Information Note on the Court’s case-law No. 133
August-September 2010
Gas and Dubois v. France (dec.) - 25951/07
Decision 31.8.2010 [Section V]
Article 14
Discrimination
Refusal of request for adoption made by mother’s civil partner: admissible
Facts – The applicants have cohabited since 1989. In September 2000 the second applicant gave birth in France to a daughter conceived in Belgium by means of medically-assisted procreation using an anonymous donor. The child does not have an established parental tie with the father, in accordance with Belgian law. She has lived all her life in the applicants’ shared home. In April 2002 the applicants entered into a civil partnership agreement. In March 2006 the first applicant applied to the tribunal de grande instance for a simple adoption order in respect of her partner’s daughter; her partner had given her express consent before a notary. In July 2006 the court observed that the statutory conditions for the adoption had been met and that it had been demonstrated that the applicants were actively and jointly involved in the child’s upbringing, caring for and displaying affection towards her. However, it refused the application on the grounds that the adoption would have legal consequences running counter to the applicants’ intentions and to the child’s best interests, as it would transfer parental authority to the adoptive parent and thereby deprive the biological mother of her rights in respect of the child. The court of appeal upheld the judgment. The applicants appealed on points of law, but did not pursue the appeal to its conclusion.
Law – Article 14 in conjunction with Article 8: (a) Objection of inadmissibility for failure to exhaust domestic remedies: In February 2007 the applicants had lawfully appealed on points of law against the judgment of the court of appeal, but had not complied with the requirement to submit further pleadings by July 2007 at the latest. However, in February 2007 two judgments in cases concerning similar facts to the applicants’ case, and raising the same issue of law, had rejected applications for a simple adoption order from the civil partner of the child’s mother. These judgments had subsequently been upheld by judgments of December 2007 and February 2008. Given the authority enjoyed by the Court of Cassation in the French judicial system and the nature of the judgments delivered in February 2007, which had settled clearly and unambiguously an issue of law that had previously been the subject of diverging interpretations by the lower courts, the Court took the view that the applicants could legitimately infer from those rulings that an appeal on points of law before the same court would have no prospect of success. The Court further noted, as had the applicants, that in their submissions to the court of appeal, which they adduced in support of the present application, they had alleged a violation of Article 8.
Conclusion: preliminary objection dismissed (unanimously).
(b) Objection of incompatibility ratione materiae – The applicants alleged that they had been discriminated against on the basis of their sexual orientation; since they could not marry on account of their sexual orientation, they and their child had been refused the right to a simple adoption although they had been living for years in a de facto family situation comparable to that of opposite-sex couples. Their request had been aimed at establishing a legal parent-child relationship between the first applicant and the child, while retaining the original parent-child relationship, and its essential purpose had been to confer legal status on an existing de facto situation. The two persons concerned had been living together since 1989 and had entered into a civil partnership in 2002 which had established contractual ties between them concerning the organisation of their life together. One of the partners was the biological mother of the child, who had been wished for by both partners and had been conceived by means of medically‑assisted procreation using an anonymous donor. The applicants had raised the child since her birth and were jointly and actively involved in her upbringing, a fact acknowledged by the domestic courts. In the circumstances, the relationship between the applicants and the child amounted to family life within the meaning of Article 8. The Court therefore held that Article 14 in conjunction with Article 8 was applicable.
Conclusion: preliminary objection dismissed (unanimously).
Admissible under Article 14 in conjunction with Article 8.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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