CONCURRING OPINION OF MR. H.G. SCHERMERS

      Without any hesitation I support the Commission's conclusion that

the United Kingdom violated Article 8 of the Convention by failing to

respect the applicants' family life. I am unable, however, to accept

the reasoning in paragraph 55 of the Commission's Report, drawing a

distinction between the case of Kerkhoven and others against the

Netherlands, where the majority of the Commission found that their

lesbian relationship and ipso facto the relationship between the child

and the lesbian partner of the child's mother fell outside the notion

of "family life' within the meaning of Article 8 of the Convention.

      The basic principle underlying the various specific rights

contained in the Convention is respect for human dignity and human

freedom. These two elements imply that a person must be allowed to

shape his or her private and family life in the way he or she considers

best fitting his or her personality. This approach is generally

followed in the Convention organs' case-law, the case-law of the Human

Rights Committee on the International Covenant on Civil and Political

Rights and is equally reflected in the European Parliament Resolution

of 8 February 1994 on equal rights for homosexuals and lesbians in the

EC.

      In my opinion, therefore, the position of the applicants in the

present case can be - and must be - equated to that of the two women

in the Kerkhoven case. Although the existence of "family life" by its

nature will always depend on the factual situation in each individual

case, this equation should operate so that all forms of durable

relationships between adults and their children or their partner's

children should, in principle, be respected under Article 8 of the

Convention under the notion of "family life".

      Principal elements of family life are mutual affection, which may

exist between persons - irrespective of their sex - and between

children of one or both of these persons, and the wish of such persons

to found and/or maintain a "family unit" by establishing a joint

household, either through marriage or cohabitation; in short, the wish

to establish a union, which is legally and/or socially recognised,

creating or entailing mutual responsibilities. In this respect it

should be noted that it is accepted that marriage, as such, creates

family life between the spouses and will generally create family life

between one spouse and the children of the other spouse of which the

former is not the biological parent. However, this possibility does not

exist for homosexuals and lesbians in the Contracting States and not

for transsexuals in the United Kingdom. The only way for these persons

to create a "family unit" is through cohabitation. This does not mean.

however, that such cohabitation does not create family life under

Article 8 of the Convention.

      For those reasons I cannot accept the distinction made in

paragraph 55 between different forms of family life deviating from the

traditional pattern.

                                                        (Or. English)