PROCEDURE

1.   The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 7 April 1993, within the three-month period laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 16969/90) against  lodged with the Commission under Article 25 (art. 25) on 1 May 1990 by an Irish citizen, Mr Joseph Keegan.

The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby  recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 8 and/or 14 (art. 6, art. 8, art. 14) of the Convention.

2.   In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30).

3.   The Chamber to be constituted included ex officio Mr B. Walsh, the elected judge of Irish nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. De Meyer, Mr S.K. Martens, Mrs E. Palm, Mr R. Pekkanen, Mr A.N. Loizou, Mr J.M. Morenilla and Mr J. Makarczyk (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

On 25 May 1993 Mr Walsh withdrew from the Chamber pursuant to Rule 24 para. 2. By letter of 30 June 1993 the Agent of the Government of Ireland ("the Government") notified the Registrar of the appointment of the Hon. Mr Justice John Blayney, a judge of the Supreme Court of Ireland, as an ad hoc judge (Article 43 of the Convention and Rule 23) (art. 43).

4.   As President of the Chamber (Rule 21 para. 5), Mr Ryssdal, through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the procedure (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received on 23 September 1993 the applicant’s memorial and, on 14 October 1993, the Government’s. He was subsequently informed by the Secretary to the Commission that the Delegate would submit his observations at the hearing.

5.   In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, , on 23 November 1993. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

- for the Government

- for the Commission

- for the applicant

The Court heard addresses by Sir Basil Hall, Ms Browne and Mr Gleeson as well as replies to questions put by several of its members.

AS TO THE FACTS

I.   THE PARTICULAR CIRCUMSTANCES OF THE CASE

6.   The applicant met his girlfriend Miss V. ("V.") in May 1986. They lived together from February 1987 until February 1988. Around Christmas 1987 they decided to have a child. Subsequently, on 14 February 1988, they became engaged to be married.

On 22 February 1988 it was confirmed that V. was pregnant. Shortly after this the relationship between the applicant and V. broke down and they ceased co-habiting. On 29 September 1988 V. gave birth to a daughter S. of whom the applicant was the father. The applicant visited V. at a private nursing home and saw the baby when it was one day old. Two weeks later he visited V.’s parents’ home but was not permitted to see either V. or the child.

7.   During her pregnancy V. had made arrangements to have the child adopted and on 17 November 1988 she had the child placed by a registered adoption society with the prospective adopters. She informed the applicant of this in a letter dated 22 November 1988.

A. The proceedings before the Circuit Court

8.   The applicant subsequently instituted proceedings before the Circuit Court to be appointed guardian under section 6A, sub-section 1, of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also applied for custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the child’s mother and the child’s guardian (see paragraph 19 below). While a married man is a guardian of his children, an unmarried man is not unless so appointed by the court (see paragraphs 25 and 26 below).

9.   On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody.

B. The proceedings before the High Court

10.   Following an appeal against the judgment of the Circuit Court by V. and the prospective adopters, the High Court found in July 1989 that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father’s rights be denied. Mr Justice Barron of the High Court stated:

"I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption. Each application must be taken as part of a global application and not as a separate and distinct one. The test therefore is:

(1) whether the natural father is a fit person to be appointed guardian, and, if so:

(2) whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed.

In the present case, I am of the opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration, he satisfies the second condition ...

In my opinion, having regard to the purposes of the Status of Children Act 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where - and they do not exist in the present case - there are good reasons for so doing."

C. The proceedings before the Supreme Court

11.   After the conclusion of the High Court proceedings Mr Justice Barron acceded to an application by V. and the prospective adopters to state a case for the opinion of the Supreme Court. The questions put to the Supreme Court by the judge were as follows:

"(1) Am I correct in my opinion as to the manner in which section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, should be construed?

(2) If not, what is the proper construction of that section and what other, if any, principles should I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the Constitution?"

12.   Delivering the majority judgment of the Supreme Court on 1 December 1989, Chief Justice Finlay stated that the High Court had incorrectly construed section 6A of the 1964 Act as conferring on the natural father a right to be a guardian. He considered that the Act only gave the natural father a right to apply to be guardian. It did not equate his position with that of a married father. The first and paramount consideration in the exercise of the court’s discretion was the welfare of the child, and the blood link between child and father as merely one of the many relevant factors which may be viewed by the court as relevant to that question. He added, inter alia:

"... although there may be rights of interest or concern arising from the blood link between the father and the child, no constitutional right to guardianship in the father of the child exists. This conclusion does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married.

The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case.

The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed ..."

He concluded that:

"... regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the Court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father is not to an important extent better".

The matter was then referred back to the High Court for the case to be decided in light of this interpretation.

D. The subsequent proceedings before the High Court

13.   The High Court resumed its examination of the case in early 1990. It heard, inter alia, the evidence of a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant’s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming "trust" relationships.

14.   In his judgment of 9 February 1990 Mr Justice Barron recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond.

He had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, he considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view "to do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law".

Applying the test laid down by the Supreme Court in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows:

"The result, it seems to me, is this. If the child remains where she is, she will if the adoption procedures are completed become a member of a family recognised by the Constitution and freed from the danger of psychological trauma. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes. Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated.

In my view these differences and the danger to her psychological health are of such an importance that I cannot hold that the quality of welfare likely to be achieved with the prospective adopters would not be to an important extent better than that likely to be achieved by custody with the father. That being so, his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account. In these circumstances, the welfare of the infant requires her to remain in her present custody. Accordingly the application for relief must be refused."

15.   An adoption order was subsequently made in respect of the child.

II.   RELEVANT DOMESTIC LAW AND PRACTICE

A. Appeals to the Supreme Court

16.   A decision of the High Court which determines an appeal from the Circuit Court cannot be appealed to the Supreme Court (Eamonn Andrews Productions Limited v. Gaiety Theatre Enterprises [1978] Irish Reports 295). The High Court can, however, ask for the opinion of the Supreme Court on points of law by way of a case stated.

B. Adoption

17.   The adoption of children in  is governed by the Adoption Act 1952. This Act was amended in 1964, 1974 and 1976.

Section 8 of the 1952 Act established a body to be known as the Adoption Board (An Bord Uchtála) to fulfil the functions assigned to it by the Act, its principal function being to make adoption orders on application being made to it by persons desiring to adopt a child.

18.   Arrangements for the adoption of a child under the age of seven years may only be made by a registered adoption society or a Health Board (section 34 of the 1952 Act) and where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption the society must, before accepting the child, furnish the mother or father with a statement in writing explaining clearly the effect of an adoption order on the rights of the mother or guardian and the provisions of the Act relating to consent to the making of an adoption order (section 39 of the 1952 Act). When the applicant’s child was placed for adoption there was also a requirement that notice in writing had to be given to the Adoption Board before or within seven days after the reception of the child into the home of the proposed adopters (section 10 of the Adoption Act 1964).

1. Consent

19.   As regards the requisite consent of the natural parent, section 14 of the 1952 Act provides as follows:

"(1) An adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the Board dispenses with any such consent in accordance with this section.

(2) The Board may dispense with the consent of any person if the Board is satisfied that that person is incapable by reason of mental infirmity of giving consent or cannot be found.

...

(6) A consent may be withdrawn at any time before the making of an adoption order."

2. Entitlement to be heard by the Adoption Board

20.   As regards those persons who are entitled to be heard on an application for an adoption order, section 16 of the 1952 Act provides as follows:

"(1) The following persons and no other persons shall be entitled to be heard on an application for an adoption order -

(a) the applicants,

(b) the mother of the child,

(c) the guardian of the child,

(d) a person having charge of or control over the child,

(e) a relative of the child,

(f) a representative of a registered adoption society which is or has been at any time concerned with the child,

(g) a priest or minister of a religion recognised by the Constitution (or, in the case of any such religion which has no ministry, an authorised representative of the religion) where the child or a parent (whether alive or dead) is claimed to be or to have been of that religion,

(h) an officer of the Board,

(i) any other person whom the Board, in its discretion, decides to hear.

(2)   A person who is entitled to be heard may be represented by counsel or solicitor.

(3)   The Board may hear the application wholly or partly in private.

(4)   Where the Board has notice of proceedings pending in any court of justice in regard to the custody of a child in respect of whom an application is before the Board, the Board shall make no order in the matter until the proceedings have been disposed of."

21.   The Supreme Court has held in the leading case of the State (Nicolaou) v. An Bord Uchtála (the Adoption Board) [1966] Irish Reports 567 that the relevant provisions of the Adoption Act 1952, which permitted the adoption of a child born out of wedlock without the consent of the natural father or without the right to be heard by the Adoption Board prior to the making of an adoption order, were not repugnant to the Constitution on the grounds that they discriminated against the natural father or infringed his constitutional rights (Article 40, sections 1 and 3 of the Constitution). It also held that the protection afforded to the "family" in Article 41 of the Constitution related only to the "family" based on marriage.

3. Application to the High Court

22.   Section 20 of the 1952 Act provides:

"20. (1) The Board may (and, if so requested by an applicant for an adoption order, the mother or guardian of the child or any person having charge of or control over the child, shall, unless it considers the request frivolous) refer any question of law arising on an application for an adoption order to the High Court for determination.

(2) Subject to rules of court, a case stated under this section may be heard in camera."

C. Custody and guardianship

1. Welfare of the child

23.   As regards proceedings relating, inter alia, to the custody or guardianship or upbringing of an infant, the Guardianship of Infants Act 1964 provided as follows:

"Welfare" in relation to an infant is defined as follows in section 2 of the said Act:

"‘Welfare’, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant."

2. Rights of married parents

24.   Section 6 of the 1964 Act provided as follows:

"(1) The father and mother of an infant shall be guardians of the infant jointly.

(2) On the death of the father of an infant the mother, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the father or by the court.

(3) On the death of the mother of an infant the father, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother or by the court."

3. Rights of the natural father

25.   The definition of "father" under section 2 of the 1964 Act did not include the father of a child born out of wedlock.

26.   The Status of Children Act 1987 amended the Guardianship of Infants Act 1964 in the following way:

"11. Section 6 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):

‘(4) Where the mother of an infant has not married the infant’s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian has otherwise been appointed in accordance with this Act.’

12.   The Act of 1964 is hereby amended by the insertion after section 6 of the following section:

‘6A (1) Where the father and mother of an infant have not married each other, the court may on the application of the father, by order appoint him to be a guardian of the infant.

(2) ... the appointment by the court under this section of the father of an infant as his guardian shall not affect the prior appointment of any person as guardian of the infant under section 8 (1) of this Act unless the court otherwise orders ...’"

27.   As regards court applications for custody of an infant, the 1964 Act provided as follows:

"11. (1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.

(2) The court may by an order under this section

(a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother;

..."

28.   This section of the 1964 Act was amended by the 1987 Act as follows:

"13. Section 11 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):

‘(4) In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant, and for this purpose references in this section to the father or parent of an infant shall be construed as including him.’"

4. Powers of guardians

29.   The 1964 Act provides, inter alia, that a guardian under the Act shall be entitled (1) to the custody of the infant and to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the child and (2) to the possession and control of all property of the infant (section 10).

D. Recent developments in Irish adoption practice

30.   The following developments have taken place subsequent to the facts of the present case.

By memorandum of 30 April 1990 from the Registrar of the Adoption Board, the relevant adoption societies and social workers have been notified, inter alia, of the rights of the natural father to apply for joint guardianship and/or custody of or access to his child. The memorandum also draws attention to the desirability of ascertaining from the mother and, where practicable, the father, his intentions in relation to the child as regards adoption although it recognises the practical difficulties which may arise when mothers do not want to involve the father or do not know who or where he is.

Where an adoption agency is given an indication by the natural father that he opposes the placement of the child for adoption the agency is advised to consider the prudence of delaying the placement for a period. The memorandum further states that where a natural father has applied to a court under no circumstances should the child be placed for adoption pending the determination of the court proceedings.

By a letter of 6 April 1992 the Adoption Board has informed the relevant adoption societies and social workers of a review of its policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures. The letter indicates that whenever a natural father is

(a) named as father on the child’s birth certificate, (b) in a continuous relationship with the mother,

he should be notified, if not already aware, of the application to adopt his child and offered a hearing by the Board on the application.

In addition two forms must now be completed by the adoption agency or by the applicant or applicants. These forms make the fullest relevant enquiries for the purpose, inter alia, of ascertaining the identity and intentions of the natural father as regards the proposed adoption.

PROCEEDINGS BEFORE THE COMMISSION

31.   Mr Keegan applied to the Commission on 1 May 1990. He complained that there had been a violation of his right to respect for family life (Article 8 of the Convention) (art. 8) in that his child had been placed for adoption without his knowledge or consent and that national law did not afford him even a defeasible right to be appointed guardian. He further complained of a denial of his right of access to court (Article 6 para. 1) (art. 6-1) in that he had no locus standi in the proceedings before the Adoption Board. He also alleged that, as the natural father, he had been discriminated against in the exercise of the above-mentioned rights (Article 14 taken in conjunction with Article 6 and/or Article 8) (art. 14+6, art. 14+8) when his position was compared to that of a married father.

32.   The application (no. 16969/90) was declared admissible on 13 February 1992. In its report of 17 February 1993 (Article 31) (art. 31), the Commission expressed the opinion that there had been a violation of Article 8 and of Article 6 para. 1 (art. 8, art. 6-1) (unanimously) and that it was not necessary to examine whether there had been a violation of Article 14 taken in conjunction with Article 6 and/or Article 8 (art. 14+6, art. 14+8) (by eleven votes to one).

The full text of the Commission’s opinion is reproduced as an annex to this judgment.

AS TO THE LAW

I.   THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. Whether the applicant can complain on his daughter’s behalf

33.   The Government submitted that the applicant has no locus standi in relation to complaints by his daughter since only a person who exercises parental rights or is a guardian is entitled to bring a complaint under the Convention on behalf of a child.

34.   In the course of the hearing before the Court the applicant indicated that it would no longer be appropriate for him to pursue any claim in respect of alleged infringements of his daughter’s rights in the light of an adoption order now having been made in respect of her (see paragraph 15 above).

35.   In view of this position, the Court considers that it is only called upon to examine allegations concerning violations of the applicant’s rights. It is thus unnecessary to examine the Government’s objection on this point.

B. Whether the applicant failed to exhaust domestic remedies

36.   The Government contended that the application should be rejected for non-exhaustion of domestic remedies, contrary to Article 26 (art. 26) of the Convention, on the grounds:

(1)   that the applicant had not appealed to the Supreme Court against the final determination of the guardianship and custody proceedings by the High Court;

(2)   that he had failed to complain before the Irish courts of the fact that the law did not enable him to become involved in the adoption process and, in particular, to be consulted by the Adoption Board prior to any adoption;

(3)   that he had not challenged the constitutionality of the legal provisions relating to a natural father by bringing proceedings in the High Court alleging that the State had failed to afford him equal treatment compared to a married father and had failed to vindicate his personal rights.

37.   Both the applicant and the Commission contended that there was no substance in any of these grounds.

38.   The Court notes that the Government had raised points (2) and (3) in the proceedings before the Commission but not point (1). Accordingly they are estopped from raising this objection before the Court.

Apart from this, under Irish law no appeal lies from the decision of the High Court on an appeal from the Circuit Court (see paragraph 16 above).

39.   As regards points (2) and (3) the Court recalls that the only remedies required to be exhausted are remedies which are effective and capable of redressing the alleged violation (see, amongst many authorities, the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246, p.23, para. 48). It considers that the applicant would have had no prospect of success in making these claims before the courts having regard to the case-law of the Supreme Court which denies to a natural father any constitutional right to take part in the adoption process (see paragraph 21 above).

40.   It follows that the Government’s objections based on non- exhaustion of domestic remedies fail.

II.   ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

41.   The applicant alleged a violation of his right to respect for family life contrary to Article 8 (art. 8) of the Convention which provides:

"1.   Everyone has the right to respect for his private and family life, his home and his correspondence.

2.   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 in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

A. Applicability of Article 8 (art. 8)

42.   The Government maintained that the sporadic and unstable relationship between the applicant and the mother had come to an end before the birth of the child and did not have the minimal levels of seriousness, depth and commitment to cross the threshold into family life within the meaning of Article 8 (art. 8). Moreover, there was no period during the life of the child in which a recognised family life involving her had been in existence. In their view neither a mere blood link nor a sincere and heartfelt desire for family life were enough to create it.

43.   For both the applicant and the Commission, on the other hand, his links with the child were sufficient to establish family life. They stressed that his daughter was the fruit of a planned decision taken in the context of a loving relationship.

44.   The Court recalls that the notion of the "family" in this provision is not confined solely to marriage-based relationships and may encompass other de facto "family" ties where the parties are living together outside of marriage (see, inter alia, the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, para. 55). A child born out of such a relationship is ipso iure part of that "family" unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life even if at the time of his or her birth the parents are no longer co-habiting or if their relationship has then ended (see, mutatis mutandis, the Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, para. 21).

45.   In the present case, the relationship between the applicant and the child’s mother lasted for two years during one of which they co-habited. Moreover, the conception of their child was the result of a deliberate decision and they had also planned to get married (see paragraph 6 above). Their relationship at this time had thus the hallmark of family life for the purposes of Article 8 (art. 8). The fact that it subsequently broke down does not alter this conclusion any more than it would for a couple who were lawfully married and in a similar situation. It follows that from the moment of the child’s birth there existed between the applicant and his daughter a bond amounting to family life.

B. Compliance with Article 8 (art. 8)

1. Paragraph 1 of Article 8 (art. 8-1)

46.   The applicant maintained that the State failed to respect his family life by facilitating the secret placement of his daughter for adoption without his knowledge or consent and by failing to create a legal nexus between himself and his daughter from the moment of birth.

Moreover, the test applied by the Supreme Court to determine the question of custody placed him at a considerable disadvantage vis-à-vis the adoptive parents by requiring him to show that any advantages that they had to offer the child were not important for her welfare. In his submission, to be consistent with Article 8 (art. 8) the law ought to have conferred on him a defeasible right to guardianship and, in any competition for custody with strangers, there ought to have existed a rebuttable legal presumption that the child’s welfare was best served by being in his care and custody. He stressed, however, that he was not seeking to overturn the adoption order that had been made in respect of his child.

47.   For the Government, Contracting States enjoy a wide margin of appreciation in the area of adoption. The right to respect for family life cannot be interpreted so broadly as to embrace a right to impose the wishes of the natural father over the interests of the child in disregard of the findings of fact made by the courts.

The applicant, as the Supreme Court had held, had a right to apply to be made a guardian, which right he had exercised. Furthermore, the Supreme Court took into account the blood link between him and his daughter as one of the factors to be weighed in the balance in assessing the child’s welfare. In addition, the applicant had every opportunity to present his case and to have his interests considered by the courts. However, in this process the rights and interests of the mother, who had wanted her child to be adopted, had also to be taken into account.

In particular, the Government emphasised that to grant a natural father a defeasible right to guardianship could give rise to complications, anguish and hardship in other cases and concerned a matter of social policy on which the  should be reluctant to intervene.

48.   In the Commission’s view the obstacles under Irish law to the applicant establishing a relationship with his daughter constituted a lack of respect for his family life in breach of a positive obligation imposed by Article 8 (art. 8).

49.   The Court recalls that the essential object of Article 8 (art. 8) is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective "respect" for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, none the less, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 18, para. 41, and the above-mentioned Johnston and Others judgment, p. 25, para. 55 ).

50.   According to the principles set out by the Court in its case-law, where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be created that render possible as from the moment of birth the child’s integration in his family (see, mutatis mutandis, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31, and the above-mentioned Johnston and Others judgment, p. 29, para. 72). In this context reference may be made to the principle laid down in Article 7 of the United Nations Convention on the Rights of the Child of 20 November 1989 that a child has, as far as possible, the right to be cared for by his or her parents. It is, moreover, appropriate to recall that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life even when the relationship between the parents has broken down (see, inter alia, the Eriksson v. Sweden judgment of 22 June 1989, Series A no. 156, p. 24, para. 58).

51.   In the present case the obligations inherent in Article 8 (art. 8) are closely intertwined, bearing in mind the State’s involvement in the adoption process. The fact that Irish law permitted the secret placement of the child for adoption without the applicant’s knowledge or consent, leading to the bonding of the child with the proposed adopters and to the subsequent making of an adoption order, amounted to an interference with his right to respect for family life. Such interference is permissible only if the conditions set out in paragraph 2 of Article 8 (art. 8-2) are satisfied.

52.   In view of this finding, it is not necessary to examine whether Article 8 (art. 8) imposed a positive obligation on  to confer an automatic but defeasible right to guardianship on natural fathers such as the applicant.

2. Paragraph 2 of Article 8 (art. 8-2)

(a) "In accordance with the law" and legitimate aim

53.   It is clear that the decision to place the child for adoption without the father’s knowledge or consent was in accordance with Irish law as were the decisions taken by the courts concerning the welfare of the child. That they pursued the legitimate aim of protecting the rights and freedoms of the child is evident from the judgments of the High Court and the Supreme Court in this case (see paragraphs 10-14 above).

(b) Necessity in a democratic society

54.   For the Government, the interference was proportionate to the protection of the child’s health as well as of her rights and freedoms. The interpretation of Irish law by the Supreme Court took proper account of the paramount interests of the child. It remained open to the natural father to apply to the courts to be appointed, where appropriate, the guardian and/or custodian of the child.

They contended that it was fair and wholly consistent with the Convention that special regulations be enforced to protect the interests of a child born out of wedlock. Indeed it would be impractical and potentially harmful to the interests of such a child to grant the natural father rights that extended beyond a right to apply for guardianship. In any event the Adoption Board may, in its discretion, decide to hear the natural father.

55.   The Court notes that the applicant was afforded an opportunity under Irish law to claim the guardianship and custody of his daughter and that his interests were fairly weighed in the balance by the High Court in its evaluation of her welfare. However, the essential problem in the present case is not with this assessment but rather with the fact that Irish law permitted the applicant’s child to have been placed for adoption shortly after her birth without his knowledge or consent. As has been observed in a similar context, where a child is placed with alternative carers he or she may in the course of time establish with them new bonds which it might not be in his or her interests to disturb or interrupt by reversing a previous decision as to care (see, inter alia, the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p. 28, para. 62). Such a state of affairs not only jeopardised the proper development of the applicant’s ties with the child but also set in motion a process which was likely to prove to be irreversible, thereby putting the applicant at a significant disadvantage in his contest with the prospective adopters for the custody of the child.

The Government have advanced no reasons relevant to the welfare of the applicant’s daughter to justify such a departure from the principles that govern respect for family ties. That being so, the Court cannot consider that the interference which it has found with the applicant’s right to respect for family life, encompassing the full scope of the State’s obligations, was necessary in a democratic society. There has thus been a violation of Article 8 (art. 8).

III.   ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

56.   The applicant complained that he had no access to a court under Irish law to challenge the placement of his child for adoption and no standing in the adoption procedure. He invoked Article 6 para. 1 (art. 6-1) of the Convention according to which:

"1.   In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..."

The Commission upheld his complaint.

A. Applicability

57.   The Court considers that Article 6 para. 1 (art. 6-1) is applicable to the present dispute (see, inter alia, the above-mentioned W. v. the United Kingdom judgment, pp. 32-35, paras. 72-79). Indeed this has not been seriously contested by the Government in the proceedings before the Court.

B. Compliance

58.   The Government submitted in the first place that the Adoption Board was not a court and thus the fact that the applicant had no statutory right to be heard by that body could not infringe this provision. Secondly, it was open to the applicant to apply to the courts for guardianship and custody of his daughter, which he did. Since these proceedings controlled and determined the activities of the Adoption Board which can make no order where it has notice of such an action, Article 6 para. 1 (art. 6-1) was complied with (see paragraph 20 above).

59.   In the Court’s view the adoption process must be distinguished from the guardianship and custody proceedings. As has been previously observed, the central problem in the present case relates to the placement of the child for adoption without the prior knowledge and consent of the applicant (see paragraph 51 above).  The applicant had no rights under Irish law to challenge this decision either before the Adoption Board or before the courts or, indeed, any standing in the adoption procedure generally (see paragraphs 20-22 above). His only recourse to impede the adoption of his daughter was to bring guardianship and custody proceedings (see paragraphs 8-14 above). By the time these proceedings had terminated the scales concerning the child’s welfare had tilted inevitably in favour of the prospective adopters.

Against this background, it is not necessary to decide whether the Adoption Board, which admittedly exercises certain quasi-judicial functions, is a tribunal within the meaning of Article 6 para. 1 (art. 6-1).

60.   There has thus been a breach of this provision.

IV.   ALLEGED VIOLATION OF ARTICLE 14 (art. 14)

61.   The applicant further complained that he had been discriminated against contrary to Article 14 of the Convention in conjunction with Article 8 (art. 14+8) in the enjoyment of his right to respect for family life and in conjunction with Article 6 para. 1 (art. 14+6-1) as regards his right of access to court. He maintained that a married father in similar circumstances enjoyed the full protection of Articles 8 and 6 (art. 8, art. 6).

62.   Having regard to its findings in respect of both of these provisions (see paragraphs 55 and 60 above) the Court does not consider it necessary to examine this complaint (see the above-mentioned Open Door and Dublin Well Woman judgment, p. 32, para. 83).

V.   APPLICATION OF ARTICLE 50 (art. 50)

63.   Article 50 (art. 50) of the Convention provides as follows:

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

1. Pecuniary loss

64.   The applicant claimed IR £2,000 which he had been obliged to pay before his entitlement to legal aid in respect of the guardianship and custody proceedings.

65.   The Government made no objection. The Court considers that this sum should be awarded in full.

2. Non-pecuniary loss

66.   The applicant submitted that he should be awarded substantial damages having regard to the fact that his daughter has now been adopted following two years of traumatic court proceedings and that it is unlikely that he will ever be re-united with her. He emphasised, as previously mentioned, that he was not seeking to overturn the adoption order (see paragraph 46 above).

67.   The Government contended that a finding of a violation would constitute adequate just satisfaction in the circumstances of the case.

68.   The Court is of the view that damages are appropriate in this case having regard to the trauma, anxiety and feelings of injustice that the applicant must have experienced as a result of the procedure leading to the adoption of his daughter as well as the guardianship and custody proceedings. It awards him IR £10,000 under this head.

B. Costs and expenses

69.   The applicant claimed a total amount of IR £42,863 by way of costs and expenses. He submitted inter alia an affidavit from a practising cost accountant in  by way of substantiation of the reasonableness of his claim.

70.   The Government submitted that there should be a reduction of IR £5,000 in respect of solicitor’s fees and IR £3,700 in respect of counsel’s fees.

71.   The Court observes that whereas the applicant has furnished it with a detailed substantiation of his claim the Government have provided no evidence in support of their submission. In such circumstances the claim should be allowed in full less 51,691.29 French francs already paid by way of legal aid in respect of fees and expenses.

This amount is to be increased by any value-added tax that may be chargeable.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.   Holds that it is not necessary to examine the Government’s objection concerning the applicant’s standing to complain on behalf of his daughter;

2.   Dismisses the remainder of the Government’s preliminary objections;

3.   Holds that there has been a violation of Article 8 (art. 8);

4.   Holds that there has been a violation of Article 6 para. 1 (art. 6-1);

5.   Holds that it is not necessary to examine the applicant’s complaint under Article 14 (art. 14);

6.   Holds that  is to pay to the applicant, within three months, IR £12,000 (twelve thousand) in respect of non- pecuniary and pecuniary damage and, in respect of costs and expenses, the sums resulting from the calculation to be made in accordance with paragraph 71 of the judgment.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, , on 26 May 1994.


PROCEDURE

1.  The case originated in an application (no. 2260/10) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Congolese national, Mr Deo Tanda-Muzinga (“the applicant”), on 29 December 2009.

2.  The applicant was represented by Mr C. Meyer, a lawyer practising in Strasbourg. The French Government (“the Government”) were represented by their Agent, Ms E. Belliard, Head of the Legal Department, Ministry of Foreign Affairs.

3.  The applicant alleges, in particular, that the obstacles encountered in obtaining visas for his wife and children in the context of the so-called “family reunification” procedure for refugees amounted to a violation of his right to respect for his family life, guaranteed by Article 8 of the Convention.

4.  On 21 September 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1970 and lives in Venissieux.

A.  Facts at the time the application was lodged

6.  In the course of 2000 the applicant, a Congolese national, was granted refugee status under the mandate of the United Nations High Commissioner for Refugees in Cameroon (hereafter UNHCR/Cameroon). According to his certificate of refugee status, he was accompanied by his wife, who also held such a certificate, and his children (Vanessa Ntabugi, born in the Democratic Republic of Congo in 1994, and Michelle Tanda-Ngubiri, born in 2001 in Cameroon). The couple had a third child (Benjamin Tanda) who was born in Yaoundé (Cameroon) in 2004, but the applicant was absent when his son was born, having left Cameroon to claim asylum in France.

7.  On 19 July 2004 the French Office for the Protection of Refugees and Stateless Persons (hereafter, the OFPRA) rejected his claim. On 6 August 2004 the applicant appealed against that decision. By a decision of 8 February 2007, the Refugee Appeals Board (the Commission des recours des réfugiés, formerly the National Asylum Tribunal, the Commission nationale du droit d’asile, CNDA) granted the applicant refugee status. He obtained a ten-year residence permit and in April 2007 the OFPRA issued him with a marriage certificate and a family record book (livret de famille), serving as civil-status documents.

8.  By a letter of 26 June 2007, for the purpose of family reunion and on the basis of the “family reunification” procedure for certified refugees (see paragraph 36 below), the applicant applied for long-stay visas for his wife and three children. By a letter of 28 June 2007, the Movement of Aliens Section at the Ministry of Foreign Affairs informed the applicant that it would contact the OFPRA to verify, on the basis of the statements which had enabled him to be granted refugee status, whether those persons were indeed members of the family group, before contacting the French consular services in Yaoundé with a view to compiling an application file for long-stay visas.

9.  By a letter of 13 February 2008, the Visa Section at the Ministry of Immigration informed the applicant that the consular services in Yaoundé would be summoning his family for an interview.

10.  The applicant’s wife was requested to attend an interview at the consulate on 21 February 2008. After she had submitted the necessary documents for compiling the application, the consular authorities asked her to contact the UNHCR/Cameroon delegation to obtain travel papers for herself and her children, in accordance with the Convention of 28 July 1951. She was assured that once she had brought those documents to the consulate she would be issued with an acknowledgement of receipt of the visa application. On 18 March 2008 the applicant’s wife submitted to the consulate a travel document, issued in her name after a favourable opinion had been obtained from the Cameroonian Ministry of External Affairs. This document, which could substitute a national passport, indicated that she was accompanied by her three children. She did not receive an acknowledgment of receipt of her visa application.

Having received no news on examination of his request, the applicant applied to various authorities, including the consulate in Yaoundé, for information as to why the visas had not been issued, and included a copy of all of the documents in his possession, including his residence permit, the reconstituted documents issued by the OFPRA, his wife’s certificate of refugee status, the document serving as his elder daughter’s birth certificate, and the birth certificates of the two other children.

11.  On 30 May 2008 the applicant lodged an appeal with the Appeals Board against Decisions to refuse Entry Visas to France (the CRRV, hereafter the “Appeals Board”), against the consular authorities’ implicit refusal.

12.  By a letter of 3 June 2008, the OFPRA replied to a letter from the applicant dated 24 January 2008 in the following terms:

“I have the honour to inform you that on 23 July 2007 the Office certified your family’s situation to the visa section. You are registered with the Office as the husband of Mrs Julie Ngubiri Zirirane and father of three children (Vanessa Ntabugi, born on 28 December 1994; Michelle Tanda, born on 4 June 2001; and Benjamin Tanda, born on 3 September 2004). I further observe that your family has been or will shortly be invited to lodge an application for a visa with the consular authorities in Yaoundé”.

13.  On 11 June 2008 the applicant lodged an urgent application before the Conseil d’État, requesting a stay of execution of the consular authorities’ implicit decision to refuse the visas.

14.  On 12 June 2008 the Conseil d’État acknowledged receipt of the appeal for abuse of authority lodged by the applicant calling for judicial review of this implicit decision.

15.  By an order of 23 June 2008, the urgent-applications judge at the Conseil d’État dismissed the urgent application for a stay of execution, on the grounds that the Appeals Board had not yet ruled on the matter.

16.  On 30 July 2008, after two months without any reply from the Appeals Board, which amounted to implicit rejection, the applicant lodged a new urgent application for a stay of execution, as well as an urgent application for protection of a fundamental freedom (requête en référé-liberté), dated 3 August 2008.

17.  By an order of 13 August 2008, the urgent-applications judge at the Conseil d’État rejected the urgent application for protection of a fundamental freedom.

18.  By a letter of 13 August 2008, the applicant was summoned to a hearing on the urgent application for a stay of execution, scheduled for 10 September 2008. The applicant, who attended the hearing on that date, learnt of pleadings by the Minister of Immigration, which he received only on 12 September, contesting the birth certificates of his children Michelle and Benjamin. Following this hearing, the applicant submitted a memorandum for the deliberations.

19.  According to the Government’s observations, the transcripts of the certificates obtained on 13 and 23 April 2008 from the relevant local authorities had revealed that birth certificate no. 1271 held by the civil-status authorities of the 4th arrondissement of Yaoundé concerned the birth of a boy and not that of Michelle Tanda, and that birth certificate no. 78/2004, held by the civil-status authorities of the 2nd arrondissement of Yaoundé, concerned the birth of a girl and not that of Benjamin Tanda.

20.  On 16 September 2008, the urgent-applications judge informed the applicant that he had decided to reopen the investigation in the case and that he had communicated the memorandum for the deliberations to the relevant Minister for Immigration.

21.  By an order of 26 September 2008, the Conseil d’État dismissed the urgent application for a stay of execution:

“[the applicant] alleges that ... the criterion of urgency has been met, in that he has been living separately from his wife and children for almost four years; [that the impugned decision] is tainted by error of law, in that by refusing to issue visas on the grounds that certain civil-status documents were absent, it breached Article 11 of Directive (EC) no.200/86 of 22 September 2003 on the right to family reunification; ... that the submitted documents cannot be considered of doubtful authenticity; that he [had] provided evidence establishing his family ties with his wife and his children; that his children’s birth certificates had been registered by the Office of the High Commissioner for Refugees;

... the Minister alleges ... that the criterion of urgency has not been met, in that responsibility for the separation lies with the applicant; that the latter has not established that he has maintained regular written or telephone contact with his family or has contributed to their upkeep since his departure; that the argument alleging a breach of the Directive of 22 September 2003 is ineffective, in so far as it has been correctly transposed into domestic law and cannot therefore have direct effect; that this text does not require the national authorities to issue a visa to an applicant who has not established his or her filiation with the refugee; that the submission of fraudulent documents is a public policy reason justifying the rejection of visa applications submitted in a family context; ...

It appears from the facts of the case ... that visa applications submitted by [the applicant], who has refugee status in France, in respect of his wife Julie B. and his three children, Vanessa C., Michelle D. and Benjamin D., were refused on the grounds that filiation had not been established for the latter two children on account of the doubtful authenticity of the submitted birth certificates; the argument that such a ground could not be a legal basis for the decision to refuse [the visas] is not such, as the evidence stands, to give rise to serious doubts as to the lawfulness of this decision, in view of the outcome of the civil-status verifications carried out by the French Consulate General in Yaoundé and the fact that the fraudulent nature of the request was such as to entail refusal not only of visas applied for in respect of these two children, but also in respect of his wife and his third child...”

22.  On 6 October 2008, in the context of an appeal for judicial review, the relevant Minister filed a memorial concluding that the birth certificates of Michelle and Benjamin Tanda were fraudulent. With regard to the alleged violations of Articles 3 and 8 of the Convention, he responded that it had already been shown that the applicant had abandoned his wife and putative children, that the parent-child relationship had not been established and that the applicant had not shown that he had maintained ties with them. The applicant responded by arguing that an anomaly in the referencing of the birth certificates was not sufficient to establish the doubtful authenticity or fraudulent nature of the documents submitted by his wife. He noted firstly, with regard to Benjamin’s birth certificate, “that it was not certain that the certificate sought by the authorities was related to the document in question, given that the first component of its reference number seemed to be made up of three figures, rather than two (“?78/2004”) (see paragraph 19 above), which would be more coherent, given the date it had been drawn up, in September 2004”. He argued that the Minister did not explain how UNHCR/Cameroon had issued a Family Composition Certificate (dated 26 September 2008, referring to his wife and his three children) and official travel documents permitting his family to travel internationally. He pointed out that he had submitted to the court correspondence from the Cameroonian Ministry for External Relations, dated 11 March and 13 August 2008, drawn up in the context of the checks conducted with a view to issuing those travel documents (travel document for the child Michelle, issued on 26 August 2008 following the favourable opinion of 13 August 2008). He added that the authenticity of the other documents submitted to the court had not been called into question, namely the declaration of Michelle’s birth, issued by the Cité Verte District Hospital in Yaoundé, and the declaration of Benjamin’s birth, issued by the Yaoundé Police Medical Centre, nor that of the travel documents for his first two children, drawn up on 26 August 2008. Lastly, he indicated that other evidence submitted to the court, photographs and bank transfer statements, invalidated the Immigration Ministry’s arguments as to the reality of his ties with his wife and children.

23.  On 7 October 2008 UNHCR/Cameroon drew up a “certifiate of parenthood”, stating that the applicant and his wife were the legitimate parents of the children known as Michelle Tanda-Ngubiri and Benjamin Tanda.

24.  By a letter of 22 May 2009, the applicant’s lawyer informed him that a hearing had taken place before the Conseil d’État on 20 May 2009; the public rapporteur had proposed that his appeal be dismissed and had suggested that judicial rectification of the civil-status documents of the children concerned be carried out in Cameroon.

25.  By a judgment of 8 July 2009, served on 5 August, the Conseil d’État rejected the appeal. It pointed out that the transcripts of the certificates, obtained by the French authorities in the Cameroonian civil-status offices for the purpose of verifying the civil-status documents of the two children born in that country, had shown that two totally different birth certificates had been issued under the same reference numbers, and concerned third parties. It considered that even if the fraudulent nature of one of the two certificates had not been demonstrated, this did not create any doubt as to evidence of the inauthenticity of the second certificate, and concluded that “in those circumstances, neither the submission of declarations of birth from the Yaoundé Maternity Hospital and the Yaoundé Police Medical Centre, not the allegation that this discrepancy originated in dysfunctions within the Cameroonian civil-status authorities, allow for the fraudulent nature of at least one of the documents thus produced to be set aside”. Lastly, it specified that the fraudulent nature of at least one of the submitted documents was such as to entail refusal of all of the requested visas.

26.  On 16 July 2009 a psychologist from the Comité inter-mouvements auprès des évacués (CIMADE) certified that the applicant’s psychological health had deteriorated, and described a worsening state of depression. She submitted that “in addition to the traumatic events experienced in his country, [the applicant] is currently developing reactional depression as a result of the separation from his family, which has lasted for several years... Although he was simultaneously actively engaged in preparing a professional insertion plan, the applicant is finding it increasingly difficult to take the necessary steps and is sliding into a form of apathy”.

27.  In a letter of 17 July 2009, the applicant’s lawyer confirmed that the appeal had been dismissed and informed him that the public rapporteur’s closing arguments were not available in writing.

28.  Following that decision, the applicant contacted the UNHRC/Paris Office and the Director of the OFPRA. By a letter of 18 August 2009, the former replied that, according to the information communicated by the Cameroonian delegation, the French Consulate in Yaoundé was willing to issue a visa to his wife and to two of his children, Vanessa and Benjamin. With regard to the birth certificate for his daughter Michelle, he was advised to submit a request to the Yaoundé tribunal de grande instance for a supplementary judgment relating to a birth certificate. By a letter of 21 August 2009, the Director of the OFPRA wrote to the CIMADE, which had also received the applicant’s file; he was considering transferring his refugee status to another country. In that letter, the Director pointed out that his department, by a memorandum of 23 July 2007, had certified his family situation to the sub-directorate for visas in Nantes, the only administrative body with competence for the family reunification of foreigners.

29.  The applicant’s wife brought proceedings before the Yaoundé Court of First Instance, seeking to obtain a supplementary judgment concerning Michelle’s civil status. By a judgment of 27 October 2009, that court declared that it did not have jurisdiction. On 24 February 2010 she brought proceedings before the Yaoundé tribunal de grande instance for the same purpose.

30.  By a decision of 30 April 2010, following a further request by the applicant’s family, the consular authorities refused to issue long-stay visas.

31.  According to the Government, new checks carried out in 2010 established that it had been possible to authenticate Benjamin’s birth certificate but the doubtful authenticity of the birth certificate produced for Michelle, which had been double-checked, had prompted the consular authorities to maintain their refusal to issue visas to the whole family.

32.  On 18 June 2010 the applicant brought proceedings before the Appeals Board against the decision of 30 April 2010. His request was implicitly refused.

B.  Facts which occurred after communication of the application

33.  On 20 September 2010 the applicant applied to the urgent-applications judge at the Nantes Administrative Court seeking an order for a stay of execution of the Appeal Board’s implicit decision to refuse his request. By an order of 28 October 2010, the urgent-applications judge ordered a stay of execution of that decision on the ground that the reasons for the rejection had not been communicated. He added:

“... further, as the evidence stands, although there is uncertainty as to the parent-child relationship in respect of one of the three children, Michelle, [the applicant] refers, without however submitting it, to a supplementary judgment which purportedly substantiates his allegations; having regard to the length of time that the applicant has been separated from his family, the criterion of urgency is met; ... it is appropriate to direct the Minister to re-examine the visa application within one month of notification of the present order”.

34.  According to the applicant, on 19 November 2010 UNHCR/Cameroon’s lawyer forwarded to him, and to the French authorities, the original copy of a judgment delivered by the Yaoundé tribunal de grande instance on 3 June 2010, reconstituting the birth certificate for the child Michelle. That judgment indicates that, on the day following Michelle’s birth, a declaration of birth had been duly drawn up by the doctor at the Yaoundé Cité Verte Hospital and handed to her mother, for the purpose of having the child’s birth certificate issued by the Yaoundé IV district office. However, as the applicant’s wife had been unaware of the rules in force in Cameroon for this administrative procedure, she had entrusted this declaration of birth to a third party, who had demanded and obtained from her the sum of 20,000 Central African francs (CFA) in order to obtain the birth certificate; this third party had given her a document presented as birth certificate no. 1271/2001, allegedly drawn up and signed by the mayor of Yaoundé IV. The tribunal de grande instance specified that since this document was a forgery Michelle’s birth certificate had never been issued, and it ordered that this step be taken.

35.  By a letter of 17 January 2011, the Government informed the Court that on 8 December 2010 the French consular authorities had issued the long-stay visas requested by the applicant’s wife and children. They alleged that, during the period in which the visa applications were re-examined, the applicant had communicated to the consular authorities the judgment of 3 June 2010 to which he had referred but had not produced in the course of the proceedings.

...

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

50.  The applicant alleged that the consular authorities’ prolonged refusal to issue the visas to this wife and his children had infringed his right to respect for his private life as guaranteed by Article 8 of the Convention, which reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  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 in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A.  Admissibility

51.  The Government requested that the case be “struck out”, as the applicants could no longer claim to be “victims” of a violation of Article 8 of the Convention, given that they had obtained the visas. They explained that the French authorities had agreed in principle to family reunification (see paragraph 9 above) and that it was only the discovery of the irregularities in the civil-status documents submitted in support of the visa applications which had delayed the issue of these visas. They had been issued as soon as the Yaoundé tribunal de grande instance’s judgment of 3 June 2010 had been brought to the authorities’ attention. Examination of a possible violation of Article 8 § 1 of the Convention had thus ended at the stage of evidence of the documents’ authenticity; verification of the genuine nature of the applicant’s filiation had been essential standard practice, was in accordance with the legislation and could not be contrary to the stipulations of Article 8.

52.  The applicant contested the Government’s submissions, arguing that they had neither recognised nor afforded redress for the alleged violation of the Convention. In this connection, he argued that the order in his favour issued by the urgent-applications judge on 28 October 2010 (see paragraph 33 above) had not been taken on the basis of a violation of fundamental rights, but on the grounds of a failure to communicate the reasons for the Appeal Boards’ refusal. The applicant considered that the Government had grasped the pretext provided by UNHCR/Cameroon’s communication of the judgment of 3 June 2010 to find a solution to the dispute, in breach of Article 11 of the European Directive 2003/86/EC ... He emphasised that there had been no need for an interminable administrative procedure that went against the evidence in the documents provided by UNHCR/Cameroon. The applicant added that his daughter Vanessa had been raped in Cameroon during this lengthy period; following an unwanted pregnancy, she had given birth, aged fifteen, in December 2010, two weeks after arriving in France. The reason for her being granted refugee status had been precisely because she was at risk of being raped or assassinated; in the applicant’s opinion, it was the incompetence of the French authorities which had led to this tragedy.

53.  The Court considers it appropriate to examine the Government’s request as a plea of inadmissibility, based on the applicant’s loss of “victim” status within the meaning of Article 34 of the Convention.

54.  It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue. The existence of a violation of the Convention is conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012).

55.  In the instant case, the Court notes that the applicant’s family had been able to join him once the visas had been issued. However, this measure was taken in December 2010 – in other words, three and a half years after his request for family reunification, and well after the applicant had sought a ruling from the domestic courts on the alleged violation of the Convention. The French authorities had not explicitly recognised, either in the domestic proceedings or before the Court, that there had been a violation of the applicant’s Convention rights during that period. Moreover, the decision to issue the visas was not followed by redress for the purposes of the Court’s case-law, cited above. Accordingly, the Court considers that the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention.

56. Nonetheless, the Court notes that the Government have requested it to strike out the application. The Court must therefore determine whether the new facts brought to its notice, namely that the visas have been issued, can lead it to conclude that the dispute has now been resolved or that, for another reason, it is no longer justified to continue the examination of the application and, in consequence, that the application may be struck out of the Court’s list in application of Article 37 § 1 of the Convention, which states:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

(b)  the matter has been resolved; or

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

57.  As the applicant has clearly indicated that he wishes to pursue his application, sub-paragraph (a) of this provision is not applicable. However, this does not exclude the application of sub-paragraphs (b) or (c) without the applicant’s agreement, as his or her consent is not a criterion in this regard (see Akman v. Turkey (striking out), no. 37453/97, ECHR 2001VI). In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that that there is therefore no longer any objective justification for the applicant to pursue his application, the Court considers that it is necessary to examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007; and Konstantin Markin v. Russia [GC], no. 30078/06, § 87, ECHR 2012 (extracts)).

58.  In the present case, the applicant’s family obtained the necessary visas for travel to France on 8 December 2010, and reunification has been achieved. The substantive facts complained of by the applicant have thus ceased to exist. It remains therefore to be ascertained whether the possibility of leading a family life following the issuing of the visas is sufficient to erase the possible consequences of the situation of which the applicant complained to the Court. In this connection, the Court notes that the applicant, who held a residence permit issued following the granting of refugee status, applied in June 2007 for family reunification in respect of those members of his family who remained under the international protection afforded by the remit of the Office of the United Nations High Commissioner for Refugees in Cameroon. Yet it was not until December 2010, that is, three and a half years after the application for family reunification, and following more than six years of family separation, that the French authorities issued the visas that would enable the family to be reunited. During this period, the applicant took all the necessary legal steps to establish his parent-child relationship with Michelle and Benjamin in order to overcome the obstacles to the reunification of the family, which had also suffered an ordeal as a result of the lengthy separation following his departure from Cameroon (see paragraph 52 above). In view of this long period of uncertainty and of the serious consequences of this separation for the applicant and for his family (see paragraph 52 above), the Court considers that the effects of a possible violation of the Convention have not been sufficiently redressed for it to find that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention (see, mutatis mutandis, Polidario v. Switzerland, no. 33169/10, § 58, 30 July 2013). In this connection, it considers that the present case differs from the above-cited Shevanova judgment, in which the applicant, who was subject to an expulsion order, had had her situation regularised several years later, having remained on Latvian territory throughout and having adopted “a manifestly fraudulent attitude”, thus delaying through “her own conduct” the issuing of a permanent residence permit that would have enabled her to maintain her relationship with her adult son and to exercise freely her right to respect for her family life in Latvia. Furthermore, in the present case the applicant’s children were minors and had been separated from him for more than six years; they were in a difficult situation following their flight from the Democratic Republic of Congo, which necessarily entailed serious consequences that their subsequent reunion had not been able to redress sufficiently.

59.  Accordingly, the Court rejects the Government’s request to strike the application out under Article 37 § 1 (b) of the Convention.

60.  Moreover, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

61.  The applicant complained of an abuse of process on account of the allegation that he had committed fraud in breach of public policy – an act capable of amounting to a criminal offence –, which had ended with an acknowledgment, without a word of excuse, of the genuine nature of the family ties that he had established from the outset with the help of the UNHCR. He submitted that the judgment of 3 June 2010 reconstituting his daughter Michelle’s birth certificate could not have come as a surprise to the French authorities, or been a decisive factor in granting all of the requested visas, given that the documents forwarded directly by the UNHCR to the French authorities as far back as 2007 confirmed that the parent-child relationship was genuine. The production of this judgment changed nothing, since, on the one hand, the case file enabling filiation to be proved was fairly convincing, and, on the other, because the decisions to refuse visas to the whole family did not depend on this reconstitution. The applicant pointed out that the urgent-applications judge had held that the criterion of urgency was not met because he had not maintained relationships with his relatives and because the birth certificates of the children Michelle and Benjamin were fraudulent. According to the applicant, this example in itself demonstrated that “the issue was far from being that of re-establishing [the child] Michelle’s filiation”.

62.  The applicant argued that the concept of public order relied on in the present case was vague. He considered that the impugned refusal was not in any event necessary, since alternative and less radical solutions could have been taken: a request for additional information from the parties, so that the Ministry of Immigration could have been invited to submit questions to the Cameroonian authorities – including the Yaoundé tribunal de grande instance –, a short-term visa pending the submission of supplementary documents, a DNA test.

63.  The Government pointed out that decisions in family reunification cases were required to comply with Article 8 (Conseil d’État, Aykan, 10 April 1992). They alleged that the impugned decision was in accordance with the law, namely section L. 211-1 of the CESEDA... In addition, the authorities had been justified in verifying the authenticity of the civil-status documents submitted to them, under Article 47 of the Civil Code. They further claimed that the national authorities had been pursuing a legitimate aim, that of combatting documentary fraud, which was a threat to public order. According to the Government, the Court had, in this connection, acknowledged that the fact of States exercising their right to control the entry and residence of aliens was an element in ensuring public order. In the present case, the submission of fraudulent documents was a reason of ordre public (public policy) which justified the impugned decision... With regard to the certificate submitted by UNHCR/Cameroon, the Government considered that a document of this sort had no bearing on the checks carried out by the consular authorities. A certificate by that organisation did not amount to evidence of a parent-child relationship, given that it was a document drawn up on the basis of a mere statement, or following the submission of documents in respect of which it was not the UNHCR’s task to verify whether they were authentic.

Lastly, the Government considered that the impugned measure had been proportionate to the aim pursued and struck a fair balance between the competing interests. They drew attention to the margin of appreciation enjoyed by the States in the area of immigration, the fact that the applicant’s situation had been examined on several occasions and that the visas had been issued as soon as the judgment of 3 June 2010 was received.

2.  The Court’s assessment

(a)  Applicable principles

64.  In the context of positive obligations as in that of negative obligations, the State must strike a fair balance between the competing interests of the individual and those of the community as a whole. It enjoys a certain margin of appreciation in this regard (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 42, 1 December 2005, and Osman v. Denmark, no. 38058/09, § 54, 14 June 2011).

65.  The Court has recognised that, subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. Article 8 does not impose on the Contracting States any general obligation to respect immigrants’ choice of the country of residence and to authorise family reunion in its territory (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Berisha v. Switzerland, no. 948/12, § 49, 30 July 2013).

66.  Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties of the persons concerned in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control or considerations of public order weighing in favour of exclusion (see Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, §  39, ECHR 2006I, and Antwi and Others v. Norway, no. 26940/10, §§ 88-89, 14 February 2012).

67.  Where children are concerned, the national authorities must, in assessing proportionality for the purposes of the Convention, take account of their best interests (see Popov v. France, nos. 39472/07 and 39474/07, § 139, 19 January 2012, and Berisha, cited above, § 51).

68.  The Court further reiterates, by way of comparison, that in the event of deportation, aliens benefit from the specific guarantees provided for in Article 1 of Protocol No. 7. Whilst such guarantees with regard to the family life of aliens are not regulated by the Convention under Article 8, which contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see, in general, McMichael v. the United Kingdom, 24 February 1995, § 87, Series A no. 307B, and, in particular, Cılız v. the Netherlands, no. 29192/95, § 66, ECHR 2000VIII, and Saleck Bardi v. Spain, no. 66167/09, § 30, 24 May 2011). In this area, the quality of the decision-making process depends on the speed with which the State takes action (see Ciliz, cited above, § 71; Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 82, ECHR 2006XI; Saleck Bardi, cited above, § 65; and Nunez v. Norway, no. 55597/09, § 84, 28 June 2011).

69.  Lastly, the Court considers it appropriate to reiterate its recent case-law finding that, in respect of the burden of proof for asylum seekers, it has considered that, having regard to the special situation in which they find themselves, it is appropriate in numerous cases to give them the benefit of the doubt when assessing the credibility of their statements and the documents submitted in support thereof. Equally, when information is presented which gives strong reasons to question the veracity of an asylum-seeker’s submissions, the individual must provide a satisfactory explanation for the alleged inaccuracies in those submissions (see F.N. and Others v. Sweden, no. 28774/09, § 67, 18 December 2012). Likewise, the applicant is responsible for providing a satisfactory explanation so as to address any relevant objections as to the authenticity of the documents submitted (see Mo.P. v. France (dec.), no. 55787/09, 30 April 2013).

(b)  Application to the present case

70.  The Court notes that the applicability of Article 8 of the Convention to the present case is not in dispute between the parties. It further notes that the procedure for family reunification can be broken down into two parts. Once authorisation has been given by the Prefect, the family members concerned are required to obtain an entry visa to France; the issuing of such visas is not automatic, since it is subject to the requirements of the maintenance of public order. The Court therefore considers that the disputed refusal to issue the visas does not amount to an “interference” in the applicant’s exercise of his right to respect for his family life, but that the case concerns an alleged failure on the part of the respondent State to comply with a “positive obligation”.

71.  According to the applicant, the decision-making process which led the national authorities to refuse initially to issue visas to the members of his family had not guaranteed the protection of his interests. He pointed out, in particular, the failure to take account of both his refugee status and the urgency of examining carefully the visa applications. The Government submitted that the impugned refusal was based on public-order considerations which had been verified at several stages of the procedure in line with the State’s margin of appreciation in this area, before the applicant submitted the judgment reconstituting the birth certificate for his daughter Michelle.

72.  The Court accepts that the national authorities are faced with a delicate task when having to assess the authenticity of civil-status documents, on account of the difficulties that arise in some cases from failings on the part of the civil-status authorities in certain countries from which migrants originate, and the associated risks of fraud. The national authorities are, in principle, best placed to assess the facts on the basis of the evidence gathered by or submitted to them (see Z.M. v. France, no. 40042/11, § 60, 14 November 2013) and they must therefore be allowed a measure of discretion in this regard. This was the conclusion of the French Constitutional Council, for which the right of aliens – who are stably and regularly resident in France – to bring to the country their minor children and their spouse is subject to a procedure for checking civil-status documents, something that can prove difficult and time-consuming... The Court cannot but observe that, in the present case, the consular authority noted that the applicant’s wife had submitted a false document in respect of their daughter Michelle, although it cannot be excluded that she was unaware of its fraudulent nature (see paragraph 34 above), and that the national courts decided that this circumstance was sufficient to justify the refusal to issue all of the requested visas.

73.  However, the Court considers that, in view of the decision taken some months previously to grant the applicant refugee status, and the subsequent recognition of the principle that he was entitled to family reunification, it was of crucial importance that the visa applications be examined promptly, attentively and with particular diligence. It is not the Court’s task to take the place of the competent authorities in examining whether or not the civil-status certificates submitted in support of the request for family reunification were fraudulent within the meaning of Article 47 of the Civil Code. However, the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of that provision, secured the guarantees set forth in Article 8 of the Convention, taking into account the applicant’s refugee status and the protection of his interests protected by it. In this connection, it considers that, in the circumstances of the present case, the respondent State was under an obligation, in order to respond to the applicant’s request, to institute a procedure that took into account the events that had disrupted and disturbed his family life and had led to his being granted refugee status. The Court will therefore concentrate its assessment on the quality of this procedure and focus its attention on the “procedural requirements” of Article 8 of the Convention (see paragraph 68 above).

74.  In this connection, the Court observes that the applicant’s family life had been discontinued purely as a result of his decision to flee his country of origin, out of a genuine fear of persecution within the meaning of the 1951 Geneva Convention (see Mayeka and Kaniki Mitunga, cited above, § 75, and TuquaboTekle and Others, cited above, § 47). Accordingly, and contrary to what was consistently asserted by the relevant ministry throughout the interlocutory proceedings and the proceedings on the merits (see paragraphs 21 and 22 above), and until the communication of the application to the respondent Government, the applicant could not be held responsible for the separation from his family. The arrival of his wife and children, who were aged three, six and thirteen at the time of the request for family reunification and were themselves refugees in a third country, was thus the only means by which family life could resume.

75.  The Court reiterates that the family unity is an essential right of refugees and that family reunion is an essential element in enabling persons who have fled persecution to resume a normal life (see the UNHCR’s remit...). It further reiterates that it has held that obtaining such international protection constitutes evidence of the vulnerability of the parties concerned (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 155, ECHR 2012). In this connection, it notes that there exists a consensus at international and European level on the need for refugees to benefit from a family reunification procedure that is more favourable than that foreseen for other aliens, as evidenced by the remit and the activities of the UNHCR and the standards set out in Directive 2003/86 EC of the European Union .... In this context, the Court considers that it was essential for the national authorities to take account of the applicant’s vulnerability and his particularly difficult personal history, to pay close attention to his arguments of relevance to the outcome of the dispute, to inform him of the reasons preventing family reunification, and, lastly, to take a rapid decision on the visa applications.

76.  From this perspective, the Court considers it relevant to take account of the standards set out in the international instruments in this area and to bear in mind the recommendations of non-governmental organisations (NGOs) specialising in the rights of aliens. Thus and before further examination of the merits, it observes that the International Convention on the Rights of the Child recommends that applications for family reunification be examined in a flexible and human manner. It attaches importance to the fact that the Council of Europe’s Committee of Ministers and its Human Rights Commissioner have supported and clarified this objective... With regard to forms of evidence, it notes in Directive 2003/86/EC of the European Union ... and in various texts issued by international sources and NGOs that national authorities are encouraged to take into consideration “other evidence” of the existence of family ties if the refugee is unable to provide official supporting documents. The UNHCR, the Council of Europe and the NGOs have concurred in drawing attention to the importance of broadening these forms of evidence; ... and the Cimade has expressed the hope that the relevant French authorities would take account of documents serving as civil-status documents issued by the OFPRA, and those already verified by that Office .... Lastly, it is important to note that several reports have criticised the practices preventing family reunification, on account of the excessive length and complexity of the procedure for issuing visas; they have emphasised the need to shorten the procedure by showing greater flexibility in respect of the requirements regarding the evidence attesting to family ties ....

77.  In the present case, the course of the contested proceedings, as described above, may be summarised as follows:

(a)  The applicant made his first application for family reunification in June 2007 and the agreement in principle was given on 13 February 2008, eight months later. His family was then summoned to the French Consulate in Yaoundé, which launched a verification procedure about which the applicant was not informed. Without news of the outcome of his application, and unaware of the obstacles to the issuing of the visas, the latter lodged an appeal against the implied decision of rejection, to which the Appeals Board did not reply. It was only at the hearing on the urgent application for a stay of execution, in September 2008, that the applicant learnt of the pleadings filed by the Minister of Immigration contesting the birth certificates of his children Michelle and Benjamin.

(b)  Following a suggestion apparently made by the public rapporteur at the hearing held by the Conseil d’État on 20 May 2009 on an application for judicial review brought by the applicant, the latter’s wife applied to the Yaoundé tribunal de grande instance for judicial rectification of their daughter Michelle’s birth certificate.

(c)  Faced with the dismissal of his appeal by the Conseil d’État in July 2009, the applicant submitted a second application for family reunification. This was also dismissed, without reasons, in April 2010 and the Appeals Board did not reply to the appeal lodged by him.

(d)  Following further checks carried out in 2010, more than two years after the application for family reunification, it proved possible to authenticate Benjamin’s birth certificate, as the Government accepted (see paragraph 31 above).

(e)  After communication of the application to the Government by the Court, on 21 September 2010 the applicant obtained an order from the urgent-application’s judge in which the latter stated that “having regard to the length of time that the applicant has been separated from his family, the criterion of urgency is met”, and directed the Minister to re-examine the visa application.

(f)  On 19 November 2010 UNHCR/Cameroon’s lawyer forwarded the judgment reconstituting the birth certificate of the applicant’s daughter, and the consular authorities issued the visas one month later.

78.  Against this background, the Court notes that in the absence of the explanations and reasons which were nonetheless required by law ..., the applicant was not in a position to understand the precise objections to his plan until September 2008, that is, fifteen months after his first application for family reunification. It also notes that the competent authorities, who were aware of the proceedings before the Cameroonian courts seeking the reconstitution of Michelle’s birth certificate (see paragraph 24 above), did not see fit to enquire as to the progress of those proceedings when refusing to issue the visas for the second time (see paragraph 32 below). Lastly, following further checks in 2010, they eventually found that the parent-child bond with his son Benjamin had been established, although it had been contested in the same way as the relationship with his daughter Michelle (see paragraphs 21, 24 and 31 above).

79.  The Court further observes the difficulties encountered by the applicant when seeking to participate effectively in the proceedings and in putting forward the “other evidence” establishing family ties. Yet the applicant had declared his family ties from the start of his asylum application, and immediately after his reunification application the OFPRA had certified the family composition in documents that were deemed to be authentic (see paragraphs 8, 12, 28... above). Furthermore, the Court attaches importance to the fact that the UNHCR, convinced of the authenticity of their case, had assisted the applicant and later his family from the time of their flight from the Democratic Republic of Congo until the conclusion of the proceedings (see the numerous documents in paragraphs 22 and 23 and paragraph 28 above; see also, mutatis mutandis, Mayeka and Kaniki Mitunga, cited above, § 82). The Cameroonian Ministry of Foreign Affairs had also approved his wife’s travel papers, which specified that she was accompanied by her three children (see paragraph 10 above) and subsequently approved Michelle’s travel papers (see paragraph 22 above). Finally, the applicant had adduced other evidence proving that he had maintained contacts with his family (see paragraph 22 above). The Court considers that this evidence was not without relevance; the applicant could reasonably have expected that it would be seen as attesting to his past family life and that the national authorities would give it due consideration.

80.  Lastly, the Court notes that it took almost three and a half years for the national authorities to cease contesting the parent-child relationship between the applicant and his children. This lapse of time was excessive, having regard to the applicant’s specific situation and what was at stake for him in the verification procedure.

81.  All of the above considerations reveal the agonising and apparently hopeless situation in which the applicant found himself. The Court notes that the accumulation and protracted nature of the numerous hurdles encountered in the course of the proceedings by the applicant – who had already been subject to traumatic experiences which justified the granting of refugee status (see paragraph 26 above) – have left him in a state of severe depression.

82.  Having regard to the foregoing, and notwithstanding the margin of appreciation left to the respondent State in this area, the Court considers that the national authorities did not give due consideration to the applicant’s specific situation, and concludes that the decision-making process did not offer the guarantees of flexibility, promptness and effectiveness required in order to secure his right to respect for family life under Article 8 of the Convention. Accordingly, the State has failed to strike a fair balance between the applicant’s interests on the one hand and its own interest in controlling immigration on the other.

There has therefore been a violation of Article 8 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

...

2.  Holds, that there has been a violation of Article 8 of the Convention;

...

Done in French, and notified in writing on 10 July 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.