January 12, 2021
By Alice Margaria (Senior Research Fellow, Department of ‘Law & Anthropology’, Max Planck Institute for Social Anthropology)
In 2020, an application concerning the parental rights of a co-mother was to be expected. What is surprising, however, is the ECtHR’s response. In Honner v France, the Court held that the refusal to grant contact rights to a social mother in respect of her child who had been born to her former female partner using assisted reproductive technologies in Belgium did not violate her right to respect for family life. This judgment evokes different feelings, prima facie conflicting but eventually pointing to a consistent picture of the ECtHR: that of an international court with strong expressive powers, which is expected to be at the same time cautious and leading the development of human rights standards in Europe and beyond.
The applicant, Ms Rachel Honner, and Ms C cohabitated from 2000 to 2012. The couple wished to have a child together and, in 2007, Ms C gave birth to G, conceived through assisted reproductive technologies in Belgium. The child was declared at the civil register by the applicant. In February 2008, the applicant took extended leave from work to take care of G and S, her own child (born in 1995), whilst her partner continued her professional career. In January 2009, Ms C prepared a handwritten will designating the applicant as guardian of her child. In the same year, the applicant and Ms C entered a PACS (Pacte civil de solidarité), which was terminated in 2012. After a few weeks, C opposed the preservation of any tie between G and the applicant. Upon the applicant’s request, the Tribunal de Grande Instance de Créteil granted her contact rights. Relying on her participation in G’s upbringing, her stable cohabitation with him and his mother, the emotional and durable connections existing between them, and the fact that G called the applicant ‘maman Rachel’, the first instance judge considered that C’s refusal to allow contact between the applicant and G was unjustified, contrary to the child’s interest and in breach of his right to respect for family life.
This decision was later overturned by the Court of Appeal of Paris. In the latter’s reasoning, G (6 years old at the time) was described as a ‘fragile’ child who had found himself in a traumatic position due to the particularly tense and aggressive relationships between the ex-partners. The Court of Appeal relied on a varied array of evidence, including medical certificates by Dr F, written declarations by the child’s psychologist, and testimonies from C’s family members, to emphasise G’s distress and hostility to the idea of meeting and spending time with the applicant. In the meantime, upon the applicant’s request, the disciplinary chamber of the Medical Association of Île-de-France issued a formal reprimand to Dr F who was considered to have produced biased certificates. After her attempt to appeal before the French Court of Cassation failed, Ms Honner lodged a complaint with the European Court of Human Rights arguing that the refusal to grant her contact rights with respect to G violated her right to respect for family life (Article 8 ECHR).
The Court began by noting that the ties which had developed between the applicant and G amounted to de facto family life (para 51). G was born from a joint ‘parental project’ by the applicant and Ms C, who had lived together since 2000 and had entered PACS in April 2009. The child had been raised by the couple together with S., the applicant’s older son, until the couple separated in May 2012. Focusing on the more specific tie between G and Ms Honner, the Court emphasised that she had taken care of his education, had taken an extended leave from work in order to be able to look after him when he was just 4 months old, and he called her ‘maman’. Having established the applicability of Article 8, the Court then proceeded by examining the case from the perspective of positive obligations. It justified its approach by observing that the lack of contacts between the applicant and G was the consequence of the couple’s separation, not of a decision or an act by the public authority (para 53).
Before entering the proportionality analysis, the Court found it important to note that the State enjoyed a wide margin of appreciation because of the competing interests involved: not only the applicant’s right to respect for family life, but also the child’s best interests and G’s and Ms C’s rights under Article 8. The legal question at stake was therefore – so the Court summarised it – whether, considering the wide margin of appreciation, the State had struck a fair balance between these competing interests, bearing in mind that the child’s best interests must prevail (para 57). It also observed that French law offered the applicant the possibility for a judicial examination of her request to preserve contacts with G. The applicant had made use of this possibility and the Court of Appeal of Paris had issued an ‘attentively motivated’ decision grounded on the child’s best interests’ (para 61). The domestic court had indeed ascertained that G, a fragile child, had found himself in a traumatising and guilt-ridden position at the centre of a conflict between the applicant and his biological mother. The Court of Appeal had also noted that there was no smooth handover of the child between them and G had showed himself reticent to spend time with the applicant. In light of these circumstances, so the Court continued, the domestic court had decided that it was not in G’s interest to continue having contacts with the applicant.
The Court then addressed the applicant’s claims concerning the limited evidential basis relied on by the Court of Appeal (paras 63-64). It held that, differently from what she had argued, there was nothing to suggest that the domestic court had failed to take into consideration evidence she had produced. As to the medical certificates issued by Dr F, whose reliability was disputed, the Court referred to the Government’s submission that the Court of Appeal had not relied decisively on them. Moreover, the Court recalled that, given the wide margin enjoyed by States in the administration of evidence, it was the task of national authorities to determine the probatory value of the elements submitted to them. As to the applicant’s claim that the domestic court could have conceived alternative solutions to enable her ties with G to be preserved, the Court considered any solution of such kind to be contradicted by the Court of Appeal’s conclusion that it was not in the child’s best interests to arrange any contact with the applicant (para 65). In spite of being aware of the suffering caused to the applicant, the Court concluded that her rights could not prevail over the child’s best interests (para 66). In light of the wide margin of appreciation, the State was considered not to have breached its positive obligation to ensure an effective respect of the applicant’s right to respect for family life. Hence, no violation of Article 8 was found.
Many aspects of this judgment deserve (re)thinking and reflections. I take this chance to share some of the analytical stages I went through when reading and re-reading Honner. This is a case which raises important legal questions regarding ‘co-motherhood’ and, more generally, LGBT parenthood – questions often debated in domestic legal settings but not previously brought to the attention of the ECtHR. Over the past years, the Court has examined applications pertaining to the legal recognition and protection of parent-child ties within LGBT families, but arising from slightly different contexts. After dealing with the denial of residence rights to the biological father of the child on the grounds of his homosexuality (Salgueiro da Silva Mouta v Portugal), the Court ruled on the refusal to authorise single-parent adoption by homosexual individuals (Fretté v France, 2002; E.B. v France, 2008). The Court then approached the issue of second-parent adoption by taking a rather cautious stance. In two similar cases (Gas and Dubois v France, 2012; X and Others v Austria, 2013), the impossibility for a same-sex partner to adopt the biological child of their partner was deemed discriminatory when such adoption was possible for unmarried different-sex couples, but not vis-à-vis married couples. Shortly after, the Court examined a complaint brought by two women in a registered civil partnership stemming from the refusal to register one of them as a parent on the birth certificate of the other partner’s (biological) child born during their relationship (Boeckel and Gessner-Boeckel v Germany, 2013). This application was declared inadmissible on the ground that, as far as the issue of birth registration is concerned, the applicants were not in a relatively similar situation to a married different-sex couples. After a few years ‘break’, the complaint brought by Ms Honner exposed the Court to a ‘new’ facet of contemporary family realities: namely, the end of a relationship between two women who had conceived (through assisted reproductive technologies) and raised a child together, and the future of the family ties existing between the social mother and the child born to her former partner.
Given recent social and legal developments in many countries and the ‘new’ legal question at stake, there were reasons for being hopeful and, in particular, for seeing Honner as an opportunity for the Court to send a strong(er) signal in favour of providing legal recognition to LGBT parent-child relationships. However, after reading the judgment, my first impression was rather different: more precisely, I (did) perceive Honner as conveying a strong message, but to the opposite direction than the one hoped for. The Court does indeed conclude that the refusal to grant a social mother contact rights in respect of her child, with whom she had developed de facto family ties, is compatible with Article 8. Apart from the outcome per se, what appears particularly remarkable and problematic, especially from a family diversity perspective, is the ‘non-parental’ portrayal of the applicant the Court allows for. The Court does indeed allow the French authorities to equate and reduce the applicant – i.e., a person who had decided to have a child together with her female partner who was the genetic mother of the child concerned – to the status of a ‘third party’ who could seek measures to preserve existing emotional ties with the child. Not only did the Court ignore the fact that it was the absence of a national legal framework allowing for legal recognition of co-motherhood that had contributed to this situation, but also failed to recognise the applicant’s participation in the child’s conception and upbringing as his mother. In light of these, after reading it, I immediately thought of Honner as an example of how the ECtHR jurisprudence may lend itself to being (mis)used by States pursuing conservative agendas in respect of family diversity and, more specifically, LGBT families.
A second reading of the judgment brought to light and made me reflect on a different – yet related – aspect of the case: namely, the (limited) role of the ECtHR, as an international court, in deciding upon contact disputes. In a nutshell, the Court found no violation of Article 8 because it was of the view that the Paris Court of Appeal had attentively scrutinised the evidence at its disposal and grounded its decision on the child’s best interests. The Court found it relevant to also state that, given that its role is not to replace national authorities in making contact determinations, it will not question the conclusion reached by the Court of Appeal according to which preserving contacts with the applicant is not in the child’s best interests (para 61). I found this statement convincing and, to a certain extent, enlightening. Having in mind also the wider interpretative context – i.e., the principle of subsidiarity and the better placed argument – I asked myself: ‘what more could have we expected from the Court in Honner?’. I therefore ended my second reading of the judgment convinced of the risky extrapolation of ECtHR judgments from the institutional setting they belong to and, by reflex, of the crucial importance to read the finding of no violation in Honner in light of its ‘international’ origins and the ‘limited’ role of the Court. Whilst remaining disappointed by the final outcome, I somehow felt comforted by understanding Honner as ‘part of the game’.
My analytical journey did not end there. A third reading gave me the opportunity to delve more carefully in the Court’s reasoning. Even if read against its ‘international’ origins, the judgment continues to display some critical aspects especially in the part addressing the applicants’ complaints on the limited evidential basis relied on by the domestic court (paras 63-65). Here the Court’s review appears at times superficial and rushed. Particularly emblematic is the reaction to the applicant’s claim on the weight attached to the medical certificates produced by Dr F, whose unreliability was not only claimed by the applicant but had also been confirmed by the Medical Association of Île-de-France. The Court does no more than referring to the submission made by the Government according to which the medical certificates by Dr F had not played a determinant role in the domestic court’s decision. Also the applicant’s claim concerning the failed attempt to organise supervised meetings was quickly dismissed by the Court, which offered the rather abrupt response that – as established by the Paris Court of Appeal – any kind of contact was contrary to the child’s best interests. Whilst it was certainly relevant that national authorities enjoyed a wide margin of appreciation, this seems to have resulted more in a total deference to national authorities than in a lenient review on the part of the Court.
This more critical reading of the judgment paved the way for some final, wider reflections on the ECtHR’s role as a human rights court. As much as it is important to adjust our expectations vis-à-vis the Court, it is also important (if not more important) to come to terms with the expressive powers of the Court. In other words, even if we are well aware of the institutional and interpretative boundaries of the ECtHR, it remains the case that the Strasbourg jurisprudence sends States and societies at large important messages on what constitutes a ‘good’ family/parent, what parent-child relationships deserve being preserved, legally recognised and protected. The ECtHR represents for many a success story and the engine of a ‘strongly developed European value system’ (E. de Wet, ‘The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) LJIL p 611). It is considered to have ‘willingly embraced the radically different nature of contemporary European societies’ (A. Mowbray, The Creativity of the European Court of Human Rights (2005) HRLR p 79), including families. This is the background against which the Strasbourg jurisprudence is often read and received, in spite of the increasing emergence of loud, critical voices. Hence, whilst we should not have unrealistic expectations, at the same time, the Court should be more sensible about the message its judgments may send in sensitive and potentially ‘leading’ cases like Honner. Even if the applicant did not invoke Article 14, at the end of the day, this is a case concerning discrimination on the grounds of sexual orientation and it will be de facto read as such, with the consequential risk of (mis)use initially identified.
These (re)readings bring me to a rather banal conclusion: as much as it is difficult for us to find a balance between the expectation of the Court supporting legal openness to and recognition of family diversity while acting within its own boundaries, it must be difficult – or even more difficult – for judges sitting on the Court to strike such a balance. They are human beings, as much as us, but with significantly heavier responsibilities and deeper involvement in the matters at stake. That being said, Honner’s risk of being (mis)used by conservative actors remains and expecting States to embark on extra-careful readings of judgments may be too much to ask for these days. On the contrary, asking the Court to approach sensitive cases with an increased awareness of the consequences of their judgments may be a more legitimate expectation. In concrete terms, this increased awareness may materialise in inter alia being far-sighted and approaching a case like Honner also in light of its potentially discriminatory implications, situating its judgments within better-defined boundaries, expressing its own vulnerability as an international human rights court, thus guiding the readership towards a more nuanced understanding of its own jurisprudence.