April 11, 2018
By Pieter Cannoot, PhD researcher at the Human Rights Centre of Ghent University
On 6 February 2018, the European Court of Human Rights declared the application of Francine Bonnaud and Patricia Lecoq, two French women who were in a relationship at the time of the relevant facts, manifestly ill-founded. The application concerned the refusal by the domestic courts to grant the request by both women to delegate parental authority over their respective biological child to their partner. Although the Court prima facie seems to have come to a logical decision, the question arises whether the application was accurately framed to deal with the substantive issue at stake, i.e. the discrimination of same-sex couples regarding parental rights.
Facts of the case
The applicants began living as a couple in 1989 and separated in 2012 (after the application with the ECtHR was lodged). In October 1998, after having recourse to medically assisted reproduction in Belgium, Bonnaud gave birth to a daughter, El. In May 2002 Bonnaud and Lecoq entered into a civil partnership. In November 2003 Lecoq, who had also made use of medically assisted reproduction in Belgium, gave birth to a son, Es.
In June 2006 the applicants applied jointly to the courts seeking to share the exercise of parental authority for the children by means of the mutual delegation of authority on the basis of article 377 of the French Civil Code. In a judgment of 11 December 2007, the family-affairs judge allowed the applicants’ application and ruled that they should exercise joint parental authority in respect of the two children, El. and Es. The judge pointed out that both children were raised by both applicants since birth, which was confirmed by police reports and testimonies from their social environment. The judge held that the sharing of parental authority was motivated by the insecurities of life.
The public prosecutor appealed against that judgment. On 11 December 2008, the Court of Appeal overturned the judgment and rejected the applicants’ requests. The court concluded that the applicants had not established why the specific circumstances or the children’s best interests should require each partner to delegate parental authority over her own child to the other partner, in order for them to exercise authority jointly. More specifically, the court pointed out that the applicants had failed to substantiate the urgency that would motivate sharing parental authority. In any case, the court did not find that the situation of the applicants in relation to their respective biological child differed from single parents. According to the court, the latter also run the risk of not being able to exercise parental authority due to unforeseen circumstances. In other words, the theoretical risk of absence of parental authority over a child was not in itself sufficient to grant the delegation of parental authority. An appeal on points of law by the applicants was dismissed by the Cour de Cassation on 8 July 2010.
The ECtHR’s decision
Relying on Article 14 read in conjunction with Article 8 of the European Convention on Human Rights, the applicants alleged that the refusal of their application to delegate parental authority to each other had been based on their sexual orientation and entailed an unjustified and disproportionate difference in treatment. The Court decided to conduct a separate examination of the applicants’ situation before and after their separation in early 2012.
With regard to the period during which they cohabited, the Court considered that Bonnaud and Lecoq’s situation had been comparable to that of a different-sex couple in a blended family in which the parent’s partner lived with and raised a child who was not his or her biological child. Article 377 § 1 of the Civil Code, which allowed parents to apply to the judge to delegate the exercise of their parental authority where the circumstances so required, did not distinguish between parents. Nor did the provision make any distinction on the basis of the sexual orientation of the parent making the request or of the person to whom authority was to be delegated. A survey of the case-law showed that decisions on the delegation or otherwise of parental authority – both in heterosexual and homosexual relationships – were based on the factual circumstances of each case, and in particular the state of health of the mother or the child, time spent away from home and work-related constraints. In the instant case the Court considered that the assessment made by the Court of Appeal and upheld by the Cour de Cassation did not disclose a difference in treatment based on their sexual orientation. The Court also observed, as noted by the family-affairs judge and the Court of Appeal, that the applicants were perceived by those around them as the parents of the two children and that they had not referred to any specific problems that would have called for the delegation of parental authority they had requested. The Court found no appearance of a violation of Article 8 taken in conjunction with Article 14. This aspect of the complaint was therefore ill-founded and had to be rejected.
Following the couple’s separation in 2012, proceedings for Bonnaud’s (adult) child to be adopted [a so-called ‘simple’ adoption] by Lecoq were in progress. A fresh application seeking to have parental authority for Lecoq’s child delegated to Bonnaud was being prepared, and the Court considered it possible that it might be granted in view of the change in the applicants’ circumstances. This aspect of the complaint was thus premature and had to be rejected.
The applicants essentially argued before the domestic courts and the ECtHR that their situation was comparable to that of other families where two partners were raising children who were not their mutual biological children. They held that they were discriminated on the basis of their sexual orientation since their request to delegate parental authority was denied. However, it appears from both the wording of article 377 of the French Civil Code and the domestic case law that same-sex couples were not a priori excluded from the scope of the procedure of delegation of parental authority. Both the Cour de Cassation and the ECtHR could therefore easily conclude that the applicants’ claim was manifestly ill-founded. In this way, the case was different to X. and others v. Austria, where the Court found a violation of Article 8 jo. Article 14 ECHR and where a difference of treatment on the basis of sexual orientation was much clearer.
However, a close reading of the case suggests that it could have resulted in a different outcome. Indeed, both the domestic courts and the ECtHR failed to take into account the specificity of the applicants’ situation as a same-sex couple. While it is true that the French procedure of the delegation of parental authority within a relationship is theoretically open to both heterosexual and homosexual relationships, the fact that same-sex partners could only rely on this procedure to have children over which they exercised joint parental authority was completely ignored. Although full adoption of minors by same-sex partners was legalized in France in 2013, the applicants could not make use of this procedure following their separation in 2012. Both women are now only able to apply for a simple adoption of the children when the latter reach the age of majority. Although simple adoption is less restrictive in its requirements, it also leads to less radical legal effects.
Instead of focussing on the comparable nature of the their situation and that of a blended family between heterosexual partners – Bonnaud and Lecoq should have complained about, and the ECtHR should have highlighted the absence of any form of recognition of common parenthood within a same-sex couple. Indeed, at the time of the relevant facts, same-sex partners could not adopt each other’s biological children nor adopt a child togetheron the basis of French law, contrary to heterosexual partners. Given the fact that the neutral criteria for the delegation of parental authority are interpreted in the same strict way in homosexual and heterosexual relationships, a similar treatment was given to different situations, leading to the indirect discrimination of same-sex couples.
In the absence of the possibility to adopt, the applicants should have pointed out that the reluctance shown by the authorities to validate the clear social reality of their common parenthood – that was substantiated by police reports and testimonies from the social environment – led to the impossibility of having their family life legally recognised. Moreover, by interpreting the relevance of parental authority in a very strict way – i.e. situations of necessity/urgency where the biological parent is not able to fully exercise the authority – the interests of the children to have their stable social reality be legally recognised were overlooked. One may also wonder whether other forms of legal recognition of de facto parenthood – such as intra-family adoption – that are open to different-sex couples are similarly held to the same standard of necessity and urgency. The case thus proves that same-sex couples should not be afraid to emphasize the difference of their situation in comparison with different-sex couples in order to achieve equality of rights.
Moreover, the Court failed to problematize the viewpoint held by the domestic courts that unrecognised common parenthood in a same-sex relationship is comparable to the situation of a single parent. This appears to be highly inconsistent with its own finding that both applicants are socially perceived to be the children’s common parents. By allowing the legal recognition of parenthood in a same-sex relationship to be conceptualised as a form of measure of last resort in case of emergency, the Court gave a too restrictive interpretation of the required respect for family life under Article 8 ECHR.