E.B. v France
(European Court of Human Rights, Grand Chamber) Application No.: 00043546/02
4 February 2008, January 2008
EB v France
(Grand Chamber) Application No.: 00043546/02
European Court of Human Rights (C Rozakis P) 22 January 2008
The Strasbourg Court has held, by a narrow majority, that there had been a breach of Article 14 in conjunction with Article 8 where a homosexual woman applying under domestic law to adopt a foreign child as a single person had been refused authorisation by state authorities.
The complainant, invoking Article 14 taken together with Article 8, claimed that she had suffered discrimination based on her sexual orientation and that it had interfered with her right to respect for her private life. She was a nursery school teacher aged 45 years, who was living with another woman in a homosexual relationship. Her application was refused on the grounds that a child would lack a paternal image or reference and because there was a lack of commitment by the complainant's partner to the adoption. The appellate court held that the refusal of authorization had not been because of her sexual orientation and that there was no consequent breach of the Convention, and that the refusal was simply founded on the basis of the chid's interests.
Complaint upheld. The Court acknowledged that there was no right under domestic law or the Convention to found a family or to adopt, nor was there such a right enshrined in any of the other relevant international instruments, such as the Convention on the Rights of the Child,1989, or the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption. But once a state had established a right such as that enjoyed by single persons, it could not proceed to discriminate. In this particular case, the respondent state had made it possible for single individuals to apply for authorization to adopt. In that sense the French government had gone beyond its obligations under Article 8 in creating such a right – a possibility open to it under Article 53 of the Convention – and therefore it could not, in the application of that right, take discriminatory measures within the meaning of Article 14.
Of the two grounds alleged for the refusal of permission to the complainant to adopt, the one concerning the attitude of her partner was legitimate to ensure that all safeguards existed before a child was adopted, especially when there were two adults in the family. The second, the lack of a paternal figure, did not cause a problem in itself, but in the complainant's case the application was by a single person, so the ground was questionable in that it could have led to arbitrary refusal and been a pretext for refusal on the grounds of homosexuality. The illegitimacy of the latter ground had the effect of contaminating the former. The Court considered that it was significant that the complainant's homosexuality had been mentioned with such frequency by the authorities even though the local courts had denied that the authorities' refusal had not arisen from it. The influence of this ongoing "implicit" reference to the complainant's homosexuality on the assessment of her application to adopt was established, and was a decisive factor leading to the decision to refuse authorisation to adopt, Salgueiro da Silva Mouta v Portugal (1999) considered and Frette v France (2002) distinguished.
The complainant had therefore suffered a difference in treatment, and the reasons advanced for it were not convincing and weighty such as to justify the refusal. Accordingly, there had been a breach of Article 14 taken with Article 8. She was awarded EUR 10,000 for non-pecuniary damage and EUR 14,528 for costs and expenses.
COMMENT (January 2008)
Same Sex Couple and Article 8: The Right to Adopt?
In the welter of committee-speak and copy-and-paste prose that characterizes current Strasbourg jurisprudence, it is always illuminating to find a judgement – particularly in the Grand Chamber – with a hefty dose of dissent. No fewer than 7 judges dissented from the main opinion: Judges Costa, Turmen, Ugrekhelidze, Jociene, Zupancic, Loucaides and Mularoni JJ.
In Europe since the Fretté judgment, with some ten European States now allowing it. In that case (Fretté v. France, no. 36515/97, § 32, ECHR 2002-I) the Chamber had dismissed a similar complaint. Having regard to the competing interests of the applicant and children who were eligible for adoption, and to the paramountcy of the latter's best interests, it noted that the scientific community was divided over the possible consequences of a child being adopted by one or more homosexual parents, that there were wide differences in national and international opinion and that there were not enough children to adopt to satisfy demand (§ 42). Taking account of the broad margin of appreciation to be left to States in this area and to the need to protect children's best interests to achieve the desired balance, the Chamber considered that the refusal to authorise adoption had not infringed the principle of proportionality and that, accordingly, the justification given by the Government appeared objective and reasonable and the difference in treatment complained of was not discriminatory within the meaning of Article 14 of the Convention (§§ 42 and 43). However, since the Frette case, there has been a steady development in European law in favour of adoption by same-sex couples, with some ten European states now allowing it.
In this case the Court suspected that the "paramountcy" principle – considerations as to what were the best interests of the child – was being used as a stalking horse for homophobic prejudice. The Court thought it "permissible" to question the merits of the reason advanced for refusal of authorisation, lack of a paternal referent, since the ultimate effect of such a ground is to require the applicant to establish the presence of a referent of the other sex among her immediate circle of family and friends, thereby running the risk of rendering ineffective the right of single persons to apply for authorisation and masking a prejudice against homosexuality.
However, as many of the dissenting judges pointed out, this ground should have been recognised by the national courts as being illegal under French law because if the law allows a single person to adopt it is against the law to require that person, be they a man or a woman, to have a member of the opposite sex among their circle of family and friends who could serve as a "referent". A single person cannot be required to artificially rebuild a "home" for the purpose of being able to exercise a statutory subjective right, otherwise a "single" person have to be single only in name in order to be able to adopt. But the dissenters did not agree that this ground should be confused with homophobic discrimination. Whether or not the complainant had been homosexual, the council for the département would still have refused her – or could still have refused her – authorisation on the ground of the lack of a "referent" of the other sex. It is not therefore clear that even this "bizarre" reasoning was based on the applicant's sexual orientation or that it alone suffices to justify the conclusion reached by the majority, at least by their reasoning.
The dissenters' main grouse with the majority was that they had gone beyond their proper remit in determining the issues of the case as if the Strasbourg Court, instead of carrying out a general supervisory role, was functioning as a fourth appellate court or a Court de Cassation – the judges at Strasbourg, when presented with a specific application by a person in a specific situation, have to stick with the assessment of all the relevant facts made by the national authorities. The majority, by finding that the complainant's homosexual orientation was the decisive ground for refusing her authorisation, was making a somewhat "gratuitous" assertion. The Grand Chamber should have more properly declared that a refusal of this kind could not be based on homosexuality without violating Articles 14 and 8, and thus given an important leading judgment, while dismissing this particular application because in this case it was not her homosexuality that had prevented her from obtaining authorisation.
The other objection made to the majority decision (in a fascinating opinion by Judge Zupanćić) is that the possibility of adopting adopt a child is a privilege, not a right, and as such is not actionable under the Convention. This is an interesting point, in the light of the recent rulings of the court in relation to artificial insemination facilities for prisoners (see Dickson v. the United Kingdom [GC], no. 44362/04, § 66, ECHR 2007 – and indeed Judge Mularoni cites this case as evidence that, artificial though these methods of building a family life may be, they have now become part of the fabric of Article 8). Of course the Court was at pains to acknowledge that there was no so such right in the Convention, and that it was the procedure via which the privilege was granted that it was ruling unlawful, It is well established in the legal theory that the discrimination logic does not apply to privileges, but it may well apply to the procedures in which the granting or not of the privilege is the issue. As Zupanćić observes, this kind of "contamination" of substance by procedure is at the centre of the controversy.
A more trenchant – some might say conservative – protest came from Judge Loucaides. There may be situations where different treatment is necessary on grounds of sex, religion, etc. or other status, if the consequences of the relevant status have a bearing on the particular question under examination. For instance, a person's religion may give rise to manifestations or practices which produce effects contrary to the interests of that person's children, a fact that can legitimately be taken into account when the welfare of the children is at issue. A typical example of this is the recent case of Ismailova v. Russia, judgment in which was delivered by the First Section on 29 November 2007. There, the applicant complained that the decisions of the domestic courts granting custody of her two children to their father had been in breach of Article 8 of the Convention taken in conjunction with Article 14, as they amounted to discrimination on the ground of her religion. The Court, in rejecting the applicant's complaint, referred to some incidents which had arisen out of the religious practices of the applicant on account of her membership of a certain religious organisation, and which had had negative effects on her children. The Court noted that the domestic courts did not focus on the mother being a member of Jehovah's Witnesses, but relied instead on her religious practices which they considered would have negative effects on the children's upbringing. In such circumstances, the Strasbourg Court regarded that there was nothing disproportionate in the national courts' approach.
Likewise, in the present case, Loucaides J found that in deciding what was in the best interests of the child to be adopted, the domestic authorities could legitimately take into account the sexual orientation and lifestyle of the applicant as practised in the particular circumstances of the case, namely the fact that the applicant cohabitated with her same-sex partner. In his view, nobody can invoke his religion, sex or any other status in order to rely on the prohibition of discrimination as a ground for exemption from disqualification in respect of a particular activity on account of the negative consequences that such status may have in relation to a specific issue. Homosexuals should not be exempt from this principle.
This is a very live issue, particularly in American constitutional jurisprudence, where the right to religious freedom is frequently invoked by minorities to justify behaviour or actions that infringe state or federal law. In a case recently before the federal court in Brooklyn, the defendant was charged with having brought smoked bushmeat, in other words monkey flesh, into the United States without proper permits, in violation of the Convention on International Trade in Endangered Species. Her defence is that in her religion the eating of bushmeat has both a cultural and a spiritual significance. The question raised by the case is whether the fact of a religious belief is sufficient to exempt the believer from the application of generally applicable laws. Analogous issues arise in the instant case; generally applicable laws, like laws and decisions based on the paramountcy principle concerning the welfare of the child, may have incidental effects. It may be true, because of restrictive criteria for adoption, that some people would no longer be able to qualify because of their sexual affiliations, but because that would not be the result aimed at — the good of the child would be the concern — the authorities could not be accused of contriving to harm homosexuals, even if that were an unintended consequence of its action. As the foremost spokesman for pragmatist theory in the US, Stanley Fish, points out in his comment on the bushmeat case:
"Nor would it be wise to exempt persons of certain beliefs from the general prohibition; for that would amount to bending the law to the preferences and desires of particular citizens, and once you begin to do that there is no logical place to stop and the rule of law would be destroyed." ("Monkey Business", December 2, 2007)
The most important point to take away from this case, out of the many fascinating issues it gives rise to, is the one at the centre of Mularoni's dissent, which criticises the Court's reluctance to take a position on whether or not adoption, or any other non-traditional form of founding a family, comes within the Convention's protective scope. The judges in Strasbourg
"should establish – and this absolutely must be done and done clearly – whether the possibility of adopting a child afforded by domestic legislation does or does not fall within the ambit of Article 8."
It may take a few years but it is artificial in the extreme to pretend that alternative means of establishing family life, whether by adoption, IVF, or any other method, is not covered by Article 8, while, say, the right to privacy of office life is (Niemietz v Germany, (1993)16 EHRR 97).