CASE OF E.B. v. FRANCE
Violation of Article 14+8 - Prohibition of discrimination (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - award
Antonella Mularoni;Christos Rozakis;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Loukis Loucaides;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Riza Türmen;Sverre Erik Jebens
7. The applicant was born in 1961 and lives in Lons-le-Saunier. 8. She has been a nursery school teacher since 1985 and, since 1990, has been in a stable relationship with a woman, Ms R., who is a psychologist. 9. On 26 February 1998 the applicant made an application to the Jura Social Services Department for authorisation to adopt a child. She wanted to investigate the possibility of international adoption, in particular in Asia, South America and Madagascar. She mentioned her sexual orientation and her relationship with her partner, Ms R. 10. In a report dated 11 August 1998 the socio-educational assistant and paediatric nurse noted the following points among others: “Ms B. and Ms R. do not regard themselves as a couple, and Ms R., although concerned by her partner's application to adopt a child, does not feel committed by it. Ms B. considers that she will have to play the role of mother and father, and her partner does not lay claim to any right vis-à-vis the child but will be at hand if necessary. ... Ms B. is seeking to adopt following her decision not to have a child herself. She would prefer to explain to a child that he or she has had a father and mother and that what she wants is the child's happiness than to tell the child that she does not want to live with a man. ... Ms B. thinks of a father as a stable, reassuring and reliable figure. She proposes to provide a future adopted child with this father figure in the persons of her own father and her brother-in-law. But she also says that the child will be able to choose a surrogate father in his or her environment (a friend's relatives, a teacher, or a male friend ...). ... CONCLUSION “On account of her personality and her occupation, Ms B. is a good listener, is broad-minded and cultured, and is emotionally receptive. We also appreciated her clear-sighted approach to analysing problems and her child-raising and emotional capacities. However, regard being had to her current lifestyle: unmarried and cohabiting with a female partner, we have not been able to assess her ability to provide a child with a family image revolving around a parental couple such as to afford safeguards for that child's stable and well-adjusted development. Opinion reserved regarding authorisation to adopt a child.” 11. On 28 August 1998, in her report on the interviews she had had with the applicant, the psychologist examining her application recommended in the following terms that authorisation be refused: “ ... Ms [B.] has many personal qualities. She is enthusiastic and warm-hearted and comes across as very protective of others. Her ideas about child-rearing appear very positive. Several question marks remain, however, regarding a number of factors pertaining to her background, the context in which the child will be cared for and her desire for a child. Is she not seeking to avoid the “violence” of giving birth and genetic anxiety regarding a biological child? Idealisation of a child and under-estimation of the difficulties inherent in providing one with a home: is she not fantasising about being able to fully mend a child's past? How certain can we be that the child will find a stable and reliable paternal referent? The possibilities of identification with a paternal role model are somewhat unclear. Let us not forget that children forge their identity with an image of both parents. Children need adults who will assume their parental function: if the parent is alone, what effects will that have on the child's development? ... We do not wish to diminish Ms [B.]'s confidence in herself in any way, still less insinuate that she would be harmful to a child; what we are saying is that all the studies on parenthood show that a child needs both its parents. Moreover, when asked whether she would have wanted to be brought up by only one of her parents, Ms B. answered no. ... A number of grey areas remain, relating to the illusion of having a direct perception of her desire for a child: would it not be wiser to defer this request pending a more thorough analysis of the various – complex – aspects of the situation?...” 12. On 21 September 1998 a technical officer from the children's welfare service recommended that authorisation be refused, observing that the applicant had not given enough thought to the question of a paternal and male role model, and assumed that she could easily take on the role of father and mother herself, while mentioning a possible role for her father and/or brother-in-law, who lived a long way away, however, meaning that meetings with the child would be difficult. The officer also wondered about the presence of Ms R. in the applicant's life, noting that they refused to regard themselves as a couple and that Ms R. had not at any time been involved in the plan to adopt. The reasoning of the opinion ended as follows: “I find myself faced with a lot of uncertainties about important matters concerning the psychological development of a child who has already experienced abandonment and a complete change of culture and language...”. 13. On 12 October 1998 the psychologist from the children's welfare service, who was a member of the adoption board, recommended that authorisation be refused on the ground that placing a child with the applicant would expose the child to a certain number of risks relating to the construction of his or her personality. He referred among other things to the fact that the applicant lived with a girlfriend but did not consider herself to be in a couple, which gave rise to an unclear or even an unspoken situation involving ambiguity and a risk that the child would have only a maternal role model. The psychologist went on to make the following comments:- “... It is as though the reasons for wanting a child derived from a complicated personal background that has not been resolved with regard to the role as child-parent that [the applicant] appears to have had to play (vis-à-vis one of her sisters, protection of her parents), and were based on emotional difficulties. Has this given rise to a feeling of worthlessness or uselessness that she is trying to overcome by becoming a mother? Unusual attitude towards men in that men are rejected. In the extreme, how can rejection of the male figure not amount to rejection of the child's own image? (A child eligible for adoption has a biological father whose symbolic existence must be preserved, but will this be within [the applicant's] capabilities?) ...” 14. On 28 October 1998 the Adoption Board's representative from the Family Council for the association of children currently or formerly in State care recommended refusing authorisation to adopt in the following terms:- “...From my personal experience of life with a foster family I am now, with the benefit of hindsight, in a position to assess the importance of a mixed couple (man and woman) in providing a child with a home. The role of the “adoptive mother” and the “adoptive father” in the child's day-to-day upbringing are complementary, but different. It is a balance that will be shaken by the child to a degree that may sometimes vary in intensity according to how he or she experiences the realisation and acceptance of the truth about his or her origins and history. I therefore think it necessary, in the interests of the child, for there to be a solid balance between an “adoptive mother” and an “adoptive father” where adoption is being envisaged. ...” 15. On 4 November 1998 the Board's representative from the Family Council, present on behalf of the union of family associations for the département (UDAF), referring to the Convention on the Rights of the Child of 20 November 1989, recommended that authorisation be refused on the ground of the lack of a paternal referent and added: “ ... It appears impossible to build a family and bring up a child without the full support of this partner [R.] for the plan. The psychologists' and welfare reports show her clear lack of interest in Ms [B.]'s plan ... In the further alternative, the material conditions for providing a child with a suitable home are not met. It will be necessary to move house, solve the issue of how to divide expenses between both partners, whose plans differ at least in this respect.” 16. On 24 November 1998 the head of the children's welfare service also recommended that authorisation be refused, noting expressly that “Ms [B.] lives with a female partner who does not appear to be a party to the plan. The role this partner would play in the adopted child's life is not clearly defined. There does not appear to be room for a male referent who would actually be present in the child's life. In these circumstances, there is a risk that the child would not find within this household the various family markers necessary to the development of his or her personality and well-being.” 17. In a letter of 26 November 1998 the decision of the president of the council for the département refusing authorisation to adopt was served on the applicant. The following reasons, among others, were given: “... in examining any application for authorisation to adopt I have to consider the child's interests alone and ensure that all the relevant safeguards are in place. Your plan to adopt reveals the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child. Moreover, the place that your partner would occupy in the child's life is not sufficiently clear: although she does not appear to oppose your plan, neither does she seem to be involved, which would make it difficult for the child to find its bearings. Accordingly, all the foregoing factors do not appear to ensure that an adopted child will have a sufficiently structured family framework in which to flourish. ...” 18. On 20 January 1999 the applicant asked the president of the council for the département to reconsider the decision refusing her authorisation to adopt. 19. The children's welfare service asked a clinical psychologist to prepare a psychological assessment. In her report of 7 March 1999, drawn up after an interview with the applicant, the psychologist concluded that “Ms B. ha[d] plenty to offer in providing a home for a child (patience-values-creativity-time)”, but considered that adoption was premature having regard to a number of problematic points (confusion between a non-directive and laissez-faire attitude, and ignorance of the effects of the introduction of a third person into the home set-up). 20. On 17 March 1999 the president of the council for the département of the Jura confirmed the refusal to grant the request for authorisation. 21. On 13 May 1999 the applicant applied to the Besançon Administrative Court seeking to have the administrative decisions of 26 November 1998 and 17 March 1999 set aside. She also contested the manner in which the screening process in respect of her request for authorisation had been conducted. She pointed out that many people involved in the process had not met her, including the psychologist from the adoption board. 22. In a judgment of 24 February 2000 the Administrative Court set aside the decisions of 26 November 1998 and 19 March 1999, ruling as follows: “... the president of the council for the département of the Jura based his decision both on “the lack of a paternal role model or referent capable of fostering the well-adjusted development of an adopted child” and on “the place [her] partner would occupy in the child's life”. The reasons cited are not in themselves capable of justifying a refusal to grant authorisation to adopt. The documents in the case file show that Ms B., who has undisputed personal qualities and an aptitude for bringing up children, and who is a nursery school teacher by profession and well integrated into her social environment, does offer sufficient guarantees – from a family, child-rearing and psychological perspective – that she would provide an adopted child with a suitable home. ... Ms B. is justified, in the circumstances of this case, in seeking to have the decisions refusing her authorisation set aside ...” 23. The département of the Jura appealed. The Nancy Administrative Court of Appeal, in a judgment of 21 December 2000, set aside the lower court's judgment. It found, first, that “B. maintain[ed] that she ha[d] not been sent a personality test, but [did] not allege that she [had] asked for the document and that her request [had been] refused” and that the 4th paragraph of Article 63 of the Family and Social Welfare Code “[did] not have the effect of precluding a report from being drawn up on the basis of a summary of the main points of other documents. Hence, the fact that a psychologist [had drawn] up a report just on the basis of information obtained by other people working on the case and without hearing submissions from the applicant [did] not invalidate the screening process carried out in respect of Ms B.'s application for authorisation to adopt ...”. 24. The court went on to find that “... the reasons for the decisions of 26 November 1998 and 17 March 1999, which were taken following an application for reconsideration of the decision of the president of the council for the département of the Jura rejecting the application for authorisation to adopt submitted by Ms B., are the absence of “identificational markers” due to the lack of a paternal role model or referent and the ambivalence of the commitment of each member of the household to the adoptive child. It can be seen from the documents in the file, and particularly the evidence gathered during the examination of Ms B.'s application, that having regard to the latter's lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, she did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child...; ... contrary to Ms B.'s contentions, the president of the council for the département did not refuse her authorisation on the basis of a position of principle regarding her choice of lifestyle. Accordingly, and in any event, the applicant is not justified in alleging a breach ... of the requirements of Articles 8 and 14 of the Convention...”. 25. The applicant appealed on points of law. On 5 June 2002 the Conseil d'Etat dismissed her appeal in a judgment giving the following reasons: “... Regarding the grounds for refusing Ms B. authorisation: ... Firstly, the fact that a request for authorisation to adopt a child is submitted by a single person, as is permitted by Article 343-1 of the Civil Code, does not prevent the administrative authority from ascertaining, in terms of child-rearing and psychological factors that foster the development of the child's personality, whether the prospective adoptive parent can offer – in her circle of family and friends – a paternal “role model or referent” where the application is submitted by a woman ...; nor, where a single person seeking to adopt is in a stable relationship with another person, who will inevitably be required to contribute to providing the child with a suitable home for the purposes of the above-mentioned provisions, does this fact prevent the authority from determining – even if the relationship in question is not a legally binding one – whether the conduct or personality of the third person, considered on the basis of objective considerations, is conducive to providing a suitable home. Accordingly, the Administrative Court of Appeal did not err in law in considering that the two grounds on which the application by Ms [B.] for authorisation as a single person was refused – namely, the “absence of identificational markers due to the lack of a paternal role model or referent” and “the ambivalence of the commitment of each member of the household to the adoptive child” – were capable of justifying, under the above-mentioned provisions of the decree of 1 September 1998, the refusal to grant authorisation; Secondly, with regard to Ms [B.]'s assertion that, in referring to her “lifestyle” to justify the refusal to grant her authorisation to adopt, the Administrative Court of Appeal had implicitly referred to her sexual orientation, it can be seen from the documents submitted to the tribunals of fact that Ms [B.] was, at the time of the examination of her application, in a stable homosexual relationship. As that relationship had to be taken into consideration in the needs and interests of an adopted child, the court neither based its decision on a position of principle in view of the applicant's sexual orientation nor breached the combined requirements of Articles 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; nor did it breach the provisions of Article L. 225-2 of the Criminal Code prohibiting sexual discrimination; Thirdly, in considering that Ms [B.], “having regard to her lifestyle and despite her undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards – from a family, child-rearing and psychological perspective – for adopting a child”, the Administrative Court of Appeal, which did not disregard the elements favourable to the applicant in the file submitted to it, did not distort the contents of the file; It follows from the foregoing that Ms [B.] is not justified in seeking to have set aside the above-mentioned judgment, which contains adequate reasons ...”. 26. The relevant provisions at the material time read as follows: “Adoption may be applied for by a married couple who have not been judicially separated and have been married for more than two years or are both over twenty-eight years of age.” “Adoption may also be applied for by any person over twenty-eight years of age. ...” 27. The relevant provisions at the material time read as follows: “Children in State care may be adopted either by persons given custody of them by the children's welfare service wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt ... Authorisation shall be granted for five years, within nine months of the date of the application, by the president of the council for the relevant département after obtaining the opinion of a[n] [adoption] board. ...” “Persons wishing to provide a home for a foreign child with a view to his or her adoption shall apply for the authorisation contemplated in Article 63 of this Code.” 28. The relevant provisions of the decree read as follows: “Any person wishing to obtain the authorisation contemplated in the first paragraph of Article 63 and Article 100-3 of the Family and Social Welfare Code must submit an application to that end to the president of the council for the département in which he or she resides. ...” “Before issuing authorisation, the president of the council for the relevant département must satisfy himself that the conditions in which the applicant is proposing to provide a child with a home meet the needs and interests of an adopted child from a family, child-rearing and psychological perspective. To that end, he shall order inquiries into the applicant's circumstances ...” “The decision shall be taken by the president of the council for the relevant département after consulting the adoption board ...” 29. The relevant provisions of this draft Convention, currently being examined by the Committee of Ministers of the Council of Europe, provide inter alia: “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.” 30. The relevant provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 and which came into force on 2 September 1990 read as follows: “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.” “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.” “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.” “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 entitled 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.” “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. ...” 31. The relevant provisions of the Hague Convention of 29 May 1993 provide: “An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State: a) have determined that the prospective adoptive parents are eligible and suited to adopt; b) have ensured that the prospective adoptive parents have been counselled as may be necessary; and c) have determined that the child is or will be authorized to enter and reside permanently in that State.” “1. If the Central Authority of the receiving State is satisfied that the applicants are eligible and suited to adopt, it shall prepare a report including information about their identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, as well as the characteristics of the children for whom they would be qualified to care. 2. It shall transmit the report to the Central Authority of the State of origin.”