DISSENTING OPINION OF MRS. J. LIDDY,

                       JOINED BY MR. G.B. REFFI

1.    While I agree that there exists family life within the meaning

of the Convention, I do not consider that there has been a failure to

respect that family life.

2.    The question to be addressed is, as indicated at para. 62 of the

Report, whether a fair balance has been struck between the general

interest of the community and the interest of the individual.

3.    In seeking to consider that question, I have regard to the

following principles:

      (i) There may be positive obligations inherent in respect for

      private life or family life.  The area of positive obligations

      under Article 8 is one in which the Contracting States enjoy a

      wide margin of appreciation in determining the steps to be taken

      with due regard to the needs and resources of the community and

      of the individual (Rees v. United Kingdom, Series A, Vol. 106

      para. 37;  Johnston v. Ireland. Series A, Vol. 112 para. 55).

      (ii) The law concerning transsexuals appears to be in a

      transitional stage.  Having regard to its margin of appreciation,

      the United Kingdom is not under a positive obligation to

      establish a type of documentation showing, and constituting proof

      of, current civil status.  It must for the time being be left to

      the United Kingdom to determine to what extent it can meet the

      remaining demands of transsexuals (Rees, loc. cit., paras. 42 and

      47;  Cossey, Series A, vol. 184, para. 45.)

      (iii) It is not possible to derive from Article 8 an obligation

      to establish for unmarried couples a status analogous to that of

      married couples or to establish a special regime for couples who

      wish to marry but are legally incapable of marrying (Johnston,

      loc. cit., para. 68).

      (iv) Respect for family life requires that the child of such a

      couple should be placed, legally and socially, in a position akin

      to that of a legitimate child.  Notwithstanding the wide margin

      of appreciation in this area, there may be a violation of Article

      8 if the child's legal situation differs "considerably" from that

      of a legitimate child and if there are no means available to her

      or her parents to "eliminate or reduce" the differences

      (Johnston, loc.cit., paras. 74 and 75).

4.    The case-law leads me inexorably to the conclusion that the

failure of United Kingdom law to allow for special legal recognition,

as such, of the relationship between the applicants does not disclose

a lack of respect for either private or family life.  Article 8 does

not require that a historical record of fact be altered to conceal the

fact that a female-to-male transsexual was born a male or to record

that he has fathered a child, notwithstanding the truth of the matter.

5.    However, the situation of Z, the child, might constitute a lack

of respect for the family life of the applicants if her situation

differs considerably from that of a legitimate child and if there are

no means available to eliminate or reduce the differences.

6.    At first sight, the case seems very similar to the Johnston case,

where there was a finding of a violation because the child's legal

situation differed from that of a child born within marriage.  It is

true that the first and second applicants may reduce the differences,

particularly by applying for a residence order or a joint residence

order settling the arrangements to be made as to the persons with whom

the third applicant is to live, and that the first applicant may make

further court applications as necessary and thereby enjoy full parental

responsibility.  However there was a not dissimilar possibility open

to a natural father under the Irish Guardianship of Infants Act.  It

is also the case that Z. will not inherit from the first applicant in

the event that he fails to make a will in her favour.

7.    Notwithstanding the similarities, it is my opinion that the

present case falls to be distinguished from the Johnston case.

      First, Z. is not, as a matter of fact, the natural child of the

first applicant.  The present case does not involve questions of

inheritance on  intestacy to the estates of blood relatives.  Second,

as acknowledged by the applicants' representatives at the hearing

before the Commission, and as indicated at page 5 of the Report by

Dr. Dave King of the Department of Sociology, University of Liverpool

submitted by the applicants, the status of illegitimacy has now lost

most of its disabilities and there is increased social acceptance of

single mothers.  I infer that there is also increased social acceptance

of single mothers who set up home with a partner who is not the father

of the child.  It would appear to be common ground between the

applicants and the Government that the differences between the

situation of Z. and the situation of a child born within marriage are

not considerable.  Third, the present case raises an aspect which did

not call for consideration in the Johnston case; whether there is a

countervailing general interest of the community, which must be

balanced.

8.    I consider that the interest of the first and second applicants

in not being put to the trouble of so regulating their affairs as to

make Z.'s situation as close as possible to that of a child being

reared by any couple in a stable relationship must be balanced against

the general interest of the community that the legislature proceed with

prudence and after due research and considered debate in the sensitive

areas concerning, on the one hand, children born by artificial

insemination by donor and, on the other hand, the concerns of

transsexuals - especially where the two areas overlap and the

development of children might be affected.

9.    The applicants have submitted a paper entitled "Biological

factors in the development of human sexual identity" by Warren

Gadpaille, published, apparently, in the United States of America in

1990.  Professor Gadpaille states as follows:-

      "Green29 has reported on 37 children who were raised by homosexual

      or transsexual parents, in whom there is no evidence to date of

      any unusual degree of cross-sex identity or sexual orientation

      (only a few, however, have reached mid to late adolescence, and

      most were not part of the atypical household since birth).

      Studies by other researchers, as yet unpublished, are expected

      to be in general concurrence, though some differences from

      control populations are found33.  Too many unknowns, such as the

      nature of influences in early infancy, specific parents' overt

      and covert attitudes towards their own and their child's sexual

      identity, and so forth, make it imprudent to do more than note

      that these data, so far, do not indicate an inevitable influence

      on the child's developing sexual identity, by that of the parent.

      They suggest, at least, a certain inherent resistance against

      developmental deviation, perhaps attributable in fact to assumed

      biological normality or the children."  Footnote 29 states

      "Green, R. Sexual identity of 37 children raised by homosexual

      or transsexual parents Amer. J. Psychiatry 135, 692-697, 1978."

      Footnote 33 states "Harrington, S.B. Children and lesbians

      developmentally typical.  Psychiatric News, Oct. 19, 1979 pp. 20-

      22."

10.   No more recent, or less cautiously qualified, psychiatric studies

concerning children being reared by transsexuals, and no study at all

concerning children born by artificial insemination by donor was made

available to the Commission.  However, the foregoing quotation, from

a study provided by the applicant, is indicative of concern at least

in academic circles in the United States of America that children in

such atypical households might possibly develop atypically or to their

detriment.  The initial refusal by the hospital ethics committee to

provide treatment to the second applicant is indicative of similar

concern on the part of professionals in the United Kingdom.  The

welfare of children at large would appear to require that at this time,

when there are "too many unknowns", the legislature proceed with

prudence and after due research and considered debate in determining

the extent to which and consequences of enabling transsexuals to be

deemed parents of children born to another by artificial insemination

by donor.

11.   If, as in the Rees and Cossey cases, the law concerning

transsexuals appears to be in a transitional stage, and this is an area

in which Contracting States enjoy a wide margin of appreciation, the

same can be said with even more force in regard to the law concerning

children born by artificial insemination by donor and being reared by

transsexuals.

12.   Having regard to that margin of appreciation, it appears to me

that a fair balance has been struck between the general interest of the

community and the interest of the applicants.  The United Kingdom has

not, in my opinion, failed to show effective respect for their family

life.

13.   This conclusion is not affected by the fact that United Kingdom

law made possible the artificial insemination by donor of the second

applicant and that the Hospital Ethics Committee allowed the first

applicant to be considered as "father" on that occasion.  As stated by

the Court in the Rees case (para. 45):  "In the instant case, the fact

that the medical services did not delay the giving of medical treatment

until all legal aspects of persons in the applicant's situation had

been fully investigated and resolved obviously benefitted him and

contributed to his freedom of choice."

14.   Accordingly, I have voted against a finding of violation of

Article 8  in the circumstances of this case.

15.   I agree that in the circumstances of this case no separate issue

arises under Article 14.  In any event, there is, for the foregoing

reasons, objective and reasonable justification for treating in the

present state of knowledge the de facto but artificially created

father-child relationship in question differently from a de facto

relationship between biological father and child, and the means chosen

are not disproportionate to the aim of proceeding with prudence in an

area of concern to the well-being of the newborn generally.

                                                        (Or. English)