CASE OF FRETTE v. FRANCE
No violation of Art. 14+8;Violation of Art. 6-1;Costs and expenses partial award
Nicolas Bratza
9. In October 1991 the applicant made an application for prior authorisation to adopt a child. A social inquiry was opened by the Paris Social Services, Child Welfare and Health Department. On 18 December 1991 the applicant had a first interview with a psychologist from the Department, during which he revealed that he was a homosexual. He submits that during the interview he was strongly urged not to continue with the adoption process. 10. In a decision of 3 May 1993 the Paris Social Services Department rejected the applicant's application for authorisation to adopt. The reasons given for the decision were that the applicant had “no stable maternal role model” to offer and had “difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child”. The decision was taken on the basis of various inquiries leading, among other things, to a social services report of 2 March 1993, which included the following statements: “... Mr Fretté seems to us to be a sensitive, thoughtful man who shows consideration for others. He discusses his emotional life and his homosexuality with a great deal of honesty and simplicity. He spoke to us of a number of relationships which have had a major impact on his life, particularly one with a male friend who has now died. It should be added that he is now the auxiliary guardian of this friend's child. ... His humanistic, altruistic cast of mind prompts him to take an interest in the problems of the Third World. He sponsors two Tibetan children, one of whom is a baby. He is able to talk sensibly and intelligently about the boy over whom he has guardianship. He is not personally responsible for the boy, who is in the care of his grandmother, but he plays a highly active part in his upbringing. His ideas about bringing up children are well thought out and imbued with a spirit of tolerance. Mr Fretté has been thinking about adopting since 1985. He is aware that his homosexuality may be an obstacle to being granted authorisation to adopt because of the prevailing views of society. In his opinion, his choice of emotional and sexual lifestyle has no bearing on his desire to bring up a child. His application is a personal undertaking not a militant gesture. Since 1985 he has met many homosexual men with children. He even once considered having a child with a female friend but the plan came to nothing because of a lack of maturity on both sides. This friend is nonetheless still very interested in Mr Fretté's plan to adopt and has even promised to act as a female role model for the child. Mr Fretté's application to adopt a child is motivated by a desire to provide a child with affection and a proper upbringing. In his view the essential thing is to love and care for a child, adoption, for him, being no more than a social and legal procedure. Mr Fretté has the support of the friends around him. It seems, however, that his family either do not know of his plans or have misgivings about them. His desire for a child is genuine but he has difficulties in envisaging the practical consequences of the upheaval occasioned by the arrival of a child. For example, it was only when we visited his home that he realised how unsuitable his flat is for a child to live in. As a result he began considering the possibility of moving. When questioned as to how he regarded his role in society as a single father he said he did not have an answer. He considers himself capable of managing the day-to-day life of a child and thinks that he will in due course find the answers to the questions about his homosexuality and the absence of an adoptive mother that will occur to the child as he or she grows up. Mr Fretté is perfectly aware of the importance of telling the child about his parentage. He shows understanding towards women who are impelled to abandon their children. He refuses to have any fixed ideas about the characteristics of the child he would like to adopt. Nonetheless, he has been thinking that he would prefer as young a baby as possible and that he may begin searching in Korea or Vietnam. Mr Fretté has undoubted personal qualities and an aptitude for bringing up children. A child would probably be happy with him. The question is whether his particular circumstances as a single homosexual man allow him to be entrusted with a child.” 11. On 21 May 1993 the applicant asked the authorities to reconsider their decision but his application was dismissed by a decision of 15 October 1993 indicating, among other things, that the applicant's “choice of lifestyle” did not appear to be such as to provide sufficient guarantees that he would offer a child a suitable home from a family, child-rearing and psychological perspective. 12. On the same day the applicant lodged an application for judicial review of that decision with the administrative court, seeking to have the decisions dismissing his application for authorisation quashed. 13. In a judgment of 25 January 1995 the Paris Administrative Court set aside the decisions refusing the applicant authorisation, citing the following grounds, inter alia: “In dismissing Mr Fretté's application for authorisation to adopt a child, the main reasons given by the authorities were that Mr Fretté had 'no stable maternal role model' to offer and found it difficult 'to envisage the practical consequences of the upheaval occasioned by the arrival of a child'. The first reason is a circumlocution, by which the authorities could only have meant to refer to Mr Fretté's unmarried status, which could be lawfully relied on in support of the impugned decision but, under the provisions of Article 9, paragraph 2, of the decree of 23 August 1985, could not lawfully constitute the sole reason for the decision. Neither is there any evidence in the case file to substantiate the second reason given, which seems in fact to be erroneous in view of the information provided in the reports drawn up by the social services. The reason given for the decision of 15 October 1993, by which the Director of Social Services, Child Welfare and Health dismissed Mr Fretté's appeal and confirmed the initial decision examined above, was Mr Fretté's 'choice of lifestyle'. Through this euphemistically worded reason the authorities were alluding to Mr Fretté's homosexuality. As the authorities themselves acknowledge in their defence pleadings, this aspect of Mr Fretté's personality could only have constituted a reason to refuse authorisation if it had been combined with conduct that was prejudicial to the child's upbringing. The social services report prepared by Mrs S. and Mrs D. credits Mr Fretté with 'undoubted personal qualities and an aptitude for bringing up children', finds that 'a child would probably be happy with him' and only raises a question as to the compatibility of Mr Fretté's adoption plans with the 'particular circumstances' of his being 'a single homosexual man'. The social inquiry conducted by the French Vice-Consul's deputy in London noted Mr Fretté's educational skills, which he shows as much in his private life as in his professional activities. The psychiatrist, Dr D., detected 'no psychological impediment' to Mr Fretté's plan and although the psychologist, Mrs O., recommended that authorisation be refused, she gave no reason for her opinion and drew attention elsewhere in her report to 'Mr Fretté's affective qualities and aptitude for bringing up children and his deep understanding of adoption-related issues'. Whereas the social services reports produced included information, particularly with regard to Mr Fretté's family, which, since they could have no valid bearing on the authorities' decision, infringed his right to respect for his private life, none of the documents included in the case file made it possible to establish or even suggest that Mr Fretté's lifestyle reflected a lack of moral rigour or emotional stability, or a risk that he would abuse the adoption process, or any other conduct indicating that his plan to adopt presented a risk to any child he might adopt. Thus, those who took the contested decisions in the instant case wrongly interpreted the provisions cited above. Mr Fretté's application to have the aforementioned decisions of 3 May and 15 October 1993 set aside is well-founded.” 14. The Paris Social Services appealed against that judgment to the Conseil d'Etat. 15. The Government Commissioner, Mrs C. Maugüe, made her submissions at the hearing of 16 September 1996. She submitted that the Paris Social Services' application to have the contested judgment set aside was well-founded, addressing the court as follows: “The case raises the following question: In spite of Mr F.'s undoubted personal and intellectual qualities, did the authorities have good reason to consider that he did not provide sufficient guarantees to offer a child a home because of his choice of lifestyle? In the light of the information in the case file, this question is elevated to a matter of principle. This case does not turn on its own facts because the documents in the case file leave me in no doubt that in many respects Mr F. has a genuine aptitude for bringing up children. The only thing that prompted the authorities to refuse authorisation was the fact that Mr F. was a homosexual and therefore that he did not provide sufficient guarantees that he would offer a child a suitable home from a psychological, child-rearing and family point of view. However, nothing in the case file suggests in any way that Mr F. leads a dissolute life and neither is there any reference in it to any specific circumstance that might pose a threat to the child's interests. Accepting the lawfulness of the refusal of authorisation in the instant case would implicitly but necessarily doom to failure all applications for authorisation to adopt by homosexuals ... It is certain that a number of factors would tend to indicate that the Paris Social Services made an error in assessing the evidence. The first and undoubtedly the strongest argument is that since the major reform of the laws on adoption introduced by the Act of 11 July 1966, single persons, whether men or women, have been entitled to adopt. ... Deciding ... by judicial interpretation that an unmarried homosexual man does not provide sufficient guarantees from a psychological and family perspective to adopt a child introduces discrimination between adoption candidates on grounds of their choice of private life which was not expressly intended by Parliament. The second argument in favour of the Administrative Court's ruling is that a person's right to lead the sex life of his or her choice should not, of course, be contested. This is one of the key components of the right to respect for private life guaranteed, inter alia, by Article 8 of the European Convention on Human Rights and Article 9 of the Civil Code. There is no longer any discrimination against homosexuality at domestic level ... Pau Court of Appeal, 25 April 1991, no. 91-40734). Conversely, another court found that a father who had 'immoral homosexual relations incompatible with the exercise of parental authority' could not exercise that authority (Rennes Court of Appeal, 27 September 1989, no. 89-48660). Similarly, in a judgment in which it was found that, because of the father's homosexual practices, it would be particularly dangerous for the moral and physical well-being of his children to spend their holidays with him, it was held that there were serious grounds to justify refusing the father that right (First Civil Division of the Court of Cassation (Cass. civ. I), 13 January 1988, no. 86-17784). More recently the Court of Cassation granted a homosexual donor parental authority over a child born by artificial insemination to a mother who was herself involved in a homosexual relationship (Cass. civ. I, 9 March 1994, Mme L. c. M. L.; D 1995.197 note E. Monteiro; D 1995 summary 131, observations by D. Bourgault-Coudeyville). The courts do not therefore presume that because someone is a homosexual, he or she is disqualified from exercising parental rights. The discussion focuses mainly on the child's interests and the dangers that such circumstances may pose to the child's mental health. Lastly, authorisation is merely an administrative decision taken prior to the adoption process. ... 2.2. Nonetheless, I consider, for a number of reasons, that the Paris Social Services did not commit any error in assessing the evidence when it held that Mr F. did not provide the necessary guarantees. A number of factors led me to this conclusion. Firstly, the right of everyone to the sex life of their choice should not be confused with a hypothetical right to have children. ... Secondly, the pertinence of the comparison with the case-law on custody of children and parental authority is clearly limited. The examples cited above relate only to a previously established family tie or one which corresponds to an actual line of descent. It is one thing to preserve a filial tie between a child and parents who are separating or who wish to confirm their links with him or her but another to allow the establishment of a family tie between a child and an adult out of nothing ... Thirdly, the question whether a child is in danger of being psychologically disturbed by his relationship with an adult who cannot offer him or her the reference point of a distinct father and mother, in other words a model of sexual difference, is a very difficult one which divides psychiatrists and psycho-analysts. Adopted children are all the more in need of a stable and fulfilling family environment because they have been deprived of their original family and have already suffered in the past. This makes it all the more important that they do not encounter any further problems within their adopted family. ... There is no agreement on the answer to that question. If there is any consensus it lies instead in the growing awareness that the rights of the child set the limits of the right to have children and that the child's interests cannot always be reconciled with current developments. This being so, I believe that when dealing with such a sensitive question, whose implications are more ethical and sociological than legal, it is up to Parliament to take a stance on what amounts to a choice for society. The courts, for their part, should not be anticipating shifts in public opinion, but responding to them. This brings me to my fourth argument, which is that the question whether one or more homosexuals should be entitled to adopt is not one which Parliament can be said to have determined. ... Fifthly, there should be no underestimating the part that authorisation plays in the adoption procedure. Admittedly, this is only one stage in the adoption process but it is a crucial one because the adoption cannot go ahead without it. ... It should be added, as a concluding remark regarding authorisation, that I am aware that what I propose has the drawback that it appears to encourage candidates for adoption to conceal the truth if they feel that their choice of lifestyle amounts to an absolute impediment to their being granted authorisation. However, there are two reasons why I think that this problem can be overcome. Firstly, the question will not arise very often because, as was mentioned above, the scarcity of children eligible for adoption compared to the demand usually prompts the social services to reject requests from single candidates. Secondly, the aim of the inquiries conducted prior to the granting of authorisation is precisely to ensure that the candidate can offer a child a suitable home and this inevitably means that the experts investigate his or her private life. Although the inquisitorial nature of these inquiries has sometimes been condemned (see for example J. Rubellin-Devichi, Revue française de droit administratif, 1992, pp. 904 et seq.), they do have the merit of ensuring that authorisation is then granted in full knowledge of the facts. My final argument is that if you have any remaining scruples about the fact that in considering the legality of a refusal of authorisation you are ruling on a matter which it is usually for the ordinary courts to decide in their capacity as the judges of matters of personal status, your scruples may be partly allayed by the fact that the position you will be taking will not entirely prevent the ordinary courts from authorising the adoption of a child by a homosexual in certain cases if they consider it compatible with the child's interests. When the new law on adoption was introduced recently, a new Article 353-1 was added to the Civil Code, the second paragraph of which provides that if authorisation is refused or not granted within the statutory time, the courts may approve the adoption if they consider that the applicants are capable of providing the child with a suitable home and that this is compatible with the child's interests. ... It follows from the foregoing that the Paris Social Services are justified in maintaining that the Paris Administrative Court was wrong to rule in the judgment appealed against that the two impugned decisions should be set aside.” 16. In a judgment of 9 October 1996 the Conseil d'Etat set aside the Administrative Court's judgment and, ruling on the merits, rejected the applicant's application for authorisation to adopt. It decided, inter alia, as follows: “In a decision of 3 May 1993, upheld by a further decision of 15 October 1993 in response to an application for reconsideration, the chairman of the Paris Council ... rejected Mr Fretté's application for authorisation to adopt a child on the ground that although the applicant's choice of lifestyle was to be respected, the type of home that he was likely to offer a child could pose substantial risks to the child's development. From the information in the case file, particularly the evidence gathered when Mr Fretté's application was being considered, it emerges that Mr Fretté, regard being had to his lifestyle and despite his undoubted personal qualities and aptitude for bringing up children, did not provide the requisite safeguards – from a child-rearing, psychological and family perspective – for adopting a child. The Paris Administrative Court was thus wrong, when setting aside the contested decisions, to rely on the argument that, in refusing the authorisation sought by Mr Fretté on the aforementioned ground, the chairman of the Paris Council had applied these provisions incorrectly. However, since the appeal procedure has had the effect of transferring all the issues of fact and law to the Conseil d'Etat, it is for the latter to examine the other submissions made by Mr Fretté before the Paris Administrative Court. ... The grounds given for the contested decisions satisfy the requirements of the law. ...” 17. The relevant provisions of the Civil Code provide 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 twentyeight years of age.” “Adoption may also be applied for by any person over twenty-eight years of age.” (the age-limit was thirty at the material time, namely prior to the adoption of Law no. 96-604 of 5 July 1996) 18. The Family and Social Welfare Code lays down the rules on the taking of children into State care and the conditions for their adoption. It describes the authorisation procedure as follows: “ ... Children in State care may be adopted by persons given custody of them by the social services wherever the emotional ties that have been established between them warrant such a measure or by persons granted authorisation to adopt by the head of the children's welfare service under the conditions laid down by decree ...” “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.” 19. Decree no. 85-938 of 23 August 1985 established the arrangements for appraising applications for authorisation to adopt a child in State care as follows: “Any person wishing to obtain the authorisation contemplated in the second paragraph of Article 63 of the Family and Social Welfare Code must submit an application to that end to the head of the children's welfare service of the département in which he or she resides.” “In order to assess the application, the head of the children's welfare service shall conduct all the investigations required to ascertain what kind of home the applicant is likely to offer the children from a psychological, child-rearing and family perspective ...” “Decisions to refuse authorisation must be supported by reasons as laid down in section 3 of the Law of 11 July 1979 cited above. The applicant's age or matrimonial status or the presence of children in his or her household may not constitute the sole reason for a refusal.” “The decision by the head of the children's welfare service shall apply for three years. A further application for authorisation may be made when that period has expired. Further applications shall be assessed under the same procedure. ...” 20. According to data collected by the French authorities, some 11,500 applications for authorisation were made in 1999. About 8,000 applications were examined that year and the usual average of some 10% were rejected. At the time there were around 2,000 children in State care awaiting adoption. In 1999 the authorities issued some 4,000 visas to foreign children following their adoption by persons residing in France. 21. At the material time, Article 55 of the Decree of 30 July 1963 on the organisation and functioning of the Conseil d'Etat required lawyers to be advised at least four days before the sitting if any cases in which they were due to appear were on the list of cases to be heard and to be notified of the issues raised in reports to the Conseil d'Etat. The obligation to notify therefore applied only in respect of lawyers. 22. As regards private individuals, a decision of the Conseil d'Etat of 16 March 1966 (Paisnel, Reports, p. 216) pointed out: “There is no rule stating that appellants must receive [notice of the date on which their case is to be heard]. If they have not appointed a legal representative, it is for them to ask to be notified of the date on which their case is to be heard or to consult the notice boards installed for this purpose at the registry of the Judicial Division. This rule, which provides that the parties are summoned to the hearing only if they have appointed a lawyer, should be seen in the light of the rule laid down in section 67 of the Ordinance of 31 July 1945, under which only members of the Court of Cassation and the Conseil d'Etat Bar (the avocats aux conseils) may plead during hearings before these courts.” 23. Since 1 January 2001 all parties to proceedings before the Conseil d'Etat have been automatically informed of the date of the hearing. As in the past, the lists of cases for hearing are displayed at the Judicial Division secretariat and so are accessible to the public. 24. At the hearing the Government Commissioner speaks after counsel for the opposing parties have addressed the court and so the parties to the case cannot speak after him (see Kress v. France [GC], no. 39594/98, § 48, ECHR 2001-VI). Even if they are not represented by a lawyer, they do, however, have the possibility, hallowed by usage, of sending the trial bench a “memorandum for the deliberations” to supplement the observations they have made orally or to reply to the Government Commissioner's submissions. This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins. 25. By section 45 of the Ordinance of 1945, cases for which it is not compulsory to be represented by a lawyer include applications for judicial review of the decisions of the various administrative authorities.