Adopting alone, a never-ending legal battle

This article is provided to you free of charge. If you want to support our team and promote quality journalism, subscribe now.

Old laws always contain some surprises, articles whose purpose has become obsolete or regressive. In Luxembourg, it was only in 1973 that women were legally allowed to open a bank account without their husbands, only in 1978 that they were able to terminate an unwanted pregnancy without being prosecuted, only in 2016 that unequal pay between women and men was punished by law. And then there are those articles of law that continue to exist in plain sight. Like the adoption law which, in its 1989 version, still reserved the possibility of adopting a child only to married couples.

This was without counting on the perseverance of Jeanne Wagner, a name that has long haunted the corridors of the Ministry of the Family. In 1995, Ms Wagner was 28 years old and began the process of adopting a child. "It may sound strange, but ever since I was a little girl, I wanted to adopt children", says the bubbly woman, now a grandmother. "It was always my dream". The young woman first turned to the Red Cross, "which refused me on the pretext that I was not married", then to the Luxembourg-Peru association. With the support of Luxembourg's honorary consul in Peru, Haydée Fischbach, she obtained the green light from Peru and packed her bags to pick up a three-year-old girl. "A few days before my departure, the Ministry of the Family contacted Mrs Fischbach to forbid her from sending me away and entrusting me with a child. They even told her that she could go to prison!"

Mrs Wagner went to Peru and stayed there for five weeks until the full adoption was validated by a judge. "It was when I returned that the problems began: Luxembourg did not want to recognise the full adoption because I was not married." This was the beginning of a 12-year legal battle. "I could never have imagined the difficulties that awaited me", says Jean-Paul Noesen, the lawyer Mrs Wagner hired. "I thought I was taking on a case with no problems, like other adoptions – I myself adopted a child in Peru with my wife. I was met with resistance from fanatics. The government advisor at the Ministry of Family Affairs and the adoption lawyer close to the Red Cross said I was a child abuser and that I was totally unaware of what I was doing."

From hearing to hearing, from the district court to the appellate court, Mrs. Wagner is confronted with the clear refusal of the judges to recognise the Peruvian judgement granting the full adoption of her daughter. The judges were not kind: she had allegedly committed fraud by adopting in Peru in order to circumvent the ban in Luxembourg, and some asked whether she was not in fact homosexual… "One day in court, the judge looked at my belly – I was pregnant with my second daughter but not living with the father – and said to me: 'With all the problems we have with you, why don't you marry the father, so you can adopt your daughter?ˈ I was too young to answer that I had not come for family therapy and that what I wanted to do was adopt children on my own."

Years passed, judgments were handed down, even the Constitutional Court was consulted – but it validated the distinction made between adopters in couples and single people, relying in particular on "an increased guarantee for the benefit of the adopted person by the plurality of holders of parental authority in the case of married people".

"During this whole period, it was very stressful because my daughter had a residence permit that had to be renewed year after year", recalls Ms Wagner. "In the worst case, her residence permit might not get renewed and she could be deported. Of course I would have gone with her to Peru until Noesen regularised the situation, but it was psychologically and emotionally very tiring and stressful." Her daughter Jil, now 29, also remembers. "Mum would explain to me that maybe we should go to Peru for a while. She didn't tell me everything so I wouldn't worry, but enough so that I knew she was fighting for me."

In the meantime, the Ministry of Family Affairs is slightly shifting its position. "Before, the horror was the single mother who adopted", says Noesen. "Then Marie-Josée Jacobs came along, who didn't see things the same way as the government councillor."

In fact, Ms Wagner received a call from Minister Jacobs herself. "She was very correct. She asked me why I was pushing so hard for full adoption when it would mean depriving my daughter of her ties to her family of origin and her inheritance in Peru", Wagner says. "I asked her if she really thought my daughter was better off inheriting from me or a hut 2,500 metres above sea level in the Andes to share with six siblings…"

A long wait

In the end, the revolution did not take place. "You know, in Luxembourg, ministers often don't have much of a say in the matter when it comes to government councillors", says Noesen. "The ministry made it known that it was changing its position and would henceforth tolerate simple adoption by a single person. But full adoption was still very dangerous for the child… There was a 'Holy Alliance' of archaic bureaucrats and the Red Cross against single mothers." As for judges, even the most open-minded can do nothing against a retrograde law. Despite this, Ms. Wagner is not giving up. After exhausting all legal remedies, including appeal, Mr Noesen turned to the European Court of Human Rights, arguing that the Luxembourg courts had not responded to the main arguments put forward, in particular that of undue interference by the State in her client's private life, and that this had deprived her of a fair trial.

By the time the case reaches the judges in Strasbourg – five years later – the lawyer was trying to take the case to the administrative courts. Luxembourg finally transposed the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption in 2002, almost ten years after it was signed, and should therefore recognise the adoptions granted by the Peruvian judges. The administrative court ruled in his favour, but the government delegate appealed and the ruling was overturned by the Administrative Court.

While waiting for Strasbourg, Ms. Wagner ended up applying for a simple adoption so that her daughter Jil would at least would no longer have to fear deportation. Even if the main issue was not settled. "When we went on a last minute trip, we always had to check whether the visa was good, whether all the papers were in order", Jil recalls. "As Jil was still Peruvian, she didn't have a Luxembourg passport", explains her mother. This was a worry that came on top of the usual questions adopted children have about their history, the fact that they don't look like their adoptive parents, etc.

And then the European Court of Human Rights opened the case. "It was my first case in Strasbourg and, in all modesty, for a lawyer to plead before the highest court in Europe is like the Olympic Games for a sportsman", says Mr Noesen, who was rather hopeful. "The Court had ruled against Belgium in the Marckx case, which should have given the Luxembourg authorities a warning", he says. Belgium had been criticised in 1979 for refusing to recognise the maternity of unmarried women: they had to adopt their child if it had been conceived out of wedlock.

Unsurprisingly, the ECHR's judgment clearly and fully vindicates Ms Wagner. "Despite the fact that [Ms Wagner] had followed in good faith all the steps provided for by the Peruvian procedure and that, moreover, the social worker had issued a favourable opinion on adoption in Luxembourg, the full adoption judgment handed down in Peru was not recognised by the Luxembourg authorities", the Court found. "The consequence of this refusal of recognition is that [her daughter] suffers in her daily life a difference in treatment compared to a child whose full foreign adoption is recognised in Luxembourg. (…) The interested party therefore finds herself in a legal vacuum, which has not been filled by the fact that a simple adoption has been granted in the meantime."

Furthermore, the Court "finds no grounds in the present case to justify such discrimination", denouncing the effects of such a situation on the mother and daughter. Especially since, a few months earlier, the Court of Appeal had recognised the full adoption of a Peruvian child by a single woman – she had started the process with her husband, who suddenly died just before the adoption and the Ministry of the Family had again tried to prevent the adoption.

"I was driving in a car park when Mr Noesen called me with the news, I still remember exactly where I was parked", smiles Ms Wagner. "It was a great thing, after all this time! And it was especially important for Jil." Afterwards, it was necessary to go back to the district court, which, having to take into account the Strasbourg court ruling, had no choice but to recognise the Peruvian judgement and thus Jil's full adoption.

Two more adoptions

Today, Jil is almost 30 years old and has a nine-month-old son, Emilio, who brightened up the interview with the Lëtzebuerger Journal. She discovered Peru with her mother when she was 12 years old, "to see the orphanage and the region I came from". And she returned a few years later to meet her biological mother. Because her biological mother had not died, contrary to what was written on the registration form at the orphanage. "In fact, my mother was 15 years old when she had me, but she lived far away in the jungle and could not go to work in the city with a child. She couldn't read or write so she signed the papers for the orphanage. I disappeared overnight; she didn't really know why. There were a lot of lies surrounding these steps". It was a "very distressing" discovery for the then 12-year-old girl, recalls Ms Wagner. "It's true that it called everything into question. My biological mother had married a few years later and was trying to find me, I had brothers and sisters."

However, her biological mother was not trying to take her back. "I spoke to her on the phone and she said she just wanted to know if her daughter was alive and happy. I made her a photo album of Jil from the time she was adopted until she was 12 and sent it to her with a copy of the judgement so she could see that I had done everything by the book." The two families stayed in touch and Jil was able to meet her biological mother and siblings. "I have two mums", she says.

The family has also grown in Luxembourg, as Ms Wagner has adopted two other children, this time from Guatemala, as Peru did not want to entrust her with another child before Jil's adoption was recognised by Luxembourg. And since 2020 and 2021, she has also taken in two children placed by the Kannerduerf.

These 12 years of legal battles have not prevented her from expanding her family and blossoming with her children, in spite of the criticism and the sideways looks. "I used to hear remarks, yes, not from my classmates but from their parents, who said 'your mother has four children, you have dogs, she's not married'", Jil laughs. This was a sign that part of Luxembourg society was not ready to see a single woman starting a family. "It made me angry, but it didn't break me, it didn't torture me", she says. "I've always been lucky to be surrounded by great people, I have a great family life, I have no complaints."

The law remains unchanged

Often in such cases, one person's victory benefits the next. The case sets a precedent. But in this case, Luxembourg did not play ball. "The tragic thing is that even today, you have to go to court to obtain a full adoption" by an unmarried person, deplores Mr Noesen. "The law has not changed. And because it hasn't changed, the Public Prosecutor's Office opposes all requests [for recognition of a foreign adoption] and you have to go to court every time hoping that the court won't have a retrograde composition. And each time the judge says that he does not apply Luxembourg law because it is contrary to the European Convention on Human Rights."

Mr Noesen contacted the Ministry of Justice again a few months ago to find out whether a change in the law was being considered. The answer was that the Ministry was considering it. When contacted by the Lëtzebuerger Journal, the Ministry of Justice did not follow up and indicated that "work on an adoption reform is currently underway, as foreseen in the government programme" – and already in the previous one. Responding to a petition on the subject, Minister of Justice Sam Tanson recently stated that "the introduction of a bill is scheduled for autumn 2022". This is fifteen years after Ms Wagner's victory in Strasbourg.