CEDH · CASELAW;CLIN;ENG — 22 janvier 2008

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France [GC] - 43546/02 Judgment 22.1.2008 [GC] Article 14 Discrimination Refusal to grant approval for the purposes of adoption, on the ground of the applicant’s life-style as a lesbian living with another woman: violation Facts : In 1998 the president of the council for the département gave a decision refusing the applicant’s request for authorisation to adopt a child. During the procedure the applicant had mentioned her homosexuality and her stable relationship with another woman. The administrative courts dismissed the applicant’s appeals “having regard to her lifestyle”, among other reasons. Law Admissibility – The present case concerned the procedure for obtaining authorisation to adopt rather than adoption itself. Accordingly, the Court was not required to rule whether the right to adopt did or did not fall within the ambit of Article 8 of the Convention taken alone. Given that French legislation expressly granted single persons the right to apply for authorisation to adopt and established a procedure to that end, the facts of this case undoubtedly fell within the ambit of Article 8 of the Convention. Consequently, the State, which had gone beyond its obligations under Article 8 in creating such a right, could not take discriminatory measures when applying it. Article 14 of the Convention, taken in conjunction with Article 8, was therefore applicable in the present case. Merits : After drawing a parallel with the case of Fretté v. France (no. 36515/97, § 32, ECHR 2002-I), the Court noted 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 her long-standing and declared partner. The latter did not feel committed by her partner’s application to adopt. Her attitude was not without interest or relevance in assessing the application. It was legitimate for the authorities to ensure that all safeguards were in place before a child was taken into a family particularly where they found that not one but two adults were members of the household. In the Court’s view, that ground had nothing to do with any consideration relating to the applicant’s sexual orientation. The ground relating to the lack of a paternal referent did not necessarily raise a problem in itself, but in the Court’s view such a ground, which ran the risk of rendering ineffective the right of single persons to apply for authorisation, might have led to an arbitrary refusal and have served as a pretext for rejecting the applicant's application on grounds of her homosexuality. The Government had been unable to prove that use of that ground at domestic level had not resulted in discrimination. The fact that it was legitimate for this factor to be taken into account should not lead the Court to overlook the excessive reference to it in the circumstances of the present case. The fact that the applicant’s homosexuality had featured to such an extent in the reasoning of the domestic authorities was significant even if the courts had found that this had not been the basis for the decision in question and had not been considered from a hostile position of principle. Besides their considerations regarding the applicant’s “lifestyle”, they had above all confirmed the decision of the president of the council for the département which had been based on certain opinions in which the applicant’s homosexuality, or sometimes her status as a single person, had been a determining factor. The Court considered that the reference to the applicant's homosexuality had been, if not explicit, at least implicit, and that the influence of the applicant’s avowed homosexuality on the assessment of her application had been established and, having regard to the foregoing, had been a decisive factor in the decision to refuse her authorisation to adopt. Accordingly, the domestic authorities had made a distinction based on considerations regarding her sexual orientation, a distinction that was unacceptable under the Convention. French law allowed single persons to adopt a child, thereby opening up the possibility of adoption by a single homosexual. Moreover, the Civil Code was silent as to the necessity of a referent of the other sex and, further, 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 reasons put forward by the Government could not therefore be regarded as particularly convincing and weighty such as to justify the difference in treatment of the applicant. The Court observed that the authorities had undertaken an overall assessment of the applicant’s situation. This had not been based on a single ground, but on “all” the factors involved. Accordingly, the two main grounds used had to be assessed concurrently. Thus the illegitimacy of one of the grounds (lack of paternal referent) had the effect of contaminating the entire decision. It followed that the decision refusing the applicant authorisation was incompatible with the Convention. Conclusion : violation (ten votes to seven). Article 41 – EUR 10,000 for non-pecuniary damage.   © 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