Euro Court rules gay couples eligible to adopt

The European Court of Human Rights has ruled refusing gay couples the right to adopt a child because of their sexual orientation is discriminatory and in breach of the European Convention of Human Rights.

Today the Grand Chamber delivered its judgement on gay adoption in the case of E.B. v France.

The Court held by ten votes to seven that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court by eleven votes to six awarded the applicant 10,000 euros (£7,450) in respect of non-pecuniary damage and 14,528 euros for costs and expenses.

Ms. E.B. is a lesbian nursery school teacher who has been living with another woman since 1990.

She applied for approval as a possible adoptive parent in February 1998, but her application was rejected.

In June 2002, the highest administrative court in France upheld the rejection of her application.

ILGA-Europe (the European Region of the International Lesbian and Gay Association), FIDH (Fédération Internationale des Ligues des Droits de l’Homme), APGL (Association des Parents et futurs Parents Gays et Lesbiens) and the BAAF (British Association for Adoption and Fostering) were granted permission to take part in the proceedings as third parties.

Patricia Prendiville, Executive Director of ILGA-Europe, told PinkNews.co.uk:

“We welcome today’s judgement of the European Court of Human Rights. This is a significant change in the Court’s approach towards and interpretation of the rights of LGBT people under the European Convention on Human Rights.

“Today the Court firmly established a principle that administrative officials cannot discriminate against an individual on the basis of her/his sexual orientation in the process of applying to adopt a child.

“This builds on the Court’s judgments in Smith Grady v United Kingdom (1999), that LGBT people must be allowed to serve in the armed forces, and Mouta v Portugal (1999), that the sexual orientation of a parent is irrelevant when determining who should have custody of a child.”

Until today France permitted administrative officials to exclude openly lesbian, gay and bisexual individuals from applying to adopt children.

The European Court of Human Rights has decided that such a practice is discriminatory and violates the European Convention on Human Rights.

An ILGA-Europe spokesperson added:

“No one has an automatic right to adopt a child. But what the European Court of Human Rights said today is that European countries can no longer justify exclusion of lesbian, gay and bisexual individuals from applying for a child adoption.

“The Court has established the principle that ILGA-Europe has long fought for- each individual should be treated equally on the basis of their individual merits as a potential parent when applying to adopt a child.

“The sexual orientation of the applicant is irrelevant and cannot be used to exclude them from the possibility of adopting a child.

“It is in the best interest of children in Europe and outside Europe that no potential adoptive parent be excluded from consideration for an irrelevant and discriminatory reason.”

The press statement released by the registrar of the European Court of Human Rights states:

“The Court held by ten votes to seven that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

“Under Article 41 (just satisfaction) of the Convention, the Court by eleven votes to six awarded the applicant 10,000 euros (£7,553) in respect of non-pecuniary damage and EUR 14,528 (£10,973) for costs and expenses.”

In the UK gay, lesbian and bisexual individuals and couples are legally entitled to be considered as adoptive parents under the Sexual Orientation Regulations which came into force last year.

Roman Catholic-run adoption agencies have until the end of this year to comply with the new rules or shut down.

FULL JUDGEMENT

Press release issued by the Registrar

GRAND CHAMBER JUDGMENT

E.B. v. FRANCE

The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment1 in the case of E.B. v. France (application no. 43546/02).

The Court held by ten votes to seven that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court by eleven votes to six awarded the applicant 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 14,528 for costs and expenses. (The judgment is available in English and French.)

1. Principal facts

E.B. is a French national aged 45. She is a nursery school teacher and has been living with another woman, R., who is a psychologist, since 1990.

The application concerns the refusal by the French authorities to grant the applicant’s request to adopt a child, allegedly on account of her sexual orientation.

In February 1998 the applicant applied to the Jura Social Services Department for authorisation to adopt a child. During the adoption procedure she mentioned her homosexuality and her stable relationship with R.

On the basis of the reports drawn up by a social worker and a psychologist, the adoption board made a recommendation in November 1998 that the application be rejected.

Shortly afterwards the president of the council for the département of the Jura gave a decision refusing authorisation. Following an appeal by the applicant, the president of the council for the département confirmed his refusal in March 1999. The reasons given for both decisions were the lack of “identificational points of reference” due to the absence of a paternal image or reference and the ambiguous nature of the applicant’s partner’s commitment to the adoption plan.

The applicant lodged an application with Besançon Administrative Court, which set both decisions of the president of the council for the département aside on 24 February 2000.

The département of the Jura appealed against the judgment. Nancy Administrative Court of Appeal set aside the Administrative Court’s judgment on 21 December 2000. It held that the refusal to grant the applicant authorisation had not been based on her choice of lifestyle and had not therefore given rise to a breach of Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights.

The applicant appealed on points of law, arguing in particular that her application to adopt had been rejected on account of her sexual orientation. In a judgment of 5 June 2002, the Conseil d’Etat dismissed E.B.’s appeal on the ground, among other things, that the Administrative Court of Appeal had not based its decision on a position of principle regarding the applicant’s sexual orientation, but had had regard to the needs and interests of an adopted child.

2. Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 2 December 2002.

The FIDH (Fédération Internationale des ligues des Droits de l’Homme), the ILGA-Europe (the European Region of the International Lesbian and Gay Association), the APGL (Association des Parents et futurs Parents Gays et Lesbiens) and the BAAF (British Agencies for Adoption and Fostering) were given leave to take part in the proceedings before the Chamber as third party interveners under Article 36 § 2 of the Convention (third party intervention) and Rule 44 § 2 of the Rules of Court.

On 19 September 2006, under Article 30 of the Convention2, the Chamber relinquished jurisdiction in favour of the Grand Chamber.

A public hearing took place in the Human Rights building, Strasbourg, on 14 March 2007.

Judgment was given by the Grand Chamber of 17 judges, composed as follows:

Christos Rozakis (Greek), President,

Jean-Paul Costa (French),

Nicolas Bratza (British),

Boštjan M. Zupančič (Slovenian),

Peer Lorenzen (Danish),

Françoise Tulkens (Belgian),

Loukis Loucaides (Cypriot)

Ireneu Cabral Barreto (Portuguese),

Rıza Türmen (Turkish),

Mindia Ugrekhelidze (Georgian),

Antonella Mularoni (San Marinese),

Elisabeth Steiner (Austrian),

Elisabet Fura-Sandström (Swedish),

Egbert Myjer (Dutch),

Danutė Jočienė (Lithuanian),

Dragoljub Popović (Serbian),

Sverre Erik Jebens (Norwegian) judges,

and also Michael O’Boyle, Deputy Registrar.

3. Summary of the judgment3

Complaints

Relying on Article 14 of the Convention, taken in conjunction with Article 8, 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.

Decision of the Court

Admissibility

The Court reiterated at the outset that whilst French law and Article 8 did not guarantee either the right to found a family or the right to adopt (which neither party contested), the concept of “private life” within the meaning of Article 8 was a broad one which encompassed a certain number of rights.

With regard to an allegation of discrimination on grounds of the applicant’s homosexuality, the Court also reiterated that Article 14 (prohibition of discrimination) had no independent existence.

The application of Article 14 did not necessarily presuppose the violation of Article 8. It was sufficient for the facts of the case to fall “within the ambit” of that Article.

This was the case here since French legislation expressly granted single persons the right to apply for authorisation to adopt and established a procedure to that end.

Consequently, the Court considered that the State, which had gone beyond its obligations under Article 8 in creating such a right, could not then take discriminatory measures when it came to applying it.

The applicant alleged that, in the exercise of her right under the domestic law, she had been discriminated against on the ground of her sexual orientation, which was a concept covered by Article 14.

Article 14 of the Convention, taken in conjunction with Article 8, was therefore applicable in the present case.

Article 14 in conjunction with Article 8

After drawing a parallel with a previous case, the Court pointed out that the domestic administrative authorities, and then the courts that heard the applicant’s appeal, had based their decision to reject her application for authorisation to adopt on two main grounds: the lack of a paternal referent in the applicant’s household, and the attitude of the applicant’s declared partner.

The Court found that the attitude of the applicant’s partner was not without interest or relevance in assessing the application.

In the Court’s view, it was legitimate for the authorities to ensure that all safeguards were in place before a child was taken into a family, particularly where not one but two adults were found to be living in the household.

In the Court’s opinion, that ground had nothing to do with any consideration relating to the applicant’s sexual orientation.

With regard to the ground relied on by the domestic authorities relating to the lack of a paternal referent in the household, the Court considered that this did not necessarily raise a problem in itself. However, in the present case it was permissible to question the merits of such a ground as the application had been made by a single person and not a couple.

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, and the Government had been unable to prove that use of that ground at domestic level had not been leading to discrimination.

Regarding the systematic reference to the lack of a “paternal referent,” the Court disputed 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 the applicant’s homosexuality had featured to such an extent in the reasoning of the domestic authorities was significant despite the fact that the courts had considered that the refusal to grant her authorisation had not been based on that.

Besides their considerations regarding the applicant’s “lifestyle,” they had above all confirmed the decision of the president of the council for the département recommending that the application for authorisation be refused and giving as reasons the two impugned grounds: the wording of certain opinions revealed that the applicant’s homosexuality or, at other times, her status as a single person had been a determining factor in refusing her authorisation whereas the law made express provision for the right of single persons to apply for authorisation to adopt.

The Court considered that the reference to the applicant’s homosexuality had been, if not explicit, at least implicit; the influence of her homosexuality on the assessment of her application had not only been established but had also been a decisive factor leading to the decision to refuse her authorisation to adopt.

Accordingly, it considered that the applicant had suffered a difference in treatment.

If the reasons advanced for such a difference in treatment were based solely on considerations regarding the applicant’s sexual orientation this amounted to discrimination under the Convention.

In any event, particularly convincing and weighty reasons had to be made out in order to justify such a difference in treatment regarding rights falling within the ambit of Article 8.

There were no such reasons in the present case because French law allowed single persons to adopt a child, thereby opening up the possibility of adoption by a single homosexual.

Furthermore, the Civil Code remained silent as to the necessity of a referent of the other sex and, 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.”

The Court noted that the applicant’s situation had been assessed overall by the domestic authorities, who had not based their decision on one ground alone but on “all” the factors, and considered that the two main grounds had to be examined concurrently.

Consequently, the illegitimacy of one of the grounds (lack of a paternal referent) had the effect of contaminating the entire decision.

The Court concluded that the decision refusing the applicant authorisation was incompatible with the Convention and that there had been a violation of Article 14 of the Convention, taken in conjunction with Article 8.

Judges Lorenzen and Jebens expressed a concurring opinion, and Judges Costa, Türmen, Ugrekhelidze, Jočienė, as well as Judges Zupančič, Loucaides and Mularoni, expressed dissenting opinions. These are annexed to the judgment.

***

The Court’s judgments are accessible on its Internet site (https://www.echr.coe.int).