EHRM, 22-01-2008, nr. 43546/02

The case originated in an application (no. 43546/02) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a French national, Ms E.B. (‘the applicant’), on 2 December 2002. The President of the Grand Chamber acceded to the applicant's request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).

The applicant alleged that at every stage of her application for authorisation to adopt she had suffered discriminatory treatment that had been based on her sexual orientation and had interfered with her right to respect for her private life.

The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules). On19 September 2006 a Chamber of that Section, composed of the following judges: Ireneu Cabral Barreto, President, Jean-Paul Costa, Rıza Türmen, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström, Dragoljub Popović, judges, and Sally Dollé, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). Prior to relinquishment the Chamber had received written comments submitted by Prof. R. Wintemute on behalf of four NGOs —Fédération internationale des Ligues des Droits de l'Homme (FIDH); European Region of the International Lesbian and Gay Association (ILGA—Europe); British Association for Adoption and Fostering (BAAF); and Association des Parents et futurs parents Gays et Lesbiens (APGL) — as third-party interveners (Rule 44 § 2). Those observations were included in the case file transmitted to the Grand Chamber.

The composition of the Grand Chamber was determined in accordance with the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

The applicant, but not the Government, filed written observations on the merits.

A hearing took place in public in the Human Rights Building, Strasbourg, on 14 March 2007 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Ms C. Mécary and Ms E. Belliard.

The applicant alleged that she had suffered discriminatory treatment that had been based on her sexual orientation and had interfered with her right to respect for her private life. She relied on Article 14 of the Convention taken in conjunction with Article 8, which provide:

Article 8

Article 14

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 22 January 2008.

In a case such as this the Grand Chamber (to which jurisdiction was relinquished by a Chamber under Article 30 of the Convention) can be expected to give a leading judgment on a ‘serious question’ affecting the interpretation of the Convention, in this case of Article 14 taken in conjunction with Article 8.

In so far as the Court has adopted a position of principle I can, I think, accept it, but I am not at all sure that in this specific case the interference attributed to the respondent State has proved to be contrary to that position or incompatible with the Convention provisions. I shall attempt to explain what I mean.

With regard to the question of principle, the main thrust of the majority's reasoning — making particular reference to the Court's earlier decision in Salgueiro da Silva Mouta v. Portugal (Reports 1999-IX ) — is based on alleged discrimination against the applicant because her application for authorisation to adopt a child was allegedly refused on the ground of her homosexual orientation, and she considers such discrimination to be unjustified.

In Fretté v. France (Reports 2002-I), which the present judgment overturns (as of course the Grand Chamber can), the majority of the Chamber had considered that such a ground was not contrary to Article 14 and 8, or — to be more precise — that the reasons for which the French authorities had rejected the application for authorisation to adopt made by the applicant, who was a homosexual, were justified (in the best interests of the child likely to be adopted).

I did not subscribe to that reasoning, and whilst I did vote with the majority in favour of finding that there had not been a violation that was because, in my view, the Articles of the Convention relied on were not applicable because the Convention does not guarantee a right to adopt (but the Chamber did not agree with my reasoning on that point, and I will not go into it again here —perseverare diabolicum).

In my concurring opinion, in which I was joined by my colleagues Judge Jungwiert and Judge Traja, I pointed out that the French Civil Code (since 1966) allowed adoption by a single person and did not in any way prohibit adoption by a homosexual (or, which comes down to the same thing, did not require that the applicant be heterosexual). I therefore thought — and see no reason to change my view now — that a refusal to grant authorisation based exclusively on the avowed or established homosexuality of the applicant in question would be contrary to both the Civil Code and the Convention.

I am equally convinced that the message sent by our Court to the States Parties is clear: a person seeking to adopt cannot be prevented from doing so merely on the ground of his or her homosexuality. This point of view might not be shared by all, for good or not so good reasons, but — rightly or wrongly — our Court, whose duty under the Convention is to interpret and ultimately apply it, considers that a person can no more be refused authorisation to adopt on grounds of their homosexuality than have their parental responsibility withdrawn on those grounds (Salgueiro da Silva Mouta). I agree.

If we leave the theoretical domain, however, and address the specific case of the applicant — which even in a judgment that sets out be a leading judgment it is the Court's primary duty to do — I do not agree. The domestic administrative and judicial case files show, unequivocally in my view, that authorisation was refused (and that that refusal was deemed legal) for two reasons, which can be summarised as follows. Firstly, there would be no male or ‘paternal’ referent among Ms E.B.'s circle of family and friends. Secondly, the woman with whom she was in a stable relationship at the time of her application did not feel concerned by her partner's plan to adopt; although she might not have been actually opposed or hostile to it, she was certainly indifferent.

To my mind, the first of these grounds is 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’ (to use bureaucratico-psychological jargon). A single person cannot be required to artificially rebuild a ‘home’ for the purpose of being able to exercise a statutory subjective right; would a single person have to be single only in name in order to be able to adopt?

I note, though, that however illegal it may be the first ground should not be confused with homophobic discrimination. Whether or not Ms E.B. 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 second ground, in any case, does not appear to me to be unreasonable or disproportionate. It is a fact that Ms E.B. was living with another person. Regardless of the latter's sex or sexual orientation, it is established and moreover not seriously disputed that this person did not support the adoption plan. In these conditions, if approval had been granted and the civil courts had subsequently allowed Ms E.B. to adopt it is very unlikely that the guarantees required under French law (from a ‘family, child-rearing and psychological’ perspective — see paragraph 28 of the judgment), in the child's best interests, would have been met and it is assuredly not for the Court, if it is not to set itself up as a fourth instance, to decide otherwise.

A delicate problem of law therefore arises. Was the first ground (which moreover I have just said is not discriminatory, at least as far as the applicant's sexual orientation is concerned) decisive? Did it suffice to ‘contaminate’ the administrative decision in question? Is it not more realistic to consider that, regarding a specific application by a person in a specific situation, the authorities were entitled to undertake an assessment of all the factors pertaining to that situation? Just as our court is not a court of fourth instance, nor is it a court of cassation that considers a particular ground to be founded, holds that it is not necessary to examine the other grounds and contents itself with the well-foundedness of the first ground to quash the decision and remit the case. This is what the judgment actually does however.

In that connection my position is close to that of my colleague Judge Mularoni, who, in her own dissenting opinion, criticises the majority for finding that Ms E.B.'s homosexual orientation was the decisive ground for refusing her authorisation. I, like her, consider this assertion to be somewhat gratuitous.

In my opinion, the Grand Chamber could have solemnly 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 Ms E.B.'s application because in this case it was not her homosexuality that had prevented her from obtaining authorisation. In my view, this would have corresponded more closely to the reality of the case, at least as regards my own interpretation of it.

This is why — in the present case — I cannot follow the majority's reasoning, and I consider that France has not violated the Convention.

The issue is in some respects disguised, but the crucial question in this case is discrimination — on the basis of the applicant's sexual orientation — concerning the privilege of adopting a child. That this is a privilege is decisive for the examination of the case; it implies — and the majority recognises this — that we are not dealing with the applicant's right in terms of Article 8.

The difference between a privilege and a right is decisive. Discrimination in terms of unequal treatment is applicable to situations that involve rights; it is not applicable to situations that essentially concern privileges. These are situations in which the granting vel non of the privilege make it legitimate for the decision-making body, in this case an administrative body, to exercise discretion without fear that the right of the aggrieved person will be violated.

Put in the simplest terms, the theoretical principle according to which a right is subject to litigation and according to which a violation of that right requires a remedy does not apply to situations in which a privilege is being granted. An exaggerated example of such a situation would be the privilege of being granted a decoration or a prize, or other situations of special treatment reserved for those who are exceptionally deserving.

In other words, it would be ‘bizarre’ for anybody to claim that he ought to have received a particular award, a particular decoration or a particular privilege.

There are, of course, middle-ground situations such as applications for a particular post for which the aggrieved person is a candidate. One may for example conceive of a situation in which an applicant wished to become a judge or a notary public or was a candidate for a similar position but, for whatever reason, was denied that position. Even in that case it would be unusual for the Court to entertain a refusal to grant a privilege as something that is subject to the discrimination criteria.

In this particular case, the preliminary question of essential importance is to determine whether the privilege of adopting a child is subject to the discrimination criteria under Article 14. As pointed out above, the majority is not inclined to consider the privilege of adopting a child as a right.

It is therefore inconsistent to consider that there has been any kind of violation as long as the Court persists in its (justifiable!) position according to which the possibility of adopting a child is clearly not a right and is in any event at best a privilege. The question is then what kind of discretion the administrative body is entitled to exercise when making a decision concerning the privilege of adopting a child.

On the other hand, is it possible to imagine the Nobel Prize Committee being accused of discrimination because it never awards any Nobel Prizes to scientists of a particular race or nationality? Such an assertion would, of course, require statistical proof. Statistical evidence is, indeed, very prevalent in employment discrimination and similar cases. In other words, if in this particular situation the European Court of Human Rights were to establish that the French administrative authorities systematically discriminate against lesbian women wishing to adopt a child, the issue would be much clearer.

But we are dealing here with an individual case in which discrimination is alleged purely on the basis of a single occurrence. This, as I have pointed out, does not permit the Court to reach the conclusion that there is in France a general discriminatory attitude against homosexuals wishing to adopt a child. The issue of systematic discrimination has not been explored in this specific case and it would probably not be possible to even admit such statistical proof in support of the allegation. If it were possible, however, the treatment of the case would be completely different from what we now face.

It is therefore incumbent on the Court to extrapolate a consistent line of reasoning from its preliminary position, according to which the privilege of adopting a child is in any event not a right.

A separate issue under the same head is whether the procedures leading to the negative answer to the lesbian woman were such as to evince discrimination. This question seems to be the distinction upon which the majority's reasoning is based.

The question distilled from this kind of reasoning is whether the procedures— even when granting, not a right, but a privilege — ought to be free of discrimination. In terms of administrative law, perhaps, the distinction is between a decision which lies legitimately within the competence of the administrative bodies and their legitimate discretion on the one hand and one which moves into the field of arbitrary decision.

A decision is arbitrary when it is not based on reasonable grounds (substantive aspect) and reasonable decision-making (procedural aspect) but rather derives from prejudice, in this case prejudice against homosexuals. 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.

It is alleged that the procedures in French administrative law were discriminatory against this particular female homosexual, but the question then arises as to whether this kind of discriminatory procedure is nevertheless compatible with the legitimate discretion exercised by the administrative body.

I am afraid that in most cases precisely this kind of ‘contamination’ of substance by procedure is at the centre of the controversy. I cannot dwell on it here1. but the question could be posed as follows. If the granting of privileges is not a matter of rights, is it not then true that the bestower of privilege is entitled —argumento a majori ad minus— not only to discretion but also to discrimination in terms of substance as well as in terms of procedure? The short answer to this is that in the public sphere — as opposed to the purely private sphere of awards, prizes and so forth — there are some privileges which are apt to become rights, such as adopting a child, being considered for a public function, and so on. Decidedly, in so far as this process of the privilege potentially ‘becoming a right’ is affected by arbitrariness, prejudice and frivolity the discrimination logic should apply.

The rest is a question of fact. Like Judge Loucaides, I do not subscribe to the osmotic contamination theory advanced by the majority.

There is one final consideration. The non-represented party, whose interest should prevail absolutely in such litigation, is the child whose future best interests are to be protected. When set against the absolute right of this child, all other rights and privileges pale. If in custody matters we maintain that it is the best interests of the child that should be paramount — rather than the rights of the biological parents — how much more force will that assertion carry in cases such as this one where the privileges of a potential adoptive parent are at issue?

We have voted with the majority for finding a violation of Article 14 of the Convention in conjunction with Article 8 and we can also broadly agree with the reasons in the judgment leading to this conclusion. However, we would like to clarify our vote as follows.

In the present case the domestic authorities, when rejecting the application for authorisation to adopt, relied on two grounds that were both accepted as legitimate by the French courts in the appeal proceedings: firstly, the lack of a paternal referent in the household of the applicant and secondly, the indifferent attitude of the applicant's partner. We fully agree with the judgment's reasoning (paragraphs 75–78) that the latter ground was a relevant factor to be taken into account when deciding the application. As to the first ground, we do not find it to be irrelevant or discriminatory as such in cases where the application for adoption is made by a single person. However, it may be so if it is used in combination with a direct or indirect reference to the applicant's sexual orientation. In this respect we again agree with the majority that, despite the national courts’ attempts to explain what was meant or not meant by the reference to the applicant's ‘lifestyle’, it is not possible to conclude that her sexual orientation had no real importance for that ground. The refusal to grant the authorisation was accordingly based on one ground that was legitimate and another ground that was not legitimate in the circumstances of the case, and was thus discriminatory in terms of the Convention.

Consequently, a violation was found in the present case because the refusal to adopt was partly based on illegitimate reasons. This does not of course imply that the applicant could not have been refused authorisation based on grounds that were in conformity with the Convention, for example the indifferent attitude of her partner in itself. It is the opinion of the minority that the refusal was justified on that ground alone, and we do not exclude that this might be so. However, in our opinion — and this is in fact the point on which we most disagree with the minority — it is not for this Court to rule on that question, but exclusively for the French courts to decide.

In view of the more procedural character of the violation, we would have considered the finding of a violation or a minor pecuniary award sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicant, but we did not find it necessary to dissent on that point.

I disagree with the majority in this case. I find that the decision of the domestic authorities to refuse the applicant authorisation to adopt a child was legitimate and well within their margin of appreciation.

The decision of the domestic authorities was based on two main grounds.

First, the ‘absence of ‘identificational markers’ due to the lack of a paternal role model or referent’ and second, ‘the ambivalence of the commitment of each member of the household to the adoptive child’. As regards the first ground, I agree with the majority that it is incompatible with the effective right of single persons to apply for authorisation to adopt, a right which is recognised by French law, and that it should therefore be rejected as inapplicable to the present case.

The second ground was the attitude of the applicant's partner, Ms R., who, despite the fact that she was the long-standing and declared partner of the applicant, did not feel committed by the latter's application to adopt. This ground by itself could legitimately justify the decision of the domestic authorities. That is not really disputed by the majority. But what the majority finds to be wrong is the fact that, as they put it, the ‘illegitimacy of one of the grounds ha[d] the effect of contaminating the entire decision’.

Personally I do not accept this contamination theory — a theory more appropriate to medical science — for the simple reason that each of the grounds that led to the decision was separate and autonomous and its effectiveness was in no way dependent on or linked to the other one. Firstly, if the domestic authorities felt that the two reasons should operate jointly, they would have said so. Secondly, if — as the majority finds — the sexual orientation of the applicant, supposedly referred to implicitly in the reasoning of one of the grounds, was the real reason for refusing authorisation, I do not see why the authorities had to mention the other ground.

Given that we are dealing with decisions of the French administrative authorities, I might also add that it is a basic principle of French administrative law that if an administrative decision is based on several grounds, it is sufficient for one of the grounds to be legally acceptable in order for the decision to be valid.

In any event, I find that the reasoning of the domestic authorities in its entirety was in line with the Convention.

The authorities in question did not refer to the sexual orientation of the applicant as the reason for their refusal. However, contrary to my view, the majority finds that ‘the reference to the applicant's homosexuality was, if not explicit, at least implicit’, and that the ‘influence of the applicant's avowed homosexuality on the assessment of her application has been established and … was a decisive factor leading to the decision to refuse her authorisation to adopt’. Reading the judgment of the majority I have the feeling that there is a constant effort to interpret the decision of the domestic authorities as being based on the sexual orientation of the applicant, although nothing was said to that effect and the authorities repeatedly made it clear that their refusal of authorisation was not made on the basis of a ‘position of principle regarding her choice of lifestyle’ or ‘in view of the applicant's sexual orientation’.

Be that as it may, I am of the opinion that, even if the applicant's sexual orientation had been a factor in refusing authorisation to adopt, the refusal in question could not be said to be incompatible with Article 8 taken in conjunction with Article 14, account being taken of all the relevant circumstances and the meaning and effect of such a factor in relation to the question that had to be decided.

It is true that Article 14 of the Convention prohibits discrimination in the enjoyment of the rights set forth in the Convention on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Of course, sexual orientation is a different matter from sex, but even on the assumption that it is encompassed by the concept of ‘status’ (which I do not think is correct), I must make this clarification which, to my mind, is necessary for the purposes of this case. 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 stated the following:

Likewise, in the present case, I find 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. I might add — on the basis of the majority's approach, which treats the two reasons given by the authorities as one — that the partner in question was not even interested in being a party to the adoption plan.

I believe that the erotic relationship with its inevitable manifestations and the couple's conduct towards each other in the home could legitimately be taken into account as a negative factor in the environment in which the adopted child was expected to live. Indeed there was, in these circumstances, a real risk that the model and image of a family in the context of which the child would have to live and develop his/her personality would be distorted. This situation differs substantially from one in which a homosexual applicant does not cohabit with his or her partner. And, personally, I would most probably have approached the matter differently in the latter case.

It is my firm belief that 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, like anybody else, have a right to be themselves and should not be the target of discrimination or any other adverse treatment because of their sexual orientation. However, they must, like any other persons with some peculiarity, accept that they may not qualify for certain activities which, by their nature and under certain circumstances, are incompatible with their lifestyle or peculiarity.

Therefore — proceeding on the assumption accepted by the majority that one of the reasons which influenced the entire decision to refuse authorisation to adopt was the sexual orientation of the applicant — I find that in the light of the particular facts and circumstances of the case the legitimacy of the refusal in issue was in any event not open to question. I believe that there existed a reasonable relationship of proportionality between the means employed and the legitimate aim pursued.

Finally and incidentally, I must put on record that the judgment in this case overturns the Fretté v. France judgment (no. 36515/97). The efforts to distinguish the present case from Fretté are, in my opinion, unsuccessful and unnecessary so long as the central question in both cases, according to the approach of the majority, is substantially the same

Accordingly I take the view that there has been no violation in this case.

I do not share the opinion of the majority in this case.

Michael O'Boyle

Deputy Registrar

Christos Rozakis

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

C.L.R.

M.O'B.