ECHR and Parental Leave in Relation to Adopted Children (Diana Topčić-Rosenberg v Croatia): Euro Rights Blog by Hannah Godfrey and Emilene Davis

Hannah Godfrey and Emilene Davis are third year LL.B. students at the University of the West of England. As two students who have a particular interest in European Union Law they have written this blog to reflect and review upon the decision in the case of Diana Topčić-Rosenberg v Croatia.

Diana Topčić-Rosenberg (the applicant) was working as a self employed business woman in Zagreb. On 5 October 2006 she adopted a three year old child. The applicant then submitted a request to the Croatian Health Insurance Fund seeking her right to paid maternity leave. This was refused.  The applicant then made a number of appeals with regard to this refusal between the years of 2006 to 2011. The appeals were dismissed on the basis of domestic legislation, namely the Maternity Leave Act, which states that maternity leave cannot be granted if the child is older than one.

The applicant then applied to the European Court of Human Rights on 7 March 2011 alleging that, as an adoptive mother, she had been discriminated against in respect to her rights to maternity leave, contrary to Article 14 of the Convention read in conjunction with Article 8. The judgement (Topčić-Rosenberg v Croatia, Application No 19391/11) from the Court was given on 14 November 2013.

The Government of Croatia made a request to the Court that it strike out the application in accordance with Article 37 of the Convention on the basis that the Government accepted that there had been a violation of the applicant’s right to freedom from discrimination. Therefore the Government would offer the applicant 4,000 euros (EUR) to cover any non-pecuniary damage and costs, any expenses and any tax that may be chargeable to the applicant. The applicant was unhappy with the offer as it was not deemed as sufficient to cover all of the costs.

The Court examined this request by looking at the principles laid out in previous case law. The court paid particular attention to the Acar judgement (Tahsin Acar v Turkey, [GC], Application No 26307/95, ECHR  2003) which states that the unilateral declaration must offer a sufficient basis for finding that respect for human rights as defined in the Convention will not require the court to examine the case any further (para 75). In the end the Court found that while the Government of Croatia had acknowledged the violation of the applicant’s right to freedom from discrimination in its declaration, what was being offered to the applicant was not proportionate to the amounts the Court would award (Markin v Russia [GC], Application No 30078/06, ECHR 2012). The Court, in this instance, decided to pursue with the applicants claim.

The Court first had to examine the general principles when considering a violation of Article 14. The Court held that Article 14 of the Convention complements the other articles and Protocols but has no independent existence as it is solely in relation to the ‘enjoyment of the rights and freedoms’ safeguarded within the Convention.

When deliberating as to the application of these principles within the present case, the Court already accepts that in relation to adopting a child, as long as it is a lawful and genuine adoption, this will deserve the same respect as what is given to those situations which fall within the scope of Article 8, the right to a family life (Pini and Others v Romania, Application Nos 78028/01 and 78030/01, ECHR 2004‑V). In the Markin case (paras 168 and 171) it was established that the right to parental leave and allowances would also fall within the scope of Article 8.

Therefore, in relation to the present case, the Court concluded that Article 14, when read with Article 8, was applicable. Further the Court found that the Maternity Leave Act had been interpreted in a very formal and inflexible manner when it was applied to this case. In particular the Court found that the Administrative Court and the Constitutional Court, which are the courts the applicant appealed to, had ‘ignored the relevant policies and principles of the domestic legal system’ (para 48). In this light, the Court held that there had been a clear violation of Article 14 in conjunction with Article 8 of the Convention.

The result of this judgement seems to be a step in the right direction of making sure that adoptive parents can seek and obtain the same parental leave rights as birth parents. The Court explained that the time is needed to bond with the child, and therefore the age of the child has no relevance.  This ties in with a case pending before the Court of Justice of the European Union in relation to surrogate mothers. The opinion of Advocate General Kokott in this case (Case C-167/12, CD v ST) was that an intended mother should have the right to maternity leave under EU law given that she takes the child into her care following birth, surrogacy is permitted in the member state and national requirements have been satisfied. This is similar to the current case relating to adoption as it is in relation to an intended mother taking the child into her care. The importance of the bonding process between parent and child cannot be overlooked and is clearly something all parents, regardless of the process taken to become a parent, should be entitled to.