CEDH · CASELAW;CLIN;ENG — 24 mars 2022

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France - 29775/18 and 29693/19 Judgment 24.3.2022 [Section V] Article 8 Positive obligations Article 8-1 Respect for family life Respect for private life Inability to obtain recognition of a legal relationship between a child and the biological mother’s ex-partner: no violation Facts – In the first application (23775/18), in January 2002, when C.E. and C.B. were living together as a   couple, C.B. gave birth to M.B., who had been conceived “with the help of a friend and donor in France”. C.B. was the child’s sole legal parent. The couple separated in 2006. Under an agreement reached with C.B., C.E. has contact rights with the child which entail having her to stay every other weekend and for half the school holidays. C.E. makes monthly maintenance payments to her former partner for the child’s everyday care and education. In July 2015 C.E. applied to the tribunal de grande instance for a full adoption order in respect of M.B. while retaining the legal relationship between the child and C.B. The court rejected the application, and the appeals lodged by C.E. were dismissed. C.E. and C.B. applied to the tribunal d’instance in May 2016 requesting a document attesting to a matter of common knowledge ( acte de notoriété ) establishing a legal relationship between C.E. and the child. The request was refused. In the second application (29693/19), A.E. entered into a civil partnership with K.G. in May 2006. After having recourse to assisted reproductive technology (ART) abroad, K.G. gave birth to T.G. in November 2008. In May 2010 the family-affairs judge of the tribunal de grande instance allowed a request by K.G. to exercise joint parental responsibility with A.E. In October 2011 A.E. gave birth to a child. In May 2012 the same court ordered the delegation of parental responsibility on a shared basis between A.E. and K.G. A.E. and K.G. separated and the civil partnership was dissolved in October 2014. In December 2018 the tribunal de grande instance refused a request by A.E. for a document attesting to a matter of common knowledge on the basis of de facto enjoyment of status ( possession d’état ) with regard to T.G. Law – Article 8: 1. Applicability – The relationships in question came within the scope of the private and family life of C.E. and M.B. (23775/18) and that of A.E. and T.G. (29693/19). (a) The family-life aspect of Article 8 – The Court accepted, in certain situations, the existence of de facto family life between an adult or adults and a child in the absence of biological ties or a recognised legal tie, provided that there were genuine personal ties. Such ties existed between M.B. and C.E. and between T.G. and A.E., deriving from a de facto parent-child relationship and thus amounting to family life. (b) The private-life aspect of Article 8 – The concept of “private life” did not exclude the emotional bonds created and developed between an adult and a child in situations other than the classic situations of kinship. This type of bond pertained to individuals’ life and social identity. In certain cases involving a relationship between an adult and a child where there were no biological or legal ties the facts could nonetheless fall within the scope of the “private life” of both the adult and the child. This was particularly true with regard to the child, as an individual’s parentage was an essential aspect of his or her identity. Thus, the bonds that had formed between M.B. and C.E. and between T.G. and A.E. came within the scope of their private life. 2. Merits – (a) Whether the cases concerned a negative or a positive obligation – Prior to the applicants’ applications to the Court, French law had made no provision for a legal parent-child relationship to be established between a minor and the former partner of his or her biological mother without the latter’s legal status being affected. Regardless of the relationship that had developed between them, the individuals concerned could not have recourse for that purpose to full or simple adoption or to recognition through the effect of their de facto enjoyment of status. In both cases the Article 8 complaint concerned alleged shortcomings in the French legislation which, according to the applicants, had resulted in the refusal of their requests and undermined effective respect for their private and family life. The Court therefore decided to examine the applicants’ complaints from the standpoint of the States Parties’ positive obligation to secure to persons within their jurisdiction effective respect for their private and family life. (b) Margin of appreciation – The applications raised a number of ethical questions, and there was no consensus within Europe on the establishment of a legal parent-child relationship between a child and the biological mother’s former partner. These considerations weighed in favour of allowing States a wide margin of appreciation. However, account also had to be taken of the fact that an essential aspect of individual identity was at stake where parent-child relationships were concerned. This was especially the case with regard to the legal relationship between an individual and his or her parent, particularly where the individual concerned was a minor. The respondent State therefore had a narrower margin of appreciation in the present case when it came to examining the situation of the children, M.B. and T.G. (c) The fair balance to be struck between the general interest and the applicants’ interests – The French legislation on adoption and de facto enjoyment of civil status centred on the child’s best interests. (i) The right to respect for family life – In both cases, since the couples’ separation and despite the lack of legal recognition of a relationship between the children and their biological mother’s former partner, the persons concerned had led a family life comparable to that led by most families after the parents separated. C.E., in agreement with her former partner, exercised contact rights in respect of M.B., while K.G. and A.E. had opted for joint parental responsibility, in accordance with domestic law, and had put shared custody arrangements in place. Furthermore, the applicants made no mention of any difficulties in conducting their family life, and the respondent State had put in place legal instruments enabling the ties between them to be protected. The fact that C.E. had waited nine years after separating from C.B. before seeking to institute adoption proceedings suggested that her relationship with M.B. had not been called into question during that time. The same observation applied to A.E., who had submitted her request for a document attesting to a matter of common knowledge on the basis of de facto enjoyment of status with regard to T.G. almost four years after the dissolution of her civil partnership with K.G. Moreover, if any problems were to arise they could be remedied on the basis of Article 371-4 of the Civil Code, according to which “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 not, who has resided in a stable manner with the child and one of the parents, has participated in the child’s education, everyday care or accommodation and has developed lasting emotional bonds with him or her.” Thus, there was no basis for finding, in the circumstances of the two cases, that the respondent State had failed in its obligation to guarantee the applicants effective respect for their family life. Conclusion : no violation (unanimously). (ii) The right to respect for private life – In the context of children born abroad through a gestational surrogacy arrangement and conceived using the gametes of the intended father, the child’s right to respect for private life required that domestic law provide a possibility of recognition of a legal parent-child relationship not only between the child and the intended father, where he was the biological father, but also, where the legal parent-child relationship with the intended father was recognised in domestic law, with the intended mother, designated in the birth certificate legally established abroad as the “legal mother”, even where she was not genetically related to the child. Thus, the persons concerned had to have access to an effective mechanism enabling the relationship to be recognised, in the light of the child’s best interests and the circumstances of the case. The situations of M.B. and T.G. could not be compared to such a situation as they had not been conceived through gestational surrogacy and their ties to C.E. and A.E. respectively had not previously been established under the law of another country. However, they had developed genuine child-parent bonds with them since birth. Given the existence of those bonds, the child’s best interests were a relevant consideration in the case of both M.B. and T.G. M.B. and T.G. had formed a child-parent relationship with C.E. and A.E. respectively as a result of the adults’ emotional investment and their involvement in the children’s upbringing. Hence, the complaint concerning the inability to obtain legal recognition of the relationship raised a serious issue in terms of the principle of the paramountcy of the child’s best interests and the right to respect for private life. Firstly, however, there existed legal instruments in France enabling the relationship between a child and an adult to be recognised. For instance, the child’s biological mother could obtain a court order for the exercise of joint parental responsibility with her partner or former partner. While an order of that kind did not entail the establishment of a legal parent-child relationship, it nevertheless allowed the partner or former partner to exercise certain rights and duties associated with parenthood and thus amounted to a degree of legal recognition of the relationship. T.G.’s biological mother had availed herself of that option, and she and A.E. had exercised joint parental responsibility with regard to T.G. since 2010. While this was not the case with C.E. and C.B., it had not been alleged that C.B. would object to sharing parental responsibility; to do so would be inconsistent with the fact that she had agreed to M.B.’s adoption by C.E. despite the fact that the couple had separated. Furthermore, where former partners separated or failed to reach agreement, the family-affairs judge could, if the child’s interests so required, determine the arrangements concerning his or her relationship with the mother’s former partner. This too could be likened to some extent to legal recognition of their relationship. Secondly, since publication of the Bioethics Act of 2 August 2021, female couples who had had recourse to ART abroad before 4 August 2021 had the possibility, for a three-year period, of jointly recognising a child who had a legal parent-child relationship only with the woman who had given birth; this had the effect of establishing a legal relationship with the other woman. The couple’s possible subsequent separation had no implications for the application of this mechanism. It was sufficient for them to have been a couple (married, in a civil partnership or cohabiting) at the time of the ART treatment, and for them to have had recourse to that treatment with the intention of having a child together. That option was available in the case of T.G., since he had been born as a result of an ART procedure carried out abroad in the context of the plans of K.G., his biological mother, and A.E. to start a family together. Although the child’s biological mother apparently refused joint recognition, the fact remained that, since 4 August 2021 (when T.G., who was born on 13 November 2008, had been approximately 12 years and eight months old), a procedure had existed in French law enabling a legal parent-child relationship to be established between T.G. and A.E. That option had thus become open to them just three years after their request for a document attesting to a matter of common knowledge. Thirdly, although under the legislation this procedure was not available in the case of M.B., who had not been conceived through an ART procedure performed abroad, it appeared that her adoption by C.E. under the simple adoption procedure was now possible. While that had not been the case when she had still been a minor, as her biological mother would have been deprived of parental responsibility as a result, M.B. had reached the age of majority on 13 January 2020. Hence, a procedure had been available since then enabling a legal mother-child relationship to be established with C.E. It was true that this option only became possible at a late stage, once the children concerned had reached full age. However, in the specific circumstances of the present case it was apt to satisfy the applicants’ legitimate expectations. C.E. and C.B. had waited until March 2015 before taking steps to obtain legal recognition of a parent-child relationship between C.E. and M.B., when M.B. was already thirteen years old, and the possibility of adoption under the simple adoption procedure had become open to them just one and a half years after the lodging of their application with the Court. Furthermore, the exclusion from the transitional arrangements under the Bioethics Act of minor children who had not been conceived through an ART procedure performed abroad and who, like M.B., had been born without recourse to such procedures in France, was liable to raise a serious issue under Article 8, taken alone or in conjunction with Article 14. In the circumstances, and regard being had to the margin of appreciation left to the respondent State – which, admittedly, was narrower where children’s best interests were in issue – a fair balance had been struck between the interests at stake with regard to M.B. and T.G.’s right to respect for private life. This applied with even greater force to the right to respect for private life of C.E. and C.B. on the one hand and A.E. and K.G. on the other, whose interests in that regard coincided with those of M.B. and T.G. respectively. Accordingly, the respondent State had not failed in its obligation to guarantee effective respect for the applicants’ private life. Conclusion : no violation (unanimously). (See also Mennesson v. France , 65192/11, 26 June 2014, Legal summary ; Paradiso and Campanelli v.   Italy   [GC], 25358/12, 24 January 2017, Legal summary ; Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], P16-2018-001, French Court of Cassation, 10   April   2019, Legal summary ; D   v.   France , 11288/18, 16 July 2020, Legal summary ; Honner   v.   France , 19511/16 , 12 November 2020; Valdís Fjölnisdóttir and Others v. Iceland , 71552/17, 18 May 2021, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes