CONCURRING OPINION OF JUDGES LORENZEN AND JEBENS

We have voted with the majority for finding a violation of Article 14 of the Convention in conjunction with Article 8 and we can also broadly agree with the reasons in the judgment leading to this conclusion. However, we would like to clarif y our vote as follows .

In the present case the domestic authorities, when rejecting the application for authorisation to adopt, relied on two grounds that were both accepted as legitimate by the French courts in the appeal proceedings: f irstly , the lack of a paternal referent in the household of the applicant and secondly , the indifferent attitude of the applicant ' s partner. We fully agree with the judgment ' s reasoning ( paragraphs 75-78) that the latter ground was a relevant factor to be taken into account when deciding the application. As to the first ground, we do not find it to be irrelevant or discriminatory as such in cases where the application for adoption is made by a single person. However, it may be so if it is used in combination with a direct or indirect reference to the applicant ' s sexual orientation. In this respect we again agree with the majority that , despite the national courts ' attempts to explain what was meant or not meant by the reference to the applicant ' s “lifestyle”, it is not possible to conclude that her sexual orientation had no real importance for that ground. The refusal to grant the authorisation was accordingly based on one ground that was legitimate and another ground that was not legitimate in the circumstances of the case, and was thus discriminatory in terms of the Convention.

Consequently , a violation was found in the present case because the refusal to adopt was partly based on illegitimate reasons. This does not of course imply that the applicant could not have been refused authorisation based on grounds that were in conformity with the Convention, for example the indifferent attitude of her partner in itself. It is the opinion of the minority that the refusal was justified on that ground alone, and we do not exclude that this might be so. However, in our opinion – and this is in fact the point on which we most disagree with the minority – it is not for this Court to rule on that question, but exclusively for the French courts t o decide.

In view of the more procedural character of the violation , we would have considered the finding of a violation or a minor pecuniary award sufficient just satisfaction in respect of any non-pecuniary damage sustained by the applicant, but we did not find it necessary to dissent on that point.

DISSENTING OPINION OF JUDGE LOUCAIDES

I disagree with the majority in this case. I find that the decision of the domestic authorities to refuse the applicant authorisation to adopt a child was legitimate and well within their margin of appreciation.

The decision of the domestic authorities was based on two main grounds.

First, the “ absence of ' identificational markers ' due to the lack of a paternal role model or referent ” and second, “the ambivalence of the commitment of each member of the household to the adoptive child”. As regards the first ground, I agree with the majority that it is incompatible with the effective right of single persons to apply for authorisation to adopt, a right which is recognised by French law, and that it should therefore be rejected as inapplicable to the present case.

The second ground was the attitude of the applicant ' s partner, Ms R., who, despite the fact that she was the long-standing and declared partner of the applicant, did not feel committed by the latter ' s application to adopt. This ground by itself could legitimately justify the decision of the domestic authorities. That is not really disputed by the majority. But what the majority finds to be wrong is the fact that, as they put it, the “ illegitimacy of one of the ground s ha[d] the effect of contaminating the entire decision”.

Personally I do not accept this contamination theory – a theory more appropriate to medical science – for the simple reason that each of the grounds that led to the decision was separate and autonomous and its effectiveness was in no way dependent on or linked to the other one. Firstly, if the domestic authorities felt that the two reasons should operate jointly, they w ould have said so. Secondly, if – as the majority finds – the sexual orientation of the applicant, supposedly referred to implicitly in the reasoning of one of the grounds, was the real reason for refusing authorisation, I do not see why the authorities had to mention the other ground.

Given that we are dealing with decisions of the French administrative authorities, I might also add that it is a basic principle of French administrative law that if an administrative decision is based on several grounds, it is sufficient for one of the grounds to be legally acceptable in order for the decision to be valid.

In any event, I find that the reasoning of the domestic authorities in its entirety was in line with the Convention.

The authorities in question did not refer to the sexual orientation of the applicant as the reason for their refusal. However, contrary to my view, the majority finds that “the reference to the applicant ' s homosexuality was, if not explicit, at least implicit”, and that the “influence of the applicant ' s avowed homosexuality on the assessment of her application has been established and ... was a decisive factor leadin g to the decision to refuse her authorisation to adopt”. Reading the judgment of the majority I have the feeling that there is a constant effort to interpret the decision of the domestic authorities as being based on the sexual orientation of the applicant, although nothing was said to that effect and the authorities repeatedly made it clear that their refusal of authorisation was not made on the basis of a “position of principle regarding her choice of lifestyle” or “in view of the applicant ' s sexual orientation”.

Be that as it may, I am of the opinion that, even if the applicant ' s sexual orientation had been a factor in refusing authorisation to adopt, the refusal in question could not be said to be incompatible with Article 8 taken in conjunction with Article 14, account being taken of all the relevant circumstances and the meaning and effect of such a factor in relation to the question that had to be decided.

It is true that Article 14 of the Convention prohibits discrimination in the enjoyment of the rights set forth in the Convention on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Of course, sexual orientation is a different matter from sex, but even on the assumption that it is encompassed by the concept of “status” (which I do not think is correct), I must make this clarification which, to my mind, is necessary for the purposes of this case. There may be situations where different treatment is necessary on grounds of sex, religion, etc. or other status, if the consequences of the relevant status have a bearing on the particular question under examination. For instance, a person ' s religion may give rise to manifestations or practices which produce effects contrary to the interests of that person ' s children, a fact that can legitimately be taken into account when the welfare of the children is at issue. A typical example of this is the recent case of Ismailova v. Russia, judgment in which was delivered by the First Section on 29 November 2007. There, the applicant complained that the decisions of the domestic courts granting custody of her two children to their father had been in breach of Article 8 of the Convention taken in conjunction with Article 14, as they amounted to discrimination on the ground of her religion. The Court, in rejecting the applicant ' s complaint, referred to some incidents which had arisen out of the religious practices of the applicant on account of her membership of a certain religious organisation, and which had had negative effects on her children. The Court stated the following:

“The reasoning presented by the domestic courts shows that they focused solely on the interests of the children. The courts did not rely on their mother being a member of the Jehovah ' s Witnesses, but on the applicant ' s religious practices, in which she had included her children and failed to protect them. In the view of the domestic courts, this had led to social and psychological repercussions for the children. The courts considered that this would have negative effec ts on the children ' s upbringing . ...

In such circumstances, the Court cannot but conclude that there existed a reasonable relationship of proportionality between the means employed and the legitimate aim pursued ... ”

Likewise, in the present case, I find that in deciding what was in the best interests of the child to be adopted, the domestic authorities could legitimately take into account the sexual orientation and lifestyle of the applicant as practised in the particular circumstances of the case, namely the fact that the applicant cohabitated with her same-sex partner. I might add – on the basis of the majority ' s approach, which treats the two reasons given by the authorities as one – that the partner in question was not even interested in being a party to the adoption plan.

I believe that the erotic relationship with its inevitable manifestations and the couple ' s conduct towards each other in the home could legitimately be taken into account as a negative factor in the environment in which the adopted child was expected to live. Indeed there was, in these circumstances, a real risk that the model and image of a family in the context of which the child would have to live and develop his/her personality would be distorted. This situation differs substantially from one in which a homosexual applicant does not cohabit with his or her partner. And, personally, I would most probably have approached the matter differently in the latter case.

It is my firm belief that nobody can invoke his religion, sex or any other status in order to rely on the prohibition of discrimination as a ground for exemption from disqualification in respect of a particular activity on account of the negative consequences that such status may have in relation to a specific issue.

Homosexuals, like anybody else, have a right to be themselves and should not be the target of discrimination or any other adverse treatment because of their sexual orientation. However, they must, like any other persons with some peculiarity, accept that they may not qualify for certain activities which, by their nature and under certain circumstances, are incompatible with their lifestyle or peculiarity.

Therefore – proceeding on the assumption accepted by the majority that one of the reasons which influenced the entire decision to refuse authorisation to adopt was the sexual orientation of the applicant – I find that in the light of the particular facts and circumstances of the case the legitimacy of the refusal in issue was in any event not open to question. I believe that there existed a reasonable relationship of proportionality between the means employed and the legitimate aim pursued.

Finally and incidentally, I must put on record that the judgment in this case overturns the Fretté v. France judgment (no. 36515/97). The efforts to distinguish the present case from Fretté are, in my opinion, unsuccessful and unnecessary so long as the central question in both cases, according to the approach of the majority, is substantially the same

Accordingly I take the view that there has b een no violation in this case.