  
the conclusion that the mother seeks contact with the twins.” It then noted, however, that the  
arrangement between Ms S. and the youth office remained valid, namely that she was to receive  
photos of the children once per year.  
In April 2002, Ms S. brought court proceedings to have her consent to the adoption declared void,  
arguing that the children’s biological father – whose identity she had not disclosed – had not given  
his consent to it and that at the time she gave her consent she had been in a state of mental  
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,  
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges  
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final  
judgment. If the referral request is refused, the Chamber judgment will become final on that day.  
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.  
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution  
disturbance and had been unduly influenced by the youth office. The district court dismissed her  
claim, relying on a psychiatric opinion which concluded that, although suffering from a deep inner  
conflict, Ms S. had been legally capable of making a decision on her own.  
Ms S. did not appeal against that decision, but, in parallel, brought proceedings seeking the right to  
regular contact with the children and to receive information about them, relying on the oral  
agreement reached with the adoptive parents. Those claims were equally dismissed in decisions  
eventually upheld by the court of appeal in January 2004. As regards her request for contact with  
the children, the courts held in particular that she had lost her legal status as a parent as a result of  
the adoption and, having cared for the children only for about two weeks, she had not created a  
significant social and family relationship with the children. The Constitutional Court refused to admit  
her constitutional complaint in December 2007.  
Complaints, procedure and composition of the Court  
Ms S. complained that the German courts’ decisions on contact and information with regard to her  
children had breached her rights, in particular, under Article 8 (right to respect for private and family  
life). She alleged that she had been promised a “half-open” adoption, entitling her to contact with  
and information about the children, which had not been respected.  
The application was lodged with the European Court of Human Rights on 19 June 2008.  
Judgment was given by a Chamber of seven judges, composed as follows:  
Mark Villiger (Liechtenstein), President,  
Angelika Nußberger (Germany),  
Boštjan M. Zupančič (Slovenia),  
Ann Power-Forde (Ireland),  
Ganna Yudkivska (Ukraine),  
Helena Jäderblom (Sweden),  
Aleš Pejchal (the Czech Republic),  
and also Claudia Westerdiek, Section Registrar.  
Decision of the Court  
Article 8  
The Court confirmed that Ms S.’ claim fell within the scope of Article 8. While it might be disputed  
whether her relationship with the children – biological kinship without any close personal ties –  
constituted “family life”, that relationship in any event concerned an important part of her identity  
as a biological mother and thus her “private life” within the meaning of Article 8.  
The Court was satisfied that the German courts’ decisions had been “in accordance with the law” for  
the purpose of Article 8. It noted that the relevant provisions of the Civil Code did not confer on  
biological parents as such the right to have contact with their children. In their reading of those  
provisions, the German courts had examined – following the case-law of the Federal Constitutional  
Court – whether a “social and family relationship” between the twins and Ms S. had been  
established, which would have entitled her to contact with them provided that it served their best  
interests. Taking into consideration the period of less than three weeks which Ms S. and the children  
had spent together, the courts then came to the conclusion that such a relationship had not been  
established. Furthermore, the Court noted that under the applicable provisions the termination of  
Ms S.’s right as a parent was the consequence of her consent to the deed before the civil law notary.  
That notary’s explanation had not been in dispute and the declaration adopted before the notary  
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had not referred to a “half-open adoption”. In separate proceedings, the German courts had already  
established that the adoption deed was valid.  
Moreover, the Court accepted that the courts’ decisions had pursued the legitimate aim of  
protecting the rights of the children. The courts had aimed to comply with the legislator’s will to give  
preference to a newly established family relationship between the children and the adoptive  
parents, so as to allow the children to develop in their adoptive family without disruption.  
As regards the question of whether a fair balance had been struck between the competing interests  
at stake, the Court observed that the adoptive parents had given Ms S. reason to expect a “half-  
open” adoption and had consented orally to at least an exchange of information about the children  
after the adoption. The Court took note of the German Government’s explanation that national law  
permitted such forms of adoption, allowing for contact of greater or lesser intensity between the  
adoptive parents, the child and the biological parents. As the Government explained, those forms of  
adoption were dependent on the consent of the adoptive parents, who held custody rights and  
exercised parental care in the best interests of the child. They were based on declarations of intent  
which were not legally enforceable against the will of the adoptive parents.  
The oral arrangements between Ms S. and the adoptive parents had been made after she had been  
informed by an independent lawyer, a civil law notary – whose legal advice constituted an essential  
safeguard against misunderstanding – about the legal consequences of her intention to declare her  
irrevocable consent to the adoption. This indicated that Ms S. must have understood the  
arrangements as mere declarations of intent by the adoptive parents to voluntarily set aside their  
anonymity.  
Having regard to the fact that Ms S.’s rights with regard to the children had been severed as a result  
of acts she had taken in full knowledge of the consequences, the Court found the German  
authorities’ decision to give more importance to the privacy and family interests of the adoptive  
family to be proportionate.  
In view of those considerations, the Court concluded that there had been no violation of Article 8.  
Separate opinion  
Judge Power-Forde, joined by Judge Zupančič, expressed a dissenting opinion, which is annexed to  
the judgment.  
The judgment is available only in English.  
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member  
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.  
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