A family consisting of two mothers and a young daughter fled to Estonia because life in Russia is not safe for sexual minorities. The Estonian state understood the family’s situation and provided them asylum. Since, in legal terms, only one woman can be considered the parent, the family decided that to ensure a sense of security for the child, the other mother should also adopt the daughter. Both the district and circuit courts decided that adoption is not possible, as the laws of the Russian Federation apply even in Estonia to Russian citizen refugees. With the support of the Estonian Human Rights Center and legal representation from the law firm Liverte, the family appealed the decision to the Supreme Court.
Jana and Anna (real names known to the Estonian Human Rights Center) are citizens of the Russian Federation. Their lives in their homeland became unsafe because they advocated for LGBT+ rights on social media, participated in protests against the Russian government, and openly expressed their disapproval of the Russian Federation’s aggressive actions in Ukraine. The Police and Border Guard Board’s investigation confirmed the family’s risk of persecution in Russia. Last June, Estonia granted refugee status to all three of them. At the end of the previous year, Jana filed a petition in court to adopt her spouse’s child. The Social Insurance Board had already given their approval for the adoption.
Nevertheless, both the district and circuit courts decided that Jana cannot adopt in Estonia. The courts assert that the Estonia-Russia bilateral agreement on legal assistance and legal relations in civil, family, and criminal matters should apply to Jana and Anna. According to this agreement, adoption should be conducted according to Russian law, which would clearly have catastrophic consequences for the family. Not only would a same-sex couple not have the right to adopt a child in Russia, but returning there would also endanger the lives of the women.
The situation is absurd. On one hand, the Estonian state has chosen to protect the family from the persecution faced by LGBT+ families in Russia by granting them asylum. On the other hand, the courts assert that they cannot protect the family from injustice because the Estonia-Russia agreement must be adhered to – regardless of the fact that Russia has been recognized as a terrorist regime.
The approach of the courts cannot be supported from the perspectives of human rights, international law, or procedural norms. The main reasons for the appeal are as follows:
The courts concluded that same-sex marriage is fundamentally inconsistent with Estonian law. This interpretation is incorrect.
The circuit court explained in its decision that same-sex marriage between partners and the petitioner’s adoption of her spouse’s child would contradict a fundamental principle of Estonian law. The court’s approach is incomprehensible, surprising, and inconsistent with various previous Estonian court rulings and the principle of equal treatment enshrined in Article 12 of the Constitution of the Republic of Estonia, which stipulates that all are equal before the law. “Over the past decade, Estonia has clearly moved towards recognizing equal treatment for all families. This is confirmed by both the Registered Partnership Act and the acceptance of marriage equality, as well as the support of the Estonian population,” says Kelly Grossthal, Head of Strategic Litigation at the Estonian Human Rights Center.
The courts have unjustifiably assessed the necessity of adoption, exceeding the boundaries set to judges by the constitution of Estonia.
According to the courts, quick adoption is not justified in the case of Jana and Anna, as their child is not in danger. However, this interpretation means that the courts have exceeded the boundaries set for them. Firstly, no one can predict, know, or be allowed to predict what dangers the child might face or how safe the situation might be for her in case something unforeseen happens to the mother. Secondly, the Republic of Estonia must ensure the rights of the child in every situation, not just reactively.
“The court can assess whether adoption is necessary in the best interest of the child, but this doesn’t mean the court can judge whether adoption is necessary now and immediately or can be postponed,” commented Liisa Linna, an attorney at the Liverte law firm.
The court has applied the wrong country’s – Russia’s – law to adoption, namely the Estonia-Russia Agreement on Legal Assistance. Additionally, the Convention Relating to the Status of Refugees takes precedence over the Estonia-Russia Agreement on Legal Assistance.
In the appeal filed with the Supreme Court, we argued that in choosing the law applicable to adoption, Estonian law, human rights, and the principles of children’s rights should be taken into account, rather than the Estonia-Russia Agreement on Legal Assistance and Legal Relations in civil, family, and criminal matters. According to Section 7 of the Private International Law Act, foreign law shall not be applied if its application would result in a contradiction with the essential principles of Estonian law. Additionally, this is a refugee family. Refugee families are subject to the Convention Relating to the Status of Refugees, which takes precedence over the Agreement on Legal Assistance.
In today’s security situation, it cannot be forgotten that the Republic of Estonia has declared the Russian Federation a terrorist regime. The approach that a refugee should go to a country to solve adoption issues where same-sex partner families are not recognized, where human rights are not respected, and from which refugees have fled for the same reasons, is deeply incomprehensible.
The Estonian Human Rights Center supports Jana and Anna’s family in their legal journey, as this is a strategic case. Its outcome will have an impact on similar cases in the future. If you also believe that all families have the right to a secure family life and that families persecuted in Russia should be subject to Estonian laws in Estonia, then help us help them! Donate now to cover the legal costs of Jana and Anna.
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