October 07, 2022
By Charly Derave & Hania Ouhnaoui
In a judgment of 24 March 2022, the European Court of Human Rights, sitting in chamber, rules unanimously that the French authorities’ refusal to allow the establishment of a legal parent-child relationship between a child and a woman who is the former partner of their biological mother – also the child’s legal parent – whether by full adoption (adoption plénière) or by recognised enjoyment of a status (possession d’état) does not violate Article 8 of the Convention (right to respect for private and family life).
Facts and legal reasoning before the Court
The judgment deals with two joint applications.
In the first case (application 29775/18), two women were involved in an emotional and intimate relationship for several years when one of them gave birth to a child in 2001. The child was conceived “via a friendly donor in France” (§5). They separated in 2006. Following a friendly agreement with the legal parent, the ex-partner enjoyed visit and accommodation rights for the child. She also paid child support. In 2015, she filed a procedure for the full adoption of the child with the consent of the legal parent. The domestic courts rejected the application because, as French law stood, the full adoption of a child by the former partner of their legal parent conferred on the child a legal parent-child relationship that permanently removed the original one. At the time, only the marital status did not affect the latter, but the two women had never been married and they did not live under the same roof anymore. The national judge decided this situation undermined the child’s interests. These were the reasons for the refusal, not the ex-partner’s sexual orientation.
In the meantime, both women filed an application to establish a legal parent-child relationship by recognised enjoyment of a status. The first judge granted the application, but the judgment was declared “null and void” by the appellate court (§17). They did not appeal before the French Court of Cassation because it had previously issued an opinion stating that the Civil Code “precludes two maternal or two paternal legal parent-child relationships from being established in respect of the same child” by way of recognised enjoyment of a status (§18).
In the second case (application 29693/19), two women entered a civil solidarity pact in 2006, after having lived together for several years. In 2008, one of them gave birth to a child using medically assisted procreation abroad. In 2010, the national judge authorized the sharing of parental authority between the legal parent and her partner. They subsequently separated and their civil solidarity pact was dissolved. They set up an alternating residence for the child. In 2018, the ex-partner, also the intended parent, filed an application to establish legal parent-child relationship with the child by recognised enjoyment of a status. This application was rejected by national judges because, on the one hand, “French law does not allow the establishment, by recognised enjoyment of a status, of a double legal parent-child relationship for the benefit of same-sex partners” and, on the other hand, it was not demonstrated “in concrete terms that the best interests of [the child] make it necessary to establish a second tie of legal maternal relationship to the former partner of his or her biological mother” (§25).
In their submission before the Court, the applicants argue that the respondent State violated article 8 of the Convention. In both applications, they claim that a legal parent-child relationship is an element intrinsically linked to the identity of the person and shapes it. The refusal of the French authorities placed the child in legal uncertainty: “his or her de facto family situation did not correspond to his/her legal situation” (§58). The child was also deprived of rights that derived from legally established parenthood: rights resulting from the joint exercise of parental authority, the right to bear the name of the second parent, and inheritance rights. As it stood, French law ignored the social reality: in both cases, the affective and emotional ties between the child and their biological mother’s ex-partner were durable and powerful. The applicants contend that the domestic courts thus failed to duly consider the child’s best interest.
They also complain of discrimination because such a refusal would not have been made “in a hetero-parenthood context” (§70).
The court’s judgment
The applications were not processed under Article 14 of the Convention (non-discrimination clause) combined with Article 8 because the Court declared them inadmissible to that extent in an unpublished decision. The Court scrutinises the applicants’ arguments under Article 8 alone and divides its reasoning into three steps.
Firstly, the Court holds that this provision is applicable. On the one hand, it recalls that the notion of “family” includes relationships other than those characterised by a marital bond, provided there is “an effective personal link” (“de facto family life”, §49). This is the case in both applications according to the Court: the ex-partners have been raising the biological parents’ children for several years and participating in their education. Arrangements have also been provided for: either a right of visit and accommodation with payment of child support (§50), or a delegation-sharing of the exercise of parental authority (§51). The tie that has connected the children to the former partners “therefore characterizes the existence of a family life” (§52). On the other hand, the Court states that the notion of “private life” covers emotional bounds that have been created and developed between an adult and a child outside traditional situations of parenthood (§53) and that a legal parent-child relationship constitutes “an essential aspect of the [child’s] identity” (§54). In both applications, the Court finds that the effective personal link between the children and the former partners is a matter of their private lives (§55).
Secondly, the Court decides that both applications should be analysed under the defendant State’s positive obligations (§82). It rules there were loopholes in French law that made it impossible, at the time of the referral to the French courts and the Court, to legally establish the parenthood between a minor and the intended parent, without affecting the situation of the biological parent – because they were not under a marital status (§80). Although the Court states that Member States enjoy a margin of appreciation in the implementation of positive obligations (§84), it is deemed narrow in both applications because “an essential aspect of the individual’s identity is at stake when the parent-child relationship is affected”, especially when it is sought to be established in respect of minors (§§88-89).
Thirdly, the Court assesses whether the respondent State struck a fair balance between the interests at play, considering the child’s interests, which are of paramount importance (§90). It divides its reasoning into two parts, first analysing the “family life” dimension of Article 8 and then the “private life” one.
As to the first dimension, the Court states that the applicants “have led a family life comparable to that of most families after the separation of the couple” (§94) and that they “have not reported any difficulties in the day-to-day running of their lives” (§95). It adds that, during the period that was elapsing between the date of the separation and the date of the application for legal parent-child relationship (respectively nine and four years), the loopholes of French law did not call into question the emotional bonds between the child and the ex-partner (§95). France cannot be held liable for this.
As to the second dimension, the Court rules that in both applications the French authorities’ refusal “raises a serious question with regard to the principle of the primacy of the child’s best interest” (§104). However, the Court finds that the respondent State cannot be charged for two reasons.
Primo, there were instruments in domestic law that allowed to some extent for legal recognition of the existing relationship between the applicants, such as the shared exercise of parental authority. The former partner could pretend to benefit from the exercise of some rights and duties related to parenthood with respect to the child (§105).
Secundo, the Court observes that the path to legal recognition of the parenthood “by way of legitimizing their relationship” (§104) is currently open to the applicants. In the first application, the Court contends that simple adoption (adoption simple) could be considered because the child is now over eighteen. Consequently, the full transfer of parental authority to the adopting party is no longer an issue (§112). In the second application, it notices that the transitional provisions of the 2 August 2021 Act relating to bioethics authorises two separated women to jointly recognize the child of whom one of them gave birth following medically assisted procreation carried out abroad, provided they were being in a relationship on the day of the procreation and that it was part of a common parental project (§108). This common declaration creates a legal parent-child relationship between the child and the intended parent. Although here the Court admits that the biological parent refused to consent this procedure, it holds that at the date of the ruling there has been a legal framework in place. The respondent State could not be blamed for “having delay in following [the evolution of society’s attitudes and expectations in the field of bioethics]” because there has been no European consensus on the matter (§§109-111).
In the end, the Court finds there was no breach of the obligation to guarantee effective respect for the applicants’ right to private and family life.
The Court makes clear that the core of the issue at stake is about the establishment of a legal parent-child relationship between, on the one hand, a child born from a “friendly sperm donation” in France or medically assisted procreation carried out abroad and, on the other hand, a woman who is the former partner of the child’s biological mother. On the day of the birth (respectively in 2002 and 2008), these two women were involved in a stable and lasting relationship and had a common parental project. They then separated. Even if, from that moment on, their relationship has no longer characterised a “life community”, they clearly expressed the wish to go on with their parental project. In both applications, the former partner has been playing a meaningful role in the child’s education and identity development by exercising some parental rights.
However, the legal recognition of the effective personal link between the child and the biological parent’s ex-partner stumbled upon the rigidity of French law, its imperviousness to the diversity of social relationships, and the many ways in which they can be experienced and embodied, among others through a parental project.
First, at the time the application for full adoption was filed in the first case (in 2015), a legal parent-child relationship could be established by way of adoption between a child and a person of the same sex as the biological parent, but only if they were married under the 17 May 2013 Act opening marriage to same-sex couples. Otherwise, the legal tie with the original parent was broken and permanently replaced by that of the adopting individual. Consequently, French law excluded from legal parent-child relationship based on adoption same-sex persons who were involved in a stable and lasting relationship (notwithstanding the way in which it was protected under law, e.g. by a civil solidarity pact) or those who, like the plaintiffs, were separated, but nevertheless had a common parental project that they had developed before their separation and that they wished to pursue.
Second, at the time of the applications for recognised enjoyment of a status in the first and second cases (respectively in 2016 and 2018), French case law found that the 17 May 2013 Act expressly excluded that a legal parent-child relationship could be sanctioned with respect to two persons of the same sex, except by adoption. Any relationship or parental project that differed from the heterosexual norm and its social codes could not legally characterise a tie by recognised enjoyment of a status.
This implies that the great majority of individuals accessing to the institution of legal parent-child relationship were married heterosexual couples. Only them had the privilege to pretend to exercise all parental rights and duties over the children who have been a part of their parental project. Those who did not fit into this traditional relational pattern were excluded from the institution and all its product.
The access is differentiated on the basis, in the first application, of marital status (and indirectly of sexual orientation because the number of same-sex marriages has remained marginal since 2013) and, in the second application, of sexual orientation. These are two grounds of discrimination covered (or potentially covered for the marital status) under Article 14 of the Convention. Although the Court states the argument based on this provision is inadmissible in a separate, unpublished decision, one can regret that it does not point this out, even if only implicitly or marginally, in the context of Article 8 of the Convention, as it did on other occasions (see V.C. v. Slovakia and Y.Y. v. Turkey). But there is more: the gender dimension is disregarded by the Court, although it is significant in both applications. This was indeed a woman who had been in a relationship with another woman who sought legal parent-child relationship with the latter’s child.
As a result, one could argue that the actual issue which the Court should have analysed is the ostracising nature of the French law. A review under Article 14 may have led the Court to a different outcome when balancing the party’s interests. It could have duly considered the implications of the impugned loopholes, which blatantly deprived the applicants of the possibility of fully existing and constituted a serious obstacle to the recognition of the identity of minors (on the latter point, see Mennesson v. France, §§96-101 and Labassee v. France, §§75-80)?
If the issue to be addressed by the Court is social exclusion, then the perspective changes and the grounds of the ruling become superfluous and ineffective. The mere fact that the applicants waited before filing their application before national courts without having reported “difficulties in their daily lives” demonstrates that the parental project was serious and solid, which is precisely what the institution of legal parent-child relationship aims at protecting. Also, the possibility for the plaintiffs to lean on other instruments does not exhaust the issue, as they only allow the exercise of certain parental rights and duties, which is something the Court itself recognizes by using the words “to a certain extent” (§§105-107). In fact, this ground supports the exclusion more than it undermines it. Finally, the alternatives mentioned by the Court that the former partners can resort to at the time of the ruling (simple adoption and the transitional provisions of the 2 August 2021) in no way resolve the problem on the day it arose.
In our opinion, this judgment sadly supports what M. Foucault said in an interview with G. Barbedette forty years ago: “we live in a legal, social, institutional world where the only possible relationships are extremely few, extremely schematized, extremely poor”. The Court missed the opportunity to respond to this eminent French philosopher’s call for the creation of a “new relational law”. Taking up this statement, A. Naze explains: it would be a question of “subverting” the very notion of institution. The relationship itself would constitute the starting point of this new law and it would not be preceded (as it has been for decades), but followed by a legal institutionalization. There would thus be “space” for “relational inventions” (Manifeste contre la normalisation gay, Paris, La Fabrique éditions, 2017, pp. 83-89). The applicants’ situation – social relationships that are part of a homoparental project carried by two unmarried and separated women – constitutes one of these inventions.
In imagining and creating these “new cultural forms” of relationships (and legal parent-child relationships), the Court could play a leading role. Among the tools it has built to do so, one can think of the method of evolutive interpretation (see Stafford v. United Kingdom, §68). Why not pave the way?
 The judgment became final on 5 September 2022 after the panel of the Grand Chamber decided to reject the applicants’ request for referral.