This case was an appeal from a judgement delivered by the First Hall, Civil Court in its Constitutional jurisdiction on 14 October, 2008 and concerned a claim of discrimination in the adoption laws in Malta.

The applicants sought a remedy for the alleged breach of Articles 8 (the Right to respect for private and family life) and Article 14 (the Prohibition of discrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) which rights were claimed to have been breached by Articles 114(1) and (2) of the Civil Code (Chapter 16 – Laws of Malta).

The facts of the case were as follows: X and Y married in December 2007 after a five year relationship and awaiting Y’s civil annulment from his other marriage. Once married, they wished to adopt a child together and approached Agenzija Appogg to inquire about the way to proceed to initiate the adoption process. However, they were informed by the agency that they could not adopt a child together because they had not been married for five years in line with Article 114 of the Civil Code hold:

114. (1) Adoption may only take place with the authority of the competent ...granted by ...following a recommendation made by the Adoption Board, made on the application of a person of either sex.

(2) An adoption decree may be made on the application of two spouses, who have been married for a period of not less five years* and are living together, authorizing them jointly to adopt a person and may not be made on the application of one only of such spouses...”

* By virtue of Act IV of 2008, this has been amended and decreased to three years

The applicants claimed that this Article imposing such restrictions on persons wishing to adopt breached their fundamental human rights under the ECHR. They claimed that this law was discriminatory due to the fact that while married couples had to wait till five years (now three years) after their marriage to initiate the adoption process, other unmarried couples and single persons were not bound by such restriction.

X and Y therefore requested the Court to (i) declare Subarticles (1) and (2) of Article 114 of the Civil Code to be in breach of their fundamental human rights under Articles 8 and 14 of the ECHR; and (ii) provide them with all available remedies necessary to ensure that their rights are observed and to permit that the adoption procedure be initiated immediately.

The other parties claimed that even if the period established by law was indeed deemed to be in breach of the ECHR, this was not the only critieria to be satisfied that if so satisfied automatically rendered them fit parents as required by the Adoption Administration Act (Chapter 495 – Laws of Malta).

Today, the fundamental issue is what is in the best interests of the child. The laws strive to regulate the institute of adoption considering the welfare of the children up for adoption and not to fulfil the wish of parents seeking to adopt children. A series of European Court of Human Rights judgements concerning this issue in relation to Article 8 of the ECHR were referred to by the other parties. In the case E.B. vs France (2007) it was held that “The right to respect for ‘family life’ does not safeguard the mere desire to found a family; it presupposes the existence of a family ... or the relationship that arises from a lawful and genuine adoption...”

Furthermore, it was claimed that in relation to Article 14, not every distinction is discrimination. In Spadea & Scalbrino v. Italy (1995), it was in fact held that “...Article 14 will be breached where, without objective and reasonable justification, persons in ‘relevantly similar situations are treated differently’”. The Director of the Department and the Minister held that the requirement to be married for a period prior to initiating adoption was objectively justified and imposed in light of the interests of minors to ensure give some sort of guarantee that newly married couples do not rush into making such a decision to adopt. Furthermore, they claimed that Article 114 did not imply that unmarried couples could adopt automatically since ultimately adoptions always fall under the control of the Courts and furthermore, the position of a spinster or bachelor was different to that of a married couple.

As held in E.B. vs France (2007), “The right to respect for ‘family life’ does not safeguard the mere desire to found a family; it presupposes the existence of a family ...or at the very least the potential relationship between, for example, a child born out of wedlock and his or her natural father ...or the relationship that arises from a genuine marriage, even if family life has not yet been fully established ...or the relationship that arises from a lawful and genuine adoption.”

The Court of First Instance had ruled in favour of the Applicants to the extent that it agreed that there was no existent objective or reasonable justification for imposing in Article 114(2) such a 3 year (before amendments, 5 year) restriction only on married couples and this was therefore in breach of Articles 14 and 8 of the ECHR.

The Court therefore ordered that this article be read solely with the restriction that the couple be married without the imposition of a specific timeframe. Article 114(1) was not deemed to be in breach since no discrimination exists in such subarticle which is applicable to all persons of either sex. The Court ordered that a copy of this judgement be delivered to the House of Representatives for consideration of amendment in line with Article 242(1) of the Code of Organisation and Civil Procedure (Chapter 12 – Laws of Malta).

The director and the minister appealed further contending that adoption is not an automatic right but a privilege. The Court recognised that it was clear from the law that while a married couple had the 3 year minimum waiting period to initiate adoption proceedings, single persons or unmarried couples were not restricted in this manner. The judgement Fretté v. France (2002) was referred to which holds that adoption means “providing a child with a family, not a family with a child”. The Court however also recognised that X and Y, although childless, were indeed a family in terms of Article 8 of the ECHR and therefore, rendering the disputed Articles 114(1)and(2) subject to the scrutiny of the Courts in light of Article 14 ECHR.

The Court, after considering all issues upheld the judgement of the Court of First Instance holding that Article 114(2) was indeed in breach of the ECHR purely on the basis that there was no justified and reasonable cause for the distinction made between married and unmarried potential adoptive parents. It held that Article 114(2) should be read with the conditions that the couple must be married and living together.