Individual Application

The Facts

B.V. who was married to the applicant’s mother, brought an action before the incumbent family court requesting to adopt the applicant. The trial court accepted B.V.’s request on the grounds that the applicant had been living with him and her mother F.K. since she was six years old; that B.V. had been covering education fees and other all kinds of expenditures of the applicant; and that establishing a legal parent-child relationship would be in the interest of the applicant.

Having received the relevant court judgment, the district registry office notified the Chief Public Prosecutor’s Office which found that the adoption procedures could not be carried out on the grounds that the age difference between the child and the adoptive parent was below the statutory age gap limit prescribed for the adoption procedures and thus requested the annulment of the said procedures. The family court accepted the Public Prosecutor’s request since the statutory requirement stipulating that the child should be at least eighteen years younger than the adoptive parent had not been met and therefore, ruled that the adoption order should be annulled and lifted. The appeal request on points of law submitted following the rejection of the appeal on points of law and facts by the Regional Court of Appeal was also dismissed, and ultimately, the judgment became final.

The Applicant’s Allegations

The applicant claimed that her right to respect family life was violated due to the annulment of the adoption procedures.

 The Court’s Assessment

The requirement prescribing a mandatory statutory age difference of at least eighteen years between the adoptive parent and the child is a definite and blanket condition in the law. In the impugned legal proceedings, the instance courts made assessments on the legal regulation as to the statutory age difference. The instance courts indicated that the statutory age difference in question was intended to protect the adoption institution and to prevent its abuse and that it was appropriate in terms of the universal realities and the best interest of the child, considering other matters such as the physical development of the child and her marriage age. In view of the above-mentioned reasons, the impugned statutory provision was both necessary and important.

However, the most important matter to be addressed in the present application is whether the definitive nature of the statutory age difference required for the adoption procedures and the absence of exceptional circumstances provided in the legal regulations in this regard are in contravention of the positive obligations incumbent on the State to enact legal provisions within the framework of the right to respect for family life. The definitive nature of the statutory age difference required for the adoption procedures and the absence of exceptional circumstances provided in the legal regulations in this regard may lead to grievances in imperative cases entailed by the best interest of the child. There is no statutory provision for exceptional cases where the age difference is reasonable and the decision of adoption involves a degree of necessity, especially in terms of protecting the best interests of the child. The absence of relevant legal provisions in this regard may amount to violations of positive obligations of the State to enact legal provisions determining and regulating the children’s place in family and the society.

It is evident that a real children-parent relationship between the applicant and B.V. has been naturally established in de facto manner considering that the applicant has known B.V. as her father since she was four years old; that B.V. has taken care of the applicant as a father for several years; and that even the applicant changed her surname to the surname of B.V. Furthermore, B.V. alleged that he could not be a father biologically due to a traffic accident. In addition, the applicant consistently set forth that establishing a legal parent-child relationship between her and B.V. would serve her interest. The public authorities also found that the adoption procedures would be in favour of the applicant and contribute to the preservation of the family ties.

As in the present case, the rigid and blanket nature of the applicable statutory provision and the absence of any regulation envisaged for exceptional cases undermines the principle of the best interest of the child and the family relationship. In light of these assessments, it has been concluded that the State has failed to comply with its positive obligations in enacting legal regulations required by the right to respect for family life due to the lack of legal regulations prescribed for exceptional cases and the absence of margin of appreciation afforded to the implementers in cases of necessity. It has been concluded that the right to respect for family life was violated due to the failure to fulfil the impugned obligation, and that the violation directly stemmed from the absence of regulations as to legitimate and reasonable exceptional cases regarding the minimum age difference in Law no. 4721. It has been decided to notify the Grand National Assembly of Türkiye of the case to prevent similar violations since the impugned violation was found to have stemmed from a law. Additionally, there is a legal interest in conducting a re-trial to annul the relevant provision, having regard to the fact that a claim of unconstitutionality can be brought before the Constitutional Court pursuant to Article 152 of the Constitution or that the last paragraph of Article 90 of the Constitution can be applied.

Consequently, the Court has found a violation of the right to respect for family life.