March 06, 2013
In this second post on the Grand Chamber judgment in X. and Others v. Austria, I will focus on the narrowness of it all: the narrowness of the issue before the Court, the narrowness of the ruling and the narrow approach the majority took to the European consensus. Although I believe the majority should be applauded for taking incremental steps towards extending equal rights to LGBT persons, the approach it takes to the European consensus leaves much to be desired. Indeed, X. and Others provides a perfect example of how the Court sometimes uses the consensus argument to provide a post hoc rationalisation and justification of an outcome it has already reached, rather than as a substantive argument that leads to that outcome.
X. and Others revolved around second-parent adoption by a same-sex couple. The third applicant has a biological child – the second applicant – who was born outside of wedlock (pursuant to Austrian law, that meant she, as his mother, had sole custody). The first applicant is the third applicant’s partner. Together with the second applicant, who was born in 1995, they have been living in a common household since he was about five years old. When the first applicant wished to adopt the second applicant through second-parent adoption, the biological father refused to grant his consent. The applicants then attempted to obtain an override of that refusal from the domestic courts. Such a procedure is, in principle, available under art. 181 (3) of the Austrian Civil Code, which states that “[w]here one of the persons referred to in … paragraph 1 [this includes “the parents of the minor adopted child”] refuses consent without justifiable grounds, the court shall override the refusal on an application from one of the parties.” However, in the applicants’ case, the domestic courts rejected the application. In essence, they found that second-parent adoption by a partner in a same sex coupld was impossible under Austrian law, because allowing it would lead to a situation in which the child would have two parents of the same sex. This situation would, according to the domestic courts, go against the language of art. 182 (2) of the Civil Code, which states in relevant part that “[i]f the child is adopted by just an adoptive father (an adoptive mother), the relationship shall cease only in respect of the biological father (the biological mother) and his (her) relatives.” Because art. 182 (2), as interpreted by the domestic courts, precludes second-parent adoption in the case of same sex couples, the applicants did not have access to the procedure under art. 181 (3) of the Civil Code.
All three applicants – the child, the mother and the mother’s partner – claimed that this situation violated art. 14 juncto art. 8 ECHR.
A narrow issue and a narrow ruling
A first crucial point to grasp about X. and Others is that the issue decided by the ECtHR is a narrow one.
In their briefs – as reflected in the concurring opinion of Judge Spielmann – the applicants stressed that “[t]he issue before the Court in this case is NOT a privilege of marriage. The applicants are not claiming a right which is reserved to marriage based (step-parent) families (this being the crucial difference between Gas and Dubois and this case!).” In its judgment, the Court made use of this opening to swiftly conclude that the applicants had not been discriminated against when compared with married couples: “[f]or their part, the applicants stressed that they did not wish to assert a right that was reserved to married couples. The Court does not see any reason to deviate from its case-law [in Gas and Dubois v. France] in this regard” (par. 108).
Presumably, the applicants thought that they would be fighting a losing fight if they took on the not even one-year old judgment in Gas and Dubois and decided to focus on a fight they might conceivably win instead. That fight was one against their absolute exclusion from second-parent adoption, while an unmarried heterosexual couple in their situation would have had some room for second-parent adoption, given that they would have had access to the procedure provided in art. 181 (3) of the Civil Code.
In respect of that, more narrow, claim, the majority stressed on multiple occasions that
the present case does not concern the question whether the applicants’ adoption request should have been granted in the circumstances of the case. It concerns the question whether the applicants were discriminated against on account of the fact that the courts had no opportunity to examine in any meaningful manner whether the requested adoption was in the second applicant’s interests, given that it was in any case legally impossible. (par. 152; see also par. 132)
The narrow issue at stake in X. and Others was thus a strictly procedural one: should the applicants have had access to the procedure provided for by Art. 181 (3) on an equal footing with unmarried heterosexual couples?
When one fully appreciates the proper scope of the case, it becomes clear that the majority and the dissenters (the judgment was delivered by a 10-7 split vote) talked besides each other and basically answered two entirely different questions.
The majority answered the following question: “Should the applicants have had access to a procedure that would lead to the evaluation of the concrete circumstances of their case?” It answered the question in the affirmative, essentially holding that the distinction between the first and the third applicant and unmarried heterosexual couples was based on their sexual orientation only. Since there was no justification for the difference in treatment, the majority ruled in favour of “allowing the courts to carry out an examination of each individual case” (par. 146). The majority’s conclusion was thus a narrow one: the applicants should have had access to the procedure of art. 181 (3) of the Austrian Civil Code.
The dissenters, however, answered an entirely different question. They focused on explaining why – in their opinion – it was justified to refuse the applicants’ request for a second-parent adoption in the concrete circumstances of their case. The dissenters held that “we believe that the option of overriding the father’s wishes, available to the courts under the Civil Code, constitutes an exceptional measure which should only be imposed in serious and established cases of a flagrant breach of parental obligations; this does not appear to be the situation here.” (emphasis added). They also asked, in relation to the best interest of the child, “what best interests would have been served had his father been replaced by his mother’s partner? … the second applicant has always had a family. The judgment is silent on this crucial point.” These are, of course, arguments and questions that go to the heart of the substantive issue. The dissenters thus answered the following question: “Should the applicants be granted a second-parent adoption in the concrete circumstances of their case?” Their dissent is thus not actually a dissent to the majority’s reasoning and conclusion, given that they do not tackle the majority’s question (“Should the applicants have had access to a procedure?”).
A narrow approach to the European consensus
Where the dissenters do make a good point, is in their criticism of the manner in which the majority employed the European consensus argument. The majority’s reasoning on this issue is indeed puzzling. Although the Court had information at its disposal on 39 Council of Europe Member States – which indicated a wide variety of approaches to different kinds of adoption by same-sex couples, unmarried couples and married couples – it ruled that only a small fraction of that information was relevant to the case at hand:
the issue before the Court is not the general question of same-sex couples’ access to second-parent adoption, but the difference in treatment between unmarried different-sex couples and same-sex couples in respect of this type of adoption … Consequently, only those ten Council of Europe member States which allow second-parent adoption in unmarried couples may be regarded as a basis for comparison. Within that group, six States treat heterosexual couples and same-sex couples in the same manner, while four adopt the same position as Austria … The Court considers that the narrowness of this sample is such that no conclusions can be drawn as to the existence of a possible consensus among Council of Europe member States. (par. 149)
As the dissenters rightly point out, this argument is problematic for two reasons. First, “it raises … a methodological issue, regarding the “sample” of member States to be taken into account.” Indeed, the majority does not really justify its choice for a narrow, rather than a broad sample. Secondly, “the conclusion which the Court draws from [the narrow sample] is, to say the least, curious. Given that six of these ten countries opted for one approach while the remaining four opted for a different one, it seems obvious that the States in question are sharply divided and that there is therefore no consensus.” (emphasis in original). This indeed seems to be the most straightforward conclusion. Yet, the majority’s conclusion was that the consensus argument did not provide an answer one way or another and could therefore not assist in answering the question before the Court.
So what motivated the majority to rule as it did on the European consensus? In an attempt to find an answer to this question, I found it particularly interesting to contrast the use of the European consensus in X. and Others with its use in Leyla Şahin v. Turkey. In X. and Others the majority took a narrow approach to the sample, disregarding the diversity indicated by the broader sample, while the dissenters advocated for the use of a broad sample, precisely because it indicated diversity in approaches. In Leyla Şahin, conversely, the tables were turned. The majority relied on a broad sample to argue that, given the wide diversity of practices in Council of Europe Member States, Turkey should be granted a wide margin of appreciation on the wearing of religious symbols at universities. In that case, it was the sole dissenter, Judge Tulkens, who argued that the Court should have taken a much narrower sample – the wearing of religious symbols at universities – as its basis, because that was more appropriate to the case at hand.
When both cases are read together, it seems quite clear to me that the European consensus (sometimes) does not function as an argument that propels the ECtHR towards a certain outcome, but rather as a post hoc rationalisation and justification of an outcome that has already been reached. The majority in fact admitted as much in X. and Others by introducing the above quoted paragraph on the European consensus as intended “solely in order to respond to the Government’s assertion that no European consensus exists” (par. 149). This does not mean that the majority’s conclusion in X. and Others was wrong. On the contrary, I firmly agree that the applicants’ absolute exclusion from second parent adoption could not be justified, because the refusal to allow them access to the procedure under art. 181 (3) of the Austrian Civil Code was based solely on the first and third applicants’ sexual orientation. What it does signal is that the European consensus should be irrelevant to that finding. Indeed, rather than trying to deny the government’s argument on a lack of European consensus, the majority would have done better to clearly state that the European consensus was wholly irrelevant to the issue at stake, because there existed no rational justification for the difference in treatment.
Also, the Court uses the concept of consensus in a specific way, very different from its definition in international law, and even from the practices of the Council of Europe, where a consensus is an agreement by absence of explicit opposition.
Comparing for example A. B. C. v Ireland and Ulrich KOCH v. Germany, we may be surprised by the way the Court uses this notion. When only three or four States prohibit abortion, the Court has found a broad consensus in favor of the legalization of abortion (A B C v Ireland), but when four States allow euthanasia, the Court has not found a broad consensus in favor of the ban, but an absence of consensus in favor of its legalization (KOCH v. Germany)…