Cross-border recognition of adoption : Rethinking Private International Law from a Human Rights Perspective

The most concerning effect deriving from the existence of large-scale differences among national legislations as regards the regulation of family matters is represented by the possibility that a status legally established in one country is not recognized in another state, since it is considered to be against public policy (like in the case of an adoption pronounced in favor of a single parent or of a same-sex couple) or that a decision is recognized with different effects than those it produced in the country of origin (like in the case of kafala). The matter have been broadly dealt with by national courts and it has also been the object of some relevant cases brought before the ECtHR, which pronounced in favor of the existence of a mutual recognition principle when not only family rights, but also the child best interest is at stake. The aim of this chapter is to assess, also in the light of existing case-law, the content and the relevance of the best interest of the child principle in matters of cross-border recognition of minors adoption, and more broadly to give an answer to the still open and debated questions related to the topic. They in particular regard the relationship between private international law and human rights and the impact of the child best interest principle on the functioning of conflict-of-law rules.