CONCURRING OPINION OF JUDGE SPIELMANN

(Translation)

1. With regard to point 2 of the operative provisions of the judgment, I believe that the situation of the applicants – the first and third applicants, who form a same-sex couple, and the third applicant’s son – was comparable to that of a married different-sex couple in which one partner wished to adopt the other partner’s child.

2. On this point, I would reiterate my concurring opinion annexed to the judgment in Gas and Dubois v. France (no. 25951/07, ECHR 2012) of 15 March 2012, in which I was joined by my colleague Isabelle Berro-Lefèvre. Like Gas and Dubois , the present case concerns a stable same-sex couple. As regards the issue examined by the Court, the first and third applicants are, in my view, in a situation comparable to that of a married couple. The fact that the Convention does not require Contracting States to make marriage available to same-sex couples and that marriage confers a special status on those who enter into it has no bearing on the issue raised by the present case.

3. The reason why I did not vote in favour of finding a violation of Article 14 of the Convention taken in conjunction with Article 8 is because I believe that it was not necessary to examine this issue. Moreover, the applicants themselves stressed that they did not wish to assert a right that was reserved to married couples. Although their position on this matter was not wholly without ambiguity, they argued mainly that there were no objective and reasonable grounds for the first applicant to be refused the right to adopt her partner’s child given that the same right would have been granted to a partner in an unmarried heterosexual couple. It is true that, in submitting their complaint initially, the first and third applicants likened their situation to that of a married couple. However, in their observations of 31 July 2012, received at the Registry on 1 August 2012, they expressed their position as follows:

“34. The issue before the Court in this case is NOT a privilege of marriage. The applicants are not claiming a right which is reserved to marriage[-]based (step-parent) families (this being the crucial difference between Gas and Dubois and this case !).

35. Austria grants step-parent adoption also to unmarried couples.

36. But while unmarried heterosexual couples can meaningfully enjoy this possibility, unmarried homosexual couples and their step-children cannot. This is exactly a Karner -like situation ( Karner v. Austria 2003, Kozak v. Poland 2010, P.B. and J.S. v. Austria 2010, J.M. v. UK 2010).”

4. This is how the subject to be debated before the Court was defined by the applicants themselves. Accordingly, I believe that it was not necessary for the Court to examine the question of the comparison between the applicants’ situation and that of a married couple, especially since there was no real discussion as to whether any reasons existed that might have justified the difference in treatment, in the light of a possible legitimate aim and with reference to the principle of proportionality.

JOINT PARTLY DISSENTING OPINION OF JUDGES CASADEVALL, ZIEMELE, KOVLER, JOÄŒIENÄ–, Å IKUTA, DE GAETANO AND SICILIANOS

(Translation)

1. With all due respect to the approach followed by the majority, we are unable to subscribe to point 3 of the operative provisions, which finds a violation of Article 14 of the Convention taken in conjunction with Article 8 when the applicants’ situation is compared with that of an unmarried different-sex couple in which one partner wishes to adopt the other partner’s child, or to the arguments in support of that conclusion. The particular facts of the case combined with the content of the Austrian legislation, on the one hand, and a number of considerations relating to comparative and international law, on the other hand, lead us to the conclusion that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8 in respect of any of the three applicants.

I. The particular features of the case and Austrian law

The circumstances of the case

2. The circumstances of this case differ from those in previous cases concerning adoption issues examined by our Court. Four persons were concerned in the present case: the biological mother, the biological father, the mother’s partner and the child to be adopted (the son of the first two persons). The mother’s partner wished to adopt the child, with the mother’s agreement. Although his mother had parental responsibility, the child had maintained strong emotional ties with his father, whom he saw regularly and who, according to the case file, paid maintenance for his son with equal regularity. The father, as he was entitled to do, had refused to consent to the adoption. It was not disputed that the child was receiving a proper upbringing within the family home provided by his mother and her partner. We have no difficulty in agreeing that the relationship between the three applicants fell within the notion of “family life” in terms of Article 8 of the Convention.

3. Bearing in mind that Article 8 of the Convention does not guarantee either the right to found a family or the right to adopt (see, among other authorities, E.B. v. France [GC], no. 43546/02, § 41, 22 January 2008), nor does it guarantee the right to have a child or the right to be adopted, one may well ask what constituted the supposed interference by the national authorities with the applicants’ private or family life. The first applicant, who is the mother’s partner, could not assert a right to adopt the latter’s child. The second applicant, assuming that he wished to be adopted, could not claim such a right either; moreover, he already had a father and a mother. The rights of the third applicant, the child’s mother, were not infringed in any way. On the contrary, the impugned legislation simply preserved her parental rights, which she did not intend to waive. In any event, even supposing that there was interference, it was in accordance with the law and pursued the legitimate aim of protecting the family ties between the second applicant and his father, who was opposed to the plans to adopt. But we will not dwell any further on this point.

The impugned legislation

4. Contrary to the view of the majority (see paragraph 126 of the judgment), we believe that the Court should have examined the issue on the basis of this specific situation rather than conducting an abstract analysis of the legal provision applicable and applied by the domestic courts, namely Article 182 § 2 of the Austrian Civil Code. Hence “in cases arising from individual petitions the Court’s task is not to review the relevant legislation in the abstract. Instead, it must confine itself, as far as possible, to examining the issues raised by the case before it” (see Taxquet v. Belgium [GC], no. 926/05, § 83 in fine , ECHR 2010).

5. Following the same reasoning as the District Court and later the Regional Court, the Austrian Supreme Court dismissed the applicants’ appeal on points of law. It cited among the reasons for its decision the fact that Article 182 § 2 of the Austrian Civil Code governed the effects of adoption by one person, and found that the following conclusions should be drawn:

(a) if the child was adopted by just one adoptive parent, the ties of kinship ceased only in respect of the biological father (or the biological mother) and his (her) relatives;

(b) this meant, among other things, that the adoption of a child by a woman could not have the effect of depriving the child of his or her biological father;

(c) Article 182 § 2 of the Civil Code imposed a general prohibition (that is, not just in the case of same-sex partners) on adoption by a man as long as the ties of kinship with the child’s biological father still existed, and by a woman where such ties still existed with the biological mother;

(d) under Article 182 § 2, therefore, a person who adopted a child on his or her own did not take the place of either parent at will, but only the place of the parent of the same sex.

6. Article 182 § 2 is a provision of a general nature which is strictly neutral and applicable in all situations without any distinction being made on the basis of the sexual orientation of the persons seeking to adopt. A given legislative provision may produce different effects depending on the situation to which it is applied. “A mere difference in effect does not amount to and does not imply a difference in treatment, where one and the same rule produces these various effects” (see the observations of third-party intervener the European Centre for Law and Justice). The effects arising out of application of the relevant provisions of Austrian law (severing of the legal tie between the adopted child and his or her biological father or mother), which are the legal and logical consequence of adoption, are echoed in the legislation of many other Council of Europe member States (see, among other examples, Articles 360 et seq. of the French Civil Code). Our Court has previously acknowledged “that the logic behind this approach to adoption, which entails the severing of the existing parental tie between the adopted person and his or her biological parent, is valid for minors” and that “in view of the background to and purpose of Article 365 of the [French] Civil Code ..., there is no justification, on the sole basis of a challenge to the application of that provision, for authorising the creation of a dual legal parent-child relationship ...” (see Gas and Dubois v. France , no. 25951/07, § 72, ECHR 2012). That assertion is valid, mutatis mutandis , in the present case. The fact that different stakeholders are involved has no bearing on the effects produced, which will always remain the same: the child cannot be adopted without the express consent of the father or mother with whom the parental tie remains. Accordingly, whether the person seeking to adopt is a man or a woman, heterosexual or homosexual, the adoption will be impossible as a matter of principle in each case.

The position of the child’s father

7. The applicants correctly alleged that the approval of the adoption would have led to the severing of the legal tie between the mother and her son under the relevant statutory provision; at the same time, they sought the legal severing of the tie between the child and his father (in other words, to have his mother’s partner take the place of the biological father). In doing so they overlooked the father’s legitimate right to respect for his private and family life, also protected by Article 8. Notwithstanding the position of the majority on this point (see paragraphs 120 and 124 of the judgment), we believe that the option of overriding the father’s wishes, available to the courts under the Civil Code, constitutes an exceptional measure which should only be imposed in serious and established cases of a flagrant breach of parental obligations; this does not appear to be the situation here. A father should not have to justify his wish to continue to be a father to his son, still less when, as in the present case, he assumes his parental responsibilities in full.

The child’s best interests

8. It remains for us to examine the element which is at the heart of any adoption procedure, namely the child’s best interests (the major factor overlooked in this case). Leaving aside a possible conflict of interests between the mother as representative and her son (an issue raised but not ruled upon by the domestic authorities, see paragraph 18 of the judgment), efforts should have been made to ascertain the child’s position. He was aged between eleven and twelve at the time of the domestic proceedings, and is now approaching majority. He has a mother and a father: what best interests would have been served had his father been replaced by his mother’s partner? The first and third applicants, bound by emotional ties, expressed their interest in the adoption, but there was nothing to demonstrate that it was in the child’s “best interests”. Adoption means “providing a child with a family, not a family with a child” (see Fretté v. France , no. 36515/97, § 42, ECHR 2002 ‑ I). But the fact is that the second applicant has always had a family. The judgment is silent on this crucial point.

Second-parent adoption in same-sex couples

9. After pointing out that the present case does not concern the question whether or not the applicants’ adoption request should have been granted in the circumstances of the case (see paragraphs 132 and 152 of the judgment), the majority states twice that “the Court is not called upon to rule on the issue of second-parent adoption by same-sex couples as such, let alone on the question of adoption by same-sex couples in general” (see paragraphs 134 and 149 of the judgment). The majority goes on to add – without going into further details – that the aim of protecting the family in the traditional sense is “rather abstract” and that a broad variety of concrete measures may be used to implement it (see paragraph 139 of the judgment). On the subject of section 8(4) of the Registered Partnership Act, the majority observes that this provision “merely reflects the position of those sectors of society which are opposed to the idea of opening up second-parent adoption to same-sex couples” (see paragraph 143), without commenting further on this objective reality, which may be valid for Austria but also, possibly, for other States Parties to the Convention.

10. Lastly, we have difficulty understanding why the majority criticised the Government for failing to adduce any specific argument, scientific studies or other item of evidence to show that a family with two parents of the same sex could not adequately provide for a child’s needs (see paragraphs 142 and 146 of the judgment). Why should the Government have adduced such evidence? The question did not arise in the specific circumstances of this case. It was irrelevant. The fact that the second applicant appeared to be receiving a proper upbringing from his mother and her partner was not in dispute.

11. In our view the majority, with all due respect to it, said too much and yet not enough on the subject of second-parent adoption in same-sex couples.

II. Comparative law and international law

Comparative law and the “consensus” issue

12. In paragraph 149 of the judgment, in response to the Government’s assertion that there was no European consensus on the issue, the Court observed that “only those ten Council of Europe member States which allow second-parent adoption in unmarried couples may be regarded as a basis for comparison”, that “[w]ithin that group, six States treat heterosexual couples and same-sex couples in the same manner”, while “four adopt the same position as Austria”. The Court then considered that “the narrowness of this sample is such that no conclusions can be drawn as to the existence of a possible consensus among Council of Europe member States”.

13. This approach raises above all a methodological issue, regarding the “sample” of member States to be taken into account. Should this have been confined to States whose legal systems lent themselves to a near-automatic comparison with that of the respondent State, or should legislation relating to the wider context of the case also have been taken into consideration? If the former approach is taken, the majority was right to take account only of the legislation in the ten States Parties which make second-parent adoption available to unmarried couples.

14. But, assuming that this is actually the correct solution, the conclusion which the Court draws from it is, to say the least, curious. Given that six of these ten countries opted for one approach while the remaining four opted for a different one, it seems obvious that the States in question are sharply divided and that there is therefore no consensus. In such circumstances it seems very artificial to take refuge behind the “narrowness of this sample” in order to avoid the issue by stating that no conclusions can be drawn “as to the existence of a possible consensus”. This somewhat strange reasoning is explained by the fact that the method used may in reality not be the right one.

15. In fact, the method in question has the inescapable effect of disregarding a clear trend whereby the great majority of the States Parties currently do not authorise second-parent adoption for unmarried couples in general, still less for unmarried same-sex couples. To say that this is of no relevance for the purposes of the present case is, in our opinion, to take an unduly technical – and hence reductive – view of the situation Europe-wide. While the Court has and must have a sound technical grasp of issues, it must not lose sight of the major trends which are clearly in evidence across our continent, at least in the current circumstances. Furthermore, and moving from methodology to terminology, should we always adhere to the somewhat restrictive notion of “consensus”, which is rarely encountered in real life? Would it not be more appropriate and simpler to speak in terms of a “trend”? These observations lead us into a more detailed examination of the current state of international law in this regard.

International law and the trend towards a laissez-faire approach

16. The lack of any “consensus” and the variety of approaches to the subject of second-parent adoption in unmarried couples are reflected clearly in Article 7 § 2 of the European Convention on the Adoption of Children, which was revised in 2008 and came into force in 2011 (“the 2008 Convention”). According to that provision, “States are free to extend the scope of this Convention to same-sex couples who are married to each other or who have entered into a registered partnership together. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship”. In other words, this provision leaves States free to legislate as they see fit.

17. The Convention in question is dealt with in a rather ambivalent manner in the judgment. Some of its provisions – including the one cited above – and the corresponding passages of the explanatory report are reproduced in paragraphs 51 to 53 of the judgment, under the heading “International conventions and Council of Europe materials”. This suggests that this Convention is an instrument to be taken into consideration, in line with what has become the usual practice of the Court. We know that the Court frequently refers to Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties in order to draw on other international instruments which are of relevance for the purpose of interpreting the Convention (see I. Ziemele, “Other Rules of International Law and the European Court of Human Rights: A Question of a Simple Collateral Benefit?” in The European Convention on Human Rights, a living instrument. Essays in Honour of Christos L. Rozakis , D. Spielmann, M. Tsirli, P. Voyatzis (eds.), Brussels, Bruylant, 2011, pp. 741-58).

18. However, in paragraph 150 of the judgment the Court seems suddenly to distance itself from this practice. At first, it seems to want to dismiss the 2008 Convention from the outset because it “has not been ratified by Austria”. This argument seems strange bearing in mind that it is the Court’s usual practice to take inspiration from a number of international instruments, whether or not they have been ratified by the respondent State, on the basis that they reflect the current state of general international law (see, among many other authorities, Cudak v. Lithuania [GC], no. 15869/02, § 66, ECHR 2010). In order to justify this change of tack, the Court hastens to state, precisely, that “given the low number of ratifications so far, it may be open to doubt whether the [2008] Convention reflects common ground among European States at present”. This argument, while it may at first glance appear pertinent from an international-law perspective, amounts in reality to a sort of petitio principii . In fact, the only provision of the 2008 Convention which might be relevant in the context of the present case is Article 7 § 2 (cited above). However, this provision simply brings into sharper focus, we would repeat, the lack of “common ground among European States at present”. In other words, the drafters of the 2008 Convention sought, by means of this provision, to express implicitly but clearly their disagreement on the subject of second-parent adoption outside marriage and to leave themselves completely free when it came to enacting legislation on the subject. Rather than acknowledge this situation – and, hence, the Austrian Government’s argument concerning the lack of consensus – the Court chose instead to cast doubt on the relevance of the 2008 Convention overall.

19. However, immediately after attempting to dismiss the 2008 Convention, the majority invokes it in support of its main argument concerning the violation of Article 14 of the Convention taken in conjunction with Article 8. After reiterating the content of Article 7 § 2 of the 2008 Convention, the judgment adds: “This indicates that Article 7 § 2 does not mean that States are free to treat heterosexual and same-sex couples who live in a stable relationship differently” (see paragraph 150 of the judgment). Besides the fact that, in our view, this interpretation does not adhere to the letter of Article 7 § 2, it appears also to run counter to its object and purpose as set out in the explanatory report cited in paragraph 53 of the judgment. Charting the history of Article 7 § 2 and the thinking that led to its adoption, the explanatory report states as follows:

“45. Concerning paragraph 2 [of Article 7] it was noted that certain State Parties (Sweden in 2002 and the United Kingdom in 2005) denounced the 1967 Convention on the ground that same sex registered partners under their domestic law may apply jointly to become adoptive parents and that this was not in line with the Convention. Similar situations in other States could also lead to the denunciation of the 1967 Convention. However, it was also noted that the right of same sex registered partners to adopt jointly a child was not a solution that a large number of States Parties were willing to accept at the present time.

46. In these circumstances, paragraph 2 shall enable those States which wished to do so, to extend the revised Convention to cover adoptions by same sex couples who are married or registered partners. In this respect, it is not unusual for Council of Europe instruments to introduce innovative provisions, but to leave it to States Parties to decide whether or not to extend their application to them (see Article 5, paragraph 2, of the 2003 Convention on Contact concerning Children, ETS No. 192).

47. States are also free to extend the scope of the Convention to different or same sex couples who are living together in a stable relationship. It is up to States Parties to specify the criteria for assessing the stability of such a relationship.”

20. There is no escaping the fact that the passages cited above highlight first and foremost the differences in approach between European countries as regards adoption by same-sex couples, that they also underscore the “innovative” nature of Article 7 § 2 and, lastly, that they stress the fact that, under this Article, States are “also free to extend the scope of the Convention to different- or same-sex couples living together in a stable relationship” (italics added). The words in italics indicate clearly the complete freedom enjoyed by States when it comes to enacting legislation in this sphere. To infer from Article 7 § 2 that the Contracting States wished to restrict the freedom of manoeuvre of their respective legislatures in any way amounts, in our view, to an erroneous interpretation of that provision.

21. Similar remarks might be made in relation to Recommendation CM/Rec(2010)5, adopted on 31 March 2010 by the Committee of Ministers. Paragraph 23 of the Recommendation states that “[w]here national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same-sex and different-sex couples”. The same paragraph adds the words “including with respect to survivor’s pension benefits and tenancy rights”. The last part of the sentence – which is omitted from the citation in paragraph 150 of the judgment – is clearly inspired by the Court’s judgment in Karner v. Austria (no. 40016/98, in particular §§ 34 et seq., ECHR 2003 ‑ IX), and appears to be an attempt to place paragraph 23 of the above-mentioned Recommendation in the sphere of property – and even inheritance – rather than that of adoption. That view is corroborated by the fact that the Recommendation contains a paragraph (paragraph 27) devoted specifically to adoption. This provision – which is omitted from paragraph 150 of the judgment – reads as follows: “Taking into account that the child’s best interests should be the primary consideration in decisions regarding adoption of a child, member states whose national legislation permits single individuals to adopt children should ensure that the law is applied without discrimination based on sexual orientation or gender identity.” This paragraph echoes the situation examined by the Grand Chamber of the Court in its judgment in E.B. v. France , cited above (see, in particular, §§ 70 et seq.). It does not concern second-parent adoption.

22. Paragraph 150 of the judgment contains one final argument, to the effect that: “... even if the interpretation of Article 7 § 2 of the 2008 Convention were to lead to another result, the Court reiterates that States retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention (see Al-Saadoon and Mufdhi v. the United Kingdom , no. 61498/08, § 128, ECHR 2010)”. This is undoubtedly correct from the standpoint of States’ international responsibility. However, Article 7 § 2 of the 2008 Convention does not give rise to any commitments. On the contrary, it leaves States free to legislate as they see fit. Consequently, the passage cited above does not appear to be relevant in the present case. It should also be pointed out that in its recent judgment in Nada v. Switzerland ([GC], no. 10593/08, § 170, ECHR 2012) the Grand Chamber reaffirmed its previous approach, according to which, where “a number of apparently contradictory instruments are simultaneously applicable, international case-law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law (see, to this effect, Al-Saadoon and Mufdhi , cited above, § 126; Al-Adsani [ v. the United Kingdom [GC], no. 35763/97], § 55, [ECHR 2001-XI] and Banković and Others [ v. Belgium and Others (dec.) [GC], no. 52207/99,] §§ 55-57, [ECHR 2001-XII]; see also the references cited in the [International Law Commission] study group’s report entitled ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’ ...)”. This approach based on harmonisation – rather than opposition – between the relevant treaty instruments seems to us all the more preferable in the instant case given that the 2008 Convention on the Adoption of Children is a recent Council of Europe instrument.

The limits of the evolutive interpretation: “present-day conditions” or those of the future?

23. Following on from the arguments outlined above, we would like to conclude with a few brief considerations concerning the so-called evolutive method of interpretation. We know that since its judgment in Tyrer v. the United Kingdom , the Court has frequently reiterated that the Convention is a living instrument which must be interpreted “in the light of present-day conditions” (see Tyrer v. the United Kingdom , 25 April 1978, § 31, Series A no. 26). In other words, the point of the evolutive interpretation, as conceived by the Court, is to accompany and even channel change (see C. Rozakis, “The Particular Role of the Strasbourg Case-Law in the Development of Human Rights in Europe”, in European Court of Human Rights – 50 Years , Nomiko Vima, Athens Bar Association, Athens, 2010, pp. 20-30, and especially pp. 25 et seq.); it is not to anticipate change, still less to try to impose it. Without in any way ruling out the possibility that the situation in Europe in the future will evolve in the direction apparently wished for by the majority, this does not seem to be the case, as we have seen, at present. We therefore believe that the majority went beyond the usual limits of the evolutive method of interpretation.