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French same sex couple fail in ECtHR discrimination claim on grounds of refused adoption

Dissenting judgment expresses concern for the interests of the child

In Gas and Dubois v France Application no 25951/07 15th March 2012 (judgment available in French only), the European Court of Human Rights has rejected the claim by a French couple that French law, which does not allow 'simple adoption' by parties to a civil partnership, has infringed their Article 8 rights.

Valerie Gas and Nathalie Dubois brought a claim to the European Court alleging that they had suffered discrimination because French law does not allow adoption of a child by a same sex couple or by the same sex partner of a parent.  In particular, they complained that they had been the victims of discriminatory treatment based on their sexual orientation in a manner which breached their Article 8 right to family life.
In French law, there are two kinds of adoption, 'full adoption' and 'simple adoption'. The former is broadly equivalent to an English adoption, and is available only to married couples and single adopters. The latter is more akin to Special Guardianship where legal parentage remains with the birth family, but with the adopter holding the primary parental responsibility.

The applicants had been living together since 1989. In 2000 Mme Dubois gave birth to a baby girl following an assisted conception in Belgium using an anonymous donor. The couple then entered into a civil partnership (PACS) in 2002. In 2006 Valerie Gas applied to adopt the child in the form of a 'simple adoption' with the birth mother's consent. This would have resulted in the birth mother's parental rights being diminished. The application for adoption was refused on grounds that an adoption by Mme Gas would have legal consequences contrary to the intention of the applicants and the child in reducing the birth mother's own rights in relation to the child. The applicants argued that this concern could be met by the adoptive parent delegating rights back to the birth mother, but the decision was upheld on appeal. An application was therefore made to the European Court of Human Rights.

The court first considered the position of the applicants as compared to a married couple when considering whether there had been discrimination. In particular the court considered the position in French domestic law which enables a married couple to adopt, but not an unmarried couple. Since same sex couples are not permitted to marry in France the applicants argued that this amounted to discrimination on grounds of sexual orientation. This argument was rejected by the ECtHR, which reiterated the case of Schalk v Kopf in which it was held that the decision whether to allow same sex couples to marry is a matter for individual member states within their margin of appreciation. Further, that where an alternative to marriage is offered to same sex couples such as the PACS or a civil partnership, the extent to which that alternative offers the same rights as marriage is also within the margin of appreciation. The ECtHR therefore held that the special status which marriage confers means that the position of the applicants could not properly be describes as comparable to a married couple.

Secondly, the court considered whether the applicants were treated any differently to an opposite-sex couple who had entered into a PACS. Since any couple in a PACS would not be permitted to adopt a child, the court concluded that the difference in treatment which the applicants complained of was not based on their sexual orientation, but on their status as an un-married couple.

It is of note however, that Judge Villiger gave a dissenting judgement in which he expressed his concerns that the decision of the court concentrated on the interests of the adults, rather than on the paramount interests of the child. He grasped that essentially the problem with French domestic law is that it fails to offer any mechanism whereby same sex couples can share parental responsibility for a child they are parenting together, whereas a heterosexual couple who are not both the genetic parents of the child can marry and then adopt. Judge Villiers considered that the best interests of the child concerned required that they should have the same security of framework available to them as a child living with a heterosexual couple, namely shared parental responsibility.

Marisa Allman, barrister, Zenith Chambers