Court/Judicial body: European Court of Human Rights
Date: January 22, 2008 CRC
Provisions: Article 3: Best interests of the child Article 4: Implementation of rights Article 5: Parental guidance and the child’s evolving capacities Article 20: Protection of a child without family Article 21: Adoption
Other international provisions:European Convention on Human Rights ( Article 8: Right to respect for private and family life; Article 14: Prohibition of discrimination) Draft European Convention on the Adoption of Children ( Article 7: Conditions for adoption)Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Articles 5, 15: Receiving State’s responsibilities re: conditions for international adoption)
Domestic provisions: Civil Code ( Article 343: Requisites for Adoption by a Married Couple; Article 343-1: Requisites for Adoption by a Single Person) Family and Social Welfare Code ( Article 63: Rights to Custody; Article 100-3: Conditions for Adopting a Foreign Child) Decree 97-771 of September 1, 1998 (Articles 1, 4, 5: Conditions for Adoption)
Background:On February 26, 1998, 37-year-old E.B., a French nursery school teacher, submitted an application for the authorisation to adopt a child. At the time of her application, E.B. acknowledged that her same-sex partner of 8 years, Ms. R, would not be party to the adoption and did not feel committed to it. Upon review, the adoption board made a recommendation that E.B.’s application be rejected, citing Ms. R’s noncommittal behavior and concerns around the lack of a paternal figure in the household. E.B. subsequently and successfully appealed in an administrative court, but this decision was overturned by a court of appeal, which opined that the rejection by the adoption board had not been based on the applicant’s choice of lifestyle. In June 2002, the Conseil d’Etat dismissed her appeal, and in December of that year E.B. submitted an application to the European Court of Human Rights.
Issue and resolution: Adoption and discrimination. The Court determined that France had unlawfully discriminated against E.B. in denying her application for authorisation to adopt.
Court reasoning: 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 or the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of International Adoption. But, once a country had established a right and allowed for adoptive proceedings, it could not discriminate against potential parents. In this particular case, the French government had made it possible for single individuals to adopt, and hence could not refuse authorisation on the grounds that the child would not have a paternal figure given the nature of E.B.’s same-sex relationship. Dissent:E.B.’s partner’s indifference regarding the adoption was a valid reason for denying E.B.’s application, and concerns about her homosexuality were not necessarily unfounded and did not “contaminate” the decision to do so. Furthermore, adoption must be viewed as a “privilege” and not a “right”, and hence does not implicate the European Convention.
Excerpt citing CRC and other relevant human rights 30. The relevant provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on November 20, 1989 and which came into force on September 2, 1990 read as follows: “ Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. Article 4 States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation. Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. Article 20 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be end to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include, inter alia , foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background. Article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.” … O-V15 Article 4 of Decree 98-771 of September 1, 1998 requires the president of the council for the relevant département to satisfy himself that the conditions in which an applicant is proposing to provide a child with a home meet the child’s needs from a family, child-rearing and psychological perspective. The importance of these safeguards— of which the authorities must be satisfied before authorising a person to adopt a child— can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of November 20, 1989 , the Hague Convention of May 29, 1993 or the draft European Convention on the Adoption of Children . … 42. Nor is a right to adopt provided for by domestic law or by other international instruments, such as the Convention on the Rights of the Child, adopted by the United Nations General Assembly on November 20, 1989, or the Hague Convention of May 29, 1993 on the Protection of Children and Co-operation in Respect of International Adoption. … 77. The Court notes, moreover, that Art.4 of the Decree of September 1, 1998 requires the president of the council for the relevant department to satisfy himself that the conditions in which the applicant is proposing to provide the child with a home meet the needs of an adopted child from a family, child-rearing and psychological perspective. The importance of these safeguards – of which the authorities must be satisfied before authorizing a person to adopt a child – can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of November 20, 1989, the Hague Convention of May 29, 1993 or the draft European Convention on the Adoption of Children. Notes: The State did not express views regarding the damages, costs, and expenses alleged by the applicant. Despite this, the Court maintained the State’s obligation to award the applicant EUR 10,000 in respect of non-pecuniary damages and EUR 14,528 for costs and expenses. However, the Court unanimously dismissed the remainder of the applicant’s claim for just satisfaction. CRIN Comments: CRIN believes that this decision is consistent with the CRC. While there is no right to adoption or to be adopted, States that provide for these arrangements should not be permitted to discriminate against applicants on the basis of their sexual orientation or other status. Rather, the focus of all adoptive proceedings should rest squarely with the best interests of the child as in line with Article 3 of the Convention. Citation: Case of E.B. v. France  ECHR 43546/02 (22 January 2008). Link to Full Judgment:http://hudoc.echr.coe.int/eng?i=001-84571 This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Related European Convention for the Protection of Human Rights and Fundamental FreedomsHague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption Countries France CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.