Information Note on the Court’s case-law 31

June 2001

Fretté v. France (dec.) - 36515/97

Decision 12.6.2001 [Section III]

Article 8

Article 8-1

Respect for private life

Rejection of request for authorisation to adopt lodged by an unmarried homosexual man, on the ground of his "life-style": admissible

Article 6

Civil proceedings

Article 6-1

Fair hearing

Failure to summon an unrepresented appellant to a hearing before the Conseil d'Etat : admissible

Article 12

Found a family

Request for approval as a prospective adoptive parent: inadmissible

Article 14

Discrimination

Request for approval as a prospective adoptive parent: inadmissible

Article 35

Article 35-3-a

Ratione materiae

Request for approval as prospective adoptive parent: inadmissible

As a result of his request for preliminary leave to adopt, the applicant was investigated by social services. His request was refused. He lodged an appeal with social servic es which was dismissed on the grounds that his “lifestyle” (he is an unmarried homosexual) did not appear to provide the necessary safeguards for him to be entrusted with a child. The applicant applied for the decisions to be set aside. The Administrative Court set aside the decisions, holding that the decision-making authorities had misinterpreted the relevant legislative provisions. The Paris département appealed to the Conseil d’Etat . The Government Commissioner was asked for his opinion and stated that the département had good grounds for challenging the judgment of the court below but that the applicant had been denied preliminary leave to adopt solely because he was homosexual and, as such, could not provide the safeguards required of someone seeking t o be entrusted with a child. The Government Commissioner took the view that that kind of decision amounted to introducing a form of discrimination between prospective adopters which the legislature had not intended – discrimination on the grounds of choice of private lifestyle. The Conseil d’Etat quashed the judgment of the court below and substituted its own decision, rejecting the applicant’s request for preliminary leave to adopt. It held that, on the evidence before it, the applicant – despite his perso nal qualities and aptitude for bringing up children – could not provide the safeguards required of someone adopting a child and that the court below had erred in law in setting aside social services’ decisions on the ground that the refusal of preliminary leave to adopt had been based on an incorrect application of the relevant legislation.

Inadmissible under Articles 12 and 14: neither provision guaranteed the right to adoption: incompatible ratione materiae .

Inadmissible under Articles 6 § 1 and 13: as re gards the allegation that the Conseil d’Etat had not given reasons for its judgment, it had considered and assessed all the material in the file – even if it had not expressly mentioned and formally dealt with each aspect – and several courts had already d ealt with the case and given reasons for their decisions: manifestly ill-founded.

Inadmissible under Article 6 § 1: (a) the fact that Government Commissioner had adopted more of an ethical than a legal standpoint before the Conseil d’Etat did not constitut e sufficient evidence to rebut the presumption of the Commissioner’s personal impartiality; (b) the applicant complained that the Government Commissioner’s submissions had not been communicated to him before the hearing in the Conseil d’Etat and that he ha d been unable to reply to them at the hearing. However, he had not been in a position to attend the hearing, as he had not been summoned. There was therefore no need to examine his procedural position vis-à-vis the Government Commissioner, since he had not actually been in the situation of which he complained; the issue of fairness could only be assessed in relation to specific circumstances: manifestly ill-founded.

Admissible under Articles 8 and 14 (rejection of request for preliminary leave to adopt) and Article 6 § 1 (failure to summon the applicant to attend the hearing in the Conseil d’Etat ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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