CONCURRING OPINION OF JUDGE DE MEYER

I.   Applicability of Article 8 (art. 8)

I would observe that, as far as X is concerned, this case should have been dealt with from the point of view of private, rather than family, life.

There is certainly family life between Y and Z. However, between X and the two other applicants there is only the "appearances" of "family ties" [4] , which, of course, concern the private life of the three applicants.

II.   Compliance with Article 8 (art. 8)

There was no reason to refer, once again, to a so-called "margin of appreciation" enjoyed by the State [5] . It was enough to recognise that, in not allowing X to be registered as Z ’ s father, the respondent State had not "acted arbitrarily or unreasonably or failed to strike a fair balance between the respective interests" involved [6] .

There was also no need to consider that, on the issues at stake, there is no "common European standard", or no "common ground", "generally shared approach", or "consensus amongst the member States of the Council of Europe", or that these issues "remain the subject of debate", or that the law of member States concerning them "appears to be in a transitional stage" [7] . Nor was it helpful to remark that something "is impossible to predict", or that "there is uncertainty with regard to" a certain question [8] . Nothing of that kind was relevant. All we had to do was to identify the principles which, in our view, had to be applied and the rules to be observed.

These principles and rules are quite simple. Indeed, it is self-evident that a person who is manifestly not the father of a child has no right to be recognised as her father.

PARTLY DISSENTING OPINION OF JUDGE CASADEVALL, JOINED BY JUDGES RUSSO AND MAKARCZYK

(Translation)

1.  The majority did not see fit to depart from the Court ’ s existing case-law, in particular the Rees and Cossey judgments (notwithstanding the B. v. France judgment). Although the underlying problem remains the same (sexual dysphoria and sex changes), I consider that the present case has important distinguishing features which could justify a decision that there has been a violation of Article 8 (art. 8) taken separately without that decision entailing a complete rev ersal of the Court ’ s case-law.

2.   The subject is certainly a sensitive one and it raises numerous moral and ethical problems. But it is no less certain that more and more States (at present nearly half the members of the Council of Europe) are taking steps to adapt and harmonise their legislation with a view to full legal recognition of the new identity of those who have had sex-change operations (in accordance with the relevant regulations and under the supervision of medical and ethical committees) so as to alleviate, as far as possible, the distress some human beings are suffering (see the resolution adopted by the European Parliament on 12 September 1989 and the recommendation of the Parliamentary Assembly of the Council of Europe of 29 September 1989).

3.   Equally certainly, every State has a legitimate right to regulate such matters according to the aspirations of its people and its legal system, and in doing so has a "margin of appreciation" whi ch varies from field to field. That means that it must not go beyond the limits imposed by respect for the fundamental rights guaranteed by the Convention.

4.   The considerations set out in Judge Martens ’ s dissenting opinion in the Cossey case remain wholly applicable to the present case. When a person has undergone gruelling medical treatment, hormone therapy and dangerous surgery, and when his physiological sex has been brought into harmony, as far as possible, with his psychological sex, it is right and proper for his new identity to be recognised not only by society but also in law. "... refusal [of such recognition] can only be qualified as cruel."

5.   I think the present case is more complex than the earlier Rees and Cossey cases ( i ) because it concerns three people, (ii) because it is as much about private life as family life for the purposes of Article 8 (art. 8), and (iii) having regard to the following facts:

(a) After suffering since childhood from sexual dysphoria X underwent hormone therapy in 1975 and began to live and work as a man (see paragraph 13 of the judgment).

(b) Four years later he began to live with a woman, Y, and was then after going through the required procedure and undergoing psychological tests, given permission to have a sex-change operation. According to the applicants, the operation may be financed by the United Kingdom National Health Service.

(c) After an initial refusal and appeal the hospital ethics committee gave the go-ahead and X and Y were given permission for treatment with a view to artificial insemination by anonymous donor (see paragraph 15 of the judgment).

(d) Previously, X had been asked to make an acknowledgment of paternity pursuant to section 28 (3) of the Human Fertility and Embryology Act 1990, which provides: "where a man, who is not married to the mother, is party to the treatment which results in the sperm being placed in the woman, he shall be deemed to be the father of the child".

(e) X gave his agreement and his support, Y was impregnated and Z was born in 1992; Z has lived since then with X and Y, who act as her parents (see paragraphs 16-19 of the judgment).

(f) In reply to the registration request, the Minister of Health informed X that only a biological male could be regarded as the father for the purposes of registration (see paragraph 17 of the judgment).

6.   I accordingly summarise the problem in two essential points, on which I base my opinion.

The first concerns the concept of "family life". It seems to me undeniable that the relationship which binds the three applicants together, in their own experience and as perceived by society (Y is Z ’ s mother and X publicly assumes the roles of male partner and father), permits the finding that they enjoy real family life, which, according to the Court, "... is not confined solely to marriage-based relationships and may encompass other de facto ‘ family ’ ties where the parties are living together outside of marriage" (see the Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 17, para . 44).

It should be noted that when, at the hearing, Judge Makarczyk asked Mr Pannick , the Government ’ s counsel, if the Government would have changed its position on the question of family life if the applicants had requested and obtained a joint residence order, he was given the following answer: "... it would be very difficult indeed for the United Kingdom then to submit to this Court that there is no family life for the purposes of Article 8 (art. 8)" (see the verbatim record of the hearing, p. 30).

The second point - having regard to the facts of the case and the principle of legal certainty and even foreseeability - is that since the State permitted X to undergo hormone treatment and then, after he had gone through the required procedure and undergone psychological tests, permitted and even financed irreversible surgery, issued documents mentioning his new sexual identity and authorised Y (after an acknowledgment of paternity prescribed by law had been obtained from X) to undergo artificial insemination which led to the birth of Z and a second child since, it must accept the consequences and take all the measures needed to enable the applicants to live normal lives, without discrimination, under their new identity and with respect for their rig ht to private and family life.

7.   For these reasons, I conclude that there has been a violation of Article 8 of the Convention (art. 8).