Anonymous birth: Fair balance between applicant’s right to find out her origins and her biological mother’s right to remain anonymous in compliance with Article 8 of ECHR

In Chamber's judgment dated 30.1.2024 in the case of Cherrier v. France (application no. 18843/20) the European Court of Human Rights held, by six votes to one, that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights. 

The case concerned the refusal by the National Council for Access to Information about Personal Origins (Conseil national pour l’accès aux origines personnelles – “the CNAOP”) to inform the applicant, who was born to anonymous parents, of the identity of her biological mother. The applicant had applied for information about her origins to be disclosed, but the mother had reasserted her choice not to reveal her identity. 

The Court held that the refusal in issue had amounted to an interference with the applicant’s right to respect for her private life under Article 8 of the Convention. That interference was in accordance with the law and pursued the aim of protecting the biological mother’s rights and interests. 

In its Odièvre v. France judgment of 13 February 2003, the Court had found that the system implemented by France in 2002 to provide access to information about personal origins was such as to strike a fair balance between the relevant interests. 

In the present case, to determine whether the interference was proportionate to the aim pursued, the Court examined whether the applicant’s right to respect for her private life had not been violated by that system, such as it had evolved and been implemented. 

Having pointed out the conflict between the applicant’s rights and interests and those of her biological mother, the Court saw no reason to review its 2003 assessment of the balance between the rights and interests at stake in anonymous birth cases. It found that a procedure for the confidentiality of a mother’s identity to be waived, subject to her consent, and for accessing non-identifying information on the child’s origins was a suitable mechanism for ensuring a fair and reasonable balance between the rights and interests at stake. 

After noting that the applicant’s case had been heard before the domestic courts, where she had been able to present her arguments as part of adversarial proceedings, the Court found that the State had not overstepped its margin of appreciation and that the fair balance between the applicant’s right to find out her origins and her biological mother’s rights and interests with respect to remaining anonymous had not been upset. It followed that there had been no violation of Article 8. (source:echr.coe.int/photo:freepik.com)

The decision (in French) is available here

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George Kazoleas, Lawyer

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