CONCURRING OPINION OF JUDGE COSTA JOINED BY JUDGE SPIELMANN

(Translation)

I voted in favour of finding no violation of Article 14 of the Convention read in conjunction with Article 8. I would like to express some reservations regarding this outcome and make a few remarks on the possible follow-up to this case, in particular on the part of the respondent State, France.

The facts are straightforward. Ms Gas and Ms Dubois, the first and second applicants, live together as a couple. They first cohabited and then entered into a civil partnership. The second applicant gave birth to a daughter, conceived by means of anonymous donor insemination, and formally recognised her. Her partner, the first applicant, subsequently applied to adopt the child, with the second applicant’s express consent. The domestic courts rejected the application on the grounds that, while Article 365 of the Civil Code did not per se prohibit adoption in such cases, it would have had the effect of depriving the second applicant of parental responsibility by transferring it to the first applicant. Article 365 provides for only one exception to this rule, namely where the adoptive parent is the spouse of the biological parent. Ms Gas is not married to Ms Dubois and, as French law currently stands, cannot be married to her since they are of the same sex.

The two applicants therefore argued before our Court that the refusal of the application to adopt had been discriminatory for the purposes of Article 14.

The situation resulting from this application of Article 365 – which, in my view, was correctly applied – brings to light certain paradoxes.

First of all, had the applicants been a man and a woman who were not married, they would not have been eligible for this type of adoption either; it is therefore difficult to argue that this was a case of discrimination based on sex, still less that it was homophobic.

Secondly, it is true that the applicants were unable to marry. Admittedly, they argued that they were not claiming a right to marriage for same-sex couples; nevertheless, it is clear that, if the prohibition on same-sex marriage were to be lifted, and the applicants decided to marry rather than remain as civil partners, the objection to the little girl’s adoption raised by the French courts would no longer apply. As to the fact that the adoptive parent would be a lesbian, this would not in principle pose an obstacle to the adoption, as held by the Court in E.B. v. France ([GC], no. 43546/02, 22 January 2008).

Lastly, the only ground on which discrimination could be established would be that of unequal treatment between two prospective adoptive parents, irrespective of their gender, on the basis that one was the spouse of the biological and legal parent, and the other was not. However, that is not of direct concern to the applicants in this case. The judgment therefore rightly states, in paragraph 69, that the applicants’ complaint, in so far as it relates to their sexual orientation, is unfounded, since the effects of Article 365, in my view, do not differ according to sexual orientation.

I would add, however, that I was a little unsettled by the dissenting opinion of my colleague Judge Villiger. He takes the view, pointing to some important practical aspects, that the situation giving rise to the present case is incompatible with the child’s “best interests”. It is undisputed that this concept occupies an important position in the United Nations Convention on the Rights of the Child, in particular in Article 3 and, in the specific context of adoption, in Article 21. It is equally clear that the Court’s case ‑ law, in a variety of spheres, has for a long time made extensive reference to this criterion (see Johansen v. Norway , 7 August 1996, § 77, Reports of Judgments and Decisions 1996 ‑ III, and numerous judgments since).

But I can only agree with my colleague up to a point. First of all, it is not clear that it would be in the best interests of the child to be adopted by Ms Gas, since this would deprive her mother, Ms Dubois, of parental responsibility. And even if it were to be the case, it is difficult to argue this point without falling into the “fourth instance” trap. Let us not yield to that temptation.

In fact, Judge Villiger’s reasoning should be taken to its logical conclusion by ruling that the Convention overrides Article 365 of the Civil Code. This is certainly possible, and was done by the Court in Mazurek v. France (no. 34406/97, ECHR 2000 ‑ II). But I do not believe that, in a matter such as this, which concerns real societal issues, it is the Court’s place to censure the legislature in so drastic a manner (which, it should be pointed out, the Constitutional Council refrained from doing, albeit from the standpoint of the Constitution rather than the Convention: see its decision no. 2010-39 QPC of 6 October 2010).

In reality – and this will be my closing remark – the case-law concedes that there are areas in which the national legislature is better placed than the European Court to bring about change in institutions concerning the family, relations between adults and children, and the concept of marriage. Let me give one example. Same-sex marriage is the subject of democratic debate in several European countries. It was mainly for that reason that the Court opted in a recent judgment to exercise limited supervision over national choices (see Schalk and Kopf v. Austria , no. 30141/04, ECHR 2010). In my view, the need for consistency in case-law policy calls for an equally restrained approach in the present case, although I find the structure of Article 365 of the Civil Code less than convincing... It is to be hoped, therefore, that the French legislature will not merely be satisfied with the finding of no violation and will decide, if I may say so, to review this issue.