CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 mars 2022

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page-break-after:avoid; line-height:113%; font-size:10pt } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .sA50A48B9 { margin-top:14pt; margin-bottom:3pt; text-align:justify } .s21B97EC1 { width:25.99pt; display:inline-block } .s5BA4079A { width:22.66pt; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s9D025815 { width:20.21pt; display:inline-block } .sC6726222 { width:137.43pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt }   FIFTH SECTION CASE OF C.E. AND OTHERS v. FRANCE (Applications nos. 29775/18 and 29693/19)     JUDGMENT   Art 8 • Positive obligations • Inability to obtain recognition of legal parent-child relationship between child and biological mother’s former female partner • Respect for child’s best interests • Family life comparable to that led by most families after separation of couple • Private life • Existence of legal instruments enabling legal recognition of existing parent-child relationship between child and biological mother’s former female partner   STRASBOURG 24 March 2022 FINAL   05/09/2022   This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of C.E. and Others v. France, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President ,   Mārtiņš Mits,   Ganna Yudkivska,   Lətif Hüseynov,   Ivana Jelić,   Mattias Guyomar,   Kateřina Šimáčková, judges , and Victor Soloveytchik, Section Registrar, Having regard to: the applications (nos.   29775/18 and 29693/19) 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 five French nationals, C.E., C.B. and M.B. (application no.   29775/18) and A.E. and T.G. (application no.   29693/19) (“the applicants”), on 20   June 2018 and 3   June 2019 respectively; the decision to give notice to the French Government (“the Government”) of the complaint under Article   8 of the Convention and to declare inadmissible the complaints under Article   14 of the Convention taken in conjunction with that provision; the decision not to disclose the applicants’ names; the parties’ observations; Having deliberated in private on 8   February and 1   March 2022, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The two applications concerned the applicants’ inability to obtain legal recognition of a parent-child relationship between a child and the former same-sex partner of that child’s biological mother. Relying on Article   8 of the Convention, the applicants complained of a violation of their right to respect for their private and family life. THE FACTS 2 .     The applicants C.E., C.B. and M.B. (application no.   29775/18) were born in 1974, 1967 and 2002 respectively and live in France. They were represented by Ms   A. Denarnaud, lawyer. The application form was signed by the three applicants and by their lawyer. 3 .     The applicants A.E. and T.G. (application no.   29693/19) were born in 1980 and 2008 respectively and live in France. They were represented by Ms   C. Mécary, lawyer. A.E. declared that she was acting before the Court not only in her own name and on her own behalf, but also in the name and on behalf of T.G. She clarified that she was authorised to take legal action on behalf of T.G. under a court order for the delegation of parental responsibility on a shared basis (see paragraph 21 below). 4.     The Government were represented by their Agent, Mr   F. Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs. APPLICATION NO.   29775/18 5.     On 13 January 2002, when C.E. and C.B. had been living together as a couple for several years, C.B. gave birth to M.B., of whom she was the sole legal parent. The applicants clarified that M.B. had been conceived “with the help of a friend and donor in France”. 6.     C.E and C.B. raised the child together until the couple separated in 2006. 7.     From that time onwards, under an amicable agreement reached with C.B., C.E. enjoyed contact rights with the child, which entailed having her to stay every other weekend and for half the school holidays. In addition, she made monthly payments to C.B. for the child’s everyday care and education. 8 .     In March 2015 C.E. and C.B. agreed before a notary to the full adoption of the child by C.E. The full adoption proceedings The Aix-en-Provence tribunal de grande instance ’s judgment of 9   May 2016 9.     On 29   July 2015 C.E. applied to the Aix-en-Provence tribunal de grande instance for a full adoption order in respect of M.B. The court was asked to order the adoption while retaining the legal relationship between the child and C.B., and to rule that the child would bear the surnames of both C.B. and C.E. 10.     In a judgment delivered on 9   May 2016 the court rejected the application on the following grounds: “The provisions of Article   345-1 of the Civil Code concerning the prerequisites for the full adoption of the spouse’s child are not applicable in the present case in so far as the applicant is not married to the mother of the child [she] wishes to adopt. The Court of Cassation has accepted that ‘the use of assisted reproductive technology in the form of artificial insemination performed abroad using an anonymous donor does not preclude the adoption, by the mother’s spouse, of the child born through such reproductive means, provided that the statutory prerequisites for adoption are met and that such adoption is in keeping with the child’s interests’, notwithstanding Article   L. 2141-2 of the Public Health Code, under which such assistance is not available to same-sex female couples in France. Thus, although the present application can avail itself of the provisions concerning full adoption on an individual basis, since the child ... has no established legal paternity, it should be noted that, while the Court of Cassation’s ruling is a noteworthy departure from the applicable positive law, it need not be extended to an unmarried, same-sex female couple that has been separated since 2006. Authorising the full adoption of a child by a person whose separation from the child’s mother means that she has not shared in that child’s everyday life for several years would be incompatible with the provisions of Article   345, paragraph   1 of the Civil Code and with the spirit of the rules governing full adoption, the purpose of which is to create a material and emotional community around the adopted minor. In the present case, the application conflicts with the child’s interests at the present time. Although the prerequisites as to the consent of the mother and the child are satisfied, the court considers that [C.B.’s and C.E.’s] separation, since 2006, constitutes a major impediment to a full adoption order in respect of the child ..., especially since [C.B.]’s birth certificate indicates that a civil partnership was registered with the Salon de Provence tribunal d’instance on 24   February 2010. ...” The Aix-en-Provence Court of Appeal’s judgment of 24   November 2016 11.     On an appeal lodged by C.E., the Aix-en-Provence Court of Appeal delivered a judgment on 24   November 2016 upholding the judgment of 9   May 2016 on the following grounds: “... [C.E.], who is not married, is thus acting in an individual capacity [under Article   343-1 of the Civil Code]. Under Article 356 of the Civil Code, ‘[full] adoption shall confer on the child a legal parent-child relationship that shall replace his or her initial parent-child relationship; the adopted child shall cease to be a member of his or her blood family’. It is not certain that [C.B.], the child’s biological mother, who gave her consent to the adoption, truly understood that her daughter’s adoption by [C.E.] would automatically terminate her own legal relationship to her child. Article 357 of the Civil Code provides that “adoption shall confer on the child the surname of the adoptive parent”. [C.E.], who requested in her application that the child be given a double-barrelled surname composed of [C.B.’s and C.E.’s surnames], also appears not to have realised that the effect of adoption would be to sever the existing legal relationship between the child and her biological mother. Article   365 of the Civil Code provides that all rights associated with parental responsibility in respect of the adoptee are vested in the adoptive parent alone. In the present case, it is evident that such a solution is not in the child’s interest, especially as [C.E and C.B.] have not lived together for ten years. In its judgment of 20   February 2007 the Court of Cassation ruled against simple adoption by the mother’s cohabiting female partner after noting that it would be contradictory, in the context of adoption, to delegate or share parental responsibility since the adoption of a minor was designed to attribute exclusive parental responsibility to the adoptive parent.   [C.E.]’s appeals to the principle of equality and non-discrimination are irrelevant. The fact that the applicant is homosexual is immaterial to the resolution of the matter in dispute . It is [the child’s] best interests and the need to maintain a legal relationship with her biological mother – a relationship which [C.B.] has not expressly renounced – which leads this court to uphold the lower court’s decision to reject the application for the child’s full adoption   [by C.E.].” The Court of Cassation’s judgment of 28   February 2018 12.     C.E. appealed against that judgment on points of law. In her sole ground of appeal, she first stressed that any decision in respect of the child should be guided by the child’s best interests and that the State should allow established family ties to develop. She then criticised the Court of Appeal for having confined itself to observing that her application for adoption would have the effect of severing the existing parent-child relationship between the child and her biological mother and that C.E.’s and C.B.’s separation constituted a major impediment to adoption. In so doing, it had failed to examine whether the child’s best interests might not require that the application be granted without applying the domestic statutes that restricted adoption to children arriving in the adoptive parent’s home and entailing termination of the legal relationship between the child and her biological mother, so as to allow a legal relationship to be established with C.E., in keeping with an existing emotional bond, while preserving the existing legal relationship with C.B. She concluded that the Court of Appeal’s decision was devoid of legal basis for the purposes of Article   8 of the Convention. 13.     In a judgment delivered on 28   February 2018 the Court of Cassation (First Civil Division) dismissed the appeal on points of law on the following grounds : “... while the full adoption of a child by a person over the age of twenty-eight is authorised under Article   343-1 of the Civil Code, its effect, under Article   356 of that same Code, is to confer on that child a legal parent-child relationship that replaces his or her initial parent-child relationship and deprives him or her of any membership of his or her blood family: only full adoption of a spouse’s child, as permitted under Article   345-1, leaves the child’s initial relationship with that spouse and his or her family intact; the right to respect for private and family life secured by Article   8 of the Convention ... does not require that all emotional bonds be legalised by way of adoption, long-standing and established though they may be; ... after noting that, as [C.E. and C.B.] were not married, [the child]’s full adoption by [C.E.] would terminate the legal relationship between the child and her mother, who had not renounced it, which would run counter to the child’s best interests, which lay in maintaining the legal relationship with her biological mother, the Court of Appeal, which was not required to undertake an examination that fell outside its remit, justified it decision in law. ” The proceedings to establish the de facto enjoyment of status as child ( possession d’état d’enfant ) 14.     In the meantime, on 31   May 2016, C.E. and C.B. had applied to the Narbonne tribunal d’instance requesting a document attesting to a matter of common knowledge ( acte de notoriété ) establishing a legal parent-child relationship between C.E. and the child. They produced, in particular, seven certificates seeking to establish that relationship and a transfer account debit statement showing frequent transfers of funds from C.E.’s account to C.B. 15.     On 18   July 2016 that court noted that the child had been “acknowledged to be C.E.’s child in society, by the family and by the public authorities [and] that, in conclusion, she de facto enjoyed the status of being C.E.’s child ”. 16.     On 12   October 2017 the public prosecutor at the Narbonne tribunal de grande instance nevertheless brought proceedings against the applicants in that court to challenge that de facto enjoyment of status. 17.     In a judgment of 23   August 2018 (not produced in evidence), the Narbonne tribunal de grande instance declared the certificate issued to C.E. null and void as being contrary to law. The applicants did not appeal against that judgment. 18 .     To justify their failure to pursue a remedy against the judgment of 23   August 2018, the applicants produced an opinion delivered by the Court of Cassation (First Civil Division) on 7   March 2018 in proceedings to which they had not been parties. In response to the following questions: “Do Articles   317 and 320 of the Civil Code authorise the delivery of a document attesting to a matter of common knowledge, namely to de facto enjoyment of status, in favour of the cohabiting same-sex partner of a parent with whom a legal relationship has already been established? If not, does the inability [to deliver such a document] run counter to the child’s best interests within the meaning of Article   3 §   1 of the International Convention on the Rights of the Child? And can it, in the light of the factual circumstances of the case as assessed by the lower court, constitute disproportionate interference with the right to respect for private and family life as secured by Article   8 of the Convention ..., having regard to the legitimate aim pursued?” , the Court of Cassation had delivered the following opinion : “In extending marriage to same-sex couples, Law no.   2013-404 of 17   May 2013 expressly excluded the establishment of a parent-child relationship in respect of two individuals of the same sex otherwise than through adoption. Thus, Article   6-1 of the Civil Code, which codifies that law, provides that marriage and parentage through adoption give rise to the same legally recognised effects, rights and obligations, with the exception of those provided for in Title   VII of Book   I of that Code, whether the spouses or parents are of the same or opposite sex. The procedures for establishing the legal parent-child relationship under Title   VII of Book   I of the Civil Code, such as recognition or presumption of paternity, or de facto enjoyment of status, have therefore not been extended to same-sex spouses, let alone to same-sex partners. In any event, Article   320 of the Civil Code provides that, unless it has been challenged in the courts, the legally established relationship precludes the establishment of any conflicting parent-child relationship. These provisions make it impossible to establish two mother-child or two father-child relationships in respect of the same child. It follows that a legal parent-child relationship cannot be established, on the basis of de facto enjoyment of status, in respect of the same-sex partner of a parent with whom a legal parent-child relationship has already been established. The review of compliance with Article   3 §   1 of the New York Convention of 20   November 1989 and with Article   8 of the Convention ..., falls within the purview of the lower courts’ preliminary examination and, as such, falls outside the scope of advisory proceedings. Consequently, THE COURT IS OF THE OPINION THAT: (1) The lower court cannot deliver a document attesting to a matter of common knowledge, namely to de facto enjoyment of status, in favour of the same-sex partner of a parent with whom a legal parent-child relationship has already been established. (2) The second question falls within the purview of the lower court’s preliminary examination and, as such, falls outside the scope of advisory proceedings. ” APPLICATION NO.   29693/19 19.     In May   2006 A.E. entered into a civil partnership with K.G., whom she had met in 2001. 20.     Having had recourse to assisted reproductive technology (hereinafter “ART”) abroad, K.G. gave birth to T.G. on 13   November 2008. 21 .     On 16   March 2010 K.G. applied to the family-affairs judge of the Rennes tribunal de grande instance under Articles   377 and 377 ‑ 1   of the Civil Code seeking to exercise joint parental responsibility with A.E. After noting, in particular, that A.E. was financially and educationally apt to provide for the child’s needs, and that the requested delegation of parental responsibility was in keeping with the child’s interests, the family-affairs judge granted that request in a judgment delivered on 27   May 2010, pointing out that A.E. and K.G. were each “deemed to act with the other’s consent when acting alone in the usual exercise of parental responsibility in respect of the child”. 22.     A.E. gave birth to a daughter in October 2011. In May 2012 the same court ordered the delegation of parental responsibility on a shared basis between A.E. and K.G. 23.     A.E. and K.G. separated and their civil partnership was dissolved in October 2014. They then set up an alternating custody arrangement for the two children such that they would always be living together at one or the other of the women’s homes. 24 .     On 2   July 2018 A.E. applied to the Rennes tribunal de grande instance requesting a document attesting to a matter of common knowledge to establish de facto enjoyment of status with regard to T.G. She argued that the statutory prerequisites for the delivery of such a document were satisfied and submitted that the lack of recognition of a legal parent-child relationship between her and T.G. would run counter to the child’s best interests within the meaning of Article   3   §   1 of the International Convention on the Rights of the Child and would interfere with their right to respect for their private and family life, resulting in discrimination against her in the exercise of that right. K.G. applied to intervene in the proceedings. 25.     In a decision issued on 20   December 2018, against which there lay no appeal, the Vice-President of the court dismissed that request on the following grounds: “... On 7   March 2018 the First Civil Division of the Court of Cassation delivered an opinion to the effect that Articles   6-1 and 320 of the Civil Code ... make it impossible to establish two mother-child or two father-child relationships in respect of the same child. A legal parent-child relationship cannot be established, on the basis of de facto enjoyment of status, in respect of the same-sex partner of a parent with whom a legal parent-child relationship has already been established, such that a lower court cannot deliver a document attesting to a matter of common knowledge, namely to de facto enjoyment of status, in favour of the same-sex partner of a parent with whom a legal parent-child relationship has already been established. It follows that French positive law makes no provision for the establishment, on the basis of de facto enjoyment of status, of dual parent-child relationships with regard to same-sex partners ... Concerning the child’s best interests: Under Article   3.1 of the International Convention on the Rights of the Child ... The child’s best interests must be assessed in the light of the particular circumstances of the case. In the present case, the child already enjoys legal recognition of his relationship to [K.G.], his biological mother. Despite the separation, he has very regular contact with [the claimant] since an alternating custody arrangement has been established. [The claimant] points out that she contributes to the child [T.G.]’s everyday care and education . In view of the very good relations kept up by the claimants, the delegation of parental responsibility on a shared basis between [K.G.] and [the claimant] in respect of the child [T.G.] delivered on 27   May 2010 ... , an appointment as testamentary guardian and the legislation on testamentary gifts would, moreover, allow [T.G.] to be sufficiently integrated into his intended family and his relationship to [the claimant] to be legally secured to a satisfactory extent. Without in any way calling into question the reality or strength of the emotional bonds formed between [the applicant] and the child since his birth, it has therefore not been shown that, in the particular circumstances of the case, the child’s best interests require that a second mother-child relationship be legally established with the biological mother’s former female partner. Concerning the right to respect for private and family life: Under Article   8 of the Convention ... Article 6-1 of the Civil Code provides that marriage and parentage through adoption give rise to the same legally recognised effects, rights and obligations, with the exception of those provided for in Title   VII of Book   I of that Code, whether the spouses or parents are of the same or opposite sex. The procedures for establishing the legal parent-child relationship under Title   VII of Book   I of the Civil Code, such as recognition or presumption of paternity, or de facto enjoyment of status, have therefore not been extended to same-sex spouses, let alone to same-sex cohabiting partners. For the purposes of de facto enjoyment of status, a document attesting to a matter of common knowledge constitutes ex   parte evidence that is only valid until proof to the contrary is provided. Contrary to what the applicants’ counsel asserts, it is therefore a presumption that applies to parent-child relationships based on biological lineage and relates to an individual’s personal status. Its purpose is to forestall the conflicts that would otherwise arise from the legal recognition of dual relationships of the same nature in a kinship system based on the principles of sexual difference and biological lineage, whether real or symbolic, which can be derogated from solely in the context of marriage and through adoption. The statements and testimony produced confirm that [T.G.]’s birth was desired by [K.G.] and [the claimant] when they lived together as cohabiting partners. That birth was made possible through ART administered abroad involving a third-party donor. [K.G.] and [the claimant] raised the child jointly until their separation in 2012 and then set up a system of alternating custody. [T.G.]’s legal parentage is fully established as to his biological mother. Moreover , the State cannot be regarded as overstepping its margin of appreciation by refusing to recognise a second mother-child relationship in respect of [the claimant] as intended parent on the basis of de facto enjoyment of status. European law does not require that a parent-child relationship be recognised in respect of a person who is not the child’s biological parent and the judgment in the case of Kroon   and Others   v.   the Netherlands (27   October 1994, [Series A no.   297 ‑ C]), cited by the applicants, does not provide a relevant point of comparison since the Court merely asserts therein that ‘“respect” for “family life” requires that biological and social reality prevail over a legal presumption’. The existence of a ‘family life’ within the meaning of Article   8 ... and as broadly understood by the Court ... is accordingly fully established where the individuals concerned are able to lead a normal family life characterised by close, genuine relationships, while developing emotional bonds. It follows from all the above considerations that [the claimant’s] inability to have de   facto enjoyment of status recognised in respect of the child [T.G.] does not constitute interference with the right to respect for private and family life. ...” Whether there has been a violation of Article   14 of the Convention: Under Article   14 of the Convention ... In the absence of a violation of Article   8 of the Convention, this complaint must be set aside. ...” RELEVANT DOMESTIC LAW AND PRACTICE parental responsibility 26.     The relevant provisions of the Civil Code read as follows: Article 6-1 (as in force from 19   May 2013 to 4   August 2021) “Marriage and legal parenthood through adoption shall give rise to the same legally recognised effects, rights, and obligations, with the exception of those provided for in Title   VII of Book   I of this Code, whether the spouses or parents are of the same or opposite sex.” Article 320 “So long as it has not been challenged in court, a legally established parent-child relationship shall preclude the establishment of a different, conflicting parent-child relationship.” Article 371-1 “Parental responsibility is a set of rights and duties the purpose of which is to serve the child’s interests. It is vested in the parents until such time as the child reaches the age of majority or has been declared entitled to be treated as such ( la majorité ou l’émancipation de l’enfant ), for the protection of his or her health, safety and morals, and to ensure his or her education and development, with due respect for his or her person ...” Article 371-4 “The child shall have the right to maintain personal relationships with his or her ascendants. This right may be interfered with only where such interference is in the child’s interest . If the interests of the child so require, the family-affairs judge shall determine the arrangements concerning the relationship between the child and any other person, whether a relative or otherwise, in particular when that person has resided in a stable manner with the child and one of his or her parents, has provided for his or her education, everyday care or accommodation, and has developed a lasting emotional bond with him or her. ” Article 377 “Where circumstances so require, the father and mother may apply jointly or separately to the courts to have all or part of their parental responsibility delegated to a third party, whether a family member, a trusted close relative, an accredited institution for receiving children or the child welfare services of the relevant département ...” Article 377-1 “The delegation of parental responsibility, in whole or in part, shall result from a decision of the family-affairs judge. However, the order delegating parental responsibility may provide, in the interests of the child’s upbringing, that one or both parents are to share all or part of their parental responsibility with that third party. Such sharing shall require the consent of the parent or parents in so far as they exercise parental responsibility. The presumption made under Article 372-2 shall apply to the acts performed by the delegating parent or parents and the third party to which responsibility has been delegated. One or both parents, the third party or the public prosecutor’s office may bring before the courts any problems as may arise from the shared exercise of parental authority. The courts shall rule in accordance with the provisions of Article   373-2-11. ” Article 377-2 “In every case, the delegation may be terminated or transferred under a new order, where new circumstances have been adduced ...” FULL ADOPTION 27.     The relevant provisions of the Civil Code read as follows: Article 343-1 “Any person over the age of twenty-eight may also apply for adoption. If the adopting parent is married and not judicially separated, his or her spouse’s consent shall be required unless that spouse is unable to make his or her wishes known.” Article 345 “Adoption is allowed only in respect of children under fifteen, who have been received in the home of the adopting parent or parents for at least six months. However, where the child is older than fifteen and has been received in the home before having reached that age by persons who failed to satisfy the statutory requirements for adoption or where the child was adopted under the simple adoption procedure before having reached that age, full adoption may be applied for, subject to the necessary prerequisites, while the child is a minor and up to two years after reaching the age of majority.” If he or she is older than thirteen, the adopted child must personally consent to his or her full adoption. Such consent shall be given by means of the forms provided for in the Article   348-3, paragraph   1. It may be withdrawn at any time until the adoption decision .” Article 345-1 “Full adoption of the spouse’s child is permitted: 1 o Where that spouse is the child’s only legal parent; 1 o bis Where the child has been adopted by that spouse in accordance with the procedure for full adoption and that spouse is his or her only legal parent; 2 o Where the parent other than the spouse has had his or her parental responsibility wholly withdrawn; 3 o Where the parent other than the spouse is deceased and has left no ascendants in the first degree or where the latter have manifestly taken no interest in the child.” Article 347 “The following are eligible for adoption: 1 o Children whose adoption has been validly consented to by the parents or the family council; 2 o Wards of the State; 3 o Children who have been declared abandoned under the conditions set forth in Articles 381-1 and 381-2. ” Article 348-1 “Where a child’s parentage is established only with regard to one of his or her parents, consent to the child’s adoption shall be given by that parent.” Article 348-3 “Consent to adoption shall be given before a French or foreign notary, or before French diplomatic or consular agents. It may also be received by the child welfare services where the child has been entrusted to them. Consent to adoption may be withdrawn within two months. Withdrawal of consent must be made by registered letter with acknowledgment of receipt sent to the person or department having received the consent to adoption. The return of the child to his or her parents upon request, including verbal request, shall also constitute proof of withdrawal. In the event that consent has not been withdrawn upon the expiry of the two-month period, the parents may still request the child’s return, provided he or she has not already been placed with a view to adoption. If the person to whom the child has been entrusted refuses to return him or her, the parents may apply to the courts, which shall assess, in the light of the child’s interests, whether his or her return should be ordered. The consent to adoption shall lapse by effect of such return . ” Article 356 “Adoption shall confer on the child a legal parent-child relationship that shall replace his or her initial parent-child relationship; the adopted child shall cease to be a member of his or her blood family, subject to the prohibitions on marriage referred to in Articles   161 to 164. However, adoption of the spouse’s child shall leave the initial relationship intact with regard to that spouse and his or her family. It shall, moreover, produce the effects of adoption by two spouses.” Article 357 “Adoption shall confer on the child the surname of the adoptive parent. In the event of adoption of the spouse’s child or of adoption of a child by two spouses, the adoptive parent and his or her spouse or the adoptive parents shall choose, by joint declaration, the surname given to the child: either one of their names or their two names side by side in the order of their choice, limited to one surname each. ...” Article 358 “Within the adoptive parent’s family, the adopted child shall have the same rights and obligations as a child whose legal parent-child relationship has been established under Title   VII of the present Book.” Article 359 “Adoption is irrevocable.” SIMPLE ADOPTION 28.     The relevant provisions of the Civil Code read as follows: Article 360 “Simple adoption is permitted, irrespective of the age of the adopted person. ... If the adopted person is more than thirteen years of age, he or she must personally consent to his or her adoption.” Article 361 “Articles   343 to 344, the last paragraph of Article   345, Articles   346 to 350, 353, 353-1, 353-2, 355 and the last paragraph of Article   357 are applicable to simple adoption. ” Article 363 “Simple adoption shall confer the surname of the adoptive parent on the adoptee by addition to the adoptee’s surname. ...” Article 364 “The adoptee shall remain part of his or her family of origin and shall preserve all the rights associated therewith, in particular inheritance rights. The prohibitions on marriage provided for in Articles 161 to 164 of the present Code shall apply to the adoptee and his or her family of origin. ” Article 365 “All rights associated with parental responsibility shall be vested in the adoptive parent alone ... unless the adoptive parent is married to the adoptee’s mother or father. In this case, the adoptive parent and his or her spouse shall have joint parental responsibility, but the spouse shall continue to exercise it alone unless the couple make a joint declaration before the senior registrar of the tribunal de grande instance to the effect that parental responsibility is to be exercised jointly ...” Article 368 “The adoptee and his or her descendants shall have, within the adoptive parent’s family, the rights of succession provided for in Book III, Title I, Chapter III. The adoptee and his or her descendants shall not, however, have the status of mandatory heirs ( héritier réservataire ) with regard to the adoptive parent’s ascendants. ” 29.     The Court of Cassation’s case-law is well established in that, in the case of an underage child, an application for simple adoption by the female partner of that child’s biological mother cannot be granted, even with the latter’s consent, provided she means to keep raising the child, as such an adoption would transfer parental responsibility rights in respect of the child to the adoptive parent alone, thereby depriving the biological mother of her own rights in that regard (Court of Cassation , First Civil Division, 20   February 2007, judgments nos.   224 and 221, Bulletin civil 2007 I nos.   70 and 71). De facto enjoyment of status ( possession d’état ) 30.     The relevant provisions of the Civil Code with regard to de facto enjoyment of status are as follows: Article 311-1 “ De facto enjoyment of status shall be established on the basis of a sufficient set of facts attesting to the parent-child and kinship relations between a person and the family to which he or she is said to belong. Principal among those facts are the following: 1 o That this person has been treated by the nominal parent or parents as their child and that he or she has treated them as his or her parent or parents; 2 o That, in that capacity, they have provided for the child’s education, everyday care or accommodation; 3 o That this person is recognised as being their child in society and by the family; 4 o That this person is considered to be their child by the public authorities; 5 o That this person bears the name of his or her nominal parent or parents. ” Article 317 (as in force at the material time) “Either parent or the child may request that the tribunal d’instance of the child’s place of birth or residence deliver a document to them attesting to a matter of common knowledge that shall constitute evidence of de facto possession of status until proven otherwise. The document shall be established on the strength of statements from at least three witnesses and, if the judge deems it necessary, of any other document as may be produced attesting to a sufficient set of facts within the meaning of Article 311-1. Such a document may only be requested within a period of five years after cessation of the alleged de facto enjoyment of status or the death of the putative parent, including when the putative parent died prior to the declaration of birth. The parent-child relationship established on the basis of de facto enjoyment of the status recorded in the document shall be indicated in the margin of the child’s birth certificate. Neither the document nor refusal of delivery thereof shall be subject to appeal. ” the BIOETHICS ACT 2021 (law of 2 august 2021) and the circular of 21 september 2021 31.     The first acts of the French legislature in connection with bioethics date back to the Law of 20 December 1988 on the protection of biomedical research subjects and the Law of 29   July   1994 on the donation and use of parts and products of the human body, ART and prenatal diagnosis. Next came the Bioethics Act 2004 (Law of 6 August 2004), one of the titles of which concerned reproduction and embryology. Section   40 of that Act provided that it was to be re-examined as a whole by Parliament within a maximum period of five years after its entry into force, and that its application was to be assessed by the Parliamentary Office for the Assessment of Scientific and Technological Choices ( Office parlementaire d’évaluation des choix scientifiques et technologiques ) within a period of four years. That re-examination resulted in the enactment of the Bioethics Act 2011 (Law of 7   July 2011),   section   47 of which similarly provided that it was to be re-examined as a whole by Parliament within a maximum period of seven years after its entry into force and that, within a period of six years, its application was to be assessed by the Parliamentary Office for the Assessment of Scientific and Technological Choices. Moreover, section   46 of the Act provided that any proposed reform concerning the ethical and social issues raised by advances in knowledge in the fields of biology, medicine and healthcare were to be preceded by a public debate in the form of a consultation ( états généraux ). 32.     The National Ethics Advisory Committee on Life and Health Sciences thus launched the consultation on bioethics in January 2018. The question of extending ART access to female couples and single women was discussed in that framework. The committee published a summary report in July 2018 and an opinion on 18   September 2018, entitled “2018-2019 contribution of the National Ethics Advisory Committee to the revision of the Bioethics Act”, in which it indicated that it was in favour of extending ART access to female couples and single women. Other work was conducted at the same time in the context of which that question was also addressed: Senate meetings on bioethics (March to July   2018); a Conseil d’État study entitled “Revising the Bioethics Act: what are the options going forward? ”   (11   July 2018); assessment by the Parliamentary Office for the Assessment of Scientific and Technological Choices of the application of the Bioethics Act (October 2018); a report by the fact-finding mission set up by the National Assembly (January 2019). 33.     Drawing on these various sources, the government tabled a draft bill on 24   July   2019, which provided, in particular, that access to ART be extended to female couples and unmarried women. The legislative process resulted in the passage of the Bioethics Act 2021 on 29   June   2021. On   29   July 2021 the Constitutional Council, to which that Act had been referred by members of parliament, declared its provisions constitutional. The Act was enacted on 2   August 2021 and came into force on 4   August   2021. Section   41 provided that it was to be re-examined by Parliament within a maximum period of seven years after its enactment and that its application was to be assessed within a period of four years by the Parliamentary Office for the Assessment of Scientific and Technological Choices. 34.     The Bioethics Act 2021 (Law no.   2021-1017 of 2   August 2021), which extended access to ART to single women and female couples, created a new procedure for establishing legal parent-child relationships in respect of children conceived in that manner among female couples, who could now be recognised jointly by both women before birth. The new Article   342-11 of the Civil Code provides: “The female couple shall jointly recognise the child on obtaining the consent provided for in Article   342-10. A legal parent-child relationship shall be established, in respect of the birth mother, in accordance with Article   311-25. That relationship shall be established, in respect of the other woman, by joint recognition as provided for in paragraph   1 of the present Article. Such recognition shall be filed by one of the two women or, as the case may be, by the person entrusted with declaring the birth to the registrar, who shall record it on the birth certificate . So long as the legal parent-child relationship so established has not been challenged in the courts in accordance with Article   342-10, paragraph   2, it shall preclude the establishment of any other parent-child relationship under the present Title. ” 35 .     Section 6, subsection   IV of the Bioethics Act 2021 provides that, for three years as of the publication of that law (namely, until 4   August 2024), a female couple having had recourse to ART abroad prior to its publication may jointly recognise, before a notary, the child whose legal parent-child relationship has been established only in respect of the woman having given birth, and that such recognition establishes a legal parent-child relationship in respect of the other woman. This joint recognition is recorded on the child’s birth certificate, as instructed by the public prosecutor, who must be satisfied that the prerequisi