DISSENTING OPINION OF JUDGE MULARONI

(Translation)

I do not share the opinion of the majority in this case.

AS REGARDS ADMISSIBILITY

With regard to the admissibility of the application, I feel it important to specify straight away that I consider the application admissible but for reasons that differ from those given by my colleagues.

The Court reiterates in paragraph 43 of the judgment that the notion of private life is a very broad one that encompasses many rights and possibilities. The Convention institutions ' interpretation of Article 8 has greatly evolved. Very recently, in two applications concerning techniques of artificial insemination, the Court explicitly stated that this provision protected the right to respect for both the “ decisions ” to have and not to have a child (see Evans v. the United Kingdom [GC], no. 6339/05, § 71, ECHR 2007- ... , and Dickson v. the United Kingdom [GC], no. 44362/04, § 66, ECHR 2007 ... ).

Admittedly, both cases concerned the decision to have a “biological” child. However, I cannot forget that for centuries adoption, an age-old procedure that is known throughout most countries in the world, was the only means whereby couples unable to conceive could found a family with children. While it is undisputed that Article 8 does not guarantee a right to found a family, such a right is, however, guaranteed by Article 12 of the Convention. And whilst a “right” to adopt does not exist, I consider, in the light of our case-law, which over the years has brought more and more rights and possibilities within the ambit of Article 8, that the time has come for the Court to assert that the possibility of applying to adopt a child under the domestic law falls within the ambit of Article 8. Consequently, Article 14 would be applicable.

My approach would therefore be to stop declaring incompatible ratione materiae with the provisions of the Convention applications lodged by persons entitled under domestic law to apply to adopt a child. In my opinion, all applicants who are in the same personal situation of either being unable or finding it extremely difficult to conceive should be protected in the same way by the Convention regarding their legitimate desire to become parents, whether they choose to have recourse to techniques of artificial insemination or seek to adopt a child in accordance with the provisions of domestic law. I do not see any strong arguments in favour of a difference of treatment.

With all due respect to my colleagues, for the reasons explained below I find the legal reasoning in favour of declaring the application admissible

rather weak; it reiterates the arguments already used to this end in the case of Fretté (judgment of 26 February 2002, no. 36515/97, §§ 30-33).

As is rightly stressed in paragraph 47 of the judgment, the facts of the case must at least fall within the ambit of one of the A rticles of the Convention – in this case Article 8 – for Article 14 to be applicable. If the Court is not prepared to modify old case-law that is still applied to this day, according to which all stages prior to the issue of an adoption order by the domestic courts fall outside the Court ' s scrutiny (see on this point, among other authorities, Pini and Others v. Romania , nos. 78028/01 and 78030/01, §§ 140-42, ECHR-2004, and Wagner and J.M.W.L. v. Luxembourg , judgment of 28 June 2007, no. 76240/01, §§ 121-22), I have difficulty in understanding how it can come to the contrary conclusion that the right to seek authorisation to adopt “undoubtedly” falls within the scope of Article 8 of the Convention (see paragraph 49 of the judgment).

In my view, we should not be asking – and leaving unanswered – the wrong question, namely, whether the “right” to adopt should or should not fall within the ambit of Article 8 of the Convention taken alone (see paragraph 46 of the judgment). No right to adoption is recognised by domestic legislation or by the relevant international instruments, and the parties do not dispute this. On the other hand, we should establish – and this absolutely must be done and done clearly – whether the possibility of adopting a child afforded by domestic legislation does or does not fall within the ambit of Article 8. If the answer remains that it does not, I find it incomprehensible, as I have said above, to conclude that the right to seek authorisation “undoubtedly” falls within the ambit of Article 8 and that, accordingly, Article 14 taken together with Article 8 is applicable. Frankly, I find this conclusion illogical.

I would add that the approach followed in Fretté has had the practical effect of allowing applications relating to the preliminary phases in the process of adopting a child brought by homosexuals under Article 14 taken in conjunction with Article 8 to be declared admissible, whereas those brought by heterosexuals relying on Article 8 alone have to be dismissed as incompatible ratione materiae with the provisions of the Convention.

Admittedly, in recent years the Court ' s interpretation of Article 14 has greatly evolved. However, I consider that an interpretation which leads to declarations of applicability that generate discrimination a contrario in the treatment of applications does not correspond to the spirit and letter of Article 14.

AS REGARDS THE VIOLATION

With regard to the merits, I share neither the reasoning nor the conclusion of the majority.

The Court observed that the domestic administrative authorities and then the courts which dealt with the applicant ' s case had based their decisions to reject her application on two main grounds: the lack of a paternal referent and the ambivalence of the commitment of each member of the household.

Regarding the first ground, which was based on the lack of a paternal referent in the applicant ' s household, I admit that I have serious doubts as to its compatibility with Article 14 of the Convention. The present case concerns an application for authorisation to adopt lodged not by a couple, but by a single person. To my mind, the decision whether or not to grant single persons the possibility of adopting a child is within the State ' s margin of appreciation; once such a possibility has been granted, however, requiring a single person to establish the presence of a r eferent of the other sex among his or her immediate circle of family and friends runs the risk of rendering ineffective the right of single persons to apply for authorisation.

However, I consider that the second ground on which the domestic authorities based their decision, which was based on the attitude of the applicant ' s partner, calls for a different approach. Although she was the long-standing and declared partner of the applicant, Ms R. , who lived with the applicant, clearly distance d herself from the application for authorisation to adop t. The authorities, which constantly remarked on this point – expressly and giving reasons – conclu ded that the applicant did not provide the requisite safeguards for adopting a child.

Article 4 of Decree No. 98-771 of 1 September 1998 r equires the president of the council for the relevant département to satisfy himself that the conditions in which an applicant is proposing to provide a child with a home meet the child ' s needs from a family, child-rearing and psychological perspective. The importance of these safeguards – of which the authorities must be satisfied before authorising a person to adopt a child – can also be seen in the relevant international instruments, be it the United Nations Convention on the Rights of the Child of 20 N ovember 1989, the Hague Con vention of 29 May 1993 o r the draft European Convention on the Adoption of Children ( see paragraphs 28 -31 of the judgment).

Moreover, in the domestic legislation and in all the relevant international instruments it is the child ' s best interests that are paramount ( ibid . ), as has always been accepted and stressed by our Court in all cases concerning minors. Like the Conseil d ' Etat , I consider that where a single perso n seeking to adopt is in a stable relationship with another person, who will inevitably be required to contribute to providing the child with a suitable home, th e administrative authority has the right and the duty to ensure – even if the relationship in question is not a legally binding one – that the conduct or personality of the third person, considered on the basis of objective considerations, is conducive to providing a suitable home . It is incumbent on the State to ensure that the conditions in which a child – who very often has experienced great suffering and difficulty in the past – is provided with a home are the most favourable possible.

I therefore consider that the second ground is sufficient and relevant reason alone for refusing to grant the applicant authorisation. I therefore do not subscribe to the “contamination” theory propounded by the majority in paragraphs 80 et seq. of the judgment. On this point I share the considerations expressed by Judge Loucaides. I prefer to confine myself to the law of the legal systems I know best, according to which, where a decision is based on a number of grounds, it is sufficient for one of those grounds to be valid for the decision as a whole to be regarded as valid.

I would add that I find the majority ' s interpretation of the conclusions reached by the domestic courts to be unjustified: although the latter constantly asserted that it was not the applicant ' s homosexuality that was the basis of the refusal to grant authorisation, t he majority consider that the reference to the applicant ' s homosexuality was , if not ex plicit , at least implicit, and that t he influence of th is consideration on the assessment of her application ha s been established and was a decisive factor (see paragraph 89 of the judgment).

However, it was actually the applicant herself who had declared her homosexuality given that at the time at which her application was being processed she was in a stable homosexual relationship. I do not find anything discriminatory about the national authorities ' reference, in their decisions, to the applicant ' s avowed homosexuality and her relationship. Would it not also be relevant to refer to the personality of a heterosexual partner cohabiting with a prospective adoptive parent in a stable relationship and to his or her attitude to the partner ' s plans to adopt? I do not see any valid reasons for arguing that the authorities should not have made the slightest reference to these factors. The child was to arrive in a household composed of two people; the personality and attitude of those two people therefore had to be taken into account by the authorities.

Nor do I understand on what basis it can be concluded that the influence of the applicant ' s homosexuality was a decisive factor whereas, unlike in the case of Salgueiro da Silva Mouta v. Portugal , the domestic authorities always specified that it was not the applicant ' s sexual orientation that had founded the decision to refuse to grant her authorisation.

For all the foregoing reasons, I find that there has not been a violation of Article 14 taken together with Article 8.

[1] I have dealt with the issue at length in The Owl of Minerva, Essays on Human Rights, Eleven International Publishing , Utrecht , 2008, C hapter 14, pp. 413-28 .