CEDH · PRESS;ADMISSIBILITYDECISIONS;ENG — 15 septembre 2010

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s289A4F99 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt; text-align:center; font-size:11pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sBB9EE52A { font-family:Arial } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s4BAE41EE { font-family:Arial; font-size:11pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC90828B6 { font-family:Arial; font-size:11pt; text-decoration:underline } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .sCC018295 { font-family:Arial; font-size:5.33pt; vertical-align:super; color:#0069d6 }   661 15.09.2010   Press release issued by the Registrar   Admissibility decision   Gas and Dubois v. France (application no. 25951/07)   Unanimously:   THE COURT DECLARES ADMISSIBLE AN APPLICATION FROM A SAME-SEX COUPLE CONCERNING A CHILD’S ADOPTION     Principal facts   The applicants, Valérie Gas and Nathalie Dubois, are French nationals who were born in 1961 and 1965 respectively and live in Clamart (France). They have been cohabiting since 1989. In September 2000 Nathalie Dubois gave birth in France to a daughter, A., who had been conceived in Belgium by means of medically-assisted procreation with an anonymous donor. The child does not have an established parental tie with the father, in accordance with Belgian law. She has lived all her life in the applicants’ shared home. In April 2002 Ms   Gas and Ms Dubois entered into a civil partnership agreement.   On 3 March 2006 Ms Gas applied to Nanterre tribunal de grande instance for a simple adoption order [1] in respect of her partner’s daughter; her partner had given her express consent before a notary. On 4 July 2006 the court observed that the legal conditions for the adoption had been met and that it had been demonstrated that Ms Gas and Ms Dubois were actively and jointly involved in the child’s upbringing, caring for and displaying affection towards her. However, it refused the application on the grounds that the adoption would have legal implications which ran counter to the applicants’ intentions and the child’s best interests by transferring parental authority to the adoptive parent and hence depriving the biological mother of her rights in respect of the child. The Versailles Court of Appeal upheld the refusal, taking the view that the legal consequences of the requested order were not compatible with the child’s best interests. The applicants appealed on points of law but did not pursue the appeal to its conclusion, believing that it had no prospect of success in view of the recent case-law of the Court of Cassation on the subject.   Complaints, procedure and composition of the Court   The applicants complained of the refusal of Ms Gas’s application for a simple adoption order in respect of Ms Dubois’ child. They maintained that this decision had infringed their right to respect for their private and family life and was discriminatory, in breach of Article 14 taken in conjunction with Article 8.   The application was lodged with the European Court of Human Rights on 15 June 2007.   The admissibility decision was given on 31 August 2010 by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Renate Jaeger (Germany), Jean-Paul Costa (France), Karel Jungwiert (the Czech Republic), Rait Maruste (Estonia), Isabelle Berro-Lefèvre (Monaco), Zdravka Kalaydjieva (Bulgaria), judges , and also Claudia Westerdiek , Section Registrar .     Decision of the Court   The French authorities contended first of all that Ms Gas and Ms Dubois had not exhausted the domestic remedies available to them in France by which to bring their complaints under the Convention before applying to the European Court of Human Rights (criterion for admissibility under Article 35 § 1). On this point, the Court was of the view that the applicants could not be criticised for not having pursued the proceedings before the Court of Cassation to their conclusion, since, in view of the clear case-law of that court, their appeal on points of law had no prospect of succeeding (the rule of exhaustion of domestic remedies did not require a remedy to be exhausted in such circumstances). Furthermore, the Court observed, as had the applicants, that the latter had raised their complaint under Article 8 before the Court of Appeal.   The French authorities further argued that the applicants’ complaint did not fall within the scope of the Articles relied upon by them (one of the admissibility criteria under Article   35   §   3). In that connection the Court first reiterated that Article 8 did not guarantee either the right to found a family or the right to adopt; this was not disputed by the parties. It went on to point out that the notion of “family” under Article 8 was not confined solely to marriage-based relationships but could encompass other de facto “family” ties. Ms Gas and Ms Dubois had been living together since 1989. They had been in a civil partnership since 2002 and one of them had given birth to a child wished for by both of them and in whose upbringing both were actively involved, as acknowledged by the French courts. In the Court’s view, this amounted to “family life” within the meaning of Article 8. Furthermore, sexual orientation also fell within the personal sphere protected by that Article. With regard to Article 14, the Court reiterated that it was applicable provided that the facts in question fell “within the ambit“ of one of the Articles of the Convention, such as Article 8 in this case.   In those circumstances the Court found that Article 14 in conjunction with Article 8 was applicable.   It remained for the Court to ascertain that the application was not manifestly ill-founded (admissibility criterion under Article 35 § 3). The French Government were of the view that the applicants had not been subjected to a “difference in treatment” liable to be discriminatory, as an unmarried heterosexual couple could have met with the same refusal as Ms Gas. Moreover, even assuming that there had been a difference in treatment, it was justified by the legitimate aim of protecting the marriage-based family. The Government also stressed that, under French law, a simple adoption order in favour of Valérie Gas would have resulted in the child’s biological mother losing parental authority, which would not be in the child’s best interests. Lastly, it was in any event open to the applicants to apply for a delegation of parental authority. Ms Gas and Ms Dubois replied by stating, in particular, that the fact that the biological mother lost parental authority if a simple adoption order was granted to her partner was discriminatory, as opposite-sex couples could circumvent this rule by getting married before applying for a simple adoption order, thus enabling them to share parental authority. Furthermore, the delegation of parental authority suggested by the Government did not create any legal parent-child relationship and did not allow the person’s surname or property to be transferred to the child; hence, the refusal to grant a simple adoption order was not in the child’s best interests.   The International Federation for Human Rights (FIDH), the International Commission of Jurists (ICJ), the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe), the British Association for Adoption and Fostering (BAAF) and the Network of European LGBT Families Associations (NELFA) made a joint third-party intervention before the Court in support of the applicants’ position.   The Court considered that the complaint brought by Ms Gas and Ms Dubois raised serious issues of fact and law which could not be resolved at this stage in the examination of the application but required examination on the merits. Their complaint was therefore not “manifestly ill-founded”.   For the above reasons the Court declared the application admissible. This decision does not prejudge the merits of the case.     ***   The decision is available only in French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Frédéric Dolt (telephone: + 33 3 90 21 53 39) Emma Hellyer (telephone: +33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Nina Salomon (telephone: + 33 3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Simple adoption is a form of adoption which enables a second legal parent-child relationship to be established in addition to the original parent-child relationship based on blood ties (as opposed to full adoption, where the new legal relationship replaces the original one). The adopted child retains the rights, including inheritance rights, arising out of the original relationship. Simple adoption also creates a parent-child relationship equivalent to a relationship of legitimate descent between the adoptive parent and the adoptee. It entails reciprocal obligations in respect of maintenance, the creation of a reserved portion of the estate ( réserve héréditaire ) and marriage restrictions, as well as the transfer of the adoptive parent’s surname to the child (by adding it to the child’s surname). Where an adopted minor is concerned, simple adoption results (in accordance with Article 365 of the Civil Code) in the transfer of parental authority to the adoptive parent; the biological parent or parents thus cease to exercise parental authority. However, the law (the same article of the Civil Code) provides for an exception to the transfer of parental authority where the adoptee is the child of the husband or wife: in such cases, the adoptive parent exercises parental authority jointly with his or her spouse. This exception does not apply to the parties in a civil partnership.