Adoption

(Application No. 30806/15), 25 July 2019 

Find here the communicated case.

• The application concerns second-parent adoption, one means of creating a legal relationship between a child and her mother’s female partner, who is socially her second mother. One of the applicants in this case gave birth in a London hospital in 2011. The child’s original birth certificate indicated the second applicant as her mother and the first applicant as her parent. However, the Polish authorities refused to register the child’s birth certificate in the Polish Civil Status Register.
• ILGA-Europe together with FIDH, PSAL, NELFA and ECSOL submitted the following:
  • In its Advisory Opinion of 10 April 2019, the ECtHR considered that the best interest of the child are paramount and he or she accordingly has an Article 8 right to the possibility of a legal parent-child relationship with the intended (non-genetic) mother. Member States are free to choose the means to create such legal relationship; such means may include adoption.
  • Sexual orientation is a prohibited ground of discrimination under Article 14 ECHR and discrimination on this ground is considered ‘suspect’ and subject to ‘particularly severe scrutiny’. There is no justification for discrimination against families composed of a same-sex couple and the children they are raising together.
  • There is a clear European and international trend concerning the possibility that a child may have two legal parents of the same sex after a second-parent adoption. Judicial reasoning in European and other democratic societies supports an obligation not to discriminate against same-sex couples and their children. A number of national courts have concluded that the best interests of children being raised by same-sex couples are served by permitting second-parent adoption.

Position on partnership and parenting, adopted in October 2006, revised in 2014.

ILGA-Europe strives for equality in law, public policies and practices relating to any form of partnership (including marriage, registered partnership and cohabitation) and parenting (reproductive rights, adoption, fostering and parental responsibility). ILGA-Europe particularly strives for the elimination of restrictions on the rights and responsibilities of partners and parents based on sexual orientation, gender identity or gender expression. Furthermore, ILGA-Europe supports an inclusive understanding of family that is not dependent only on the legal status of marriage or partnership but also on the recognition of de facto family links. Most importantly, the rights of the child are at the core and guiding ILGA-Europe’s demands for recognition of diverse families.

Adoption

(Application No. 19010/07), 1 August 2012 

Find Court’s judgement here. (Violation of Article 14 of the Convention taken in conjunction with Article 8 when the applicants’ situation is compared with that of an unmarried different-sex couple in which one partner wishes to adopt the other partner’s child + award of damages)

• The applicants were two women living in a stable relationship together with the son of one of them. They complained that they were being discriminated based on their sexual orientation. They submitted that there was no reasonable and objective justification for allowing adoption of one partner’s child by the other partner as far as heterosexual couples are concerned, while prohibiting the adoption of one partner’s child by the other partner in case of same-sex couples.
• In their joint submissions, ILGA-Europe, together with The International Federation for Human Rights, International Commission of Jurists, British Association for Adoption and Fostering, Network of European LGBT Families Associations and The European Commission on Sexual Orientation Law argued that t it is clearly in the best interests of children being raised by unmarried same-sex couples that they enjoy the same possibility, as children being raised by unmarried different-sex couples, of establishing a legal relationship with the two adults who are raising them.
• The European Court of Human Rights delivered its judgement on 19 February 2013.
• In its judgement, the Court referred to the third party intervention by ILGA-Europe and partners (paras 78-80), particularly the demonstration that there is no reasons why a child should not be raised by a lesbian or gay individual living with a same-sex partner and that Articles 14 and 8 prohibit member States from extending the right to adopt to one group but not to another on discriminatory grounds.
• The Court held that the Government had failed to adduce particularly weighty and convincing reasons to show that excluding second-parent adoption in a same-sex couple, while allowing that possibility in an unmarried different-sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction was therefore incompatible with the Convention and amounted to a violation of Article 14 taken in conjunction with Article 8.

Adoption

(Application No. 25951/07), 21 February 2011 

Find Court’s judgement here. (No violation of Article 14 of the Convention taken in conjunction with Article 8)

• The applicants, a same-sex couple who entered into a civil partnership agreement in 2002, alleged that they had been subjected to discriminatory treatment based on their sexual orientation. One of them gave birth in France in 2000 to a daughter conceived in Belgium via anonymous donor insemination. The child had lived all her life in the applicants’ shared home. However, the French authorities rejected their application for simple-adoption.
• ILGA-Europe, together with FIDH, ICJ, BAAF and NELFA made oral and written submissions.
• The interveners drew the attention of the Court to the importance of taking into account the best interests of children in having two legal parents rather than one.
• In their oral submission, they stressed that the strongest and most persistent prejudice against the lesbian and gay minority in Europe is that they represent a threat to the welfare of children, as reflected in decisions of national courts denying lesbian women and gay men custody of their own children, or the possibility of adopting a child as an unmarried individual.
• The European Court of Human Rights delivered its judgement on 15 March 2012.
• The Court referred to the submission and in particular the categorisation of situations in which lesbian or gay individuals adopt children. It also noted the interveners’ finding of a growing consensus that, where a child was being raised within a stable same-sex couple, legal recognition of the second parent’s status promoted the child’s welfare and the rotection of his or her best interests (paras 53 to 57).  However, if found no evidence of a  difference in treatment based on the applicants’ sexual orientation, as  opposite-sex couples who had entered into a civil partnership were likewise prohibited from obtaining a simple adoption order.

Individual adoption

(Application No. 43546/02)¸ 3 June 2005 

Find Court’s judgement here. (Violation of Article 14 of the Convention taken in conjunction with Article 8 + award of damages)

• The applicant, an unmarried lesbian woman, was excluded from the possibility of adopting a child. She alleged that she had suffered discriminatory treatment based on her sexual orientation which had interfered with her right to respect for her private life (Articles 14 and 8).
• ILGA-Europe, together with FIDH, BAAF and APGL submitted the following:
  • Requiring governments to provide objective scientific evidence to justify a difference in treatment is essential to protect a minority against discrimination, because it ensures that the difference in treatment does not reflect a social prejudice against the minority.
  • The most deep-seated and harmful social prejudice against lesbian and gay individuals is that they cannot be trusted to care for children. All reputable scientific studies have shown that the children of lesbian and gay parents are not more likely to suffer from emotional or other problems than the children of heterosexual parents.
  • As long as the opportunity of applying to adopt a child as an unmarried individual exists in France for heterosexual individuals (whether or not they are living with a different-sex partner), Articles 14 and 8 ECHR do not permit French administrative officials and courts to exclude openly lesbian and gay individuals (whether or not they are living with a same-sex partner), solely because of their sexual orientations.
• The European Court of Human Rights delivered its judgment on 22 January 2008.
• In the Court’s view, the applicant’s avowed homosexuality was a decisive factor leading to the decision to refuse her 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. Accordingly, there has been a breach of Article 14 of the Convention taken in conjunction with Article 8.

Adoption

(Application No. 36515/97), 15 June 2000 

Find Court’s judgement here.

• The applicant alleged that the rejection of his application for authorisation to adopt was implicitly based on his sexual orientation alone.
• ILGA-Europe submitted the following:
  • By denying Mr. Fretté an “approval as eligible” to adopt a child as an unmarried gay male individual, when it would have been granted had the authorities believed he was an unmarried heterosexual male individual, France discriminated against him on the ground of his sexual orientation.
  • The Court should require “very weighty reasons” to justify a difference in treatment based solely on sexual orientation. Besides, there is no scientific evidence that lesbian and gay parents pose any “psychological danger” to children. The absolute exclusion of lesbian and gay persons is grossly disproportionate, and is not in the best interests of children needing adoptive parents.
• The European Court of Human Rights delivered its judgment on 26 February 2002.
• The Court conceded that the reason given by the French administrative and judicial authorities for their decision was the applicant’s “choice of lifestyle”. However, that criterion implicitly yet undeniably made the applicant’s homosexuality the decisive factor. The Court considered that the scientific community was still divided over the possible consequences of a child being adopted by one or more homosexual parents. The national authorities were entitled to consider that the right to be able to adopt on which the applicant relied was limited by the interests of children eligible for adoption. The justification given by the Government was enough to consider that the difference in treatment complained of was not discriminatory within the meaning of Article 14 of the Convention.
• It has to be noted that the Court changed its approached in the case of Karner v. Austria, in which ILGA-Europe intervened.