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Family Law

The leading authority on all aspects of family law

22 JAN 2008

European Court of Human Rights rules gay people can adopt in France

In their judgment in the case of EB v France delivered today, the European Court of Human Rights (ECHR) ruled that French authorities were wrong to refuse to allow a lesbian woman to adopt a child.

The ECHR held by ten votes to seven that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case involved a 45-year-old French woman, identified as EB, who worked as a nursery school teacher and had been living with her partner since 1990. In February 1998, she applied to the social services for authorisation to adopt a child. During the adoption procedure she openly mentioned her homosexuality and her stable relationship with her partner. On the basis of reports drawn up by a social worker and a psychologist, her application was rejected in November 1998.

After losing successive appeals, she took her case to the French Conseil d'Etat who, in a judgment of 5 June 2002, dismissed her appeal on the ground that the Administrative Court of Appeal had not based its decision on a position of principle regarding the her sexual orientation, but had had regard to the needs and interests of an adopted child.

French legislation expressly granted single persons the right to apply for authorisation to adopt, thereby opening up the possibility of adoption by a single homosexual.

The ECHR concluded that the domestic administrative authorities, and then the courts that heard the appeal, had based their decision to reject her application for authorisation to adopt on two main grounds: the lack of a 'paternal referent' in the woman's household, and the attitude of her declared partner.

In the ECHR's view, the French Government had been unable to prove at domestic level that the 'paternal referent' ground had not been discriminatory.

The ECHR decided that the fact that the woman's homosexuality had featured to such an extent in the reasoning of the domestic authorities was significant despite the fact that the courts had considered that the refusal to grant her authorisation had not been based on that.

The ECHR awarded the woman €10,000 in respect of non-pecuniary damage and €14,528 for costs and expenses.

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