CASE OF GAS AND DUBOIS v. FRANCE
No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life)
Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger
8. The applicants were born in 1961 and 1965 respectively and live in Clamart. 9. Ms Valérie Gas (“the first applicant”) has cohabited since 1989 with Ms Nathalie Dubois (“the second applicant”). The latter gave birth in France on 21 September 2000 to a daughter, A., conceived in Belgium via anonymous donor insemination. A. does not have an established legal tie to her father, who acted as an anonymous donor in accordance with Belgian law. The child has lived all her life in the applicants’ shared home. On 22 September 2000 her name was entered in the register of births, deaths and marriages held at Clamart town hall. She was formally recognised by her mother on 9 October 2000. 10. The two applicants subsequently entered into a civil partnership agreement which was registered on 15 April 2002 with the registry of the Vanves District Court. 11. On 3 March 2006 the first applicant applied to the Nanterre tribunal de grande instance for a simple-adoption order in respect of her partner’s daughter, after her partner had given her express consent before a notary. 12. On 12 April 2006 the public prosecutor lodged an objection against the first applicant’s application, on the basis of Article 365 of the Civil Code (see paragraph 19 below). 13. In a judgment of 4 July 2006, the tribunal de grande instance observed that the statutory conditions for adoption were met and that it had been demonstrated that the applicants were actively and jointly involved in the child’s upbringing, providing her with care and affection. However, the court rejected the application on the grounds that the requested adoption would have legal implications running counter to the applicants’ intentions and the child’s interests, by transferring parental responsibility to the adoptive parent and thus depriving the birth mother of her own rights in relation to the child. 14. The first applicant appealed against that decision and the second applicant intervened in the proceedings on her own initiative. Before the Versailles Court of Appeal the applicants reaffirmed their wish, by means of the adoption, to provide a stable legal framework for the child which reflected her social reality. They argued that the loss of parental responsibility on the part of the child’s mother could be remedied by means of a complete or partial delegation of parental responsibility, and submitted that other European countries permitted adoptions which created legal ties with a same-sex partner. 15. In a judgment of 21 December 2006, the Court of Appeal upheld the refusal of the application. Like the first-instance court, the Court of Appeal noted that the statutory conditions for the adoption had been met and that it had been established that the first applicant was active in ensuring the child’s emotional and material well-being. It nevertheless upheld the finding that the legal consequences of such adoption would not be in the child’s interests, since the applicants would be unable to share parental responsibility as permitted by Article 365 of the Civil Code in the event of adoption by the spouse of the child’s mother or father, and the adoption would therefore deprive Ms Dubois of all rights in relation to her child. The court further considered that simply delegating the exercise of parental responsibility at a later date would not suffice to eliminate the risks to the child resulting from her mother’s loss of parental responsibility. Accordingly, in the court’s view, the application merely accorded with the applicants’ wish to have their joint parenting of the child recognised and legitimised. 16. On 21 February 2007 the applicants lodged an appeal on points of law, but did not pursue the proceedings before the Court of Cassation to their conclusion. On 20 September 2007 the President of the Court of Cassation issued an order declaring the right to appeal on points of law to be forfeit. 17. There are two types of adoption in French law: full adoption and simple adoption. 18. A full-adoption order can be made only while the child is still a minor and may be requested by a married couple or by one person. It creates a legal parent-child relationship which takes the place of the original relationship (if such existed). The child takes on the adoptive parent’s surname. A new birth certificate is drawn up and the adoption is irrevocable (Articles 355 et seq. of the Civil Code). 19. A simple-adoption order, by contrast, does not sever the ties between the child and his or her original family, but creates an additional legal parentchild relationship (Articles 360 et seq. of the Civil Code). The order can be made irrespective of the age of the person being adopted, including when he or she has reached the age of majority. The adoptive parent’s surname is added to that of the adoptee. The latter retains some inheritance rights in his or her family of origin and acquires rights vis-à-vis the adoptive parent. Simple adoption gives rise to reciprocal obligations between adopter and adoptee, in particular a maintenance requirement. The biological parents are required to support the adopted person financially only if the adoptive parent is unable to do so. Where the adoptee is a minor, simple adoption results in all the rights associated with parental responsibility being removed from the child’s father or mother in favour of the adoptive parent. The legislation provides for one exception to this rule, namely where an individual adopts the child of his or her spouse. In this case, the husband and wife share parental responsibility. Hence: “All rights associated with parental responsibility shall be vested in the adoptive parent alone, including the right to consent to the marriage of the adoptee, unless the adoptive parent is married to the adoptee’s mother or father. In this case, the adoptive parent and his or her spouse shall have joint parental responsibility, but the spouse shall continue to exercise it alone unless the couple make a joint declaration before the senior registrar of the tribunal de grande instance to the effect that parental responsibility is to be exercised jointly. ...” Unlike a full-adoption order, a simple-adoption order may be revoked at the request of the adoptive parent, the adoptee or, where the latter is a minor, the public prosecutor. Simple adoption is largely aimed, where minors are concerned, at compensating for the failings of the biological parent or parents. In practice, most cases of full adoption are overseas adoptions, while the great majority of simple-adoption orders granted within families concern persons having reached the age of majority, and are often inheritance-related. 20. Parental responsibility is defined as the complete set of parents’ rights and responsibilities towards their minor children. It is aimed at protecting children’s “health, safety and morals, in order to ensure their education and development” (Article 371-1 of the Civil Code). In principle, once parentage has been established, the parents of a minor child automatically have parental responsibility, which can only be withdrawn on serious grounds. Parental responsibility ends when the child reaches the age of majority, normally at 18. A distinction is made between parental responsibility and the exercise of parental responsibility; the latter may be entrusted to just one parent for reasons relating to the child’s best interests. The parent not exercising parental responsibility retains the right and the obligation to oversee the maintenance and upbringing of his or her children. He or she must be informed of important decisions concerning them and may not be deprived of contact rights and the right to overnight visits without compelling reasons. 21. It is possible to delegate parental responsibility to a third party (Articles 376 et seq. of the Civil Code). Since the enactment of the Law of 4 March 2002 on parental responsibility, Article 377 of the Civil Code, which governs the “standard” delegation of parental responsibility, provides that, where the circumstances so require, one or both parents may apply to the family judge to have the exercise of parental responsibility delegated to a third party (an individual, an approved institution or the child welfare services for the département concerned). The delegation of responsibility is not permanent and does not encompass the right to consent to adoption. In this context, parental responsibility may be transferred in whole or in part: parental responsibility continues to be vested in the parents, but its exercise is handed over to the third party. 22. Within the standard delegation procedure, the Law of 4 March 2002 introduced a more flexible delegation option based on the sharing of parental responsibility (Article 377-1 of the Civil Code). The order delegating parental responsibility may stipulate, “in the interests of the child’s upbringing”, that one or both parents are to share the exercise of their parental responsibility in whole or in part with the third party, thus retaining shared responsibility. This measure makes it possible to regulate the relationship between the child, the separated couple and the third parties, whether they be grandparents, step-parents or live-in partners. Each parent retains parental responsibility and continues to exercise it. The delegation of responsibility does not entail any change of surname or the establishment of a legal parent-child relationship; it is temporary and ceases to have effect once the child reaches the age of majority. 23. In France, marriage is not available to same-sex couples (Article 144 of the Civil Code). This principle was reaffirmed by the Court of Cassation, which, in a judgment delivered on 13 March 2007, reiterated that “in French law, marriage is a union between a man and a woman”. 24. A civil partnership is defined by Article 515-1 of the Civil Code as “a contract entered into by two individuals of full age, of opposite sex or of the same sex, for the purposes of organising their life together”. Civil partnerships entail a number of obligations for those who enter into them, including the obligation to live as a couple and lend each other material and other support. Civil partnerships also confer certain rights on the parties, which increased with the entry into force on 1 January 2007 of the Law of 23 June 2006 on the reform of the arrangements concerning inheritance and gifts. Hence, the partners constitute a single household for tax purposes; they are also treated in the same way as married couples for the purposes of exercising certain rights, particularly in relation to health and maternity insurance and life assurance. Some effects deriving from marriage remain inapplicable to civil partnerships. Among other things, the legislation does not give rise to any kinship or inheritance ties between the partners. In particular, the dissolution of the partnership does not entail judicial divorce proceedings but simply involves a joint declaration by both partners or a unilateral decision by one partner which is served on the other (Article 5157 of the Civil Code). Furthermore, civil partnerships have no implications as regards the provisions of the Civil Code concerning legal adoptive relationships and parental responsibility. 25. Assisted reproduction, which refers to the techniques allowing in vitro fertilisation, embryo transfer and artificial insemination, is governed by Articles L. 2141-1 et seq. of the Public Health Code. Under Article L. 21412 of the Code, assisted reproduction techniques are authorised in France for therapeutic purposes only, with a view to “remedying clinically diagnosed infertility” or “preventing transmission to the child or partner of a particularly serious disease”. They are available to opposite-sex couples of reproductive age who are married or show proof of cohabiting. 26. In these circumstances, Article 311-20 of the Civil Code provides for legal recognition of paternity for the second parent in the following terms: “Married or cohabiting couples who, in order to conceive, have recourse to medical assistance involving a third-party donor shall give their prior consent, in a manner that ensures confidentiality, before the judge or notary, who shall inform them of the implications of this act as regards the legal parent-child relationship. ... Any man who, having given his consent to assisted reproduction, does not recognise the child born as a result shall incur liability vis-à-vis the mother and the child. A judicial declaration of paternity shall also be issued in his regard. The action shall be brought in conformity with the provisions of Articles 328 and 331.” 27. The Court of Cassation has issued several rulings on this subject. The first two judgments, delivered on 20 February 2007, concerned cases involving lesbian couples living in a civil partnership and raising children whose sole legal parent was their mother, as their paternity had not been legally established. In both cases the mother’s partner had applied for a simple-adoption order in respect of the children, with the consent of their mother. One of the applications was granted by the Bourges Court of Appeal on the ground, in particular, that “the adoption [was] in the child’s interests”, while the other was rejected by the Paris Court of Appeal. Referring to Article 365 of the Civil Code, the First Civil Division of the Court of Cassation quashed the first Court of Appeal judgment and declared it null and void, in the following terms: “The adoption resulted in parental responsibility for the child being transferred, and in the biological mother, who planned to continue raising the child, being deprived of her rights. Accordingly, although Ms Y had consented to the adoption, the Court of Appeal, in granting the application, acted in breach of the above-mentioned provision;” It upheld the second Court of Appeal judgment as follows: “However, the Court of Appeal correctly observed that Ms Y ..., the children’s mother, would lose parental responsibility in relation to the children were they to be adopted by Ms X, although the couple were cohabiting. It noted that a delegation of parental responsibility could be requested only if the circumstances so required, which had been neither established nor alleged, and that in the present case the delegation or sharing of parental responsibility would, in the context of an adoption, be contradictory since the adoption of a minor was designed to attribute exclusive parental responsibility to the adoptive parent. Accordingly, the Court of Appeal, which, despite the allegations to the contrary, examined the issue, gave lawful grounds for its decision.” (Two judgments of the First Civil Division, Court of Cassation, 20 February 2007, judgments nos. 224 and 221, Bulletin Civil 2007 I, nos. 70 and 71). The Court of Cassation subsequently reaffirmed this approach: “Firstly, the child’s (father or) mother would be deprived of parental responsibility in the event of the child’s adoption, despite being perfectly fit to exercise that responsibility and having given no indication of wishing to reject it. Secondly, Article 365 of the Civil Code provides for the sharing of parental responsibility only in the event of adoption of the spouse’s child; as the French legislation stands, spouses are persons joined by the bonds of marriage. Accordingly, the Court of Appeal, which did not rule in breach of any of the provisions of the European Convention on Human Rights, gave lawful grounds for its decision.” (First Civil Division, Court of Cassation, 19 December 2007, Bulletin Civil 2007 I, no. 392; see also, to similar effect, the judgment of the First Civil Division, Court of Cassation, of 6 February 2008, unpublished, on appeal no. 07-12948 and First Civil Division, Court of Cassation, 9 March 2011). 28. The first two judgments, delivered on 20 February 2007, were published in the Court of Cassation Information Bulletin, on the Internet and in the Court of Cassation’s annual report. 29. In a first leading judgment (Court of Cassation, First Civil Division, 24 February 2006, published in the Bulletin), the Court of Cassation granted an application by a same-sex couple living in a civil partnership who sought to take advantage of this option. The court ruled that Article 377-1 of the Civil Code “[did] not prevent a mother with sole parental responsibility from delegating the exercise of that responsibility in whole or in part to the woman with whom she live[d] in a stable and lasting relationship, where the circumstances so require[d] and the measure [was] compatible with the child’s best interests”. The Court of Cassation subsequently tightened up the conditions to be met for the granting of an application to delegate parental responsibility (Court of Cassation, First Civil Division, 8 July 2010, published in the Bulletin). While the conditions laid down remain the same (the circumstances have to require such a measure and it has to be compatible with the child’s best interests), the Court of Cassation now requires applicants to demonstrate that the measure would improve the lives of the children concerned and is essential. This restrictive approach is now applied by the courts hearing such cases on the merits (Paris tribunal de grande instance, 5 November 2010). 30. In a case concerning facts similar to those in the present case, the applicants alleged a breach of the constitutional principle of equality and requested the Court of Cassation to transmit a request for a priority preliminary ruling on constitutionality to the Constitutional Council. The Court of Cassation granted the request. 31. In a decision of 6 October 2010, the Constitutional Council held that it was not its task to rule on the constitutionality of the impugned statutory provisions in the abstract, but rather in the light of the Court of Cassation’s consistent interpretation. In the case under consideration, the constitutionality of Article 365 of the Civil Code therefore had to be assessed in the light of the fact that the latter had the effect of prohibiting in principle the adoption of a child by the individual’s partner or cohabitant, as ruled by the Court of Cassation on 20 February 2007. The Constitutional Council began by pointing out that the provisions of Article 365 did not hinder couples from cohabiting or entering into a civil partnership, any more than it prevented the biological parent from involving his or her partner or cohabitant in the child’s upbringing. However, the Constitutional Council ruled that the right to family life as guaranteed by the Constitution did not confer a right to establish a legal adoptive relationship between the child and his or her parent’s partner. The Constitutional Council went on to observe that the legislature had deliberately chosen to confine the option of simple adoption to married couples and that it was not its place to substitute its own assessment for that of the legislature. 32. This Convention was opened for signature on 27 November 2008 and came into force on 1 September 2011. It has not been signed or ratified by France. Its relevant provisions read as follows. “1. The law shall permit a child to be adopted: (a) by two persons of different sex (i) who are married to each other, or (ii) where such an institution exists, have entered into a registered partnership together; (b) by one person. 2. States are free to extend the scope of this Convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship. ...” “1. Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin. 2. Nevertheless, the spouse or partner, whether registered or not, of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child, unless the law otherwise provides. ... 4. States Parties may make provision for other forms of adoption having more limited effects than those stated in the preceding paragraphs of this Article.” 33. Recommendation CM/Rec(2010)5 of the Committee of Ministers to member States on measures to combat discrimination on grounds of sexual orientation or gender identity, adopted on 31 March 2010, recommends, inter alia, to member States: “... 24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation. 25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member States are invited to consider the possibility of providing, without discrimination of any kind, including against different-sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.”