Adoption is a form of family upbringing for children deprived of parental care, under which legal relations (both personal and financial) equivalent to those between parents and children are established between the adopted person and the adoptive parent. In the view of most specialists and experts in this field of law, the primary purpose of adoption is to restore a normal family life for children who either have no parents at all, or whose parents are, for one reason or another, unable to raise them properly.
At the same time, it should be borne in mind that adoption also serves the interests of the adoptive parents themselves, since it allows them to satisfy the natural human need to raise children.
German law provides that adoption is permitted only in respect of minor children, and only in their interest. The rule that adoption is permitted only for a minor child is mandatory and cannot be changed even where a formal adoption was never completed in time and the child, having since reached adulthood, regards their de facto caregivers as parents.
Case law in Germany, however, shows that even this rule can have exceptions.
A young woman — let's call her Evgenia — came to our law firm asking for help with a rather unusual case. She told the lawyer that she was born in Belarus and is a citizen of the Republic of Belarus. Her parents divorced when she was 5. Her mother then married a German citizen, and the family moved to Germany. Evgenia and her stepfather became very close — he treated her as his own daughter, loved and spoiled her, and she felt the same way about him. When she got older, her stepfather suggested adopting her. Evgenia agreed — she wanted no other father. They gathered the documents and filed an adoption petition with the court. But then her stepfather was involved in a car accident, underwent several surgeries, and was bedridden for a long time. As a result, the adoption case in court was suspended. Evgenia later finished school and went to study in Belarus. After graduating from university, she came to visit her mother and stepfather on a tourist visa — the residence permit she had held as a child had lapsed. Now she wanted to obtain permission to reside in Germany lawfully.
The lawyer asked the client to describe in more detail the adoption procedure her stepfather had started years earlier: was he still alive, what was the state of his health, had he withdrawn the adoption petition from the court, and so on. Evgenia explained that her stepfather was alive and well, that they had an excellent relationship, and that, as far as she knew, he had never withdrawn the petition — there was only a court order suspending the case. But what difference could that make now, she asked, since she was already an adult?
The lawyer suggested that the client apply to the court to have the adoption case reopened — if, of course, she and her stepfather still wanted to go through with it. Evgenia promised to talk to her stepfather. A day later she called the lawyer to say that her stepfather was willing to continue the adoption process, if it was still possible. The lawyer invited them both in for a consultation.
Having received instructions from the clients, the lawyer prepared and filed a petition with the court to reopen the adoption case that had been suspended years earlier. The court granted the petition and scheduled a hearing. Ahead of the hearing, the lawyer prepared a submission stating that the client and her stepfather had a parent-child relationship, had lived as one family for several years, that the client's studies in Belarus had not interrupted their close family ties, and that the biological father had no objection to the adoption. The lawyer submitted all the necessary documents to the court. The court granted the adoption petition.
On the basis of the court's decision, the lawyer prepared and filed an application, on the client's behalf, with the immigration authority for German citizenship. The authority, however, refused to grant citizenship, stating that our client could not be granted German citizenship under §6(1) of the Nationality Act (Staatsangehörigkeitsgesetz, StAG), since, under that provision, adoption may confer citizenship only in respect of minor children — and our client had already been an adult at the time of her adoption.
After consulting with the clients and obtaining their consent, the lawyer filed a complaint with a German administrative court against the immigration authority's decision, asking the court to declare it unlawful. In the supporting submission, the lawyer pointed out that, under §6(1) StAG, citizenship through adoption is granted only to a child who has not yet turned 18 — but at the moment the adoption procedure for our client began (when her stepfather filed the petition with the court), she had still been a minor. The adoption procedure had been suspended by the court for good cause. Throughout that entire period, no unfavorable decision had ever been issued on the petition; it had never been withdrawn, only suspended. The lawyer also explained that the long gap between the original petition and the court's eventual favorable adoption decision was due to the client having gone to study at a university in Belarus after finishing school, before returning to Germany to be with her mother. Throughout that time, she and her stepfather had maintained a close relationship that could fairly be described as that of parent and child. Neither she nor her stepfather had known that the adoption procedure could be reopened at all.
Having reviewed the complaint, the court ruled fully in the client's favor — recognizing her adoption as lawful and quashing the immigration authority's decision refusing her German citizenship.
The appellate court, to which the immigration authority appealed, upheld the lower court's decision.
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