French same-sex couple lose ECHR discrimination claim over adoption rights

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The European Court of Human Rights rejects a French lesbian couple's claim for discrimination over a law barring them from 'simple adoption' rights.

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The European Court of Human Rights has turned down a claim for discrimination lodged by a French lesbian couple in a civil partnership over a law barring them from 'simple adoption' rights, reports Family Law Week.

In Gas and Dubois v France Application no 25951/07 15th March 2012 (judgment available in French only), the European Court of Human Rights has rejected the claim by a French couple that French law, which does not allow 'simple adoption' by parties to a civil partnership, has infringed their Article 8 rights.

Valerie Gas and Nathalie Dubois brought a claim to the European Court alleging that they had suffered discrimination because French law does not allow adoption of a child by a same sex couple or by the same sex partner of a parent.  In particular, they complained that they had been the victims of discriminatory treatment based on their sexual orientation in a manner which breached their Article 8 right to family life.
In French law, there are two kinds of adoption, 'full adoption' and 'simple adoption'. The former is broadly equivalent to an English adoption, and is available only to married couples and single adopters. The latter is more akin to Special Guardianship where legal parentage remains with the birth family, but with the adopter holding the primary parental responsibility.

The applicants had been living together since 1989. In 2000 Mme Dubois gave birth to a baby girl following an assisted conception in Belgium using an anonymous donor. The couple then entered into a civil partnership (PACS) in 2002. In 2006 Valerie Gas applied to adopt the child in the form of a 'simple adoption' with the birth mother's consent. This would have resulted in the birth mother's parental rights being diminished. The application for adoption was refused on grounds that an adoption by Mme Gas would have legal consequences contrary to the intention of the applicants and the child in reducing the birth mother's own rights in relation to the child. The applicants argued that this concern could be met by the adoptive parent delegating rights back to the birth mother, but the decision was upheld on appeal. An application was therefore made to the European Court of Human Rights.

The court first considered the position of the applicants as compared to a married couple when considering whether there had been discrimination. In particular the court considered the position in French domestic law which enables a married couple to adopt, but not an unmarried couple. Since same sex couples are not permitted to marry in France the applicants argued that this amounted to discrimination on grounds of sexual orientation. This argument was rejected by the ECtHR, which reiterated the case of Schalk v Kopf in which it was held that the decision whether to allow same sex couples to marry is a matter for individual member states within their margin of appreciation. Further, that where an alternative to marriage is offered to same sex couples such as the PACS or a civil partnership, the extent to which that alternative offers the same rights as marriage is also within the margin of appreciation. The ECtHR therefore held that the special status which marriage confers means that the position of the applicants could not properly be describes as comparable to a married couple.

Secondly, the court considered whether the applicants were treated any differently to an opposite-sex couple who had entered into a PACS. Since any couple in a PACS would not be permitted to adopt a child, the court concluded that the difference in treatment which the applicants complained of was not based on their sexual orientation, but on their status as an un-married couple.

Read more of this report from Family Law Week.

See Mediapart article: French Catholic Church begins open battle with Hollande over same-sex marriage law.

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