CASE OF E.B. v. FRANCE


                                    (Application no. 43546/02)











                                             JUDGMENT




                                            STRASBOURG


                                          22 January 2008



This judgment is final but may be subject to editorial revision.

In the case of E.B. v. France,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

          Christos Rozakis, President,
          Jean-Paul Costa,
          Nicolas Bratza,
          Boštjan Zupančič,
          Peer Lorenzen,
          Françoise Tulkens,
          Loukis Loucaides,
          Ireneu Cabral Barreto,
          Riza Türmen,

          Mindia Ugrekhelidze,
          Antonella Mularoni,
          Elisabeth Steiner,
          Elisabet Fura-Sandström,
          Egbert Myjer,
          Danutė Jočienė,
          Dragoljub Popović,

          Sverre Erik Jebens, judges,
and Michael O'Boyle, Deputy Registrar,

Having deliberated in private on 14 March 2007 and on 28 November 2007,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1.  The case originated in an application (no. 43546/02) against the French Republic lodged with
the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a French national, Ms E.B. (“the applicant”), on 2 December 2002.
The President of the Grand Chamber acceded to the applicant's request not to have her name
disclosed (Rule 47 § 3 of the Rules of Court).

2.  The applicant alleged that at every stage of her application for authorisation to adopt she had
suffered discriminatory treatment that had been based on her sexual orientation and had interfered
with her right to respect for her private life.

3.  The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules). On
19 September 2006 a Chamber of that Section, composed of the following judges: Ireneu Cabral
Barreto, President, Jean-Paul Costa, Rıza Türmen, Mindia Ugrekhelidze, Antonella Mularoni,
Elisabet Fura-Sandström, Dragoljub Popović, judges, and Sally Dollé, Section Registrar,
relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to
relinquishment (Article 30 of the Convention and Rule 72). Prior to relinquishment the Chamber had
received written comments submitted by Prof. R. Wintemute on behalf of four NGOs – Fédération
internationale des Ligues des Droits de l'Homme (FIDH); European Region of the International
Lesbian and Gay Association (ILGA–Europe); British Association for Adoption and Fostering
(BAAF); and Association des Parents et futurs parents Gays et Lesbiens (APGL) – as third-party
interveners (Rule 44 § 2). Those observations were included in the case file transmitted to the
Grand Chamber.

4.  The composition of the Grand Chamber was determined in accordance with the provisions of
Article 27 §§ 2 and 3 of the Convention and Rule 24.

5.  The applicant, but not the Government, filed written observations on the merits.

6.  A hearing took place in public in the Human Rights Building, Strasbourg, on 14 March 2007 (Rule
59 § 3).


There appeared before the Court:

(a)  for the Government
Ms    E. Belliard, Director of Legal Affairs,
                      Ministry of Foreign Affairs,                                           Agent,
Ms    A.-F. Tissier, Head of the Human Rights Section,
Ms    M.-G. Merloz, Drafting Secretary,
                      Human Rights Section,
Ms    L. Neliaz, Administrative Assistant, Child and
                      Family Bureau, Ministry of Employment,
                      Social Cohesion and Housing,
Ms    F. Turpin, Drafting Secretary, Legal and Contentious
                      Issues Office, Ministry of Justice,                              Advisers;

(b)  for the applicant
Ms    C. Mécary, of the Paris Bar,                                                 Counsel,
Mr    R. Wintemute, Professor of Human Rights Law,
                      King's College, University of London,
Mr    H. Ytterberg, Ombudsman against Discrimination
                      on grounds of Sexual Orientation in Sweden,
Mr    A. Weiss,
Advisers.


The Court heard addresses by Ms C. Mécary and Ms E. Belliard.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

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 ...”.

II.  RELEVANT LAW AND PRACTICE

A.  Domestic law

1.  The Civil Code

26.  The relevant provisions at the material time read as follows:

Article 343

   “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.”

Article 343-1

“Adoption may also be applied for by any person over twenty-eight years of age. ...”

2.  Family and Social Welfare Code

27.  The relevant provisions at the material time read as follows:

Article 63

“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. ...”

Article 100-3

“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.”

3.  Decree no. 98-771 of 1 September 1998 establishing the arrangements for appraising applications
for authorisation to adopt a child in State care

28.  The relevant provisions of the decree read as follows:

Article 1

“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. ...”

Article 4

“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 ...”

Article 5

“The decision shall be taken by the president of the council for the relevant département after
consulting the adoption board ...”

B.  International Conventions

1.  Draft European Convention on the Adoption of Children

29.  The relevant provisions of this draft Convention, currently being examined by the Committee of
Ministers of the Council of Europe, provide inter alia:

Article 7 – Conditions for adoption

“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.”

2.  International Convention on the Rights of the Child

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:

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 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.”

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. ...”

3.  Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in Respect of
International Adoption


31.  The relevant provisions of the Hague Convention of 29 May 1993 provide:

Article 5

“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.”

Article 15

“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.”

THE LAW

32.  The applicant alleged that she had suffered discriminatory treatment that had been based on
her sexual orientation and had interfered with her right to respect for her private life. She
relied on Article 14 of the Convention taken in conjunction with Article 8, which provide:

Article 8


“1.  Everyone has the right to respect for his private and family life, his home and his
correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority, property, birth or other
status.”

I.  ADMISSIBILITY

A.  Submissions of the parties

1.  The applicant

33.  The applicant stated that adoption by homosexuals fell into three quite distinct categories:
first, it might be a single person seeking to adopt, in a member State where adoptions by single
persons were permitted (even if only in exceptional cases), in which case any partner the
individual might have acquired no parental rights as a result of the adoption (individual
adoption); second, one member of a same-sex couple might seek to adopt the child of the other
partner, so that both partners had parental rights vis-à-vis the child (second-parent adoption);
and lastly, both members of a same-sex couple might seek to jointly adopt a child with no prior
connection with either partner, so that both partners simultaneously acquired parental rights
vis-à-vis the child (joint adoption). The applicant specified that she had applied for individual
adoption, which was the simpler legal option.

34.  She emphasised the importance of obtaining authorisation, which, in practice, was a
precondition to adopting a child in France or abroad.

35.  The applicant did not claim a right to adopt, which – irrespective of the sexual orientation
of the prospective adoptive parent – did not exist. Nevertheless, she submitted that Article 14 of
the Convention, taken in conjunction with Article 8, was applicable to the present case. Firstly,
the opportunity or chance of applying for authorisation to adopt fell within the scope of Article 8
both with regard to “private life”, since it concerned the creation of a new relationship with
another individual, and “family life”, since it was an attempt to create a family life with the
child being adopted. Secondly, a person's sexual orientation, which was an aspect of their private
life, accordingly fell within the scope of Article 8.

2.  The Government

36.  The Government contended that the application was inadmissible, since the complaint fell
outside the scope of Article 8 of the Convention and, consequently, Article 14. In any event,
unlike in Fretté (Fretté v. France, no. 36515/97, § 32, ECHR 2002-I), the refusal to grant the
applicant authorisation had not been based, explicitly or implicitly, on the applicant's sexual
orientation and could not therefore amount to direct or indirect discrimination based on her
homosexuality.

37.  The reason for refusing her authorisation had been dictated by the child's interests alone and
had been based on two grounds: lack of a paternal referent and the ambivalence of the applicant's
partner's commitment to her adoption plans.

38.  With regard to the ground relating to the lack of a paternal referent, the Government pointed
out that many professionals considered that a model of sexual difference was an important factor in
a child's identity and that it was perfectly understandable that the social services of the
département should take into consideration the lack of markers enabling a child to construct its
identity with reference to a father figure. The Government cited decisions of the domestic courts
in support of their submission that any other heterosexual applicant whose immediate circle of
family and friends did not include a member of the opposite sex would have had their application
refused on the same ground.

39.  With regard to the second ground, the Government submitted at the outset that the lack of
commitment on the part of the applicant's partner was an established fact. They observed that the
applicant continued to deny the relevance of that fact, whereas it was legitimate to have regard to
the conduct of a prospective adoptive parent's immediate circle of family and friends where there
were plans to bring a child into the home. Irrespective of the lack of legal consequences for the
partner, the arrival of a child would change the balance of the receiving couple and the family
unit, and an adopted child's previous history made it all the more important to assess the solidity
of a couple's approach to any plan to adopt. Accordingly, apart from the fact that R. would
necessarily be involved in the child's day-to-day life, her lack of involvement could be seen as a
source of insecurity for the child with the risk that the child would find him or herself in
competition with the applicant's partner for the applicant's time and affection. In the
Government's submission, that ground could not be said to be related to the applicant's sexual
orientation, as had been borne out by the decisions of the domestic courts.

40.  In the Government's view, the circumstances of the present case were therefore very different
from those in Fretté (cited above) and it should be stressed that the French administrative and
judicial authorities had given paramount consideration to what lay in the best interests of the
child. Those best interests were central to many international instruments binding on France. There
was no right to a child or right to authorisation to adopt one. Adoption was a measure taken for
the child's protection and was designed to provide him or her with a family. The sole purpose of
the authorisation procedure was to identify from among the many candidates the person who could
provide a child with the most suitable home in every respect. Accordingly, the desire for a child
must not prevail over the child's interests.

B.  The Court's assessment

41.  The Court, noting that the applicant based her application on Article 14 of the Convention,
taken in conjunction with Article 8, reiterates at the outset that the provisions of Article 8 do
not guarantee either the right to found a family or the right to adopt (see Fretté, cited above, §
32). Neither party contests this. The right to respect for “family life” does not safeguard the
mere desire to found a family; it presupposes the existence of a family (see Marckx v. Belgium,
judgment of 13 June 1979, Series A no. 31, § 31), or at the very least the potential relationship
between, for example, a child born out of wedlock and his or her natural father (see Nylund v.
Finland (dec.), no. 27110/95, ECHR 1999‑VI ), or the relationship that arises from a genuine
marriage, even if family life has not yet been fully established (see Abdulaziz, Cabales and
Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 62), or the
relationship that arises from a lawful and genuine adoption (see Pini and Others v. Romania,
nos. 78028/01 and 78030/01, § 148 , ECHR 2004‑V).

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 20 November 1989, or the Hague Convention of 29 May 1993 on the Protection of Children and
Co-operation in Respect of International Adoption (see paragraphs 30-31 above).

43.  The Court has, however, previously held that the notion of “private life” within the meaning
of Article 8 of the Convention is a broad concept which encompasses, inter alia, the right to
establish and develop relationships with other human beings (see Niemietz v. Germany, judgment of
16 December 1992, Series A no. 251‑B, p. 33, § 29), the right to “personal development” (see
Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001‑I) or the right to self-determination
as such (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002‑III). It encompasses
elements such as names (see Burghartz v. Switzerland, judgment of 22 February 1994, Series A
no. 280‑B, p. 28, § 24), gender identification, sexual orientation and sexual life, which fall
within the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom,
judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41, and Laskey, Jaggard and Brown v. the
United Kingdom, judgment of 19 February 1997, Reports of Judgments and Decisions 1997-I, p. 131, §
36), and the right to respect for both the decisions to have and not to have a child (see
Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007‑...).

44.  Admittedly, in the instant case the proceedings in question do not concern the adoption of a
child as such, but an application for authorisation to adopt one subsequently. The case therefore
raises the issue of the procedure for obtaining authorisation to adopt rather than adoption itself.
However, the parties do not contest that in practice authorisation is a precondition for adopting a
child.

45.  It should also be noted that the applicant claimed to have been discriminated against on the
ground of her avowed homosexuality, resulting in a violation of the provisions of Article 14 of the
Convention taken in conjunction with Article 8.

46.  The Court is not therefore called upon to rule whether the right to adopt, having regard,
inter alia, to developments in the legislation in Europe and the fact that the Convention is a
living instrument which must be interpreted in the light of present-day conditions (see, in
particular, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112,
pp. 24-25, § 53), should or should not fall within the ambit of Article 8 of the Convention taken
alone.

47. With regard to Article 14, which was relied on in the present case, the Court reiterates that
it only complements the other substantive provisions of the Convention and the Protocols thereto.
It has no independent existence since it has effect solely in relation to “the enjoyment of the
rights and freedoms” safeguarded by those provisions (see, among many other authorities, Sahin v.
Germany [GC], no. 30943/96, § 85, ECHR 2003‑VIII). The application of Article 14 does not
necessarily presuppose the violation of one of the substantive rights protected by the Convention.
It is necessary but it is also sufficient for the facts of the case to fall “within the ambit” of
one or more of the Articles of the Convention (see Abdulaziz, Cabales and Balkandali, cited above,
§ 71; Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291‑B, § 22; and
Petrovic v. Austria, judgment of 27 March 1998, Reports 1998‑II, § 22).

48.  The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of
the rights and freedoms which the Convention and the Protocols thereto require each State to
guarantee. It applies also to those additional rights, falling within the general scope of any
Convention Article, for which the State has voluntarily decided to provide. This principle is well
entrenched in the Court's case-law (see Case “relating to certain aspects of the laws on the use of
languages in education in Belgium” v. Belgium (Merits), judgment of 23 July 1968, Series A no. 6, §
9; Abdulaziz, Cabales and Balkandali, cited above, § 78; and Stec and Others v. the United Kingdom
(dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005‑X).

49.  The present case does not concern adoption by a couple or by the same-sex partner of a
biological parent, but solely adoption by a single person. Whilst Article 8 of the Convention is
silent as to this question, the Court notes that French legislation expressly grants single persons
the right to apply for authorisation to adopt and establishes a procedure to that end. Accordingly,
the Court considers that the facts of this case undoubtedly fall within the ambit of Article 8 of
the Convention. Consequently, the State, which has gone beyond its obligations under Article 8 in
creating such a right – a possibility open to it under Article 53 of the Convention – cannot, in
the application of that right, take discriminatory measures within the meaning of Article 14 (see,
mutatis mutandis, Case “relating to certain aspects of the laws on the use of languages in
education in Belgium”, cited above).

50.  The applicant alleged in the present case that, in the exercise of her right under the
domestic law, she had been discriminated against on the ground of her sexual orientation. The
latter is a concept covered by Article 14 of the Convention (see Salgueiro da Silva Mouta
v. Portugal, no. 33290/96, § 28, ECHR 1999-IX). The Court also points out that in Fretté v. France
(cited above), to which the parties expressly referred, the applicant complained that the rejection
of his application for authorisation to adopt had implicitly been based on his sexual orientation
alone. The Chamber found that Article 14 of the Convention, taken in conjunction with Article 8,
was applicable (§ 33).

51.  Accordingly, Article 14 of the Convention, taken in conjunction with Article 8, is applicable
in the present case.

52.  In these circumstances the Court dismisses the preliminary objection raised by the Government.
It also considers, in the light of the parties' submissions, that this complaint raises complex
issues of fact and law which cannot be resolved at this stage in the examination of the
application, but require examination on the merits. It follows that this complaint cannot be
declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other
ground for declaring it inadmissible has been established. It must therefore be declared
admissible.

II.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8

A.  Submissions of the parties

1.  The applicant

53.  The applicant maintained that the refusal to grant her authorisation to adopt had been based
on her “lifestyle”, in other words her homosexuality. In her view, this was borne out by the
screening of her application and the opinion of the adoption board. She also considered that part
of the judgment delivered by the Conseil d'Etat was worded in the same terms as the judgment it had
rendered in the case of Fretté (cited above), which showed that the Conseil d'Etat adopted a
discriminatory approach.

54.  With regard to the ground based on the lack of a paternal referent, she argued that while the
majority of French psychoanalysts believed that a child needed a dual maternal and paternal
referent, there was no empirical evidence for that belief and it had been disputed by many other
psychotherapists. Moreover, in the present case the Government had not shown that there was a
practice of excluding single heterosexual women who did not have a male partner.

55.  With regard to the argument based on her partner's place in and attitude to her plan to adopt,
she submitted that this was an illegal ground. Articles 343 and 343-1 of the Civil Code provided
that adoption was open to married couples and single persons: partners were not concerned and
therefore were not a party to the adoption procedure and did not enjoy any legal status once the
child was adopted. Having regard to her right to be subject to foreseeable legal rules, the
applicant contested a ground for rejection of her application that had no basis in the law itself.

56.  The applicant went on to stress that she and her partner had had a meeting with the social
worker and that subsequently the various officials involved in screening her application for
authorisation had never asked to meet her partner. Either steps should have been taken to interview
her partner or this ground had in reality served as a pretext for rejecting her application purely
on the basis of her sexual orientation.

57.  The applicant submitted that the difference in treatment in her regard had no objective and
reasonable justification. Particularly serious reasons were required to justify a difference in
treatment based on sexual orientation. There were no such reasons in this case.

58.  With regard to the division in the scientific community (Fretté, § 42), particularly serious
reasons were required to justify a difference in treatment of homosexuals. The burden of proving
the existence of any scientific reasons was on the Government and if they had failed to prove in
Fretté and in the instant case that there was a consensus in the scientific community, this was
because there was no known study on the subject.

59.  The applicant disputed the existence of a “legitimate aim”, since children's health was not
really in issue here and the Conseil d'Etat had not explained how the child's health might be
endangered. She submitted that three risks were generally cited: first, the alleged risk of the
child becoming homosexual, which, quite apart from the fact that there was nothing reprehensible
about such an eventuality and that the majority of homosexuals had heterosexual parents, was a
prejudiced notion; second, the child would be exposed to the risk of developing psychological
problems: that risk had never been proved and recent studies showed that being raised in a
homoparental family did not incline a child to any particular disorder; besides that, the right to
adopt that existed in some democratic countries showed that there was no risk for the child.
Lastly, there was no long-term risk that the child would suffer on account of homophobic prejudices
towards the parents and, in any event, the prejudices of a sexual majority did not constitute
sufficient justification.

60.  She pointed out that the practice of the administrative authorities was inconsistent in
France, where some départements no longer refused authorisation to single homosexual applicants.
She also stated that the civil courts allowed adoption by the same-sex partner of the original
parent.

61.  In Europe there had been a steady development in the law in favour of adoption by same-sex
couples since the Fretté judgment (cited above, § 41), with some ten European States now allowing
it. The applicant also referred to a European consensus in favour of making adoption available to
single homosexuals in the member States of the Council of Europe which allowed adoption by single
persons, other than France where decisions were made on a discretionary basis. The same was true
outside Europe, where case-law developments were in favour of adoption by homosexuals in the
interests of children needing a home.

62.  Lastly, she disputed the argument that there were insufficient numbers of children eligible
for adoption, to which the Court had adhered in its Fretté judgment (cited above, § 42), arguing
that the number of children eligible for adoption in the world exceeded the number of prospective
adoptive parents and that making a legal possibility available should not depend on the effective
possibility of exercising the right in question.

2.  The Government

63.  The Government pointed out that authorisation to adopt was issued at local, and not national,
level by the president of the council for the département after obtaining the opinion of an
adoption board at département level. In 2005, 13,563 new applications had been submitted, of which
barely 8 % had not been satisfied (with less than 6 % being refused authorisation and about 2 %
being withdrawn). In 2006, 4,000 visas had been granted by the relevant authorities to foreign
children being adopted. The Government stated that they could not provide statistics relating to
the applicants' sexual orientation, as the collecting or processing of personal data about a
person's sexual life were prohibited under French law.

64.  The Government submitted, in the alternative, that the present case did not lend itself to a
review of the Court's finding in the Fretté judgment (cited above), since present-day conditions
had not sufficiently changed to justify a departure from precedent.

65.  With regard to national laws, there was no European consensus on the subject, with only nine
out of forty-six member States of the Council of Europe moving towards adoption by same-sex couples
and some countries not making adoption available to single persons or allowing it under more
restrictive conditions than in France. Moreover, that observation should be qualified by the nature
of those laws and the conditions that had to be met.

66.  The conclusion reached by the Court in Fretté regarding the division in the scientific
community was still valid today. The Government justified the failure to produce studies
identifying problems or differences in development in children raised by homosexual couples by the
fact that the number of children raised by a homosexual couple was unknown and the estimated
numbers highly variable. Besides the complexity of the various situations that might be
encountered, the existing studies were insufficiently thorough because they were based on
insufficiently large samples, failed to take a detached approach and did not indicate the profile
of the single-parent families in question. Child psychiatrists or psychoanalysts defended different
theories, with a majority arguing that a dual maternal and paternal referent in the home was
necessary.

67.  There were also still wide differences in public opinion since Fretté (cited above, § 42).

68.  The Government confirmed that the reality was that applications to adopt outnumbered children
eligible for adoption. Their international obligations, particularly Articles 5 and 15 of the Hague
Convention, compelled them to select candidates on the basis of those best able to provide the
child with a suitable home.

69.  Lastly, they pointed out that none of the sixty or so countries from which French people
adopted children authorised adoption by same-sex couples. International adoption might therefore
remain a purely theoretical possibility for homosexuals despite the fact that their domestic law
allowed it.

B.  The Court's assessment

70.  The Court observes that in Fretté v. France (cited above) the Chamber held that the decisions
to reject the application for authorisation had pursued a legitimate aim, namely to protect the
health and rights of children who could be involved in an adoption procedure (§ 38). With regard to
whether a difference in treatment was justified, and after observing that there was no common
ground between the legal systems of the Contracting States, the Chamber found it quite natural that
the national authorities should enjoy a wide margin of appreciation when they were asked to make
rulings on such matters, subject to review by the Court (§ 41). Having regard to the competing
interests of the applicant and children who were eligible for adoption, and to the paramountcy of
the latter's best interests, it noted that the scientific community was divided over the possible
consequences of a child being adopted by one or more homosexual parents, that there were wide
differences in national and international opinion and that there were not enough children to adopt
to satisfy demand (§ 42). Taking account of the broad margin of appreciation to be left to States
in this area and to the need to protect children's best interests to achieve the desired balance,
the Chamber considered that the refusal to authorise adoption had not infringed the principle of
proportionality and that, accordingly, the justification given by the Government appeared objective
and reasonable and the difference in treatment complained of was not discriminatory within the
meaning of Article 14 of the Convention (§§ 42 and 43).

71.  The Court notes that the present case also concerns the question of how an application for
authorisation to adopt submitted by a homosexual single person is dealt with; it nonetheless
differs in a number of respects from the above-cited case of Fretté. The Court notes in particular
that whilst the ground relating to the lack of a referent of the other sex features in both cases,
the domestic administrative authorities did not – expressly at least – refer to E.B.'s “choice of
lifestyle” (see Fretté, cited above, § 32). Furthermore, they also mentioned the applicant's
qualities and her child-raising and emotional capacities, unlike in Fretté where the applicant was
deemed to have had difficulties in envisaging the practical consequences of the upheaval occasioned
by the arrival of a child (§§ 28 and 29). Moreover, in the instant case the domestic authorities
had regard to the attitude of E.B.'s partner, with whom she had stated that she was in a stable and
permanent relationship, which was a factor that had not featured in the application lodged by Mr
Fretté.

72.  In the instant case the Court notes that the domestic administrative authorities, and then the
courts that heard the applicant's appeal, based their decision to reject her application for
authorisation to adopt on two main grounds.

73.  With regard to the ground relied on by the domestic authorities relating to the lack of a
paternal or maternal referent in the household of a person seeking authorisation to adopt, the
Court considers that this does not necessarily raise a problem in itself. However, in the
circumstances of the present case it is permissible to question the merits of such a ground, the
ultimate effect of which is to require the applicant to establish the presence of a referent of the
other sex among her immediate circle of family and friends, thereby running the risk of rendering
ineffective the right of single persons to apply for authorisation. The point is germane here
because the case does not concern an application for authorisation to adopt by a – married or
unmarried – couple, but by a single person. In the Court's view, that ground might therefore have
led to an arbitrary refusal and have served as a pretext for rejecting the applicant's application
on grounds of her homosexuality.

74.  The Court observes, moreover, that the Government, on whom the burden of proof lay (see,
mutatis mutandis, Karner v. Austria, no. 40016/98, §§ 41-42, ECHR 2003‑IX), were unable to produce
statistical information on the frequency of reliance on that ground according to the – declared or
known – sexual orientation of the persons applying for adoption, which alone could provide an
accurate picture of administrative practice and establish the absence of discrimination when
relying on that ground.

75.  In the Court's view, the second ground relied on by the domestic authorities, based on the
attitude of the applicant's partner, calls for a different approach. Although she was the
long-standing and declared partner of the applicant, Ms R. did not feel committed by her partner's
application to adopt. The authorities, which constantly remarked on this point – expressly and
giving reasons – concluded that the applicant did not provide the requisite safeguards for adopting
a child.

76.  It should first be noted that, contrary to the applicant's submissions, the question of the
attitude of her partner, with whom she stated that she was in a stable and lasting relationship, is
not without interest or relevance in assessing her application. It is legitimate for the
authorities to ensure that all safeguards are in place before a child is taken into a family.
Accordingly, where a male or female applicant, although unmarried, has already set up home with a
partner, that partner's attitude and the role he or she will necessarily play on a daily basis in
the life of the child joining the home set-up require a full examination in the child's best
interests. It would moreover be surprising, to say the least, if the relevant authorities, having
been informed of the existence of a de facto couple, pretended to be unaware of that fact when
assessing the conditions in which the child would be given a home and his future life in that new
home. The legal status of a person seeking to adopt is not incompatible with an examination of his
or her actual situation and the subsequent finding of not one but two adults in the household.

77.  The Court notes, moreover, that Article 4 of the Decree of 1 September 1998 (see paragraph 28
above) requires the president of the council for the relevant département 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 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 20 November 1989, the Hague Convention of 29 May 1993 or
the draft European Convention on the Adoption of Children (see paragraphs 29-31 above).

78.  In the Court's view, there is no evidence to establish that the ground in question was based
on the applicant's sexual orientation. On the contrary, the Court considers that this ground, which
has nothing to do with any consideration relating to the applicant's sexual orientation, is based
on a simple analysis of the known, de facto situation and its consequences for the adoption of a
child.

79.  The applicant cannot therefore be deemed to have been discriminated against on the ground of
her sexual orientation in that regard.

80.  Nonetheless, these two main grounds form part of an overall assessment of the applicant's
situation. For this reason, the Court considers that they should not be considered alternatively,
but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of
contaminating the entire decision.

81.  With regard to the administrative phase, the Court observes that the president of the council
for the département did not base his decision exclusively or principally on the second ground, but
on “all” the factors involved – that is, both grounds – without it being possible to consider that
one of them was predominant or that one of them alone was sufficient to make him decide to refuse
authorisation (see paragraph 17 above).

82.  With regard to the judicial phase, the Nancy Administrative Court of Appeal noted that the
decision was based on two grounds: the lack of a paternal referent and the ambivalence of the
commitment of each member of the household. It added that the documents in the file and the
conclusions reached after examining the application showed that the applicant's lifestyle did not
provide the requisite safeguards for adopting a child, but disputed that the president of the
council for the département had refused authorisation on the basis of a position of principle
regarding her choice of lifestyle, namely, her homosexuality (see paragraph 24 above).

83.  Subsequently, the Conseil d'Etat held that the two grounds on which the applicant had been
refused authorisation to adopt were in keeping with the statutory provisions. It also held that the
reference to the applicant's “lifestyle” could be explained by the documents in the file submitted
to the tribunals of fact, which showed that the applicant was, at the time of her application, in a
stable homosexual relationship, but that this could not be construed as a decision based on a
position of principle regarding her sexual orientation or as any form of discrimination (see
paragraph 25 above).

84.  The Court therefore notes that the administrative courts went to some lengths to rule that
although regard had been had to the applicant's sexual orientation, it had not been the basis for
the decision in question and had not been considered from a hostile position of principle.

85.  However, in the Court's opinion the fact that the applicant's homosexuality featured to such
an extent in the reasoning of the domestic authorities is significant. Besides their considerations
regarding the applicant's “lifestyle”, they above all confirmed the decision of the president of
the council for the département. The Court points out that the latter reached his decision in the
light of the opinion given by the adoption board whose various members had expressed themselves
individually in writing, mainly recommending, with reasons in support of that recommendation, that
the application be refused on the basis of the two grounds in question. It observes that the manner
in which certain opinions were expressed was indeed revealing in that the applicant's homosexuality
was a determining factor. In particular, the Court notes that in his opinion of 12 October 1998 the
psychologist from the children's welfare service recommended that authorisation be refused,
referring to, among other things, an “unusual attitude [on the part of the applicant] to men in
that men are rejected” (see paragraph 13 above).

86.  The Court observes that at times it was her status as a single person that was relied on as a
ground for refusing the applicant authorisation to adopt, whereas the law makes express provision
for the right of single persons to apply for authorisation to adopt. This emerges particularly
clearly from the conclusions of the psychologist who, in her report on her interviews with the
applicant of 28 August 1998, stated, with express reference to the applicant's case and not as a
general comment – since she prefaces her remark with the statement that she is not seeking to
diminish the applicant's confidence in herself or to insinuate that she would be harmful to a child
– that “all the studies on parenthood show that a child needs both its parents” (see paragraph 11
above). 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 on
the ground that an adoptive family had to be composed “of a mixed couple (man and woman)” (see
paragraph 14 above).

87.  Regarding the systematic reference to the lack of a “paternal referent”, the Court disputes
not the desirability of addressing the issue, but the importance attached to it by the domestic
authorities in the context of adoption by a single person. The fact that it is legitimate for this
factor to be taken into account should not lead the Court to overlook the excessive reference to it
in the circumstances of the present case.

88.  Thus, notwithstanding the precautions taken by the Nancy Administrative Court of Appeal, and
subsequently by the Conseil d'Etat, to justify taking account of the applicant's “lifestyle”, the
inescapable conclusion is that her sexual orientation was consistently at the centre of
deliberations in her regard and omnipresent at every stage of the administrative and judicial
proceedings.

89.  The Court considers that the reference to the applicant's homosexuality was, if not explicit,
at least implicit. The influence of the applicant's avowed homosexuality on the assessment of her
application has been established and, having regard to the foregoing, was a decisive factor leading
to the decision to refuse her authorisation to adopt (see, mutatis mutandis, Salgueiro da Silva
Mouta, cited above, § 35).

90.  The applicant therefore suffered a difference in treatment. Regard must be had to the aim
behind that difference in treatment and, if the aim was legitimate, to whether the different
treatment was justified.

91.  The Court reiterates that, for the purposes of Article 14, a difference in treatment is
discriminatory if it has no objective and reasonable justification, which means that it does not
pursue a “legitimate aim” or that there is no “reasonable proportionality between the means
employed and the aim sought to be realised” (see, inter alia, Karlheinz Schmidt, cited above, § 24;
Petrovic, cited above, § 30; and Salgueiro da Silva Mouta, cited above, § 29). Where sexual
orientation is in issue, there is a need for particularly convincing and weighty reasons to justify
a difference in treatment regarding rights falling within Article 8 (see, mutatis mutandis, Smith
and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 89, ECHR 1999-VI; Lustig-Prean and
Beckett v. the United Kingdom, nos. 31417/96 and 32377/96, § 82, 27 September 1999; and S.L. v.
Austria, no. 45330/99, § 37, ECHR 2003-I).

92.  In that connection the Court observes that the Convention is a living instrument, to be
interpreted in the light of present-day conditions (see, inter alia, Johnston and Others, cited
above, § 53).

93.  In the Court's opinion, if the reasons advanced for such a difference in treatment were based
solely on considerations regarding the applicant's sexual orientation this would amount to
discrimination under the Convention (see Salgueiro da Silva Mouta, cited above, § 36).

94.  The Court points out that French law allows single persons to adopt a child (see paragraph 49
above), thereby opening up the possibility of adoption by a single homosexual, which is not
disputed. Against the background of the domestic legal provisions, it considers that the reasons
put forward by the Government cannot be regarded as particularly convincing and weighty such as to
justify refusing to grant the applicant authorisation.

95.  The Court notes, lastly, that the relevant provisions of the Civil Code are silent as to the
necessity of a referent of the other sex, which would not, in any event, be dependent on the sexual
orientation of the adoptive single parent. In this case, moreover, the applicant presented, in the
terms of the judgment of the Conseil d'Etat, “undoubted personal qualities and an aptitude for
bringing up children”, which were assuredly in the child's best interests, a key notion in the
relevant international instruments (see paragraphs 29-31 above).

96.  Having regard to the foregoing, the Court cannot but observe that, in rejecting the
applicant's application for authorisation to adopt, the domestic authorities made a distinction
based on considerations regarding her sexual orientation, a distinction which is not acceptable
under the Convention (see Salgueiro da Silva Mouta, cited above, § 36).

97.  Consequently, having regard to its finding under paragraph 80 above, the Court considers that
the decision in question is incompatible with the provisions of Article 14 taken in conjunction
with Article 8.

98.  There has accordingly been a breach of Article 14 of the Convention taken in conjunction with
Article 8.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

99.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

100.  The applicant pointed out that without the authorisation that had been refused her it was
legally impossible for her to adopt a foreign child and impossible in practice to adopt a French
child. Even if the French Government were to act quickly to grant her the authorisation, the
discriminatory delay would be between nine and ten years. That delay was not only a psychological
strain and unfair, but also reduced her chances of being able to adopt a child one day on account
of her age; she had been thirty-seven when she had applied to adopt and so would be forty-six at
the youngest if authorisation were finally to be granted. Accordingly, she sought an award of
50,000 euros (EUR) for non-pecuniary damage.

101.  The Government did not express a view.

102.  The Court considers that the applicant must have suffered non-pecuniary damage that is not
sufficiently compensated by a mere finding of a violation of Article 14 of the Convention taken
together with Article 8. Accordingly, ruling on an equitable basis, the Court awards her EUR 10,000
in just satisfaction.

B.  Costs and expenses

103.  The applicant claimed EUR 14,352 in lawyer's fees from the introduction of the application
until the outcome of the proceedings (sixty hours' work at the rate of EUR 200 per hour exclusive
of VAT), plus EUR 176 for the travel and accommodation expenses incurred in attending the hearing
before the Grand Chamber, that is, a total of EUR 14,528.

104.  The Government did not express a view.

105.  The Court observes that, according to the criteria laid down in its case-law, it must
ascertain whether the costs and expenses claimed were actually and necessarily incurred and were
reasonable as to quantum (see, among other authorities, Öztürk v. Turkey [GC], no. 22479/93, § 83,
ECHR 1999-VI). Applying the said criteria to the present case, the Court considers reasonable the
amount of EUR 14,528 claimed by the applicant and awards her that sum.


C.  Default interest

106.  The Court considers it appropriate that the default interest should be based on the marginal
lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1.  Declares unanimously the application admissible;


2.  Holds by ten votes to seven that there has been a violation of Article 14 of the Convention
taken in conjunction with Article 8;


3.  Holds by eleven votes to six

(a)  that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten
thousand euros) in respect of non-pecuniary damage and EUR 14,528 (fourteen thousand five hundred
and twenty-eight euros) for costs and expenses, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest
shall be payable on the above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;


4.  Dismisses unanimously the remainder of the applicant's claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building,
Strasbourg, on 22 January 2008.

        Michael O'Boyle                                                             Christos
Rozakis
        Deputy Registrar                                                                  President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the
following separate opinions are annexed to this judgment:

(a)  dissenting opinion of Judge Costa, joined by Judges Türmen, Ugrekhelidze and Jočienė;

(b)  dissenting opinion of Judge Zupančič;

(c)  concurring opinion of Judges Lorenzen and Jebens;

(d)  dissenting opinion of Judge Loucaides;

(e)  dissenting opinion of Judge Mularoni.

C.L.R.
M.O'B.

DISSENTING OPINION OF JUDGE COSTA JOINED BY JUDGES TÜRMEN, UGREKHELIDZE AND JOČIENĖ

(Translation)

1.    In a case such as this the Grand Chamber (to which jurisdiction was relinquished by a Chamber
under Article 30 of the Convention) can be expected to give a leading judgment on a “serious
question” affecting the interpretation of the Convention, in this case of Article 14 taken in
conjunction with Article 8.

2.    In so far as the Court has adopted a position of principle I can, I think, accept it, but I
am not at all sure that in this specific case the interference attributed to the respondent State
has proved to be contrary to that position or incompatible with the Convention provisions. I shall
attempt to explain what I mean.

3.    With regard to the question of principle, the main thrust of the majority's reasoning –
making particular reference to the Court's earlier decision in Salgueiro da Silva Mouta v. Portugal
(Reports 1999-IX ) – is based on alleged discrimination against the applicant because her
application for authorisation to adopt a child was allegedly refused on the ground of her
homosexual orientation, and she considers such discrimination to be unjustified.

       In Fretté v. France (Reports 2002-I), which the present judgment overturns (as of course the
Grand Chamber can), the majority of the Chamber had considered that such a ground was not contrary
to Article 14 and 8, or – to be more precise – that the reasons for which the French authorities
had rejected the application for authorisation to adopt made by the applicant, who was a
homosexual, were justified (in the best interests of the child likely to be adopted).

       I did not subscribe to that reasoning, and whilst I did vote with the majority in favour of
finding that there had not been a violation that was because, in my view, the Articles of the
Convention relied on were not applicable because the Convention does not guarantee a right to adopt
(but the Chamber did not agree with my reasoning on that point, and I will not go into it again
here – perseverare diabolicum).

       In my concurring opinion, in which I was joined by my colleagues Judge Jungwiert and Judge
Traja, I pointed out that the French Civil Code (since 1966) allowed adoption by a single person
and did not in any way prohibit adoption by a homosexual (or, which comes down to the same thing,
did not require that the applicant be heterosexual). I therefore thought – and see no reason to
change my view now – that a refusal to grant authorisation based exclusively on the avowed or
established homosexuality of the applicant in question would be contrary to both the Civil Code and
the Convention.

       I am equally convinced that the message sent by our Court to the States Parties is clear: a
person seeking to adopt cannot be prevented from doing so merely on the ground of his or her
homosexuality. This point of view might not be shared by all, for good or not so good reasons, but
– rightly or wrongly – our Court, whose duty under the Convention is to interpret and ultimately
apply it, considers that a person can no more be refused authorisation to adopt on grounds of their
homosexuality than have their parental responsibility withdrawn on those grounds (Salgueiro da
Silva Mouta). I agree.

4.    If we leave the theoretical domain, however, and address the specific case of the applicant –
which even in a judgment that sets out be a leading judgment it is the Court's primary duty to do –
I do not agree. The domestic administrative and judicial case files show, unequivocally in my view,
that authorisation was refused (and that that refusal was deemed legal) for two reasons, which can
be summarised as follows. Firstly, there would be no male or “paternal” referent among Ms E.B.'s
circle of family and friends. Secondly, the woman with whom she was in a stable relationship at the
time of her application did not feel concerned by her partner's plan to adopt; although she might
not have been actually opposed or hostile to it, she was certainly indifferent.

5.    To my mind, the first of these grounds is illegal under French law because if the law allows
a single person to adopt it is against the law to require that person, be they a man or a woman, to
have a member of the opposite sex among their circle of family and friends who could serve as a
“referent” (to use bureaucratico-psychological jargon). A single person cannot be required to
artificially rebuild a “home” for the purpose of being able to exercise a statutory subjective
right; would a single person have to be single only in name in order to be able to adopt?

       I note, though, that however illegal it may be the first ground should not be confused with
homophobic discrimination. Whether or not Ms E.B. had been homosexual, the council for the
département would still have refused her – or could still have refused her – authorisation on the
ground of the lack of a “referent” of the other sex. It is not therefore clear that even this
bizarre reasoning was based on the applicant's sexual orientation or that it alone suffices to
justify the conclusion reached by the majority, at least by their reasoning.

6.    The second ground, in any case, does not appear to me to be unreasonable or disproportionate.
It is a fact that Ms E.B. was living with another person. Regardless of the latter's sex or sexual
orientation, it is established and moreover not seriously disputed that this person did not support
the adoption plan. In these conditions, if approval had been granted and the civil courts had
subsequently allowed Ms E.B. to adopt it is very unlikely that the guarantees required under French
law (from a “family, child-rearing and psychological” perspective – see paragraph 28 of the
judgment), in the child's best interests, would have been met and it is assuredly not for the
Court, if it is not to set itself up as a fourth instance, to decide otherwise.

7.    A delicate problem of law therefore arises. Was the first ground (which moreover I have just
said is not discriminatory, at least as far as the applicant's sexual orientation is concerned)
decisive? Did it suffice to “contaminate” the administrative decision in question? Is it not more
realistic to consider that, regarding a specific application by a person in a specific situation,
the authorities were entitled to undertake an assessment of all the factors pertaining to that
situation? Just as our court is not a court of fourth instance, nor is it a court of cassation that
considers a particular ground to be founded, holds that it is not necessary to examine the other
grounds and contents itself with the well-foundedness of the first ground to quash the decision and
remit the case. This is what the judgment actually does however.

       In that connection my position is close to that of my colleague Judge Mularoni, who, in her
own dissenting opinion, criticises the majority for finding that Ms E.B.'s homosexual orientation
was the decisive ground for refusing her authorisation. I, like her, consider this assertion to be
somewhat gratuitous.

8.    In my opinion, the Grand Chamber could have solemnly declared that a refusal of this kind
could not be based on homosexuality without violating Articles 14 and 8, and thus given an
important leading judgment, while dismissing Ms E.B.'s application because in this case it was not
her homosexuality that had prevented her from obtaining authorisation. In my view, this would have
corresponded more closely to the reality of the case, at least as regards my own interpretation of
it.

9.    This is why – in the present case – I cannot follow the majority's reasoning, and I consider
that France has not violated the Convention.

DISSENTING OPINION OF JUDGE ZUPANČIČ

The issue is in some respects disguised, but the crucial question in this case is discrimination –
on the basis of the applicant's sexual orientation – concerning the privilege of adopting a child.
That this is a privilege is decisive for the examination of the case; it implies – and the majority
recognises this – that we are not dealing with the applicant's right in terms of Article 8.

The difference between a privilege and a right is decisive. Discrimination in terms of unequal
treatment is applicable to situations that involve rights; it is not applicable to situations that
essentially concern privileges. These are situations in which the granting vel non of the privilege
make it legitimate for the decision-making body, in this case an administrative body, to exercise
discretion without fear that the right of the aggrieved person will be violated.

Put in the simplest terms, the theoretical principle according to which a right is subject to
litigation and according to which a violation of that right requires a remedy does not apply to
situations in which a privilege is being granted. An exaggerated example of such a situation would
be the privilege of being granted a decoration or a prize, or other situations of special treatment
reserved for those who are exceptionally deserving.

In other words, it would be “bizarre” for anybody to claim that he ought to have received a
particular award, a particular decoration or a particular privilege.

There are, of course, middle-ground situations such as applications for a particular post for which
the aggrieved person is a candidate. One may for example conceive of a situation in which an
applicant wished to become a judge or a notary public or was a candidate for a similar position
but, for whatever reason, was denied that position. Even in that case it would be unusual for the
Court to entertain a refusal to grant a privilege as something that is subject to the
discrimination criteria.

In this particular case, the preliminary question of essential importance is to determine whether
the privilege of adopting a child is subject to the discrimination criteria under Article 14. As
pointed out above, the majority is not inclined to consider the privilege of adopting a child as a
right.

It is therefore inconsistent to consider that there has been any kind of violation as long as the
Court persists in its (justifiable!) position according to which the possibility of adopting a
child is clearly not a right and is in any event at best a privilege. The question is then what
kind of discretion the administrative body is entitled to exercise when making a decision
concerning the privilege of adopting a child.

On the other hand, is it possible to imagine the Nobel Prize Committee being accused of
discrimination because it never awards any Nobel Prizes to scientists of a particular race or
nationality? Such an assertion would, of

course, require statistical proof. Statistical evidence is, indeed, very prevalent in employment
discrimination and similar cases. In other words, if in this particular situation the European
Court of Human Rights were to establish that the French administrative authorities systematically
discriminate against lesbian women wishing to adopt a child, the issue would be much clearer.

But we are dealing here with an individual case in which discrimination is alleged purely on the
basis of a single occurrence. This, as I have pointed out, does not permit the Court to reach the
conclusion that there is in France a general discriminatory attitude against homosexuals wishing to
adopt a child. The issue of systematic discrimination has not been explored in this specific case
and it would probably not be possible to even admit such statistical proof in support of the
allegation. If it were possible, however, the treatment of the case would be completely different
from what we now face.

It is therefore incumbent on the Court to extrapolate a consistent line of reasoning from its
preliminary position, according to which the privilege of adopting a child is in any event not a
right.

A separate issue under the same head is whether the procedures leading to the negative answer to
the lesbian woman were such as to evince discrimination. This question seems to be the distinction
upon which the majority's reasoning is based.

The question distilled from this kind of reasoning is whether the procedures – even when granting,
not a right, but a privilege – ought to be free of discrimination. In terms of administrative law,
perhaps, the distinction is between a decision which lies legitimately within the competence of the
administrative bodies and their legitimate discretion on the one hand and one which moves into the
field of arbitrary decision.

A decision is arbitrary when it is not based on reasonable grounds (substantive aspect) and
reasonable decision-making (procedural aspect) but rather derives from prejudice, in this case
prejudice against homosexuals. It is well established in the legal theory that the discrimination
logic does not apply to privileges, but it may well apply to the procedures in which the granting
or not of the privilege is the issue.

It is alleged that the procedures in French administrative law were discriminatory against this
particular female homosexual, but the question then arises as to whether this kind of
discriminatory procedure is nevertheless compatible with the legitimate discretion exercised by the
administrative body.

I am afraid that in most cases precisely this kind of “contamination” of substance by procedure is
at the centre of the controversy. I cannot dwell on it here^^[1] but the question could be posed as
follows. If the granting of privileges is not a matter of rights, is it not then true that the
bestower of privilege is entitled – argumento a majori ad minus – not only to discretion but also
to discrimination in terms of substance as well as in terms of procedure? The short answer to this
is that in the public sphere – as opposed to the purely private sphere of awards, prizes and so
forth – there are some privileges which are apt to become rights, such as adopting a child, being
considered for a public function, and so on. Decidedly, in so far as this process of the privilege
potentially “becoming a right” is affected by arbitrariness, prejudice and frivolity the
discrimination logic should apply.

The rest is a question of fact. Like Judge Loucaides, I do not subscribe to the osmotic
contamination theory advanced by the majority.

There is one final consideration. The non-represented party, whose interest should prevail
absolutely in such litigation, is the child whose future best interests are to be protected. When
set against the absolute right of this child, all other rights and privileges pale. If in custody
matters we maintain that it is the best interests of the child that should be paramount – rather
than the rights of the biological parents – how much more force will that assertion carry in cases
such as this one where the privileges of a potential adoptive parent are at issue?

CONCURRING OPINION OF JUDGES LORENZEN
AND JEBENS

We have voted with the majority for finding a violation of Article 14 of the Convention in
conjunction with Article 8 and we can also broadly agree with the reasons in the judgment leading
to this conclusion. However, we would like to clarify our vote as follows.

In the present case the domestic authorities, when rejecting the application for authorisation to
adopt, relied on two grounds that were both accepted as legitimate by the French courts in the
appeal proceedings: firstly, the lack of a paternal referent in the household of the applicant and
secondly, the indifferent attitude of the applicant's partner. We fully agree with the judgment's
reasoning (paragraphs 75-78) that the latter ground was a relevant factor to be taken into account
when deciding the application. As to the first ground, we do not find it to be irrelevant or
discriminatory as such in cases where the application for adoption is made by a single person.
However, it may be so if it is used in combination with a direct or indirect reference to the
applicant's sexual orientation. In this respect we again agree with the majority that, despite the
national courts' attempts to explain what was meant or not meant by the reference to the
applicant's “lifestyle”, it is not possible to conclude that her sexual orientation had no real
importance for that ground. The refusal to grant the authorisation was accordingly based on one
ground that was legitimate and another ground that was not legitimate in the circumstances of the
case, and was thus discriminatory in terms of the Convention.

Consequently, a violation was found in the present case because the refusal to adopt was partly
based on illegitimate reasons. This does not of course imply that the applicant could not have been
refused authorisation based on grounds that were in conformity with the Convention, for example the
indifferent attitude of her partner in itself. It is the opinion of the minority that the refusal
was justified on that ground alone, and we do not exclude that this might be so. However, in our
opinion – and this is in fact the point on which we most disagree with the minority – it is not for
this Court to rule on that question, but exclusively for the French courts to decide.

In view of the more procedural character of the violation, we would have considered the finding of
a violation or a minor pecuniary award sufficient just satisfaction in respect of any non-pecuniary
damage sustained by the applicant, but we did not find it necessary to dissent on that point.

DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the majority in this case. I find that the decision of the domestic authorities to
refuse the applicant authorisation to adopt a child was legitimate and well within their margin of
appreciation.

The decision of the domestic authorities was based on two main grounds.

First, the “absence of 'identificational markers' due to the lack of a paternal role model or
referent” and second, “the ambivalence of the commitment of each member of the household to the
adoptive child”. As regards the first ground, I agree with the majority that it is incompatible
with the effective right of single persons to apply for authorisation to adopt, a right which is
recognised by French law, and that it should therefore be rejected as inapplicable to the present
case.

The second ground was the attitude of the applicant's partner, Ms R., who, despite the fact that
she was the long-standing and declared partner of the applicant, did not feel committed by the
latter's application to adopt. This ground by itself could legitimately justify the decision of the
domestic authorities. That is not really disputed by the majority. But what the majority finds to
be wrong is the fact that, as they put it, the “illegitimacy of one of the grounds ha[d] the effect
of contaminating the entire decision”.

Personally I do not accept this contamination theory – a theory more appropriate to medical science
– for the simple reason that each of the grounds that led to the decision was separate and
autonomous and its effectiveness was in no way dependent on or linked to the other one. Firstly, if
the domestic authorities felt that the two reasons should operate jointly, they would have said so.
Secondly, if – as the majority finds – the sexual orientation of the applicant, supposedly referred
to implicitly in the reasoning of one of the grounds, was the real reason for refusing
authorisation, I do not see why the authorities had to mention the other ground.

Given that we are dealing with decisions of the French administrative authorities, I might also add
that it is a basic principle of French administrative law that if an administrative decision is
based on several grounds, it is sufficient for one of the grounds to be legally acceptable in order
for the decision to be valid.

In any event, I find that the reasoning of the domestic authorities in its entirety was in line
with the Convention.

The authorities in question did not refer to the sexual orientation of the applicant as the reason
for their refusal. However, contrary to my view, the majority finds that “the reference to the
applicant's homosexuality was, if not explicit, at least implicit”, and that the “influence of the
applicant's avowed homosexuality on the assessment of her application has been established and ...
was a decisive factor leading to the decision to refuse her authorisation to adopt”. Reading the
judgment of the majority I have the feeling that there is a constant effort to interpret the
decision of the domestic authorities as being based on the sexual orientation of the applicant,
although nothing was said to that effect and the authorities repeatedly made it clear that their
refusal of authorisation was not made on the basis of a “position of principle regarding her choice
of lifestyle” or “in view of the applicant's sexual orientation”.

Be that as it may, I am of the opinion that, even if the applicant's sexual orientation had been a
factor in refusing authorisation to adopt, the refusal in question could not be said to be
incompatible with Article 8 taken in conjunction with Article 14, account being taken of all the
relevant circumstances and the meaning and effect of such a factor in relation to the question that
had to be decided.

It is true that Article 14 of the Convention prohibits discrimination in the enjoyment of the
rights set forth in the Convention on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national minority,
property, birth or other status. Of course, sexual orientation is a different matter from sex, but
even on the assumption that it is encompassed by the concept of “status” (which I do not think is
correct), I must make this clarification which, to my mind, is necessary for the purposes of this
case. There may be situations where different treatment is necessary on grounds of sex, religion,
etc. or other status, if the consequences of the relevant status have a bearing on the particular
question under examination. For instance, a person's religion may give rise to manifestations or
practices which produce effects contrary to the interests of that person's children, a fact that
can legitimately be taken into account when the welfare of the children is at issue. A typical
example of this is the recent case of Ismailova v. Russia, judgment in which was delivered by the
First Section on 29 November 2007. There, the applicant complained that the decisions of the
domestic courts granting custody of her two children to their father had been in breach of Article
8 of the Convention taken in conjunction with Article 14, as they amounted to discrimination on the
ground of her religion. The Court, in rejecting the applicant's complaint, referred to some
incidents which had arisen out of the religious practices of the applicant on account of her
membership of a certain religious organisation, and which had had negative effects on her children.
The Court stated the following:

“The reasoning presented by the domestic courts shows that they focused solely on the interests of
the children. The courts did not rely on their mother being a member of the Jehovah's Witnesses,
but on the applicant's religious practices, in which she had included her children and failed to
protect them. In the view of the domestic courts, this had led to social and psychological
repercussions for the children. The courts considered that this would have negative effects on the
children's upbringing. ...

In such circumstances, the Court cannot but conclude that there existed a reasonable relationship
of proportionality between the means employed and the legitimate aim pursued...”

Likewise, in the present case, I find that in deciding what was in the best interests of the child
to be adopted, the domestic authorities could legitimately take into account the sexual orientation
and lifestyle of the applicant as practised in the particular circumstances of the case, namely the
fact that the applicant cohabitated with her same-sex partner. I might add – on the basis of the
majority's approach, which treats the two reasons given by the authorities as one – that the
partner in question was not even interested in being a party to the adoption plan.

I believe that the erotic relationship with its inevitable manifestations and the couple's conduct
towards each other in the home could legitimately be taken into account as a negative factor in the
environment in which the adopted child was expected to live. Indeed there was, in these
circumstances, a real risk that the model and image of a family in the context of which the child
would have to live and develop his/her personality would be distorted. This situation differs
substantially from one in which a homosexual applicant does not cohabit with his or her partner.
And, personally, I would most probably have approached the matter differently in the latter case.

It is my firm belief that nobody can invoke his religion, sex or any other status in order to rely
on the prohibition of discrimination as a ground for exemption from disqualification in respect of
a particular activity on account of the negative consequences that such status may have in relation
to a specific issue.

Homosexuals, like anybody else, have a right to be themselves and should not be the target of
discrimination or any other adverse treatment because of their sexual orientation. However, they
must, like any other persons with some peculiarity, accept that they may not qualify for certain
activities which, by their nature and under certain circumstances, are incompatible with their
lifestyle or peculiarity.

Therefore – proceeding on the assumption accepted by the majority that one of the reasons which
influenced the entire decision to refuse authorisation to adopt was the sexual orientation of the
applicant – I find that in the light of the particular facts and circumstances of the case the
legitimacy of the refusal in issue was in any event not open to question. I believe that there
existed a reasonable relationship of proportionality between the means employed and the legitimate
aim pursued.

Finally and incidentally, I must put on record that the judgment in this case overturns the Fretté
v. France judgment (no. 36515/97). The efforts to distinguish the present case from Fretté are, in
my opinion, unsuccessful and unnecessary so long as the central question in both cases, according
to the approach of the majority, is substantially the same

Accordingly I take the view that there has been no violation in this case.

DISSENTING OPINION OF JUDGE MULARONI

(Translation)

I do not share the opinion of the majority in this case.

AS REGARDS ADMISSIBILITY

With regard to the admissibility of the application, I feel it important to specify straight away
that I consider the application admissible but for reasons that differ from those given by my
colleagues.

The Court reiterates in paragraph 43 of the judgment that the notion of private life is a very
broad one that encompasses many rights and possibilities. The Convention institutions'
interpretation of Article 8 has greatly evolved. Very recently, in two applications concerning
techniques of artificial insemination, the Court explicitly stated that this provision protected
the right to respect for both the “decisions” to have and not to have a child (see Evans v. the
United Kingdom [GC], no. 6339/05, § 71, ECHR 2007-..., and Dickson v. the United Kingdom [GC],
no. 44362/04, § 66, ECHR 2007...).

Admittedly, both cases concerned the decision to have a “biological” child. However, I cannot
forget that for centuries adoption, an age-old procedure that is known throughout most countries in
the world, was the only means whereby couples unable to conceive could found a family with
children. While it is undisputed that Article 8 does not guarantee a right to found a family, such
a right is, however, guaranteed by Article 12 of the Convention. And whilst a “right” to adopt does
not exist, I consider, in the light of our case-law, which over the years has brought more and more
rights and possibilities within the ambit of Article 8, that the time has come for the Court to
assert that the possibility of applying to adopt a child under the domestic law falls within the
ambit of Article 8. Consequently, Article 14 would be applicable.

My approach would therefore be to stop declaring incompatible ratione materiae with the provisions
of the Convention applications lodged by persons entitled under domestic law to apply to adopt a
child. In my opinion, all applicants who are in the same personal situation of either being unable
or finding it extremely difficult to conceive should be protected in the same way by the Convention
regarding their legitimate desire to become parents, whether they choose to have recourse to
techniques of artificial insemination or seek to adopt a child in accordance with the provisions of
domestic law. I do not see any strong arguments in favour of a difference of treatment.

With all due respect to my colleagues, for the reasons explained below I find the legal reasoning
in favour of declaring the application admissible

rather weak; it reiterates the arguments already used to this end in the case of Fretté (judgment
of 26 February 2002, no. 36515/97, §§ 30-33).

As is rightly stressed in paragraph 47 of the judgment, the facts of the case must at least fall
within the ambit of one of the Articles of the Convention – in this case Article 8 – for Article 14
to be applicable. If the Court is not prepared to modify old case-law that is still applied to this
day, according to which all stages prior to the issue of an adoption order by the domestic courts
fall outside the Court's scrutiny (see on this point, among other authorities, Pini and Others v.
Romania, nos. 78028/01 and 78030/01, §§ 140-42, ECHR-2004, and Wagner and J.M.W.L. v. Luxembourg,
judgment of 28 June 2007, no. 76240/01, §§ 121-22), I have difficulty in understanding how it can
come to the contrary conclusion that the right to seek authorisation to adopt “undoubtedly” falls
within the scope of Article 8 of the Convention (see paragraph 49 of the judgment).

In my view, we should not be asking – and leaving unanswered – the wrong question, namely, whether
the “right” to adopt should or should not fall within the ambit of Article 8 of the Convention
taken alone (see paragraph 46 of the judgment). No right to adoption is recognised by domestic
legislation or by the relevant international instruments, and the parties do not dispute this. On
the other hand, we should establish – and this absolutely must be done and done clearly – whether
the possibility of adopting a child afforded by domestic legislation does or does not fall within
the ambit of Article 8. If the answer remains that it does not, I find it incomprehensible, as I
have said above, to conclude that the right to seek authorisation “undoubtedly” falls within the
ambit of Article 8 and that, accordingly, Article 14 taken together with Article 8 is applicable.
Frankly, I find this conclusion illogical.

I would add that the approach followed in Fretté has had the practical effect of allowing
applications relating to the preliminary phases in the process of adopting a child brought by
homosexuals under Article 14 taken in conjunction with Article 8 to be declared admissible, whereas
those brought by heterosexuals relying on Article 8 alone have to be dismissed as incompatible
ratione materiae with the provisions of the Convention.

Admittedly, in recent years the Court's interpretation of Article 14 has greatly evolved. However,
I consider that an interpretation which leads to declarations of applicability that generate
discrimination a contrario in the treatment of applications does not correspond to the spirit and
letter of Article 14.

AS REGARDS THE VIOLATION

With regard to the merits, I share neither the reasoning nor the conclusion of the majority.

The Court observed that the domestic administrative authorities and then the courts which dealt
with the applicant's case had based their decisions to reject her application on two main grounds:
the lack of a paternal referent and the ambivalence of the commitment of each member of the
household.

Regarding the first ground, which was based on the lack of a paternal referent in the applicant's
household, I admit that I have serious doubts as to its compatibility with Article 14 of the
Convention. The present case concerns an application for authorisation to adopt lodged not by a
couple, but by a single person. To my mind, the decision whether or not to grant single persons the
possibility of adopting a child is within the State's margin of appreciation; once such a
possibility has been granted, however, requiring a single person to establish the presence of a
referent of the other sex among his or her immediate circle of family and friends runs the risk of
rendering ineffective the right of single persons to apply for authorisation.

However, I consider that the second ground on which the domestic authorities based their decision,
which was based on the attitude of the applicant's partner, calls for a different approach.
Although she was the long-standing and declared partner of the applicant, Ms R., who lived with the
applicant, clearly distanced herself from the application for authorisation to adopt. The
authorities, which constantly remarked on this point – expressly and giving reasons – concluded
that the applicant did not provide the requisite safeguards for adopting a child.

Article 4 of Decree No. 98-771 of 1 September 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 20 November 1989, the Hague
Convention of 29 May 1993 or the draft European Convention on the Adoption of Children (see
paragraphs 28-31 of the judgment).

Moreover, in the domestic legislation and in all the relevant international instruments it is the
child's best interests that are paramount (ibid.), as has always been accepted and stressed by our
Court in all cases concerning minors. Like the Conseil d'Etat, I consider that 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, the administrative authority
has the right and the duty to ensure – even if the relationship in question is not a legally
binding one – that the conduct or personality of the third person, considered on the basis of
objective considerations, is conducive to providing a suitable home. It is incumbent on the State
to ensure that the conditions in which a child – who very often has experienced great suffering and
difficulty in the past – is provided with a home are the most favourable possible.

I therefore consider that the second ground is sufficient and relevant reason alone for refusing to
grant the applicant authorisation. I therefore do not subscribe to the “contamination” theory
propounded by the majority in paragraphs 80 et seq. of the judgment. On this point I share the
considerations expressed by Judge Loucaides. I prefer to confine myself to the law of the legal
systems I know best, according to which, where a decision is based on a number of grounds, it is
sufficient for one of those grounds to be valid for the decision as a whole to be regarded as
valid.

I would add that I find the majority's interpretation of the conclusions reached by the domestic
courts to be unjustified: although the latter constantly asserted that it was not the applicant's
homosexuality that was the basis of the refusal to grant authorisation, the majority consider that
the reference to the applicant's homosexuality was, if not explicit, at least implicit, and that
the influence of this consideration on the assessment of her application has been established and
was a decisive factor (see paragraph 89 of the judgment).

However, it was actually the applicant herself who had declared her homosexuality given that at the
time at which her application was being processed she was in a stable homosexual relationship. I do
not find anything discriminatory about the national authorities' reference, in their decisions, to
the applicant's avowed homosexuality and her relationship. Would it not also be relevant to refer
to the personality of a heterosexual partner cohabiting with a prospective adoptive parent in a
stable relationship and to his or her attitude to the partner's plans to adopt? I do not see any
valid reasons for arguing that the authorities should not have made the slightest reference to
these factors. The child was to arrive in a household composed of two people; the personality and
attitude of those two people therefore had to be taken into account by the authorities.

Nor do I understand on what basis it can be concluded that the influence of the applicant's
homosexuality was a decisive factor whereas, unlike in the case of Salgueiro da Silva Mouta v.
Portugal, the domestic authorities always specified that it was not the applicant's sexual
orientation that had founded the decision to refuse to grant her authorisation.

For all the foregoing reasons, I find that there has not been a violation of Article 14 taken
together with Article 8.
________________________________

[1] I have dealt with the issue at length in The Owl of Minerva, Essays on Human Rights, Eleven
International Publishing, Utrecht, 2008, Chapter 14, pp. 413-28.