Sentenza 22 gennaio 2008, n.43546/02
COUNCIL OF EUROPE
COUR EUROPÉENNE DES DROITS DE L’HOMME
EUROPEAN COURT OF HUMAN RIGHTS
CASE OF E.B. v. FRANCE
(Application no. 43546/02)
JUDGMENT
STRASBOURG
22 January 2008
This judgment is final but may be subject to editorial revision.
In the case of E.B. v. France,
The European Court of Human Rights, sitting as a Grand Chamber
composed of:
Christos Rozakis, President,
Jean-Paul Costa,
Nicolas Bratza,
Boštjan Zupančič,
Peer Lorenzen,
Françoise Tulkens,
Loukis Loucaides,
Ireneu Cabral Barreto,
Riza Türmen,
Mindia Ugrekhelidze,
Antonella Mularoni,
Elisabeth Steiner,
Elisabet Fura-Sandström,
Egbert Myjer,
Danutė Jočienė,
Dragoljub Popović,
Sverre Erik Jebens, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 14 March 2007 and on 28 November
2007,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 43546/02) against the
French Republic lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a French national, Ms E.B. (“the applicant”), on
2 December 2002. The President of the Grand Chamber acceded to the
applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules
of Court).
2. The applicant alleged that at every stage of her application for
authorisation to adopt she had suffered discriminatory treatment that had
been based on her sexual orientation and had interfered with her right to
respect for her private life.
3. The application was allocated to the Second Section of the Court
(Rule 52 § 1 of the Rules). On19 September 2006 a Chamber of that
Section, composed of the following judges: Ireneu Cabral Barreto,
President, Jean-Paul Costa, Rıza Türmen, Mindia Ugrekhelidze,
Antonella Mularoni, Elisabet Fura-Sandström, Dragoljub Popović, judges,
and Sally Dollé, Section Registrar, relinquished jurisdiction in favour of the
Grand Chamber, neither of the parties having objected to relinquishment
(Article 30 of the Convention and Rule 72). Prior to relinquishment the
Chamber had received written comments submitted by Prof. R. Wintemute
on behalf of four NGOs – Fédération internationale des Ligues des Droits
de l’Homme (FIDH); European Region of the International Lesbian and Gay
Association (ILGA–Europe); British Agencies for Adoption and Fostering
(BAAF); and Association des Parents et futurs parents Gays et Lesbiens
(APGL) – as third-party interveners (Rule 44 § 2). Those observations were
included in the case file transmitted to the Grand Chamber.
4. The composition of the Grand Chamber was determined in
accordance with the provisions of Article 27 §§ 2 and 3 of the Convention
and Rule 24.
5. The applicant, but not the Government, filed written observations on
the merits.
6. A hearing took place in public in the Human Rights Building,
Strasbourg, on 14 March 2007 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms E. BELLIARD, Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Ms A.-F. TISSIER, Head of the Human Rights Section,
Ms M.-G. MERLOZ, Drafting Secretary,
Human Rights Section,
Ms L. NELIAZ, Administrative Assistant, Child and
Family Bureau, Ministry of Employment,
Social Cohesion and Housing,
Ms F. TURPIN, Drafting Secretary, Legal and Contentious
Issues Office, Ministry of Justice, Advisers;
(b) for the applicant
Ms C. MÉCARY, of the Paris Bar, Counsel,
Mr R. WINTEMUTE, Reader in Law, University of London,
Mr H. YTTERBERG, Ombudsman against discrimination
based on sexual orientation in Sweden,
Mr A. WEISS, Advisers.
The Court heard addresses by Ms C. Mécary and Ms E. Belliard.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1961 and lives in Lons-le-Saunier.
8. She has been a nursery school teacher since 1985 and, since 1990, has
been in a stable relationship with a woman, Ms R., who is a psychologist.
9. On 26 February 1998 the applicant made an application to the Jura
Social Services Department for authorisation to adopt a child. She wanted to
investigate the possibility of international adoption, in particular in Asia,
South America and Madagascar. She mentioned her sexual orientation and
her relationship with her partner, Ms R.
10. In a report dated 11 August 1998 the socio-educational assistant and
paediatric nurse noted the following points among others:
“Ms B. and Ms R. do not regard themselves as a couple, and Ms R., although
concerned by her partner’s application to adopt a child, does not feel committed by it.
Ms B. considers that she will have to play the role of mother and father, and her
partner does not lay claim to any right vis-à-vis the child but will be at hand if
necessary.
…
Ms B. is seeking to adopt following her decision not to have a child herself.
She would prefer to explain to a child that he or she has had a father and mother and
that what she wants is the child’s happiness than to tell the child that she does not want
to live with a man.
…
Ms B. thinks of a father as a stable, reassuring and reliable figure. She proposes to
provide a future adopted child with this father figure in the persons of her own father
and her brother-in-law. But she also says that the child will be able to choose a
surrogate father in his or her environment (a friend’s relatives, a teacher, or a male
friend …).
…
CONCLUSION
“On account of her personality and her occupation, Ms B. is a good listener, is
broad-minded and cultured, and is emotionally receptive. We also appreciated her
clear-sighted approach to analysing problems and her child-raising and emotional
capacities.
However, regard being had to her current lifestyle: unmarried and cohabiting with a
female partner, we have not been able to assess her ability to provide a child with a
4 E.B. v. FRANCE JUDGMENT
family image revolving around a parental couple such as to afford safeguards for that
child’s stable and well-adjusted development.
Opinion reserved regarding authorisation to adopt a child.”
11. On 28 August 1998, in her report on the interviews she had had with
the applicant, the psychologist examining her application recommended in
the following terms that authorisation be refused:
“ …
Ms [B.] has many personal qualities. She is enthusiastic and warm-hearted and
comes across as very protective of others.
Her ideas about child-rearing appear very positive. Several question marks remain,
however, regarding a number of factors pertaining to her background, the context in
which the child will be cared for and her desire for a child.
Is she not seeking to avoid the “violence” of giving birth and genetic anxiety
regarding a biological child?
Idealisation of a child and under-estimation of the difficulties inherent in providing
one with a home: is she not fantasising about being able to fully mend a child’s past?
How certain can we be that the child will find a stable and reliable paternal referent?
The possibilities of identification with a paternal role model are somewhat unclear.
Let us not forget that children forge their identity with an image of both parents.
Children need adults who will assume their parental function: if the parent is alone,
what effects will that have on the child’s development?
…
We do not wish to diminish Ms [B.]’s confidence in herself in any way, still less
insinuate that she would be harmful to a child; what we are saying is that all the
studies on parenthood show that a child needs both its parents.
Moreover, when asked whether she would have wanted to be brought up by only
one of her parents, Ms B. answered no.
…
A number of grey areas remain, relating to the illusion of having a direct perception
of her desire for a child: would it not be wiser to defer this request pending a more
thorough analysis of the various – complex – aspects of the situation?…”
12. On 21 September 1998 a technical officer from the children’s
welfare service recommended that authorisation be refused, observing that
the applicant had not given enough thought to the question of a paternal and
male role model, and assumed that she could easily take on the role of father
and mother herself, while mentioning a possible role for her father and/or
brother-in-law, who lived a long way away, however, meaning that
meetings with the child would be difficult. The officer also wondered about
the presence of Ms R. in the applicant’s life, noting that they refused to
regard themselves as a couple and that Ms R. had not at any time been
involved in the plan to adopt. The reasoning of the opinion ended as
follows:
“I find myself faced with a lot of uncertainties about important matters concerning
the psychological development of a child who has already experienced abandonment
and a complete change of culture and language…”.
13. On 12 October 1998 the psychologist from the children’s welfare
service, who was a member of the adoption board, recommended that
authorisation be refused on the ground that placing a child with the
applicant would expose the child to a certain number of risks relating to the
construction of his or her personality. He referred among other things to the
fact that the applicant lived with a girlfriend but did not consider herself to
be in a couple, which gave rise to an unclear or even an unspoken situation
involving ambiguity and a risk that the child would have only a maternal
role model. The psychologist went on to make the following comments:-
“…
It is as though the reasons for wanting a child derived from a complicated personal
background that has not been resolved with regard to the role as child-parent that [the
applicant] appears to have had to play (vis-à-vis one of her sisters, protection of her
parents), and were based on emotional difficulties. Has this given rise to a feeling of
worthlessness or uselessness that she is trying to overcome by becoming a mother?
Unusual attitude towards men in that men are rejected.
In the extreme, how can rejection of the male figure not amount to rejection of the
child’s own image? (A child eligible for adoption has a biological father whose
symbolic existence must be preserved, but will this be within [the applicant’s]
capabilities?) …”
14. On 28 October 1998 the Adoption Board’s representative from the
Family Council for the association of children currently or formerly in State
care recommended refusing authorisation to adopt in the following terms:-
“…From my personal experience of life with a foster family I am now, with the
benefit of hindsight, in a position to assess the importance of a mixed couple (man and
woman) in providing a child with a home.
The role of the “adoptive mother” and the “adoptive father” in the child’s day-to-day
upbringing are complementary, but different.
It is a balance that will be shaken by the child to a degree that may sometimes vary
in intensity according to how he or she experiences the realisation and acceptance of
the truth about his or her origins and history.
I therefore think it necessary, in the interests of the child, for there to be a solid
balance between an “adoptive mother” and an “adoptive father” where adoption is
being envisaged. …”
15. On 4 November 1998 the Board’s representative from the Family
Council, present on behalf of the union of family associations for the
département (UDAF), referring to the Convention on the Rights of the
Child of 20 November 1989, recommended that authorisation be refused on
the ground of the lack of a paternal referent and added:
“ … It appears impossible to build a family and bring up a child without the full
support of this partner [R.] for the plan. The psychologists’ and welfare reports show
her clear lack of interest in Ms [B.]’s plan …
In the further alternative, the material conditions for providing a child with a
suitable home are not met. It will be necessary to move house, solve the issue of how
to divide expenses between both partners, whose plans differ at least in this respect.”
16. On 24 November 1998 the head of the children’s welfare service also
recommended that authorisation be refused, noting expressly that
“Ms [B.] lives with a female partner who does not appear to be a party to the plan.
The role this partner would play in the adopted child’s life is not clearly defined.
There does not appear to be room for a male referent who would actually be present
in the child’s life.
In these circumstances, there is a risk that the child would not find within this
household the various family markers necessary to the development of his or her
personality and well-being.”
17. In a letter of 26 November 1998 the decision of the president of the
council for the département refusing authorisation to adopt was served on
the applicant. The following reasons, among others, were given:
“… in examining any application for authorisation to adopt I have to consider the
child’s interests alone and ensure that all the relevant safeguards are in place.
Your plan to adopt reveals the lack of a paternal role model or referent capable of
fostering the well-adjusted development of an adopted child.
Moreover, the place that your partner would occupy in the child’s life is not
sufficiently clear: although she does not appear to oppose your plan, neither does she
seem to be involved, which would make it difficult for the child to find its bearings.
Accordingly, all the foregoing factors do not appear to ensure that an adopted child
will have a sufficiently structured family framework in which to flourish. …”
18. On 20 January 1999 the applicant asked the president of the council
for the département to reconsider the decision refusing her authorisation to
adopt.
19. The children’s welfare service asked a clinical psychologist to
prepare a psychological assessment. In her report of 7 March 1999, drawn
up after an interview with the applicant, the psychologist concluded that
“Ms B. ha[d] plenty to offer in providing a home for a child (patiencevalues-
creativity-time)”, but considered that adoption was premature having
regard to a number of problematic points (confusion between a nondirective
and laissez-faire attitude, and ignorance of the effects of the
introduction of a third person into the home set-up).
20. On 17 March 1999 the president of the council for the département
of the Jura confirmed the refusal to grant the request for authorisation.
21. On 13 May 1999 the applicant applied to the Besançon
Administrative Court seeking to have the administrative decisions of
26 November 1998 and 17 March 1999 set aside. She also contested the
manner in which the screening process in respect of her request for
authorisation had been conducted. She pointed out that many people
involved in the process had not met her, including the psychologist from the
adoption board.
22. In a judgment of 24 February 2000 the Administrative Court set
aside the decisions of 26 November 1998 and 19 March 1999, ruling as
follows:
“… the president of the council for the département of the Jura based his decision
both on “the lack of a paternal role model or referent capable of fostering the welladjusted
development of an adopted child” and on “the place [her] partner would
occupy in the child’s life”. The reasons cited are not in themselves capable of
justifying a refusal to grant authorisation to adopt. The documents in the case file
show that Ms B., who has undisputed personal qualities and an aptitude for bringing
up children, and who is a nursery school teacher by profession and well integrated
into her social environment, does offer sufficient guarantees – from a family, childrearing
and psychological perspective – that she would provide an adopted child with
a suitable home. … Ms B. is justified, in the circumstances of this case, in seeking to
have the decisions refusing her authorisation set aside …”
23. The département of the Jura appealed. The Nancy Administrative
Court of Appeal, in a judgment of 21 December 2000, set aside the lower
court’s judgment. It found, first, that “B. maintain[ed] that she ha[d] not
been sent a personality test, but [did] not allege that she [had] asked for the
document and that her request [had been] refused” and that the 4th
paragraph of Article 63 of the Family and Social Welfare Code “[did] not
have the effect of precluding a report from being drawn up on the basis of a
summary of the main points of other documents. Hence, the fact that a
psychologist [had drawn] up a report just on the basis of information
obtained by other people working on the case and without hearing
submissions from the applicant [did] not invalidate the screening process
carried out in respect of Ms B.’s application for authorisation to adopt …”.
24. The court went on to find that
“… the reasons for the decisions of 26 November 1998 and 17 March 1999, which
were taken following an application for reconsideration of the decision of the
president of the council for the département of the Jura rejecting the application for
8 E.B. v. FRANCE JUDGMENT
authorisation to adopt submitted by Ms B., are the absence of “identificational
markers” due to the lack of a paternal role model or referent and the ambivalence of
the commitment of each member of the household to the adoptive child. It can be seen
from the documents in the file, and particularly the evidence gathered during the
examination of Ms B.’s application, that having regard to the latter’s lifestyle and
despite her undoubted personal qualities and aptitude for bringing up children, she did
not provide the requisite safeguards – from a family, child-rearing and psychological
perspective – for adopting a child…;
… contrary to Ms B.’s contentions, the president of the council for the département
did not refuse her authorisation on the basis of a position of principle regarding her
choice of lifestyle. Accordingly, and in any event, the applicant is not justified in
alleging a breach … of the requirements of Articles 8 and 14 of the Convention…”.
25. The applicant appealed on points of law. On 5 June 2002 the Conseil
d’Etat dismissed her appeal in a judgment giving the following reasons:
“… Regarding the grounds for refusing Ms B. authorisation:
…
Firstly, the fact that a request for authorisation to adopt a child is submitted by a
single person, as is permitted by Article 343-1 of the Civil Code, does not prevent the
administrative authority from ascertaining, in terms of child-rearing and psychological
factors that foster the development of the child’s personality, whether the prospective
adoptive parent can offer – in her circle of family and friends – a paternal “role model
or referent” where the application is submitted by a woman …; nor, where a single
person seeking to adopt is in a stable relationship with another person, who will
inevitably be required to contribute to providing the child with a suitable home for the
purposes of the above-mentioned provisions, does this fact prevent the authority from
determining – even if the relationship in question is not a legally binding one –
whether the conduct or personality of the third person, considered on the basis of
objective considerations, is conducive to providing a suitable home. Accordingly, the
Administrative Court of Appeal did not err in law in considering that the two grounds
on which the application by Ms [B.] for authorisation as a single person was refused –
namely, the “absence of identificational markers due to the lack of a paternal role
model or referent” and “the ambivalence of the commitment of each member of the
household to the adoptive child” – were capable of justifying, under the abovementioned
provisions of the decree of 1 September 1998, the refusal to grant
authorisation;
Secondly, with regard to Ms [B.]’s assertion that, in referring to her “lifestyle” to
justify the refusal to grant her authorisation to adopt, the Administrative Court of
Appeal had implicitly referred to her sexual orientation, it can be seen from the
documents submitted to the tribunals of fact that Ms [B.] was, at the time of the
examination of her application, in a stable homosexual relationship. As that
relationship had to be taken into consideration in the needs and interests of an adopted
child, the court neither based its decision on a position of principle in view of the
applicant’s sexual orientation nor breached the combined requirements of Articles 8
and 14 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms; nor did it breach the provisions of Article L. 225-2 of the
Criminal Code prohibiting sexual discrimination;
E.B. v. FRANCE JUDGMENT 9
Thirdly, in considering that Ms [B.], “having regard to her lifestyle and despite her
undoubted personal qualities and aptitude for bringing up children, did not provide the
requisite safeguards – from a family, child-rearing and psychological perspective – for
adopting a child”, the Administrative Court of Appeal, which did not disregard the
elements favourable to the applicant in the file submitted to it, did not distort the
contents of the file;
It follows from the foregoing that Ms [B.] is not justified in seeking to have set aside
the above-mentioned judgment, which contains adequate reasons …”.
II. RELEVANT LAW AND PRACTICE
A. Domestic law
1. The Civil Code
26. The relevant provisions at the material time read as follows:
Article 343
“Adoption may be applied for by a married couple who have not been judicially
separated and have been married for more than two years or are both over twentyeight
years of age.”
Article 343-1
“Adoption may also be applied for by any person over twenty-eight years of age. …”
2. Family and Social Welfare Code
27. The relevant provisions at the material time read as follows:
Article 63
“Children in State care may be adopted either by persons given custody of them by
the children’s welfare service wherever the emotional ties that have been established
between them warrant such a measure or by persons granted authorisation to adopt …
Authorisation shall be granted for five years, within nine months of the date of the
application, by the president of the council for the relevant département after
obtaining the opinion of a[n] [adoption] board. …”
Article 100-3
“Persons wishing to provide a home for a foreign child with a view to his or her
adoption shall apply for the authorisation contemplated in Article 63 of this Code.”
10 E.B. v. FRANCE JUDGMENT
3. Decree no. 98-771 of 1 September 1998 establishing the
arrangements for appraising applications for authorisation to adopt
a child in State care
28. The relevant provisions of the decree read as follows:
Article 1
“Any person wishing to obtain the authorisation contemplated in the first paragraph
of Article 63 and Article 100-3 of the Family and Social Welfare Code must submit
an application to that end to the president of the council for the département in which
he or she resides. …”
Article 4
“Before issuing authorisation, the president of the council for the relevant
département must satisfy himself that the conditions in which the applicant is
proposing to provide a child with a home meet the needs and interests of an adopted
child from a family, child-rearing and psychological perspective.
To that end, he shall order inquiries into the applicant’s circumstances …”
Article 5
“The decision shall be taken by the president of the council for the relevant
département after consulting the adoption board …”
B. International Conventions
1. Draft European Convention on the Adoption of Children
29. The relevant provisions of this draft Convention, currently being
examined by the Committee of Ministers of the Council of Europe, provide
inter alia:
Article 7 – Conditions for adoption
“1. The law shall permit a child to be adopted:
a. by two persons of different sex
i. who are married to each other, or
ii. where such an institution exists, have entered into a registered partnership
together;
b. by one person.
2. States are free to extend the scope of this convention to same-sex couples who are
married to each other or who have entered into a registered partnership together. They
are also free to extend the scope of this convention to different-sex couples and samesex
couples who are living together in a stable relationship.”
2. International Convention on the Rights of the Child
30. The relevant provisions of the Convention on the Rights of the Child
adopted by the General Assembly of the United Nations on 20 November
1989 and which came into force on 2 September 1990 read as follows:
Article 3
“1. In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is
necessary for his or her well-being, taking into account the rights and duties of his or
her parents, legal guardians, or other individuals legally responsible for him or her,
and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible
for the care or protection of children shall conform with the standards established by
competent authorities, particularly in the areas of safety, health, in the number and
suitability of their staff, as well as competent supervision.”
Article 4
“States Parties shall undertake all appropriate legislative, administrative, and other
measures for the implementation of the rights recognized in the present Convention.
With regard to economic, social and cultural rights, States Parties shall undertake such
measures to the maximum extent of their available resources and, where needed,
within the framework of international co-operation.”
Article 5
“States Parties shall respect the responsibilities, rights and duties of parents or,
where applicable, the members of the extended family or community as provided for
by local custom, legal guardians or other persons legally responsible for the child, to
provide, in a manner consistent with the evolving capacities of the child, appropriate
direction and guidance in the exercise by the child of the rights recognized in the
present Convention.”
Article 20
“1. A child temporarily or permanently deprived of his or her family environment,
or in whose own best interests cannot be allowed to remain in that environment, shall
be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care
for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law,
adoption or if necessary placement in suitable institutions for the care of children.
When considering solutions, due regard shall be paid to the desirability of continuity
in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic
background.”
Article 21
“States Parties that recognize and/or permit the system of adoption shall ensure that
the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities
who determine, in accordance with applicable law and procedures and on the basis of
all pertinent and reliable information, that the adoption is permissible in view of the
child’s status concerning parents, relatives and legal guardians and that, if required,
the persons concerned have given their informed consent to the adoption on the basis
of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means
of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot
in any suitable manner be cared for in the child’s country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and
standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the
placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding
bilateral or multilateral arrangements or agreements, and endeavour, within this
framework, to ensure that the placement of the child in another country is carried out
by competent authorities or organs. …”
3. Hague Convention of 29 May 1993 on the Protection of Children
and Co-operation in Respect of International Adoption
31. The relevant provisions of the Hague Convention of 29 May 1993
provide:
Article 5
“An adoption within the scope of the Convention shall take place only if the
competent authorities of the receiving State:
a) have determined that the prospective adoptive parents are eligible and suited to
adopt;
b) have ensured that the prospective adoptive parents have been counselled as may
be necessary; and
c) have determined that the child is or will be authorized to enter and reside
permanently in that State.”
Article 15
“1. If the Central Authority of the receiving State is satisfied that the applicants are
eligible and suited to adopt, it shall prepare a report including information about their
identity, eligibility and suitability to adopt, background, family and medical history,
social environment, reasons for adoption, ability to undertake an intercountry
adoption, as well as the characteristics of the children for whom they would be
qualified to care.
2. It shall transmit the report to the Central Authority of the State of origin.”
THE LAW
32. The applicant alleged that she had suffered discriminatory treatment
that had been based on her sexual orientation and had interfered with her
right to respect for her private life. She relied on Article 14 of the
Convention taken in conjunction with Article 8, which provide:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
I. ADMISSIBILITY
A. Submissions of the parties
1. The applicant
33. The applicant stated that adoption by homosexuals fell into three
quite distinct categories: first, it might be a single person seeking to adopt,
in a member State where adoptions by single persons were permitted (even
if only in exceptional cases), in which case any partner the individual might
have acquired no parental rights as a result of the adoption (individual
adoption); second, one member of a same-sex couple might seek to adopt
the child of the other partner, so that both partners had parental rights vis-àvis
the child (second-parent adoption); and lastly, both members of a samesex
couple might seek to jointly adopt a child with no prior connection with
either partner, so that both partners simultaneously acquired parental rights
vis-à-vis the child (joint adoption). The applicant specified that she had
applied for individual adoption, which was the simpler legal option.
34. She emphasised the importance of obtaining authorisation, which, in
practice, was a precondition to adopting a child in France or abroad.
35. The applicant did not claim a right to adopt, which – irrespective of
the sexual orientation of the prospective adoptive parent – did not exist.
Nevertheless, she submitted that Article 14 of the Convention, taken in
conjunction with Article 8, was applicable to the present case. Firstly, the
opportunity or chance of applying for authorisation to adopt fell within the
scope of Article 8 both with regard to “private life”, since it concerned the
creation of a new relationship with another individual, and “family life”,
since it was an attempt to create a family life with the child being adopted.
Secondly, a person’s sexual orientation, which was an aspect of their private
life, accordingly fell within the scope of Article 8.
2. The Government
36. The Government contended that the application was inadmissible,
since the complaint fell outside the scope of Article 8 of the Convention
and, consequently, Article 14. In any event, unlike in Fretté (Fretté
v. France, no. 36515/97, § 32, ECHR 2002-I), the refusal to grant the
applicant authorisation had not been based, explicitly or implicitly, on the
applicant’s sexual orientation and could not therefore amount to direct or
indirect discrimination based on her homosexuality.
37. The reason for refusing her authorisation had been dictated by the
child’s interests alone and had been based on two grounds: lack of a paternal
referent and the ambivalence of the applicant’s partner’s commitment to her
adoption plans.
38. With regard to the ground relating to the lack of a paternal referent,
the Government pointed out that many professionals considered that a
model of sexual difference was an important factor in a child’s identity and
that it was perfectly understandable that the social services of the
département should take into consideration the lack of markers enabling a
child to construct its identity with reference to a father figure. The
Government cited decisions of the domestic courts in support of their
submission that any other heterosexual applicant whose immediate circle of
family and friends did not include a member of the opposite sex would have
had their application refused on the same ground.
39. With regard to the second ground, the Government submitted at the
outset that the lack of commitment on the part of the applicant’s partner was
an established fact. They observed that the applicant continued to deny the
relevance of that fact, whereas it was legitimate to have regard to the
conduct of a prospective adoptive parent’s immediate circle of family and
friends where there were plans to bring a child into the home. Irrespective of
the lack of legal consequences for the partner, the arrival of a child would
change the balance of the receiving couple and the family unit, and an
adopted child’s previous history made it all the more important to assess the
solidity of a couple’s approach to any plan to adopt. Accordingly, apart from
the fact that R. would necessarily be involved in the child’s day-to-day life,
her lack of involvement could be seen as a source of insecurity for the child
with the risk that the child would find him or herself in competition with the
applicant’s partner for the applicant’s time and affection. In the
Government’s submission, that ground could not be said to be related to the
applicant’s sexual orientation, as had been borne out by the decisions of the
domestic courts.
40. In the Government’s view, the circumstances of the present case
were therefore very different from those in Fretté (cited above) and it
should be stressed that the French administrative and judicial authorities had
given paramount consideration to what lay in the best interests of the child.
Those best interests were central to many international instruments binding
on France. There was no right to a child or right to authorisation to adopt
one. Adoption was a measure taken for the child’s protection and was
designed to provide him or her with a family. The sole purpose of the
authorisation procedure was to identify from among the many candidates
the person who could provide a child with the most suitable home in every
respect. Accordingly, the desire for a child must not prevail over the child’s
interests.
B. The Court’s assessment
41. The Court, noting that the applicant based her application on Article
14 of the Convention, taken in conjunction with Article 8, reiterates at the
outset that the provisions of Article 8 do not guarantee either the right to
found a family or the right to adopt (see Fretté, cited above, § 32). Neither
party contests this. The right to respect for “family life” does not safeguard
the mere desire to found a family; it presupposes the existence of a family
(see Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 31),
or at the very least the potential relationship between, for example, a child
born out of wedlock and his or her natural father (see Nylund v. Finland
(dec.), no. 27110/95, ECHR 1999-VI ), or the relationship that arises from a
genuine marriage, even if family life has not yet been fully established (see
Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of
28 May 1985, Series A no. 94, § 62), or the relationship that arises from a
lawful and genuine adoption (see Pini and Others v. Romania,
nos. 78028/01 and 78030/01, § 148 , ECHR 2004-V).
42. Nor is a right to adopt provided for by domestic law or by other
international instruments, such as the Convention on the Rights of the Child,
adopted by the United Nations General Assembly on 20 November 1989, or
the Hague Convention of 29 May 1993 on the Protection of Children and
Co-operation in Respect of International Adoption (see paragraphs 30-31
above).
43. The Court has, however, previously held that the notion of “private
life” within the meaning of Article 8 of the Convention is a broad concept
which encompasses, inter alia, the right to establish and develop
relationships with other human beings (see Niemietz v. Germany, judgment
of 16 December 1992, Series A no. 251-B, p. 33, § 29), the right to
“personal development” (see Bensaid v. the United Kingdom, no. 44599/98,
§ 47, ECHR 2001-I) or the right to self-determination as such (see Pretty v.
the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). It encompasses
elements such as names (see Burghartz v. Switzerland, judgment of
22 February 1994, Series A no. 280-B, p. 28, § 24), gender identification,
sexual orientation and sexual life, which fall within the personal sphere
protected by Article 8 (see, for example, Dudgeon v. the United Kingdom,
judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, and Laskey,
Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997,
Reports of Judgments and Decisions 1997-I, p. 131, § 36), and the right to
respect for both the decisions to have and not to have a child (see
Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-…).
44. Admittedly, in the instant case the proceedings in question do not
concern the adoption of a child as such, but an application for authorisation
to adopt one subsequently. The case therefore raises the issue of the
procedure for obtaining authorisation to adopt rather than adoption itself.
However, the parties do not contest that in practice authorisation is a
precondition for adopting a child.
45. It should also be noted that the applicant claimed to have been
discriminated against on the ground of her avowed homosexuality, resulting
in a violation of the provisions of Article 14 of the Convention taken in
conjunction with Article 8.
46. The Court is not therefore called upon to rule whether the right to
adopt, having regard, inter alia, to developments in the legislation in Europe
and the fact that the Convention is a living instrument which must be
interpreted in the light of present-day conditions (see, in particular, Johnston
and Others v. Ireland, judgment of 18 December 1986, Series A no. 112,
pp. 24-25, § 53), should or should not fall within the ambit of Article 8 of
the Convention taken alone.
47. With regard to Article 14, which was relied on in the present case, the
Court reiterates that it only complements the other substantive provisions of
the Convention and the Protocols thereto. It has no independent existence
since it has effect solely in relation to “the enjoyment of the rights and
freedoms” safeguarded by those provisions (see, among many other
authorities, Sahin v. Germany [GC], no. 30943/96, § 85, ECHR 2003-VIII).
The application of Article 14 does not necessarily presuppose the violation
of one of the substantive rights protected by the Convention. It is necessary
but it is also sufficient for the facts of the case to fall “within the ambit” of
one or more of the Articles of the Convention (see Abdulaziz, Cabales and
Balkandali, cited above, § 71; Karlheinz Schmidt v. Germany, judgment of
18 July 1994, Series A no. 291-B, § 22; and Petrovic v. Austria, judgment
of 27 March 1998, Reports 1998-II, § 22).
48. The prohibition of discrimination enshrined in Article 14 thus
extends beyond the enjoyment of the rights and freedoms which the
Convention and the Protocols thereto require each State to guarantee. It
applies also to those additional rights, falling within the general scope of
any Convention Article, for which the State has voluntarily decided to
provide. This principle is well entrenched in the Court’s case-law (see Case
“relating to certain aspects of the laws on the use of languages in education
in Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6,
§ 9; Abdulaziz, Cabales and Balkandali, cited above, § 78; and Stec and
Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01,
§ 40, ECHR 2005-X).
49. The present case does not concern adoption by a couple or by the
same-sex partner of a biological parent, but solely adoption by a single
person. Whilst Article 8 of the Convention is silent as to this question, the
Court notes that French legislation expressly grants single persons the right
to apply for authorisation to adopt and establishes a procedure to that end.
Accordingly, the Court considers that the facts of this case undoubtedly fall
within the ambit of Article 8 of the Convention. Consequently, the State,
which has gone beyond its obligations under Article 8 in creating such a
right – a possibility open to it under Article 53 of the Convention – cannot,
in the application of that right, take discriminatory measures within the
meaning of Article 14 (see, mutatis mutandis, Case “relating to certain
aspects of the laws on the use of languages in education in Belgium”, cited
above).
50. The applicant alleged in the present case that, in the exercise of her
right under the domestic law, she had been discriminated against on the
ground of her sexual orientation. The latter is a concept covered by Article
14 of the Convention (see Salgueiro da Silva Mouta v. Portugal,
no. 33290/96, § 28, ECHR 1999-IX). The Court also points out that in
Fretté v. France (cited above), to which the parties expressly referred, the
applicant complained that the rejection of his application for authorisation
to adopt had implicitly been based on his sexual orientation alone. The
Chamber found that Article 14 of the Convention, taken in conjunction with
Article 8, was applicable (§ 33).
51. Accordingly, Article 14 of the Convention, taken in conjunction with
Article 8, is applicable in the present case.
52. In these circumstances the Court dismisses the preliminary objection
raised by the Government. It also considers, in the light of the parties’
submissions, that this complaint raises complex issues of fact and law which
cannot be resolved at this stage in the examination of the application, but
require examination on the merits. It follows that this complaint cannot be
declared manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
A. Submissions of the parties
1. The applicant
53. The applicant maintained that the refusal to grant her authorisation to
adopt had been based on her “lifestyle”, in other words her homosexuality.
In her view, this was borne out by the screening of her application and the
opinion of the adoption board. She also considered that part of the judgment
delivered by the Conseil d’Etat was worded in the same terms as the
judgment it had rendered in the case of Fretté (cited above), which showed
that the Conseil d’Etat adopted a discriminatory approach.
54. With regard to the ground based on the lack of a paternal referent,
she argued that while the majority of French psychoanalysts believed that a
child needed a dual maternal and paternal referent, there was no empirical
evidence for that belief and it had been disputed by many other
psychotherapists. Moreover, in the present case the Government had not
shown that there was a practice of excluding single heterosexual women
who did not have a male partner.
55. With regard to the argument based on her partner’s place in and
attitude to her plan to adopt, she submitted that this was an illegal ground.
Articles 343 and 343-1 of the Civil Code provided that adoption was open
to married couples and single persons: partners were not concerned and
therefore were not a party to the adoption procedure and did not enjoy any
legal status once the child was adopted. Having regard to her right to be
subject to foreseeable legal rules, the applicant contested a ground for
rejection of her application that had no basis in the law itself.
56. The applicant went on to stress that she and her partner had had a
meeting with the social worker and that subsequently the various officials
involved in screening her application for authorisation had never asked to
meet her partner. Either steps should have been taken to interview her
partner or this ground had in reality served as a pretext for rejecting her
application purely on the basis of her sexual orientation.
57. The applicant submitted that the difference in treatment in her regard
had no objective and reasonable justification. Particularly serious reasons
were required to justify a difference in treatment based on sexual
orientation. There were no such reasons in this case.
58. With regard to the division in the scientific community (Fretté,
§ 42), particularly serious reasons were required to justify a difference in
treatment of homosexuals. The burden of proving the existence of any
scientific reasons was on the Government and if they had failed to prove in
Fretté and in the instant case that there was a consensus in the scientific
community, this was because there was no known study on the subject.
59. The applicant disputed the existence of a “legitimate aim”, since
children’s health was not really in issue here and the Conseil d’Etat had not
explained how the child’s health might be endangered. She submitted that
three risks were generally cited: first, the alleged risk of the child becoming
homosexual, which, quite apart from the fact that there was nothing
reprehensible about such an eventuality and that the majority of
homosexuals had heterosexual parents, was a prejudiced notion; second, the
child would be exposed to the risk of developing psychological problems:
that risk had never been proved and recent studies showed that being raised
in a homoparental family did not incline a child to any particular disorder;
besides that, the right to adopt that existed in some democratic countries
showed that there was no risk for the child. Lastly, there was no long-term
risk that the child would suffer on account of homophobic prejudices
towards the parents and, in any event, the prejudices of a sexual majority
did not constitute sufficient justification.
60. She pointed out that the practice of the administrative authorities was
inconsistent in France, where some départements no longer refused
authorisation to single homosexual applicants. She also stated that the civil
courts allowed adoption by the same-sex partner of the original parent.
61. In Europe there had been a steady development in the law in favour
of adoption by same-sex couples since the Fretté judgment (cited above,
§ 41), with some ten European States now allowing it. The applicant also
referred to a European consensus in favour of making adoption available to
single homosexuals in the member States of the Council of Europe which
allowed adoption by single persons, other than France where decisions were
made on a discretionary basis. The same was true outside Europe, where
case-law developments were in favour of adoption by homosexuals in the
interests of children needing a home.
62. Lastly, she disputed the argument that there were insufficient
numbers of children eligible for adoption, to which the Court had adhered in
its Fretté judgment (cited above, § 42), arguing that the number of children
eligible for adoption in the world exceeded the number of prospective
adoptive parents and that making a legal possibility available should not
depend on the effective possibility of exercising the right in question.
2. The Government
63. The Government pointed out that authorisation to adopt was issued
at local, and not national, level by the president of the council for the
département after obtaining the opinion of an adoption board at
département level. In 2005, 13,563 new applications had been submitted, of
which barely 8 % had not been satisfied (with less than 6 % being refused
authorisation and about 2 % being withdrawn). In 2006, 4,000 visas had
been granted by the relevant authorities to foreign children being adopted.
The Government stated that they could not provide statistics relating to the
applicants’ sexual orientation, as the collecting or processing of personal
data about a person’s sexual life were prohibited under French law.
64. The Government submitted, in the alternative, that the present case
did not lend itself to a review of the Court’s finding in the Fretté judgment
(cited above), since present-day conditions had not sufficiently changed to
justify a departure from precedent.
65. With regard to national laws, there was no European consensus on
the subject, with only nine out of forty-six member States of the Council of
Europe moving towards adoption by same-sex couples and some countries
not making adoption available to single persons or allowing it under more
restrictive conditions than in France. Moreover, that observation should be
qualified by the nature of those laws and the conditions that had to be met.
66. The conclusion reached by the Court in Fretté regarding the division
in the scientific community was still valid today. The Government justified
the failure to produce studies identifying problems or differences in
development in children raised by homosexual couples by the fact that the
number of children raised by a homosexual couple was unknown and the
estimated numbers highly variable. Besides the complexity of the various
situations that might be encountered, the existing studies were insufficiently
thorough because they were based on insufficiently large samples, failed to
take a detached approach and did not indicate the profile of the single-parent
families in question. Child psychiatrists or psychoanalysts defended
different theories, with a majority arguing that a dual maternal and paternal
referent in the home was necessary.
67. There were also still wide differences in public opinion since Fretté
(cited above, § 42).
68. The Government confirmed that the reality was that applications to
adopt outnumbered children eligible for adoption. Their international
obligations, particularly Articles 5 and 15 of the Hague Convention,
compelled them to select candidates on the basis of those best able to
provide the child with a suitable home.
69. Lastly, they pointed out that none of the sixty or so countries from
which French people adopted children authorised adoption by same-sex
couples. International adoption might therefore remain a purely theoretical
possibility for homosexuals despite the fact that their domestic law allowed
it.
B. The Court’s assessment
70. The Court observes that in Fretté v. France (cited above) the
Chamber held that the decisions to reject the application for authorisation
had pursued a legitimate aim, namely to protect the health and rights of
children who could be involved in an adoption procedure (§ 38). With
regard to whether a difference in treatment was justified, and after observing
that there was no common ground between the legal systems of the
Contracting States, the Chamber found it quite natural that the national
authorities should enjoy a wide margin of appreciation when they were
asked to make rulings on such matters, subject to review by the Court (§
41). Having regard to the competing interests of the applicant and children
who were eligible for adoption, and to the paramountcy of the latter’s best
interests, it noted that the scientific community was divided over the
possible consequences of a child being adopted by one or more homosexual
parents, that there were wide differences in national and international
opinion and that there were not enough children to adopt to satisfy demand
(§ 42). Taking account of the broad margin of appreciation to be left to
States in this area and to the need to protect children’s best interests to
achieve the desired balance, the Chamber considered that the refusal to
authorise adoption had not infringed the principle of proportionality and
that, accordingly, the justification given by the Government appeared
objective and reasonable and the difference in treatment complained of was
not discriminatory within the meaning of Article 14 of the Convention (§§
42 and 43).
71. The Court notes that the present case also concerns the question of
how an application for authorisation to adopt submitted by a homosexual
single person is dealt with; it nonetheless differs in a number of respects
from the above-cited case of Fretté. The Court notes in particular that whilst
the ground relating to the lack of a referent of the other sex features in both
cases, the domestic administrative authorities did not – expressly at least –
refer to E.B.’s “choice of lifestyle” (see Fretté, cited above, § 32).
Furthermore, they also mentioned the applicant’s qualities and her childraising
and emotional capacities, unlike in Fretté where the applicant was
deemed to have had difficulties in envisaging the practical consequences of
the upheaval occasioned by the arrival of a child (§§ 28 and 29). Moreover,
in the instant case the domestic authorities had regard to the attitude of
E.B.’s partner, with whom she had stated that she was in a stable and
permanent relationship, which was a factor that had not featured in the
application lodged by Mr Fretté.
72. In the instant case the Court notes that the domestic administrative
authorities, and then the courts that heard the applicant’s appeal, based their
decision to reject her application for authorisation to adopt on two main
grounds.
73. With regard to the ground relied on by the domestic authorities
relating to the lack of a paternal or maternal referent in the household of a
person seeking authorisation to adopt, the Court considers that this does not
necessarily raise a problem in itself. However, in the circumstances of the
present case it is permissible to question the merits of such a ground, the
ultimate effect of which is to require the applicant to establish the presence
of a referent of the other sex among her immediate circle of family and
friends, thereby running the risk of rendering ineffective the right of single
persons to apply for authorisation. The point is germane here because the
case does not concern an application for authorisation to adopt by a –
married or unmarried – couple, but by a single person. In the Court’s view,
that ground might therefore have led to an arbitrary refusal and have served
as a pretext for rejecting the applicant’s application on grounds of her
homosexuality.
74. The Court observes, moreover, that the Government, on whom the
burden of proof lay (see, mutatis mutandis, Karner v. Austria, no. 40016/98,
§§ 41-42, ECHR 2003-IX), were unable to produce statistical information
on the frequency of reliance on that ground according to the – declared or
known – sexual orientation of the persons applying for adoption, which
E.B. v. FRANCE JUDGMENT 23
alone could provide an accurate picture of administrative practice and
establish the absence of discrimination when relying on that ground.
75. In the Court’s view, the second ground relied on by the domestic
authorities, based on the attitude of the applicant’s partner, calls for a
different approach. Although she was the long-standing and declared partner
of the applicant, Ms R. did not feel committed by her partner’s application to
adopt. The authorities, which constantly remarked on this point – expressly
and giving reasons – concluded that the applicant did not provide the
requisite safeguards for adopting a child.
76. It should first be noted that, contrary to the applicant’s submissions,
the question of the attitude of her partner, with whom she stated that she
was in a stable and lasting relationship, is not without interest or relevance
in assessing her application. It is legitimate for the authorities to ensure that
all safeguards are in place before a child is taken into a family. Accordingly,
where a male or female applicant, although unmarried, has already set up
home with a partner, that partner’s attitude and the role he or she will
necessarily play on a daily basis in the life of the child joining the home setup
require a full examination in the child’s best interests. It would moreover
be surprising, to say the least, if the relevant authorities, having been
informed of the existence of a de facto couple, pretended to be unaware of
that fact when assessing the conditions in which the child would be given a
home and his future life in that new home. The legal status of a person
seeking to adopt is not incompatible with an examination of his or her actual
situation and the subsequent finding of not one but two adults in the
household.
77. The Court notes, moreover, that Article 4 of the Decree of
1 September 1998 (see paragraph 28 above) requires the president of the
council for the relevant département to satisfy himself that the conditions in
which the applicant is proposing to provide the child with a home meet the
needs of an adopted child from a family, child-rearing and psychological
perspective. The importance of these safeguards – of which the authorities
must be satisfied before authorising a person to adopt a child – can also be
seen in the relevant international instruments, be it the United Nations
Convention on the Rights of the Child of 20 November 1989, the Hague
Convention of 29 May 1993 or the draft European Convention on the
Adoption of Children (see paragraphs 29-31 above).
78. In the Court’s view, there is no evidence to establish that the ground
in question was based on the applicant’s sexual orientation. On the contrary,
the Court considers that this ground, which has nothing to do with any
consideration relating to the applicant’s sexual orientation, is based on a
simple analysis of the known, de facto situation and its consequences for the
adoption of a child.
79. The applicant cannot therefore be deemed to have been
discriminated against on the ground of her sexual orientation in that regard.
80. Nonetheless, these two main grounds form part of an overall
assessment of the applicant’s situation. For this reason, the Court considers
that they should not be considered alternatively, but concurrently.
Consequently, the illegitimacy of one of the grounds has the effect of
contaminating the entire decision.
81. With regard to the administrative phase, the Court observes that the
president of the council for the département did not base his decision
exclusively or principally on the second ground, but on “all” the factors
involved – that is, both grounds – without it being possible to consider that
one of them was predominant or that one of them alone was sufficient to
make him decide to refuse authorisation (see paragraph 17 above).
82. With regard to the judicial phase, the Nancy Administrative Court of
Appeal noted that the decision was based on two grounds: the lack of a
paternal referent and the ambivalence of the commitment of each member
of the household. It added that the documents in the file and the conclusions
reached after examining the application showed that the applicant’s lifestyle
did not provide the requisite safeguards for adopting a child, but disputed
that the president of the council for the département had refused
authorisation on the basis of a position of principle regarding her choice of
lifestyle, namely, her homosexuality (see paragraph 24 above).
83. Subsequently, the Conseil d’Etat held that the two grounds on which
the applicant had been refused authorisation to adopt were in keeping with
the statutory provisions. It also held that the reference to the applicant’s
“lifestyle” could be explained by the documents in the file submitted to the
tribunals of fact, which showed that the applicant was, at the time of her
application, in a stable homosexual relationship, but that this could not be
construed as a decision based on a position of principle regarding her sexual
orientation or as any form of discrimination (see paragraph 25 above).
84. The Court therefore notes that the administrative courts went to
some lengths to rule that although regard had been had to the applicant’s
sexual orientation, it had not been the basis for the decision in question and
had not been considered from a hostile position of principle.
85. However, in the Court’s opinion the fact that the applicant’s
homosexuality featured to such an extent in the reasoning of the domestic
authorities is significant. Besides their considerations regarding the
applicant’s “lifestyle”, they above all confirmed the decision of the president
of the council for the département. The Court points out that the latter
reached his decision in the light of the opinion given by the adoption board
whose various members had expressed themselves individually in writing,
mainly recommending, with reasons in support of that recommendation, that
the application be refused on the basis of the two grounds in question. It
observes that the manner in which certain opinions were expressed was
indeed revealing in that the applicant’s homosexuality was a determining
factor. In particular, the Court notes that in his opinion of 12 October 1998
the psychologist from the children’s welfare service recommended that
authorisation be refused, referring to, among other things, an “unusual
attitude [on the part of the applicant] to men in that men are rejected” (see
paragraph 13 above).
86. The Court observes that at times it was her status as a single person
that was relied on as a ground for refusing the applicant authorisation to
adopt, whereas the law makes express provision for the right of single
persons to apply for authorisation to adopt. This emerges particularly clearly
from the conclusions of the psychologist who, in her report on her
interviews with the applicant of 28 August 1998, stated, with express
reference to the applicant’s case and not as a general comment – since she
prefaces her remark with the statement that she is not seeking to diminish
the applicant’s confidence in herself or to insinuate that she would be
harmful to a child – that “all the studies on parenthood show that a child
needs both its parents” (see paragraph 11 above). On 28 October 1998 the
adoption board’s representative from the Family Council for the association
of children currently or formerly in State care recommended refusing
authorisation on the ground that an adoptive family had to be composed “of
a mixed couple (man and woman)” (see paragraph 14 above).
87. Regarding the systematic reference to the lack of a “paternal
referent”, the Court disputes not the desirability of addressing the issue, but
the importance attached to it by the domestic authorities in the context of
adoption by a single person. The fact that it is legitimate for this factor to be
taken into account should not lead the Court to overlook the excessive
reference to it in the circumstances of the present case.
88. Thus, notwithstanding the precautions taken by the Nancy
Administrative Court of Appeal, and subsequently by the Conseil d’Etat, to
justify taking account of the applicant’s “lifestyle”, the inescapable
conclusion is that her sexual orientation was consistently at the centre of
deliberations in her regard and omnipresent at every stage of the
administrative and judicial proceedings.
89. The Court considers that the reference to the applicant’s
homosexuality was, if not explicit, at least implicit. The influence of the
applicant’s avowed homosexuality on the assessment of her application has
been established and, having regard to the foregoing, was a decisive factor
leading to the decision to refuse her authorisation to adopt (see, mutatis
mutandis, Salgueiro da Silva Mouta, cited above, § 35).
90. The applicant therefore suffered a difference in treatment. Regard
must be had to the aim behind that difference in treatment and, if the aim
was legitimate, to whether the different treatment was justified.
91. The Court reiterates that, for the purposes of Article 14, a difference
in treatment is discriminatory if it has no objective and reasonable
justification, which means that it does not pursue a “legitimate aim” or that
there is no “reasonable proportionality between the means employed and the
aim sought to be realised” (see, inter alia, Karlheinz Schmidt, cited above,
§ 24; Petrovic, cited above, § 30; and Salgueiro da Silva Mouta, cited
above, § 29). Where sexual orientation is in issue, there is a need for
particularly convincing and weighty reasons to justify a difference in
treatment regarding rights falling within Article 8 (see, mutatis mutandis,
Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 89,
ECHR 1999-VI; Lustig-Prean and Beckett v. the United Kingdom, nos.
31417/96 and 32377/96, § 82, 27 September 1999; and S.L. v. Austria, no.
45330/99, § 37, ECHR 2003-I).
92. In that connection the Court observes that the Convention is a living
instrument, to be interpreted in the light of present-day conditions (see, inter
alia, Johnston and Others, cited above, § 53).
93. In the Court’s opinion, if the reasons advanced for such a difference
in treatment were based solely on considerations regarding the applicant’s
sexual orientation this would amount to discrimination under the
Convention (see Salgueiro da Silva Mouta, cited above, § 36).
94. The Court points out that French law allows single persons to adopt
a child (see paragraph 49 above), thereby opening up the possibility of
adoption by a single homosexual, which is not disputed. Against the
background of the domestic legal provisions, it considers that the reasons
put forward by the Government cannot be regarded as particularly
convincing and weighty such as to justify refusing to grant the applicant
authorisation.
95. The Court notes, lastly, that the relevant provisions of the Civil Code
are silent as to the necessity of a referent of the other sex, which would not,
in any event, be dependent on the sexual orientation of the adoptive single
parent. In this case, moreover, the applicant presented, in the terms of the
judgment of the Conseil d’Etat, “undoubted personal qualities and an
aptitude for bringing up children”, which were assuredly in the child’s best
interests, a key notion in the relevant international instruments (see
paragraphs 29-31 above).
96. Having regard to the foregoing, the Court cannot but observe that, in
rejecting the applicant’s application for authorisation to adopt, the domestic
authorities made a distinction based on considerations regarding her sexual
orientation, a distinction which is not acceptable under the Convention (see
Salgueiro da Silva Mouta, cited above, § 36).
97. Consequently, having regard to its finding under paragraph 80
above, the Court considers that the decision in question is incompatible with
the provisions of Article 14 taken in conjunction with Article 8.
98. There has accordingly been a breach of Article 14 of the Convention
taken in conjunction with Article 8.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
99. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
100. The applicant pointed out that without the authorisation that had
been refused her it was legally impossible for her to adopt a foreign child
and impossible in practice to adopt a French child. Even if the French
Government were to act quickly to grant her the authorisation, the
discriminatory delay would be between nine and ten years. That delay was
not only a psychological strain and unfair, but also reduced her chances of
being able to adopt a child one day on account of her age; she had been
thirty-seven when she had applied to adopt and so would be forty-six at the
youngest if authorisation were finally to be granted. Accordingly, she
sought an award of 50,000 euros (EUR) for non-pecuniary damage.
101. The Government did not express a view.
102. The Court considers that the applicant must have suffered nonpecuniary
damage that is not sufficiently compensated by a mere finding of
a violation of Article 14 of the Convention taken together with Article 8.
Accordingly, ruling on an equitable basis, the Court awards her EUR 10,000
in just satisfaction.
B. Costs and expenses
103. The applicant claimed EUR 14,352 in lawyer’s fees from the
introduction of the application until the outcome of the proceedings (sixty
hours’ work at the rate of EUR 200 per hour exclusive of VAT), plus
EUR 176 for the travel and accommodation expenses incurred in attending
the hearing before the Grand Chamber, that is, a total of EUR 14,528.
104. The Government did not express a view.
105. The Court observes that, according to the criteria laid down in its
case-law, it must ascertain whether the costs and expenses claimed were
actually and necessarily incurred and were reasonable as to quantum (see,
among other authorities, Öztürk v. Turkey [GC], no. 22479/93, § 83, ECHR
1999-VI). Applying the said criteria to the present case, the Court considers
reasonable the amount of EUR 14,528 claimed by the applicant and awards
her that sum.
C. Default interest
106. The Court considers it appropriate that the default interest should
be based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares unanimously the application admissible;
2. Holds by ten votes to seven that there has been a violation of Article 14
of the Convention taken in conjunction with Article 8;
3. Holds by eleven votes to six
(a) that the respondent State is to pay the applicant, within three
months, EUR 10,000 (ten thousand euros) in respect of non-pecuniary
damage and EUR 14,528 (fourteen thousand five hundred and twentyeight
euros) for costs and expenses, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
4. Dismisses unanimously the remainder of the applicant’s claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 22 January 2008.
Michael O’Boyle Christos Rozakis
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following separate opinions are annexed to this
judgment:
(a) dissenting opinion of Judge Costa, joined by Judges Türmen,
Ugrekhelidze and Jočienė;
(b) dissenting opinion of Judge Zupančič;
(c) concurring opinion of Judges Lorenzen and Jebens;
(d) dissenting opinion of Judge Loucaides;
(e) dissenting opinion of Judge Mularoni.
C.L.R.
M.O’B.
DISSENTING OPINION OF JUDGE COSTA JOINED BY JUDGES TÜRMEN, UGREKHELIDZE AND JOČIENĖ
(Translation)
1. In a case such as this the Grand Chamber (to which jurisdiction was
relinquished by a Chamber under Article 30 of the Convention) can be
expected to give a leading judgment on a “serious question” affecting the
interpretation of the Convention, in this case of Article 14 taken in
conjunction with Article 8.
2. In so far as the Court has adopted a position of principle I can, I
think, accept it, but I am not at all sure that in this specific case the
interference attributed to the respondent State has proved to be contrary to
that position or incompatible with the Convention provisions. I shall attempt
to explain what I mean.
3. With regard to the question of principle, the main thrust of the
majority’s reasoning – making particular reference to the Court’s earlier
decision in Salgueiro da Silva Mouta v. Portugal (Reports 1999-IX ) – is
based on alleged discrimination against the applicant because her
application for authorisation to adopt a child was allegedly refused on the
ground of her homosexual orientation, and she considers such
discrimination to be unjustified.
In Fretté v. France (Reports 2002-I), which the present judgment
overturns (as of course the Grand Chamber can), the majority of the
Chamber had considered that such a ground was not contrary to Article 14
and 8, or – to be more precise – that the reasons for which the French
authorities had rejected the application for authorisation to adopt made by
the applicant, who was a homosexual, were justified (in the best interests of
the child likely to be adopted).
I did not subscribe to that reasoning, and whilst I did vote with the
majority in favour of finding that there had not been a violation that was
because, in my view, the Articles of the Convention relied on were not
applicable because the Convention does not guarantee a right to adopt (but
the Chamber did not agree with my reasoning on that point, and I will not
go into it again here – perseverare diabolicum).
In my concurring opinion, in which I was joined by my colleagues
Judge Jungwiert and Judge Traja, I pointed out that the French Civil Code
(since 1966) allowed adoption by a single person and did not in any way
prohibit adoption by a homosexual (or, which comes down to the same
thing, did not require that the applicant be heterosexual). I therefore thought
– and see no reason to change my view now – that a refusal to grant
authorisation based exclusively on the avowed or established homosexuality
of the applicant in question would be contrary to both the Civil Code and
the Convention.
I am equally convinced that the message sent by our Court to the
States Parties is clear: a person seeking to adopt cannot be prevented from
doing so merely on the ground of his or her homosexuality. This point of
view might not be shared by all, for good or not so good reasons, but –
rightly or wrongly – our Court, whose duty under the Convention is to
interpret and ultimately apply it, considers that a person can no more be
refused authorisation to adopt on grounds of their homosexuality than have
their parental responsibility withdrawn on those grounds (Salgueiro da Silva
Mouta). I agree.
4. If we leave the theoretical domain, however, and address the specific
case of the applicant – which even in a judgment that sets out be a leading
judgment it is the Court’s primary duty to do – I do not agree. The domestic
administrative and judicial case files show, unequivocally in my view, that
authorisation was refused (and that that refusal was deemed legal) for two
reasons, which can be summarised as follows. Firstly, there would be no
male or “paternal” referent among Ms E.B.’s circle of family and friends.
Secondly, the woman with whom she was in a stable relationship at the time
of her application did not feel concerned by her partner’s plan to adopt;
although she might not have been actually opposed or hostile to it, she was
certainly indifferent.
5. To my mind, the first of these grounds is illegal under French law
because if the law allows a single person to adopt it is against the law to
require that person, be they a man or a woman, to have a member of the
opposite sex among their circle of family and friends who could serve as a
“referent” (to use bureaucratico-psychological jargon). A single person
cannot be required to artificially rebuild a “home” for the purpose of being
able to exercise a statutory subjective right; would a single person have to
be single only in name in order to be able to adopt?
I note, though, that however illegal it may be the first ground should
not be confused with homophobic discrimination. Whether or not Ms E.B.
had been homosexual, the council for the département would still have
refused her – or could still have refused her – authorisation on the ground of
the lack of a “referent” of the other sex. It is not therefore clear that even
this bizarre reasoning was based on the applicant’s sexual orientation or that
it alone suffices to justify the conclusion reached by the majority, at least by
their reasoning.
6. The second ground, in any case, does not appear to me to be
unreasonable or disproportionate. It is a fact that Ms E.B. was living with
another person. Regardless of the latter’s sex or sexual orientation, it is
established and moreover not seriously disputed that this person did not
support the adoption plan. In these conditions, if approval had been granted
and the civil courts had subsequently allowed Ms E.B. to adopt it is very
unlikely that the guarantees required under French law (from a “family,
child-rearing and psychological” perspective – see paragraph 28 of the
judgment), in the child’s best interests, would have been met and it is
assuredly not for the Court, if it is not to set itself up as a fourth instance, to
decide otherwise.
7. A delicate problem of law therefore arises. Was the first ground
(which moreover I have just said is not discriminatory, at least as far as the
applicant’s sexual orientation is concerned) decisive? Did it suffice to
“contaminate” the administrative decision in question? Is it not more
realistic to consider that, regarding a specific application by a person in a
specific situation, the authorities were entitled to undertake an assessment of
all the factors pertaining to that situation? Just as our court is not a court of
fourth instance, nor is it a court of cassation that considers a particular
ground to be founded, holds that it is not necessary to examine the other
grounds and contents itself with the well-foundedness of the first ground to
quash the decision and remit the case. This is what the judgment actually
does however.
In that connection my position is close to that of my colleague Judge
Mularoni, who, in her own dissenting opinion, criticises the majority for
finding that Ms E.B.’s homosexual orientation was the decisive ground for
refusing her authorisation. I, like her, consider this assertion to be somewhat
gratuitous.
8. In my opinion, the Grand Chamber could have solemnly declared
that a refusal of this kind could not be based on homosexuality without
violating Articles 14 and 8, and thus given an important leading judgment,
while dismissing Ms E.B.’s application because in this case it was not her
homosexuality that had prevented her from obtaining authorisation. In my
view, this would have corresponded more closely to the reality of the case,
at least as regards my own interpretation of it.
9. This is why – in the present case – I cannot follow the majority’s
reasoning, and I consider that France has not violated the Convention.
DISSENTING OPINION OF JUDGE ZUPANČIČ
The issue is in some respects disguised, but the crucial question in this
case is discrimination – on the basis of the applicant’s sexual orientation –
concerning the privilege of adopting a child. That this is a privilege is
decisive for the examination of the case; it implies – and the majority
recognises this – that we are not dealing with the applicant’s right in terms
of Article 8.
The difference between a privilege and a right is decisive. Discrimination
in terms of unequal treatment is applicable to situations that involve rights;
it is not applicable to situations that essentially concern privileges. These are
situations in which the granting vel non of the privilege make it legitimate
for the decision-making body, in this case an administrative body, to
exercise discretion without fear that the right of the aggrieved person will be
violated.
Put in the simplest terms, the theoretical principle according to which a
right is subject to litigation and according to which a violation of that right
requires a remedy does not apply to situations in which a privilege is being
granted. An exaggerated example of such a situation would be the privilege
of being granted a decoration or a prize, or other situations of special
treatment reserved for those who are exceptionally deserving.
In other words, it would be “bizarre” for anybody to claim that he ought
to have received a particular award, a particular decoration or a particular
privilege.
There are, of course, middle-ground situations such as applications for a
particular post for which the aggrieved person is a candidate. One may for
example conceive of a situation in which an applicant wished to become a
judge or a notary public or was a candidate for a similar position but, for
whatever reason, was denied that position. Even in that case it would be
unusual for the Court to entertain a refusal to grant a privilege as something
that is subject to the discrimination criteria.
In this particular case, the preliminary question of essential importance is
to determine whether the privilege of adopting a child is subject to the
discrimination criteria under Article 14. As pointed out above, the majority
is not inclined to consider the privilege of adopting a child as a right.
It is therefore inconsistent to consider that there has been any kind of
violation as long as the Court persists in its (justifiable!) position according
to which the possibility of adopting a child is clearly not a right and is in
any event at best a privilege. The question is then what kind of discretion
the administrative body is entitled to exercise when making a decision
concerning the privilege of adopting a child.
On the other hand, is it possible to imagine the Nobel Prize Committee
being accused of discrimination because it never awards any Nobel Prizes to
scientists of a particular race or nationality? Such an assertion would, of
course, require statistical proof. Statistical evidence is, indeed, very
prevalent in employment discrimination and similar cases. In other words, if
in this particular situation the European Court of Human Rights were to
establish that the French administrative authorities systematically
discriminate against lesbian women wishing to adopt a child, the issue
would be much clearer.
But we are dealing here with an individual case in which discrimination
is alleged purely on the basis of a single occurrence. This, as I have pointed
out, does not permit the Court to reach the conclusion that there is in France
a general discriminatory attitude against homosexuals wishing to adopt a
child. The issue of systematic discrimination has not been explored in this
specific case and it would probably not be possible to even admit such
statistical proof in support of the allegation. If it were possible, however, the
treatment of the case would be completely different from what we now face.
It is therefore incumbent on the Court to extrapolate a consistent line of
reasoning from its preliminary position, according to which the privilege of
adopting a child is in any event not a right.
A separate issue under the same head is whether the procedures leading
to the negative answer to the lesbian woman were such as to evince
discrimination. This question seems to be the distinction upon which the
majority’s reasoning is based.
The question distilled from this kind of reasoning is whether the
procedures – even when granting, not a right, but a privilege – ought to be
free of discrimination. In terms of administrative law, perhaps, the
distinction is between a decision which lies legitimately within the
competence of the administrative bodies and their legitimate discretion on
the one hand and one which moves into the field of arbitrary decision.
A decision is arbitrary when it is not based on reasonable grounds
(substantive aspect) and reasonable decision-making (procedural aspect) but
rather derives from prejudice, in this case prejudice against homosexuals. It
is well established in the legal theory that the discrimination logic does not
apply to privileges, but it may well apply to the procedures in which the
granting or not of the privilege is the issue.
It is alleged that the procedures in French administrative law were
discriminatory against this particular female homosexual, but the question
then arises as to whether this kind of discriminatory procedure is
nevertheless compatible with the legitimate discretion exercised by the
administrative body.
I am afraid that in most cases precisely this kind of “contamination” of
substance by procedure is at the centre of the controversy. I cannot dwell on
it here1 but the question could be posed as follows. If the granting of
1 I have dealt with the issue at length in The Owl of Minerva, Essays on Human Rights,
Eleven International Publishing, Utrecht, 2008, Chapter 14, pp. 413-28.
privileges is not a matter of rights, is it not then true that the bestower of
privilege is entitled – argumento a majori ad minus – not only to discretion
but also to discrimination in terms of substance as well as in terms of
procedure? The short answer to this is that in the public sphere – as opposed
to the purely private sphere of awards, prizes and so forth – there are some
privileges which are apt to become rights, such as adopting a child, being
considered for a public function, and so on. Decidedly, in so far as this
process of the privilege potentially “becoming a right” is affected by
arbitrariness, prejudice and frivolity the discrimination logic should apply.
The rest is a question of fact. Like Judge Loucaides, I do not subscribe to
the osmotic contamination theory advanced by the majority.
There is one final consideration. The non-represented party, whose
interest should prevail absolutely in such litigation, is the child whose future
best interests are to be protected. When set against the absolute right of this
child, all other rights and privileges pale. If in custody matters we maintain
that it is the best interests of the child that should be paramount – rather than
the rights of the biological parents – how much more force will that
assertion carry in cases such as this one where the privileges of a potential
adoptive parent are at issue?
CONCURRING OPINION OF JUDGES LORENZEN AND JEBENS
We have voted with the majority for finding a violation of Article 14 of
the Convention in conjunction with Article 8 and we can also broadly agree
with the reasons in the judgment leading to this conclusion. However, we
would like to clarify our vote as follows.
In the present case the domestic authorities, when rejecting the
application for authorisation to adopt, relied on two grounds that were both
accepted as legitimate by the French courts in the appeal proceedings:
firstly, the lack of a paternal referent in the household of the applicant and
secondly, the indifferent attitude of the applicant’s partner. We fully agree
with the judgment’s reasoning (paragraphs 75-78) that the latter ground was
a relevant factor to be taken into account when deciding the application. As
to the first ground, we do not find it to be irrelevant or discriminatory as
such in cases where the application for adoption is made by a single person.
However, it may be so if it is used in combination with a direct or indirect
reference to the applicant’s sexual orientation. In this respect we again agree
with the majority that, despite the national courts’ attempts to explain what
was meant or not meant by the reference to the applicant’s “lifestyle”, it is
not possible to conclude that her sexual orientation had no real importance
for that ground. The refusal to grant the authorisation was accordingly based
on one ground that was legitimate and another ground that was not
legitimate in the circumstances of the case, and was thus discriminatory in
terms of the Convention.
Consequently, a violation was found in the present case because the
refusal to adopt was partly based on illegitimate reasons. This does not of
course imply that the applicant could not have been refused authorisation
based on grounds that were in conformity with the Convention, for example
the indifferent attitude of her partner in itself. It is the opinion of the
minority that the refusal was justified on that ground alone, and we do not
exclude that this might be so. However, in our opinion – and this is in fact
the point on which we most disagree with the minority – it is not for this
Court to rule on that question, but exclusively for the French courts to
decide.
In view of the more procedural character of the violation, we would have
considered the finding of a violation or a minor pecuniary award sufficient
just satisfaction in respect of any non-pecuniary damage sustained by the
applicant, but we did not find it necessary to dissent on that point.
DISSENTING OPINION OF JUDGE LOUCAIDES
I disagree with the majority in this case. I find that the decision of the
domestic authorities to refuse the applicant authorisation to adopt a child
was legitimate and well within their margin of appreciation.
The decision of the domestic authorities was based on two main grounds.
First, the “absence of ‘identificational markers’ due to the lack of a
paternal role model or referent” and second, “the ambivalence of the
commitment of each member of the household to the adoptive child”. As
regards the first ground, I agree with the majority that it is incompatible
with the effective right of single persons to apply for authorisation to adopt,
a right which is recognised by French law, and that it should therefore be
rejected as inapplicable to the present case.
The second ground was the attitude of the applicant’s partner, Ms R.,
who, despite the fact that she was the long-standing and declared partner of
the applicant, did not feel committed by the latter’s application to adopt.
This ground by itself could legitimately justify the decision of the domestic
authorities. That is not really disputed by the majority. But what the
majority finds to be wrong is the fact that, as they put it, the “illegitimacy of
one of the grounds ha[d] the effect of contaminating the entire decision”.
Personally I do not accept this contamination theory – a theory more
appropriate to medical science – for the simple reason that each of the
grounds that led to the decision was separate and autonomous and its
effectiveness was in no way dependent on or linked to the other one. Firstly,
if the domestic authorities felt that the two reasons should operate jointly,
they would have said so. Secondly, if – as the majority finds – the sexual
orientation of the applicant, supposedly referred to implicitly in the
reasoning of one of the grounds, was the real reason for refusing
authorisation, I do not see why the authorities had to mention the other
ground.
Given that we are dealing with decisions of the French administrative
authorities, I might also add that it is a basic principle of French
administrative law that if an administrative decision is based on several
grounds, it is sufficient for one of the grounds to be legally acceptable in
order for the decision to be valid.
In any event, I find that the reasoning of the domestic authorities in its
entirety was in line with the Convention.
The authorities in question did not refer to the sexual orientation of the
applicant as the reason for their refusal. However, contrary to my view, the
majority finds that “the reference to the applicant’s homosexuality was, if
not explicit, at least implicit”, and that the “influence of the applicant’s
avowed homosexuality on the assessment of her application has been
established and … was a decisive factor leading to the decision to refuse her
authorisation to adopt”. Reading the judgment of the majority I have the
feeling that there is a constant effort to interpret the decision of the domestic
authorities as being based on the sexual orientation of the applicant,
although nothing was said to that effect and the authorities repeatedly made
it clear that their refusal of authorisation was not made on the basis of a
“position of principle regarding her choice of lifestyle” or “in view of the
applicant’s sexual orientation”.
Be that as it may, I am of the opinion that, even if the applicant’s sexual
orientation had been a factor in refusing authorisation to adopt, the refusal
in question could not be said to be incompatible with Article 8 taken in
conjunction with Article 14, account being taken of all the relevant
circumstances and the meaning and effect of such a factor in relation to the
question that had to be decided.
It is true that Article 14 of the Convention prohibits discrimination in the
enjoyment of the rights set forth in the Convention on any ground such as
sex, race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status. Of course, sexual orientation is a different matter from sex, but even
on the assumption that it is encompassed by the concept of “status” (which I
do not think is correct), I must make this clarification which, to my mind, is
necessary for the purposes of this case. There may be situations where
different treatment is necessary on grounds of sex, religion, etc. or other
status, if the consequences of the relevant status have a bearing on the
particular question under examination. For instance, a person’s religion may
give rise to manifestations or practices which produce effects contrary to the
interests of that person’s children, a fact that can legitimately be taken into
account when the welfare of the children is at issue. A typical example of
this is the recent case of Ismailova v. Russia, judgment in which was
delivered by the First Section on 29 November 2007. There, the applicant
complained that the decisions of the domestic courts granting custody of her
two children to their father had been in breach of Article 8 of the
Convention taken in conjunction with Article 14, as they amounted to
discrimination on the ground of her religion. The Court, in rejecting the
applicant’s complaint, referred to some incidents which had arisen out of the
religious practices of the applicant on account of her membership of a
certain religious organisation, and which had had negative effects on her
children. The Court stated the following:
“The reasoning presented by the domestic courts shows that they focused solely on
the interests of the children. The courts did not rely on their mother being a member
of the Jehovah’s Witnesses, but on the applicant’s religious practices, in which she had
included her children and failed to protect them. In the view of the domestic courts,
this had led to social and psychological repercussions for the children. The courts
considered that this would have negative effects on the children’s upbringing. …
In such circumstances, the Court cannot but conclude that there existed a reasonable
relationship of proportionality between the means employed and the legitimate aim
pursued…”
Likewise, in the present case, I find that in deciding what was in the best
interests of the child to be adopted, the domestic authorities could
legitimately take into account the sexual orientation and lifestyle of the
applicant as practised in the particular circumstances of the case, namely the
fact that the applicant cohabitated with her same-sex partner. I might add –
on the basis of the majority’s approach, which treats the two reasons given
by the authorities as one – that the partner in question was not even
interested in being a party to the adoption plan.
I believe that the erotic relationship with its inevitable manifestations and
the couple’s conduct towards each other in the home could legitimately be
taken into account as a negative factor in the environment in which the
adopted child was expected to live. Indeed there was, in these
circumstances, a real risk that the model and image of a family in the
context of which the child would have to live and develop his/her
personality would be distorted. This situation differs substantially from one
in which a homosexual applicant does not cohabit with his or her partner.
And, personally, I would most probably have approached the matter
differently in the latter case.
It is my firm belief that nobody can invoke his religion, sex or any other
status in order to rely on the prohibition of discrimination as a ground for
exemption from disqualification in respect of a particular activity on
account of the negative consequences that such status may have in relation
to a specific issue.
Homosexuals, like anybody else, have a right to be themselves and
should not be the target of discrimination or any other adverse treatment
because of their sexual orientation. However, they must, like any other
persons with some peculiarity, accept that they may not qualify for certain
activities which, by their nature and under certain circumstances, are
incompatible with their lifestyle or peculiarity.
Therefore – proceeding on the assumption accepted by the majority that
one of the reasons which influenced the entire decision to refuse
authorisation to adopt was the sexual orientation of the applicant – I find
that in the light of the particular facts and circumstances of the case the
legitimacy of the refusal in issue was in any event not open to question. I
believe that there existed a reasonable relationship of proportionality
between the means employed and the legitimate aim pursued.
Finally and incidentally, I must put on record that the judgment in this
case overturns the Fretté v. France judgment (no. 36515/97). The efforts to
distinguish the present case from Fretté are, in my opinion, unsuccessful
and unnecessary so long as the central question in both cases, according to
the approach of the majority, is substantially the same
Accordingly I take the view that there has been no violation in this case.
I do not share the opinion of the majority in this case.
AS REGARDS ADMISSIBILITY
With regard to the admissibility of the application, I feel it important to
specify straight away that I consider the application admissible but for
reasons that differ from those given by my colleagues.
The Court reiterates in paragraph 43 of the judgment that the notion of
private life is a very broad one that encompasses many rights and
possibilities. The Convention institutions’ interpretation of Article 8 has
greatly evolved. Very recently, in two applications concerning techniques of
artificial insemination, the Court explicitly stated that this provision
protected the right to respect for both the “decisions” to have and not to
have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71,
ECHR 2007-…, and Dickson v. the United Kingdom [GC], no. 44362/04,
§ 66, ECHR 2007…).
Admittedly, both cases concerned the decision to have a “biological”
child. However, I cannot forget that for centuries adoption, an age-old
procedure that is known throughout most countries in the world, was the
only means whereby couples unable to conceive could found a family with
children. While it is undisputed that Article 8 does not guarantee a right to
found a family, such a right is, however, guaranteed by Article 12 of the
Convention. And whilst a “right” to adopt does not exist, I consider, in the
light of our case-law, which over the years has brought more and more
rights and possibilities within the ambit of Article 8, that the time has come
for the Court to assert that the possibility of applying to adopt a child under
the domestic law falls within the ambit of Article 8. Consequently, Article
14 would be applicable.
My approach would therefore be to stop declaring incompatible ratione
materiae with the provisions of the Convention applications lodged by
persons entitled under domestic law to apply to adopt a child. In my
opinion, all applicants who are in the same personal situation of either being
unable or finding it extremely difficult to conceive should be protected in
the same way by the Convention regarding their legitimate desire to become
parents, whether they choose to have recourse to techniques of artificial
insemination or seek to adopt a child in accordance with the provisions of
domestic law. I do not see any strong arguments in favour of a difference of
treatment.
With all due respect to my colleagues, for the reasons explained below I
find the legal reasoning in favour of declaring the application admissible
rather weak; it reiterates the arguments already used to this end in the case
of Fretté (judgment of 26 February 2002, no. 36515/97, §§ 30-33).
As is rightly stressed in paragraph 47 of the judgment, the facts of the
case must at least fall within the ambit of one of the Articles of the
Convention – in this case Article 8 – for Article 14 to be applicable. If the
Court is not prepared to modify old case-law that is still applied to this day,
according to which all stages prior to the issue of an adoption order by the
domestic courts fall outside the Court’s scrutiny (see on this point, among
other authorities, Pini and Others v. Romania, nos. 78028/01 and 78030/01,
§§ 140-42, ECHR-2004, and Wagner and J.M.W.L. v. Luxembourg,
judgment of 28 June 2007, no. 76240/01, §§ 121-22), I have difficulty in
understanding how it can come to the contrary conclusion that the right to
seek authorisation to adopt “undoubtedly” falls within the scope of Article 8
of the Convention (see paragraph 49 of the judgment).
In my view, we should not be asking – and leaving unanswered – the
wrong question, namely, whether the “right” to adopt should or should not
fall within the ambit of Article 8 of the Convention taken alone (see
paragraph 46 of the judgment). No right to adoption is recognised by
domestic legislation or by the relevant international instruments, and the
parties do not dispute this. On the other hand, we should establish – and this
absolutely must be done and done clearly – whether the possibility of
adopting a child afforded by domestic legislation does or does not fall
within the ambit of Article 8. If the answer remains that it does not, I find it
incomprehensible, as I have said above, to conclude that the right to seek
authorisation “undoubtedly” falls within the ambit of Article 8 and that,
accordingly, Article 14 taken together with Article 8 is applicable. Frankly,
I find this conclusion illogical.
I would add that the approach followed in Fretté has had the practical
effect of allowing applications relating to the preliminary phases in the
process of adopting a child brought by homosexuals under Article 14 taken
in conjunction with Article 8 to be declared admissible, whereas those
brought by heterosexuals relying on Article 8 alone have to be dismissed as
incompatible ratione materiae with the provisions of the Convention.
Admittedly, in recent years the Court’s interpretation of Article 14 has
greatly evolved. However, I consider that an interpretation which leads to
declarations of applicability that generate discrimination a contrario in the
treatment of applications does not correspond to the spirit and letter of
Article 14.
AS REGARDS THE VIOLATION
With regard to the merits, I share neither the reasoning nor the
conclusion of the majority.
The Court observed that the domestic administrative authorities and then
the courts which dealt with the applicant’s case had based their decisions to
reject her application on two main grounds: the lack of a paternal referent
and the ambivalence of the commitment of each member of the household.
Regarding the first ground, which was based on the lack of a paternal
referent in the applicant’s household, I admit that I have serious doubts as to
its compatibility with Article 14 of the Convention. The present case
concerns an application for authorisation to adopt lodged not by a couple,
but by a single person. To my mind, the decision whether or not to grant
single persons the possibility of adopting a child is within the State’s margin
of appreciation; once such a possibility has been granted, however,
requiring a single person to establish the presence of a referent of the other
sex among his or her immediate circle of family and friends runs the risk of
rendering ineffective the right of single persons to apply for authorisation.
However, I consider that the second ground on which the domestic
authorities based their decision, which was based on the attitude of the
applicant’s partner, calls for a different approach. Although she was the
long-standing and declared partner of the applicant, Ms R., who lived with
the applicant, clearly distanced herself from the application for authorisation
to adopt. The authorities, which constantly remarked on this point –
expressly and giving reasons – concluded that the applicant did not provide
the requisite safeguards for adopting a child.
Article 4 of Decree No. 98-771 of 1 September 1998 requires the
president of the council for the relevant département to satisfy himself that
the conditions in which an applicant is proposing to provide a child with a
home meet the child’s needs from a family, child-rearing and psychological
perspective. The importance of these safeguards – of which the authorities
must be satisfied before authorising a person to adopt a child – can also be
seen in the relevant international instruments, be it the United Nations
Convention on the Rights of the Child of 20 November 1989, the Hague
Convention of 29 May 1993 or the draft European Convention on the
Adoption of Children (see paragraphs 28-31 of the judgment).
Moreover, in the domestic legislation and in all the relevant international
instruments it is the child’s best interests that are paramount (ibid.), as has
always been accepted and stressed by our Court in all cases concerning
minors. Like the Conseil d’Etat, I consider that where a single person
seeking to adopt is in a stable relationship with another person, who will
inevitably be required to contribute to providing the child with a suitable
home, the administrative authority has the right and the duty to ensure –
even if the relationship in question is not a legally binding one – that the
conduct or personality of the third person, considered on the basis of
objective considerations, is conducive to providing a suitable home. It is
incumbent on the State to ensure that the conditions in which a child – who
very often has experienced great suffering and difficulty in the past – is
provided with a home are the most favourable possible.
I therefore consider that the second ground is sufficient and relevant
reason alone for refusing to grant the applicant authorisation. I therefore do
not subscribe to the “contamination” theory propounded by the majority in
paragraphs 80 et seq. of the judgment. On this point I share the
considerations expressed by Judge Loucaides. I prefer to confine myself to
the law of the legal systems I know best, according to which, where a
decision is based on a number of grounds, it is sufficient for one of those
grounds to be valid for the decision as a whole to be regarded as valid.
I would add that I find the majority’s interpretation of the conclusions
reached by the domestic courts to be unjustified: although the latter
constantly asserted that it was not the applicant’s homosexuality that was the
basis of the refusal to grant authorisation, the majority consider that the
reference to the applicant’s homosexuality was, if not explicit, at least
implicit, and that the influence of this consideration on the assessment of
her application has been established and was a decisive factor (see
paragraph 89 of the judgment).
However, it was actually the applicant herself who had declared her
homosexuality given that at the time at which her application was being
processed she was in a stable homosexual relationship. I do not find
anything discriminatory about the national authorities’ reference, in their
decisions, to the applicant’s avowed homosexuality and her relationship.
Would it not also be relevant to refer to the personality of a heterosexual
partner cohabiting with a prospective adoptive parent in a stable relationship
and to his or her attitude to the partner’s plans to adopt? I do not see any
valid reasons for arguing that the authorities should not have made the
slightest reference to these factors. The child was to arrive in a household
composed of two people; the personality and attitude of those two people
therefore had to be taken into account by the authorities.
Nor do I understand on what basis it can be concluded that the influence
of the applicant’s homosexuality was a decisive factor whereas, unlike in the
case of Salgueiro da Silva Mouta v. Portugal, the domestic authorities
always specified that it was not the applicant’s sexual orientation that had
founded the decision to refuse to grant her authorisation.
For all the foregoing reasons, I find that there has not been a violation of
Article 14 taken together with Article 8.
Autore:
Corte Europea dei Diritti dell'Uomo
Dossier:
Famiglia e Religione
Parole chiave:
Divieto di discriminazione, Minori, Adozione, omosessuali, Single, Vita privata e familiare
Natura:
Sentenza
File PDF:
4520-sentenza-22-gennaio-2008-n-43546-02.pdf