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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> E.B. v. FRANCE - 43546/02  ECHR 55 (22 January 2008)
Cite as: 23 BHRC 741,  1 FLR 850, (2008) 47 EHRR 21,  1 FCR 235,  ECHR 55, 47 EHRR 21
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CASE OF E.B. v. FRANCE
(Application no. 43546/02)
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:
Ireneu Cabral Barreto,
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:
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.
I. THE CIRCUMSTANCES OF THE CASE
“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 ...).
“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 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.”
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?...”
“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...”.
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?) ...”
“...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. ...”
“ ... 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.”
“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.”
“... 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. ...”
“... 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 well-adjusted 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, child-rearing 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 ...”
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 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...”.
“... 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 above-mentioned 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;
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
“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 twenty-eight years of age.”
“Adoption may also be applied for by any person over twenty-eight years of age. ...”
2. Family and Social Welfare Code
“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. ...”
“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.”
3. Decree no. 98-771 of 1 September 1998 establishing the arrangements for appraising applications for authorisation to adopt a child in State care
“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. ...”
“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 ...”
“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
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 same-sex couples who are living together in a stable relationship.”
2. International Convention on the Rights of the Child
“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.”
“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.”
“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.”
“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.”
“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
“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.”
“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.”
“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.”
“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.”
A. Submissions of the parties
1. The applicant
2. The Government
B. The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8
A. Submissions of the parties
1. The applicant
2. The Government
B. The Court's assessment
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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 twenty-eight 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;
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
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.
DISSENTING OPINION OF JUDGE COSTA JOINED BY JUDGES TÜRMEN, UGREKHELIDZE AND JOČIENĖ
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.
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.
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.
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 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
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.
DISSENTING OPINION OF JUDGE MULARONI
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.
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.