Gas and Dubois v. France
European Court of Human Rights
15 March 2012
Article 3: Best interests of the child
Article 21: Adoption
Other International Provisions:
Article 8, European Convention on Human Rights: Right to respect for private and family life
Article 14, European Convention on Human Rights: Right to non-discrimination
Article 365 of the Civil code
Under Article 365 of the French Civil Code, second parent adoption is only allowed where the couple is legally married. Therefore, it was not possible for the second parent in a same-sex couple to adopt the child of the first parent via simple-adoption, since they could not be married in France. The applicants in this case were a same-sex cohabiting couple who had a child using fertility services abroad, however, only the applicant with a biological connection to the child was considered a legal parent in French law. the applicants complained to the court alleging that the legal impossibility of applying for second parent adoption violates their right to non-discrimination under Article 14 of the European Convention on Human Rights, taken in conjunction with the right to respect for private and family life under Article 8.
Issue and resolution:
Adoption. Whether the legal provisions prohibiting a person in a same-sex relationship to adopt their partner’s child violate the right to non-discrimination under the European Convention. The Court dismissed the application.
The Court held there had been no violation of Article 14 in conjunction with 8, as the law did not provide for second-parent adoption in relation to opposite-sex couples, as well as same-sex couples. The difference in treatment was, therefore based on marital status, rather than sexual orientation. Furthermore, as established by previous jurisprudence of the Court, the European Convention does not provide a right to be able to marry to same-sex couples.
Judge Villiger dissented from the majority opinion on the ground that the judgment focused on the adults, but not on the children who are an integral part of the complaints. He observed that joint parental custody is in the best interest of the child, and that a child of a homosexual couple is in a comparable situation to that of a child of a heterosexual couple, yet under the French Civil Code a child of a homosexual couple is denied the right to joint parental custody for reasons beyond the child’s control. Therefore, this constitutes a violation of Article 14 taken together with Article 8 because a child of a homosexual relationship should be offered the best possible treatment afforded to other children born into a heterosexual relationship, that is, joint parental custody.
Excerpts citing CRC and other relevant human rights instruments:
Concurring opinion by Judge Jean-Paul Costa, joined by Judge Dean Spielmann
I would add, however, that I was a little unsettled by the dissenting opinion of my colleague Judge Villiger. He takes the view, pointing to some important practical aspects, that the situation giving rise to the present case is incompatible with the child’s “best interests”. It is undisputed that this concept occupies an important position in the United Nations Convention on the Rights of the Child, in particular in Article 3 and, in the specific context of adoption, in Article 21. It is equally clear that the Court’s case-law, in a variety of spheres, has for a long time made extensive reference to this criterion (see Johansen v. Norway, 7 August 1996, § 77, Reports of Judgments and Decisions 1996-III, and numerous judgments since).
But I can only agree with my colleague up to a point. First of all, it is not clear that it would be in the best interests of the child to be adopted by Ms Gas, since this would deprive her mother, Ms Dubois, of parental responsibility. And even if it were to be the case, it is difficult to argue this point without falling into the “fourth instance” trap. Let us not yield to that temptation.
Since this case was decided, France introduced a 2013 law allowing same-sex marriage, as well as joint adoption of children by same-sex couples. For more information on adoption by same-sex couples of children conceived in the course of assisted reproductive treatment, please see a Court CRINmail issue discussing a decision of the French Court of Cassation confirming the legality of such adoptions.
CRIN believes this decision is inconsistent with the CRC. Article 2 of the Convention prohibits any kind discrimination against a child or his or her parent(s). Furthermore, Article 21 requires that the best interests of the child be the paramount consideration in all adoption cases. Therefore, an adoption should not be refused on the basis of discriminatory treatment towards the prospective adopter, where the adoption would otherwise be in the best interests of the child.
Case of Gas and Dubois v. France, Application No. 25951/07, 15 March 2012.
Link to Full Judgment:
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